Last updated on: 29/10/2020
November Five BV, a private limited liability
company, having its registered office at 2000 Antwerp (Belgium),
Scheldestraat 11 and registered with the Crossroads Bank of
Enterprises under company number 0820.822.413 (hereinafter
referred to as “NOVEMBER FIVE”) is a software firm specialized in
the design, development, operation, maintenance and/or hosting of
software and the thereto related (strategy) services.
The
client may be any natural person or legal entity which enters into
a contractual relationship of whichever nature with NOVEMBER FIVE
in connection with his or its trading, business, artisanal or
professional activity (hereinafter referred to as the
“Client”).
1. Application
2. Agreement and scope of the Services
3. Term
4. Services
5. Acceptance procedure for Software
(a) if NOVEMBER FIVE agrees with the Client that the Software does not comply with the Acceptance Criteria, then NOVEMBER FIVE must correct the issue and re-supply the Software to the Client before the end of the Remedy Period for additional Acceptance Tests; or
(b) otherwise, then the parties must meet as soon as practicable and in any case before the expiry of the Remedy Period and use their best endeavours to agree whether the Software does or does not comply with the Acceptance Criteria, and if appropriate conceive a plan of action reasonably satisfactory to both parties.
6. Time and material / resource reservation / fixed scope – fixed fee
• the number and profile of NOVEMBER FIVE personnel who provide
the Services;
• the rate card for such NOVEMBER FIVE
personnel; and
• the time that such NOVEMBER FIVE personnel
spends in providing the Services.
7. Intellectual Property Rights
8. Third Party Materials
(a) licensed to the Client in accordance with the relevant licensor's standard licensing terms (which the Client acknowledges may be open source licensing terms); or
(b) sub-licensed by NOVEMBER FIVE to the Client on reasonable
terms notified in writing by NOVEMBER FIVE to the Client
9. Client obligations
(a) timely co-operation, support, feedback and advice;
(b)
attendance during meetings;
(c) intermediate scope approvals,
if so required; and
(d) information and documentation, as are
reasonably necessary to enable NOVEMBER FIVE to perform its
obligations under these Terms and Conditions.
10. Fees
11. Payment terms
adjusted Fee = basic Fee x { (0.2+0.8) current index}
basic index
whereby the index is the AGORIA index
and the elements of this formula are defined as follows:
12. Confidentiality obligations
13. Data protection
14. Warranties
(a) NOVEMBER FIVE has the legal right and authority to enter into
the SOW and to perform its obligations under these Terms and
Conditions;
(b) NOVEMBER FIVE will comply with all applicable legal and
regulatory requirements applying to the exercise of NOVEMBER
FIVE’s rights and the fulfilment of NOVEMBER FIVE's
obligations under these Terms and Conditions; and
(c)
NOVEMBER FIVE has or has access to all necessary know-how,
expertise and experience to perform its obligations under these
Terms and Conditions.
2. NOVEMBER FIVE warrants to the Client that:
(a) NOVEMBER FIVE has the legal right and authority to enter into
the SOW and to perform its obligations under these Terms and
Conditions;
(b) NOVEMBER FIVE will comply with all applicable legal and
regulatory requirements applying to the exercise of NOVEMBER
FIVE’s rights and the fulfilment of NOVEMBER FIVE's
obligations under these Terms and Conditions; and
(c)
NOVEMBER FIVE has or has access to all necessary know-how,
expertise and experience to perform its obligations under these
Terms and Conditions.
(a) modify the Software and/or the Deliverable(s) in such a way that they no longer infringe the relevant Intellectual Property Rights; or
(b) procure for the Client the right to use the Software and/or
the Deliverable(s) in accordance with these Terms and
Conditions.
15. Acknowledgements and warranty limitations
16. Limitations and exclusions of liability
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud;
(c) exclude any
liabilities that may not be excluded under applicable law.
17. Force majeure
18. Termination
(a) the other party commits a material breach of these Terms and
Conditions, and the breach is not remediable;
(b) the
other party commits a material breach of these Terms and
Conditions, and the breach is remediable but the other party fails
to remedy the breach within the period of 30 (thirty) days
following the giving of a written notice to the other party
requiring the breach to be remedied.
(a) the other party:
(b) an administrator, administrative receiver, liquidator is
appointed over any of the assets of the other party;
(c)
an order is made for the winding up of the other party, or the
other party passes a resolution for its winding up (other than for
the purpose of a solvent company reorganization where the
resulting entity will assume all the obligations of the other
party under these Terms and Conditions).
19. Miscellaneous
20. Definitions
For the purpose of these Terms and Conditions, the following terms will have the meanings specified or referred to in this clause:
"Acceptance Criteria" means:
(a) the Software conforming in all material respects with the Specification; and
(b) the Software being free from Software Defects;
"Acceptance Period" means a period of 10 Business Days following the supply of the Software to the Client in accordance with Clause 5, or such other period as the parties may agree in writing;
"Acceptance Tests" means a set of tests designed to establish whether the Software meets the Acceptance Criteria, providing that the exact form of the tests shall be determined and documented by NOVEMBER FIVE acting reasonably, and communicated to the Client in advance of the commencement of the Acceptance Period;
"Business Day" means any weekday other than a bank or public holiday in Belgium;
"Business Hours" means the hours of 9am to 5pm on a Business Day;
"Confidential Information" means any and all information that is disclosed (orally, in writing, by electronic delivery, or otherwise) by one party (“disclosing party”) to the other party (“receiving party”) prior to or during the term of the SOW (or to which the receiving party otherwise gains access as a result of the SOW) relating to the business of the disclosing party, including without limitation business plans and models, financial information, market research, client and supplier information, proprietary software and methods, and information concerning proprietary inventions and technologies;
“Deliverables” means all works, products, proofs of concepts, minimum viable products (“MVP”), business cases, improvements, adaptations, inventions and innovations which result from the Services carried out by NOVEMBER FIVE in execution of its agreement with the Client, excluding Software deliverables (see below);
"Documentation" means the documentation for the Software and/or the Deliverable(s) produced by NOVEMBER FIVE and delivered or made available to the Client by NOVEMBER FIVE, subject to its discretion;
"Effective Date" means the date of execution of the SOW;
"Fees" means the amounts due to NOVEMBER FIVE for the delivery of Services under these Terms and Conditions as stipulated in the relevant SOW;
"Intellectual Property Rights" means all patent rights, trademarks, designs and models, copyrights, rights in databases, proprietary rights in know-how, including trade secrets and other confidential information, and any other form of legally protectable intellectual or industrial property rights under any jurisdiction whatsoever;
"Remedy Period" means a period of 20 Business Days following the Client giving to NOVEMBER FIVE a notice that the Software has failed the Acceptance Tests, or such other period as the parties may agree in writing;
"Services" means any services that NOVEMBER FIVE provides to the Client, or has an obligation to provide to the Client, under these Terms and Conditions and the subsequent SOW’s under these Terms and Conditions. This might include, without being limited to: development, design, strategy, hosting, maintenance, support and extra services;
"Software" means the software identified in the relevant SOW, including the source code of that software created by or on behalf of NOVEMBER FIVE in the course of the provision of the Development Services;
"Software Defect" means a defect, error or bug in the Software having a material adverse effect on the operation, functionality or performance of the Software, but excluding any defect, error or bug caused by or arising as a result of:
(a) any act or omission of the Client or any person authorized by
the Client to use the Software;
(b) any use of the Software contrary to the Documentation by the
Client or any person authorized by the Client to use the
Software;
(c) a failure of the Client to perform or observe any of its
obligations in these Terms and Conditions; and/or
(d) an incompatibility between the Software and any other system, network, application, program, hardware or software not specified as compatible in the Specification;
"Specification" means the specification for the Software and/or the Deliverables as set out in the relevant SOW and in the Documentation, as it may be varied by the written agreement of the parties in the then current product documentation and collaboration software application applied by NOVEMBER FIVE;
“SOW” means a Statement of Work that may be signed between NOVEMBER FIVE and the Client, all offers of NOVEMBER FIVE holding the specifications of the Software and/or the Deliverables and Services to be delivered, incorporating these Terms and Conditions;
"Terms and Conditions" means these Terms and Conditions as set out herein that apply to all SOW’s of NOVEMBER FIVE;
"Third Party Materials" means the works and/or materials comprised in the Software and/or the Deliverables, the Intellectual Property Rights which are owned by a third party, and which are specified in (i) an SOW, or (ii) which the parties agree upon in the course of the provision of Services and add in the then current product documentation and collaboration software application applied by NOVEMBER FIVE.