Below you will find the general terms and conditions of Msafe B.V., located at Linnaeusweg 9a, 3401 MS IJsselstein, the Netherlands (Chamber of Commerce 87981750). This version dates from January 2023.
You can also download the terms as a pdf in Dutch, English, German and French. The Dutch version is the original and binding version. In the event of any discrepancies between translations, the Dutch version prevails.
1. General terms and conditions
1.1 These terms and conditions are the general terms and conditions of Msafe B.V. (hereinafter Msafe) and apply to all offers and/or agreements under which Msafe provides goods and/or services of any kind to Client.
1.2 Deviations from these general terms and conditions shall only be valid if agreed in writing between the parties.
1.3 The applicability of Client’s purchasing or other conditions is expressly rejected.
1.4 If any provision of these general terms and conditions is found to be void or annulled, the remaining provisions of these general terms and conditions shall remain in full force and effect.
1.5 Client is not entitled to sell and/or transfer the rights and/or obligations under the agreement to a third party. Msafe is entitled to assign its claims to payment of fees to a third party.
2. Offers
2.1 All offers and expressions by Msafe are without obligation unless Msafe has explicitly stated otherwise.
2.2 The Customer warrants that the data (in any sense) provided by it to Msafe on which Msafe has based its offers and/or expressions are correct and complete.
2.3 An agreement between Client and Msafe is not intended to effect the transfer of part of the Client’s business or of Client’s personnel to Msafe, unless expressly agreed and specifying the personnel concerned. The consequences (if any) of applicability of the European Directive 2001/23/EC and/or related locally applicable laws and regulations shall be for the account and risk of Client and Client shall indemnify Msafe against claims of Client’s personnel or third parties invoking this legislation.
2.4 If and insofar as Msafe indirectly supplies services and/or products of third parties, provided that Msafe has informed Client in writing that these are services and/or products of third parties or if this is otherwise known to Client, the terms and conditions of these third parties shall apply with regard to these services and/or products, setting aside the provisions in these terms and conditions deviating therefrom unless these terms and conditions prejudice the rights of Msafe as laid down in these terms and conditions. Client accepts the said third party terms and conditions. These terms and conditions are available for inspection by the Customer at Msafe and Msafe shall send them to the Customer at his request or publish them or cause them to be published by means of so-called shrinkwrap/shrink-wrap or click-through/click-through or other electronic terms and conditions. If and insofar as the said third-party terms and conditions are deemed for whatever reason not to apply or are declared inapplicable in the relationship between Client and Msafe, the provisions of these terms and conditions shall apply.
3. Price and payment
3.1 All prices are exclusive of turnover tax and other government levies. Unless otherwise agreed, all amounts are in euros and Client shall pay all amounts due in euros.
3.2 The amounts in the offers and statements issued by Msafe are indicative only, unless Msafe has indicated otherwise. A budget indicated by the Client shall never count as a fixed price agreed between the parties. Only if this has been agreed in writing, Msafe shall be obliged to inform the Client in the event of an imminent overrun of a previously given estimate.
3.3 If Client consists of several natural and/or legal persons, each of these persons is jointly and severally liable to pay the amounts due under the agreement.
3.4 In respect of the performances performed by Msafe and the amounts owed by the Customer for them, the relevant documents and data from Msafe’s administration or systems shall constitute full evidence, without prejudice to the Customer’s right to provide evidence to the contrary.
3.5 Msafe is entitled to adjust the prices annually per 1 January using the CBS Price Index: Service prices; commercial services and transport, index 2010 = 100.
3.6 Unless Msafe and Client have explicitly agreed a different payment term in writing, a payment term of 30 days after the invoice date shall apply. The Client is not entitled to any suspension of any payment nor to set off any amounts due.
3.7 If the Customer fails to pay the amounts due in accordance with the aforementioned payment schedule or the schedule explicitly agreed between the Parties, the Customer shall owe statutory commercial interest without any reminder or notice of default being required. If after a demand for payment or notice of default the Customer continues to fail to pay the claim, Msafe may pass on the claim for collection, in which case Msafe, in addition to the total amount then due, shall also be obliged to compensate all judicial and extrajudicial costs, including all costs calculated by external experts.
4. Privacy and data processing
4.1 Msafe shall implement appropriate administrative, physical and technical security measures to ensure the security, confidentiality and integrity of the Customer’s Personal Data as reflected in this Agreement. Such security measures include, but are not limited to, measures to prevent access to, use, modification or disclosure of Client Personal Data by any third party or Msafe personnel, except (a) to provide the Services and to prevent or remedy service or technical problems, (b) as required by law in accordance with the provisions of this Agreement, or (c) as expressly authorised in writing by Client. To the extent Msafe processes Personal Data (as defined in the relevant Data Processing Addendum) on behalf of the Client, within the scope of providing the Services, the terms of such Processing shall be in accordance with the Data Processing Addendum (“Addendum”), which is attached hereto for reference and the parties agree to abide by such terms. For the purposes of the standard contractual clauses in the Addendum, where applicable, the Client shall be the Data Controller and the Data Exporter
4.2 Client, as Processing Controller, warrants that all statutory regulations concerning the processing of personal data (Processing), including the regulations given by or pursuant to the General Data Protection Regulation (AVG), are strictly observed and that all prescribed notifications have been made and all required consents and/or authorisations to Process have been obtained. The Client shall promptly provide Msafe with all information requested in this regard in writing.
4.3 The Client, as Controller, guarantees that all Personal Data processed on its behalf by Msafe for the purposes of the Agreement (hereinafter “Client Personal Data”) are processed in accordance with applicable data protection legislation, including but not limited to the Client’s own obligations as Processor regarding the legitimacy of the Processing, the categories of data being processed, the rights of data subjects (including data provision), the definition and implementation of adequate retention periods, the completion of relevant formalities, if applicable as well as any verifications and assurances regarding the adequacy of the guarantees provided by Msafe regarding the Processing and protection of Personal Data of the Client. In this regard, Client warrants that it has taken all necessary steps to ensure compliance with its own obligations under applicable data protection legislation.
4.4 The Addendum will contain the Client’s instructions, details of the Processing and Msafe will implement appropriate technical and organisational and confidentiality measures aimed at preventing unlawful or inadvertent destruction, loss, modification or unauthorised disclosure of or access to Client Personal Data , as set out in a security document forming part of the Agreement and/or this Addendum and its appendices, such security document to include technical and organisational measures in detail, which may include production, encryption, back-up options and ongoing monitoring and testing of security measures, and attached to the Agreement and/or Addendum.
4.5 For the purpose of the agreement, Msafe promises to comply with the terms of the Binding Corporate Rules. Consequently, the Client hereby expressly agrees that Personal Data of the Client may be transferred to any of the Msafe Group entities under the terms of the Binding Corporate Rules as set out in Appendix 2 of the Binding Corporate Rules. Msafe will make available by all possible means any updates to the Binding Corporate Rules, or for example general information published from time to time on the website, which may change from time to time. The Client undertakes to provide adequate information to Data Subjects regarding the use of Msafe as a processor (including entities of the Msafe group outside the EEE), plus the Binding Corporate Rules available on Msafe’s website, currently www.Msafe.nl/ (subject to changes from time to time).
4.6 Msafe shall comply with the obligations imposed on it pursuant to the legislation concerning the Processing carried out as Processor. Msafe shall ensure appropriate technical and organisational measures to secure (personal) data against loss or against any form of unlawful processing in the manner set out in the Addendum.
4.7 The Client shall indemnify Msafe against all third-party claims that may be brought against Msafe on account of a breach of the AVG and/or other legislation concerning Processing not attributable to Msafe.
4.8 The Client indemnifies Msafe against all claims of third parties, including government agencies, which may be brought against Msafe for breach of legislation regarding the statutory retention periods
4.9 If and insofar as, in the context of an agreement, the Customer makes personal data available to Msafe and has them processed by Msafe, Msafe acts as Processor within the meaning of the AVG. If Processing takes place, the group memberships of the parties involved therein shall conclude a separate Processor Agreement to this end. Msafe shall comply with the obligations of a Processor as laid down in the AVG. Msafe shall only process the personal data on behalf of the Client. The relevant agreement implies the Customer’s assignment to process the personal data within the framework of the agreement.
4.10 The Client shall indemnify Msafe against all claims by third parties, including data subjects and government institutions, that may be brought against Msafe for breach of legislation regarding the statutory retention periods, unless the Client demonstrates that the facts underlying the breach are entirely attributable to Msafe.
4.11 Msafe’s assistance to Client in relation to its compliance with the AVG and/or the Addendum, in addition to the services will be invoiced at Msafe’s then current rates (time and materials) and/or as agreed.
4.12 When computer, data or telecommunication facilities are used in the execution of the agreement or otherwise, Msafe shall be entitled to assign access or identification codes to the Client. Msafe shall be entitled to change assigned access or identification codes. The Client shall treat the access and identification codes confidentially and with care and shall only disclose them to authorised personnel. Msafe shall never be liable for damage and costs resulting from use or misuse made of access or identification codes unless the misuse was possible as a direct consequence of an act or omission by Msafe.
5. Security
5.1 Where the parties have agreed on a form of information security, such security shall meet the specifications as agreed between the parties in writing. Msafe never guarantees that the information security is effective under all circumstances. In the agreement the parties may have included further conditions, requirements and specifications regarding security and the consequences associated with it. In the absence of explicitly defined security in the agreement, the security shall meet a level that is not unreasonable in view of the state of the art, the sensitivity of the data and the costs associated with implementing the security. The Client shall not change or disable any form of information security provided and/or set up by Msafe without proper consultation with Msafe.
6. Retention of title and rights, case formation and suspension
6.1 All goods delivered to the Customer shall remain Msafe’s property until all amounts owed by the Customer to Msafe under the agreement concluded between the parties have been paid to Msafe in full. A Client acting as reseller shall be allowed to sell and resupply all goods subject to Msafe’s retention of title to the extent customary in the normal course of his business.
6.2 Any rights, including rights of use, shall be granted or transferred to the Customer under the condition that the Customer has paid all fees due under the agreement concluded between the parties in full. If, for the granting of a right of use, the parties have agreed on a periodic payment obligation on the part of the Customer, the Customer shall have the right of use as long as he fulfils his periodic payment obligation.
6.3 Msafe may retain the items, products, property rights, data, documents, software, data files and (intermediate) results of Msafe’s services received or generated in the context of the agreement, despite an existing obligation to surrender or transfer, until the Customer has paid all amounts due to Msafe.
7. Risk
7.1 The risk of loss, theft, embezzlement or damage of items, products, data, documents, software, data files or data (codes, passwords, documentation, etc.) manufactured or used in the context of the execution of the agreement shall pass to the Customer at the time they are placed in the actual disposal of the Customer or an auxiliary person of the Customer. Insofar as these objects are in the actual disposal of Msafe or auxiliary persons of Msafe, Msafe shall bear the risk of loss, theft, embezzlement or damage.
8. Intellectual property rights
8.1 All intellectual property rights to the software, websites, data files, equipment or other materials such as analyses, designs, documentation, reports, quotations, training, testing and examination materials, as well as preparatory materials thereof, developed or made available to the Client on the basis of the agreement, belong exclusively to Msafe, its licensors or its suppliers. The Client only acquires the rights of use expressly granted by these general terms and conditions and the law. Any right of use granted to Client is non-exclusive, non-transferable to third parties and non-sublicensable.
8.2 The Customer is not allowed to remove or change any indication concerning the confidential nature or concerning copyrights, brands, trade names or any other right of intellectual property from the software, websites, data files, equipment or materials.
8.3 Even if the agreement does not expressly provide for an authorisation to do so, Msafe is permitted to install technical provisions to protect the software, equipment, data files, websites and the like in connection with an agreed limitation in the content or duration of the right to use these objects. The Customer shall never be permitted to remove or bypass such technical provision (or have it removed).
8.4 Msafe shall indemnify the Client against any legal action from a third party based on the allegation that software, websites, data files, equipment or other materials developed by Msafe itself infringe an intellectual property right of that third party, on the condition that the Client immediately informs Msafe in writing of the existence and content of the legal action and leaves the handling of the matter, including the conclusion of any settlements, entirely to Msafe. To this end, the Client shall provide Msafe with the necessary powers of attorney, information and cooperation to defend itself, if necessary in the name of the Client, against these legal claims. This obligation to indemnify shall lapse if the alleged infringement relates (i) to materials made available by the Client to Msafe for use, adaptation, processing or incorporation, or (ii) to changes the Client has made or had made by a third party without Msafe’s written permission in the software, website, data files, equipment or other materials. If it is irrevocably established at law that the software, websites, data files, equipment or other materials developed by Msafe itself infringe any intellectual property right belonging to a third party or if in Msafe’s opinion there is a reasonable chance that such an infringement will occur, Msafe shall, if possible, ensure that the Customer can continue to use the delivered or functionally equivalent other software, websites, data files, equipment or materials. Any other or further indemnity obligation of Msafe is excluded.
8.5 The Client guarantees that no rights of third parties oppose the provision to Msafe of equipment, software, material intended for websites (visual material, text, music, domain names, logos, hyperlinks, etc.), data files or other materials, including design material, for the purpose of use, adaptation, installation or incorporation (e.g. in a website). Client shall indemnify Msafe against any claim by a third party based on the allegation that such making available, use, adaptation, installation or incorporation infringes any right of that third party.
9. Cooperation obligations
9.1 The parties acknowledge that the success of work in the field of information and communication technology depends on correct and timely mutual cooperation. In order to enable Msafe to properly execute the agreement, the Client shall always provide Msafe with all data or information deemed useful, necessary and desirable by Msafe in due time and cooperate fully. If Client deploys its own personnel and/or auxiliary persons within the framework of providing cooperation in the execution of the agreement, these personnel and auxiliary persons shall have the necessary knowledge, expertise and experience.
9.2 Msafe shall inform Customer regarding the products and services that Msafe offers to Customer. However, it is up to Customer to decide which goods and/or services Customer purchases from Msafe. Customer bears the risk of the selection, use, application and management in its organisation of the equipment, software, websites, data files and other products and materials and of the services to be provided by Msafe. Unless other agreements have been made in writing between Msafe and the Client, the Client itself shall be responsible for the correct installation, assembly and commissioning and for the correct settings of the equipment, software, websites, data files and other products and materials.
9.3 In case employees of Msafe perform work on site of Client, Client shall provide free of charge the facilities reasonably desired by those employees, such as a work space with computer, data-telecommunication facilities. The workspace and facilities shall comply with all statutory and other applicable requirements regarding working conditions. Client indemnifies Msafe against claims of third parties, including employees of Msafe, who in connection with the execution of the agreement suffer damage resulting from acts or omissions of the Client or from unsafe situations in his organisation. The Client shall make the house and security rules applicable within its organisation known to the employees deployed by Msafe before commencement of the work.
9.4 In the performance of Msafe’s services, computer, data or telecommunication facilities, including the Internet, are often used. Unless otherwise agreed in writing, the Client is responsible for the correct choice of the resources required for this and for their timely and complete availability, except for those facilities under the direct use and management of Msafe. Msafe shall never be liable for damage or costs due to transmission errors, malfunctions or non-availability of these facilities unless the Client proves that this damage or costs result from intent or wilful recklessness of Msafe’s management.
10. Terms
10.1 All (delivery) periods and (completion) dates stated or agreed by Msafe are established to the best of its knowledge on the basis of the data known to Msafe when the agreement was concluded. Interim (delivery) dates mentioned by Msafe or agreed between the parties are always target dates, are not binding for Msafe and are always of an indicative nature only. Msafe makes reasonable efforts to observe final (delivery) periods and final (completion) dates as much as possible. Msafe is not bound by a (delivery) deadline or (completion) date that can no longer be met due to circumstances beyond its control that occurred after the agreement was entered into. Nor is Msafe bound by a deadline (delivery) date or (delivery) date if the parties have agreed on a change in the content or scope of the agreement (additional work, change in specifications etc.) or a change in the approach to the execution of the agreement. If the exceeding of any deadline is imminent, Msafe and Client shall consult to discuss the consequences of the exceeding for the further planning.
10.2 The mere exceeding of a deadline (for delivery or otherwise) or date mentioned by Msafe or agreed between the parties does not place Msafe in default. In all cases – therefore also in the event the parties have expressly agreed in writing on a final (delivery) deadline or (delivery) date – Msafe shall only be in default on account of exceeding time after the Client has given it written notice of default. The notice of default must contain as complete and detailed a description of the failure as possible, so that Msafe is given the opportunity to respond adequately.
11. Dissolution and termination of the agreement
11.1 Each of the parties shall only be authorised to dissolve the agreement on account of an attributable failure in the performance of the agreement if the other party, in all cases after a written notice of default giving as much detail as possible and setting a reasonable term for remedying the failure, fails attributably in the performance of essential obligations under the agreement. The Customer’s payment obligations and all obligations to cooperate by the Customer or a third party engaged by the Customer shall always be considered essential obligations under the agreement.
11.2 If at the time of dissolution as referred to in clause 11.1 has already received performance in execution of the agreement, this performance and the related payment obligation shall not be the object of undoing, unless the Client proves that Msafe is in default with regard to the essential part of that performance. Amounts that Msafe has invoiced before the dissolution in connection with what it has already duly performed or delivered in execution of the agreement shall remain due in full with due observance of the provisions in the previous sentence and shall become immediately payable at the time of dissolution.
11.3 Where the parties have entered into an agreement for an indefinite period, it may be terminated in writing by either party, after proper consultation and stating reasons, in accordance with the notice period included in the agreement. If no notice period is agreed in the agreement, a notice period of 60 days will apply.
11.4 The Client shall never be entitled to prematurely terminate a services agreement or assignment agreement entered into for a definite period.
11.5 Where there is a framework agreement with sub-agreements under it, the relevant framework agreement cannot be terminated until after all the relevant sub-agreements have been terminated.
11.6 Each of the parties may terminate the agreement in writing with immediate effect in full or in part without notice of default if the other party is granted a suspension of payment – provisional or otherwise -, if bankruptcy is applied for in respect of the other party, if the other party’s company is wound up or terminated other than for the purpose of reconstruction or company merger, or if the decisive control over the Client’s company changes. Msafe shall never be obliged to refund monies already received or to pay damages because of such termination. In the event of the Client’s bankruptcy, the right to use software, websites and the like made available to the Client shall lapse.
12. Liability
12.1 Msafe’s total liability due to an attributable failure in the fulfilment of the agreement or for any other reason, expressly including any failure in the fulfilment of a guarantee obligation agreed with Client, is limited to compensation of direct damage up to a maximum of the amount of the price (excl. VAT) stipulated for that agreement. If the agreement is an agreement with a duration of more than one year, the price stipulated for the agreement shall be set at the total of the fees (excluding VAT) stipulated for one year. In no case, however, shall Msafe’s total liability for direct damage, on any grounds whatsoever, exceed €500,000 (five hundred thousand Euros).
12.2 Msafe’s liability for damage due to death, physical injury or due to material damage to property shall never exceed €1,250,000 (one million two hundred and fifty thousand Euros) in total.
12.3 Msafe’s liability for indirect damage, consequential damage, loss of profit, lost savings, diminished goodwill, damage due to business interruption, damage resulting from claims by the Customer’s customers, damage relating to the use of goods, materials or software of third parties prescribed by the Customer to Msafe and damage relating to the engagement of suppliers prescribed by the Customer to Msafe is excluded. Also excluded is Msafe’s liability due to mutilation, destruction or loss of data or documents.
12.4 The in article Error! Reference source not found. to 12.3referred to shall not affect Msafe’s other exclusions and limitations of liability under these general terms and conditions. The exclusions referred to in articles 12.1 to 12.3 exclusions and limitations referred to in articles 12.1 to 12.3 lapse if and insofar as the damage results from intent or conscious recklessness of Msafe’s management.
12.5 Unless performance by Msafe is permanently impossible, Msafe’s liability due to an attributable failure in the performance of an agreement only arises if the Client gives Msafe immediate notice of default in writing, in which a reasonable period for remedying the failure is given, and Msafe continues to fail imputably in the performance of its obligations even after this period. The notice of default must contain as complete and detailed a description of the failure as possible so that Msafe is given the opportunity to respond adequately.
12.6 A condition for the emergence of any right to compensation is always that the Client reports the damage to Msafe in writing as soon as possible after its occurrence. Any claim for compensation against Msafe lapses by the mere lapse of twenty-four months after the claim arose. The provisions in this article as well as all other limitations and exclusions of liability mentioned in these general terms and conditions also apply in favour of all (legal) persons whose services Msafe makes use of in the execution of the agreement.
13. Force majeure
13.1 Neither party is obliged to fulfil any obligation if prevented from doing so as a result of force majeure. Force majeure includes: (i) force majeure of Msafe’s suppliers, (ii) failure to properly fulfil obligations of suppliers prescribed by Client to Msafe, (iii) defectiveness of items, equipment, software or materials of third parties the use of which has been prescribed by Client to Msafe, (iv) government measures, (v) electricity failure, (vi) failure of internet, computer network or telecommunication facilities, (vii) war, (viii) general transport problems of one or more members of staff.
13.2 If a force majeure situation lasts longer than ninety days, each of the parties has the right to dissolve the agreement in writing. What has already been performed under the agreement shall in that case be settled proportionally, without the parties owing each other anything else.
14. Services
14.1 Msafe shall endeavour to perform the services to the best of its ability, where applicable in accordance with the agreements and procedures laid down in writing with the Client. All services by Msafe are performed on the basis of an obligation to perform to the best of one’s ability, unless and insofar as Msafe has expressly promised a result that is sufficiently specifically described in the written agreement. Where appropriate, the burden of proof that the services and the results of Msafe’s services do not satisfy what has been agreed in writing or what may be expected of a reasonably acting and competent service provider such as Msafe rests entirely on the Client, without prejudice to Msafe’s right to provide evidence to the contrary by all means. Msafe may continue to perform the agreed services using a new or modified version of the agreed software. Msafe shall not be obliged to maintain, modify or add certain features or functionalities of the service or software specifically for the Customer. In addition, Msafe shall not be obliged to carry out data conversion.
14.2 Msafe shall perform the services only on behalf of the Client. Where Msafe carries out work in relation to data of the Client, its employees or users pursuant to a request or authorised order from a government body or in connection with a legal obligation, all associated costs shall be charged to the Client.
14.3 Msafe does not guarantee that the equipment and/or software it uses in the context of its services will be adapted in time to relevant laws and regulations or that it will function without errors and without interruptions. Msafe does not warrant that defects in software not developed by Msafe itself will be remedied. Msafe is entitled to implement temporary solutions or programme bypasses or problem-avoiding restrictions in the software. All equipment, software and items used by Msafe in the provision of services shall remain the property or intellectual property of Msafe, even if the Customer pays a fee for their development or acquisition by Msafe.
14.4 The agreement between Msafe and Customer may include additional provisions on the availability of Msafe’s services during the performance of preventive, corrective or adaptive maintenance work by Msafe. If nothing specific is included in this regard between the parties, Msafe shall be entitled to temporarily take the services out of service, in whole or in part, for the aforementioned maintenance work. Msafe shall not allow the decommissioning to last longer than necessary, if possible outside office hours and, depending on the circumstances, commence after notifying the Client.
14.5 Where Msafe provides services using data to be supplied by the Client, these data shall be prepared by the Client in accordance with the conditions to be laid down by Msafe and supplied at the expense and risk of the Client. The Client warrants that all materials, data, equipment, software, procedures, instructions and other operating resources made available by him to Msafe for the performance of the services are always correct and complete and that all data carriers supplied to Msafe meet Msafe’s specifications. In cases referred to in the previous sentence, the Customer shall be responsible for obtaining all necessary licences or approvals in relation to these operating resources required by Msafe.
14.6 If the services agreed between the parties change in content and/or scope and/or are extended, Msafe is entitled to charge additional costs to the Client for this. Only when the parties have explicitly agreed this in writing, Msafe shall be obliged to follow timely and responsible instructions given by the Customer during the performance of services. Msafe shall not be obliged to follow instructions that change or supplement the content or scope of the agreed services. However, if such instructions are followed, the relevant work shall be compensated according to Msafe’s usual rates.
14.7 Msafe’s services shall be performed exclusively on Msafe’s usual working days and times. Schedules and other estimates of Msafe are based on these. If it is agreed in the agreement that Msafe shall perform so-called “standby services” for the benefit of the Client, Msafe shall ensure that one or more staff members are available during the days and times mentioned in the agreement. The Client shall be entitled to summon the aforementioned staff members in the cases mentioned in the agreement. Msafe does not guarantee that all breakdowns will be remedied or that the assistance of the called-in staff members will be effective. If an agreement entered into between Msafe and the Client is entered into with a view to performance by a specific person, Msafe shall always be entitled, after consultation with the Client, to replace this person by one or more other persons with the same or similar qualifications. Where it has been agreed that Msafe’s services will take place in phases, or if Msafe’s method of working provides for a phased approach, Msafe is entitled to delay the start of the services belonging to a phase until the Client has approved in writing the results of the preceding phase.
15. Management services
15.1 Msafe shall perform management services if and to the extent agreed in writing with Customer. Msafe may refer to the management services it provides by any other designation, including but not limited to ‘security as a service’ or ‘managed application services’. Even where Msafe has given certain management services a different designation in its communications, the provisions below regarding management services shall apply to the aforementioned services.
15.2 Where Msafe and Client have agreed on certain management services, the quotation and/or agreement may include further details of the specifically agreed management services. The quotation/agreement may also describe in more detail what the Client may expect under the agreed management services and what Msafe may expect from the Client. Procedures and/or working methods used by Msafe are only binding if this has been explicitly agreed.
15.3 With regard to management services, Msafe is only obliged to perform support, backup, development or repair work if and to the extent the parties have agreed in writing.
15.4 Within the framework of management services, Msafe shall be responsible only for that part of the aforementioned service which, according to the agreement concluded between the parties, is the responsibility of Msafe.
16. Consultancy, project management and secondment
16.1 Msafe shall carry out advisory, consultancy project management and/or secondment work (hereinafter also referred to as: the work) if and to the extent agreed in writing with Client. The provisions of this article 16 regarding advice, consultancy project management and secondment shall apply without prejudice to what is included in article 17 of these general terms and conditions.
16.2 Msafe’s services are performed exclusively on schedules and work is based on work being performed by Msafe on Msafe’s usual working days and times.
16.3 If the parties have agreed on secondment in the agreement, Msafe shall make available to Client the employee designated in the agreement to perform work under its management and supervision in accordance with what has been agreed between the parties.
16.4 The Client is not allowed to lend or make available the employee made available within the framework of secondment to a third party or to have him perform work outside the Netherlands without Msafe’s prior written consent.
16.5 Client is entitled to request replacement of the seconded employee if the employee in question expressly fails to meet agreed quality requirements and Client makes this known to Msafe in a timely manner, or in the event of long-term illness or retirement of the employee in question. Msafe shall endeavour to provide replacement as soon as possible but does not guarantee that this will always be possible. Msafe shall endeavour in the framework of secondment to keep the agreed employee available for work during the term of the agreement. Msafe is entitled to replace the employee made available after consultation with Client.
16.6 The Client is obliged towards the assigned employee and Msafe to comply with relevant legislation and the obligations arising from related regulations regarding safety in the workplace and good working conditions in general.
16.7 Msafe shall be responsible for the timely and complete payment of the wage tax, social insurance contributions and turnover tax payable for the assigned employee in connection with the agreement with Client. Msafe shall indemnify the Client against all claims from the tax authorities or from the bodies implementing social insurance legislation that are due because of the agreement with the Client, on the condition that the Client informs Msafe immediately in writing of the existence and content of the claim and leaves the handling of the matter, including making settlements, entirely to Msafe. To this end, the Client shall provide Msafe with the necessary powers of attorney, information and cooperation to defend itself, if necessary in the name of the Client, against these claims.
16.8 Msafe accepts no liability for the selection of the employee provided or for the results of work performed under the Customer’s management, supervision or direction. The Client’s use of any advice provided by Msafe is always at the Client’s risk.
16.9 Client is liable for all damage suffered by the seconded employee during or in connection with the work assigned to him. The Client indemnifies Msafe against all third party claims arising from or related to the work performed by the seconded employee under the agreement. The Client indemnifies Msafe against any liability arising from physical injury or death of the seconded employee in connection with the performance of the agreement entered into between Msafe and the Client.
17. Reporting and intelligence
17.1 Msafe shall provide the Client with periodic information on the execution of the work in the manner agreed in writing through the contact person designated by the Client. The Client shall notify Msafe in writing in advance of circumstances that are of importance to Msafe, such as about the manner of reporting, the question points for which the Client wishes attention, prioritisation by the Client, availability of resources and personnel of the Client and special or possibly unknown facts or circumstances for Msafe. Client shall ensure the further distribution and perusal of the information provided by Msafe within Client’s organisation and assess this information partly on the basis thereof and inform Msafe accordingly.
17.2 If an employee deployed by Msafe is part of a project or steering group that also includes one or more persons appointed by the Client, information shall be provided in the manner prescribed for the project or steering group. Decisions taken in such a composite project or steering group shall only bind Msafe if the decision-making is made with due observance of what has been agreed between the parties in writing or, in the absence of written agreements to this effect, if Msafe has accepted the decisions in writing. Msafe shall never be obliged to accept a decision if in its opinion it is incompatible with the content of the agreement between the parties. Client warrants that the persons appointed by him to form part of a project or steering group in which persons of Msafe also participate are entitled to take decisions that are binding for Client.
17.3 Where one or more of Msafe’s employees are part of a project or steering group, whereby the aforementioned persons do not have a decisive vote in this project or steering group, Msafe shall never be liable for decisions taken by the aforementioned project or steering group, if and insofar as it appears that the persons who sat on this project or steering group on behalf of Msafe expressed an opinion during the deliberations in this project or steering group that deviated from the decision or position ultimately taken by the project or steering group.
17.4 If the Customer decides that Msafe will not be included in a drafted project or steering group, Msafe shall not be bound by the decisions taken by the aforementioned project or steering group if this decision is not in accordance with the agreements agreed between the parties or if such decision deviates from a position taken and/or advice given by Msafe.
17.5 On the basis of the information provided by Msafe (or by its suppliers) regarding measures to prevent and limit the consequences of interruptions, defects in the service, mutilation or loss of data or other incidents, the Client shall make an inventory of the risks for its organisation and, if necessary, take additional measures. Msafe declares itself prepared, at the Customer’s request, to provide reasonable cooperation on further measures by the Customer under (financial) conditions to be set by Msafe. Msafe shall never be obliged to restore mutilated or lost data.
17.6 The employee deployed by Msafe at the Client’s premises shall at all times be authorised to inform Msafe’s management and/or company management about his activities at the Client’s premises. In any confidentiality agreement between Client and Msafe or between Client and Msafe’s deployed employee, Msafe’s management and/or company management shall not be regarded as a “third party” to whom no information about the work may be provided, or only under conditions. Msafe’s management and company management shall keep the information obtained confidential.
17.7 Without Msafe’s prior written consent, the Client shall not be entitled to make any communication to third parties about Msafe’s method, methods and techniques and/or the content of Msafe’s advice or reports. Client shall not provide Msafe’s advice or reports to any third party or otherwise disclose them. Msafe shall not unreasonably withhold its consent as mentioned in the first sentence of this paragraph.
18. Education and training
18.1 Registration for an education and/or training course must always be made in writing and is binding after confirmation by Msafe.
18.2 Client bears responsibility for the choice and suitability of the training course for participants. This applies in full if Msafe admits a participant to a training course to which admission standards apply. In these general terms and conditions, participants are understood to be persons registered for a training course. The absence of the required prior knowledge on the part of participants shall under no circumstances affect Client’s obligations under the agreement. The Client is permitted to have a participant for a training course replaced by another participant following Msafe’s prior written consent.
18.3 If in Msafe’s opinion the number of registrations gives reason to do so, Msafe is at its own discretion entitled to cancel the course and/or training, combine it with one or more other courses or trainings or have it take place at a later date or time. Msafe reserves the right to change the location of the training course. Msafe is entitled to make organisational and content changes to a programme or training course if necessary.
18.4 The consequences of a cancellation of participation in an education or training course by Client or participants are governed by the rules customary at Msafe. A cancellation must always be made in writing and prior to the programme or training or the relevant part thereof. Cancellation or non-appearance shall not affect Client’s obligations under the agreement. In case of cancellation by Client or participant it is at Msafe’s discretion whether a request to send training material shall be granted.
18.5 If Msafe makes use of its own equipment or software or that of a supplier of Msafe in the execution of the training or course, Msafe does not guarantee that this equipment or software is faultless or functions without interruptions. If Msafe carries out the education or training at the Client’s location, the Client shall ensure the availability of properly functioning equipment and software.
18.6 Taking an examination or a test does not form part of the agreement. A separate fee is due for the documentation or other training materials or resources made available or produced for the education or training course. The foregoing also applies to any training certificates or duplicates thereof.
19. Internet access
19.1 Many of the services offered by Msafe require Client to have an internet connection. Where the agreement does not provide otherwise, the Customer is responsible for the availability of an internet connection.
19.2 At all times and in all cases, the Client shall behave with due care and not unlawfully towards third parties. In particular, the Client shall at all times respect the intellectual property and other rights of third parties, respect the privacy of third parties, not disseminate data in violation of the law, not gain unauthorised access to systems, not disseminate viruses or other harmful programmes and refrain from criminal offences and violation of any other legal obligation.
20. Software
20.1 If and insofar as Msafe makes software available to the Customer, the Customer acquires a non-exclusive, non-transferable and non-sublicensable licence to this, unless otherwise specified in the offer and/or the agreement. The (intellectual) property in respect of the software made available belongs to Msafe and/or its supplier. The above applies without prejudice to the provisions in the third paragraph of this article.
20.2 The Customer’s right of use in respect of the software made available shall not extend to the source code of the software. The source code of the relevant software and the technical documentation produced during the development of the software will never be made available to the Customer, not even if the Customer is prepared to pay financial compensation for this.
20.3 If and insofar as Msafe and the Customer agree that Msafe will carry out maintenance work in respect of software made available, the Parties may agree a separate maintenance agreement for this.
20.4 If and insofar as Msafe makes third-party software available to Customer, the (licence) terms and conditions of these third parties shall apply in respect of that software, provided that Msafe has informed Customer in writing, overruling the provisions varying from these general terms and conditions. Customer accepts the said terms and conditions of third parties. These terms and conditions were sent by Msafe to Client with the offer and/or the agreement. Upon request Msafe shall provide the relevant terms and conditions again. If and insofar as the said third-party terms and conditions are deemed for whatever reason not to apply or are declared inapplicable in the relationship between Client and Msafe, the provisions of these general terms and conditions shall apply in full.
21. Equipment/business sales
21.1 Only if explicitly agreed in writing between Msafe and Client will there be sale and purchase of ICT, telecommunication equipment and or other items.
21.2 When expressly agreed in writing between the parties, Msafe sells the goods in accordance with the specifications in the agreement, as Customer purchases them from Msafe.
21.3 Msafe warrants that upon delivery the goods are suitable for normal use and meet the specifications agreed between the parties in writing. Msafe does not warrant that the goods are suitable for the use intended by the Customer unless the written agreement between the parties clearly specifies the purposes of use without reservation. The agreement shall in any case not include assembly and installation materials, software, consumables, batteries, cables and accessories.
21.4 If and insofar as Msafe sells equipment from third parties to the Customer, the terms and conditions of these third parties shall apply to that equipment, provided that Msafe has informed the Customer of this in writing, to the exclusion of any provisions varying from these general terms and conditions. Client accepts the said third-party terms and conditions. These terms and conditions were sent by Msafe to the Client with the offer and/or the agreement. Upon request Msafe shall provide the relevant terms and conditions again. If and insofar as the said third-party terms and conditions are deemed for whatever reason not to apply or are declared inapplicable in the relationship between Client and Msafe, the provisions of these general terms and conditions shall apply in full.
22. Delivery of equipment
22.1 The goods sold by Msafe to Client shall be delivered to Client ex warehouse. Only if agreed in writing shall Msafe deliver or arrange delivery of the goods sold to Client at a place to be designated by Client. In this case Msafe shall, if possible well before delivery, inform Client of the time it or the carrier it has engaged intends to deliver the goods.
22.2 Msafe shall package the goods according to its usual standards. If the Client requires a special method of packaging, the additional costs involved shall be for his account. If the Client requests Msafe to remove old materials (such as networks, cabinets, cable ducts, packaging materials, equipment) or if Msafe is obliged to do so, Msafe may accept this request by means of a written order at its usual rates.
22.3 If the parties have agreed this in writing, Msafe shall install, configure and/or connect the equipment (or have it installed). Any obligation to install and/or configure equipment by Msafe does not include performing data conversion and installing software. Msafe is not responsible for any necessary permits. Msafe is always entitled to execute the agreement in partial deliveries.
23. Warranty
23.1 Msafe shall use its best efforts to repair any material and manufacturing defects in the equipment, as well as in parts supplied by Msafe under warranty, within a reasonable period of time and free of charge if these have been reported to Msafe within a period of three months after delivery in detail. If, in Msafe’s reasonable opinion, repair is not possible, will take too long or if repair would involve disproportionately high costs, Msafe is entitled to replace the equipment free of charge with other, similar but not necessarily identical equipment. Data conversion necessary as a result of repair or replacement is not covered by the warranty. All replaced parts shall become the property of Msafe. The warranty obligation shall lapse if faults in the equipment or in the parts are fully or partially the result of incorrect, careless or incompetent use, external causes such as fire or water damage, or if without Msafe’s consent the Customer makes or causes to be made any modifications to the equipment or to the parts supplied by Msafe under warranty. Msafe shall not withhold such permission on unreasonable grounds.
23.2 Any other or further reliance by Customer on non-conformity of the delivered goods than the provisions of clause 25.1 of these general terms and conditions is excluded. Client may in any case not invoke the non-conformity of the delivered goods if and insofar as the law denies him such invocation.
23.3 Costs of work and repair outside the scope of this warranty will be charged by Msafe in accordance with its usual rates.
23.4 Msafe shall have no obligation to rectify faults that occur after the expiry of the period specified in Article 23.1 referred to in Article 23.1 unless a maintenance agreement has been concluded between the parties that includes such an obligation to repair.
24. Confidentiality and takeover of staff
24.1 Msafe and Client shall ensure that all data received from the other party which are known or should reasonably have been known to be of a confidential nature are kept secret. The receiving party shall only use the data for the purpose for which they were provided. Data shall in any case be considered confidential if it is designated as such by one of the parties. The access and/or identification codes provided by Msafe to the Client shall in any case be regarded as confidential. The Client shall never provide data to third parties. Misuse or loss of the aforementioned data is at Customer’s risk.
24.2 Each of the parties shall, during the term of the agreement as well as for one year after the end thereof, only with the prior written consent of the other party, hire or otherwise, directly or indirectly, employ employees of the other party who are or have been involved in the execution of the agreement. Such consent may be subject to conditions.
25. Applicable law and disputes
25.1 The agreement between Msafe and Client is governed by Dutch law. Applicability of the Vienna Sales Convention 1980 is excluded.
25.2 The agreements between Msafe and Client shall be governed by the law in force in the country where the Msafe entity providing the services is located. Applicability of the Vienna Sales Convention 1980 is excluded. The parties will first discuss any issues with each other before treating them as disputes as mentioned below. To this end, the parties will create different escalation levels in their organisations at operational, tactical and strategic levels.
25.3 Disputes that may arise between Msafe and the Customer in connection with an agreement entered into between Msafe and the Customer or in connection with further agreements resulting therefrom shall be settled by the competent court in the city where the Msafe entity providing the services is located, but not until after the parties have consulted in the manner specified in article 25.2 provided as well as on whether or not to follow the procedure of arbitration mediation. Arbitration and/or mediation shall take place in such a situation with due observance of the following.
Country: the Netherlands. Institute and regulations: SGOA.
25.4 The provisions of this paragraph do not prevent a party who so desires from by-passing the procedure of ICT mediation and already immediately applying the provisions of article 25.3 referred to in Article 25.3.
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