Software Terms and Conditions

1. Applicability

These terms and conditions apply to all offers, agreements, and legal relationships in which OneXillium B.V. sells and/or provides software, software licenses, software-related services, and/or software maintenance to the contracting party. Any purchasing terms and conditions of the contracting party do not apply, unless otherwise agreed in writing. Agreements are not concluded until they have been legally signed by the contracting party and OneXillium B.V.

 

2. Prices

Prices are fixed. In addition to the agreed-upon prices, the contractor may be charged for delivery and installation costs. Furthermore, any necessary special work, such as data conversion or import, will also be billed. All amounts specified in the agreement are exclusive of VAT.

 

3. Subject Matter of the Agreement.

If the agreement specifies multiple items and/or services, it is assumed that a separate agreement has been entered into for each of those items and/or services, to which these terms and conditions apply.

 

4. Software Licenses

Software packages are sold and delivered by OneXillium B.V. as an agent of the relevant software manufacturer. The corresponding software licenses are established between the contracting party and the relevant licensor. The terms and conditions of the corresponding software licenses, including, among other things, the scope of permitted use, apply in full to the contracting party’s use of the software. Provisions in the corresponding software licenses regarding applicable warranties and/or liability remain in effect.

 

5. Intellectual Property Rights.

Ownership of and all intellectual property rights relating to the software products and the underlying source code shall at all times remain with the suppliers of OneXillium B.V., unless expressly agreed otherwise in writing. All costs arising from a copyright infringement by the contracting party shall be borne by the contracting party.

 

6. Ownership or Transfer of Ownership – Transfer of Risk.

OneXillium B.V. reserves ownership of all goods delivered by it to the contracting party and/

or software packages to be delivered. Even if ownership under this agreement still rests with OneXillium B.V., all costs and risks associated with the use of the software—including copyright infringement—shall be borne by the contracting party.

The transfer of ownership of the software packages from OneXillium B.V. to the contracting party shall be deemed to have taken place as soon as OneXillium B.V. has received full payment of all amounts owed to it by the contracting party under this agreement, including claims for interest and costs.

 

7. Trade-ins and financing.

Software is not accepted as a trade-in. Unless expressly agreed otherwise, any financing related to the purchase of software licenses is based on a financial lease arrangement under which, once the software has been used, it is assigned no residual value or trade-in value.

 

8. Episode

OneXillium B.V. will deliver the software to the delivery address. Delivery consists solely of the physical delivery of the ordered software package. The payment term begins on the day following the date of delivery.

 

9. Installation

If the order includes installation, the installation will be scheduled and carried out in consultation with the customer. OneXillium B.V. will make every effort to carry out the installation with care.

Installation is performed on a best-efforts basis, unless otherwise expressly agreed in advance and in writing.

 

10. Platform

The contracting party shall ensure that the computer platform on which the software is installed meets the requirements specified by the software manufacturer. If OneXillium B.V. performs the installation, the computer platform on which the software is installed must meet the aforementioned requirements prior to the installation date. If the contracting party fails to comply with the requirements set forth in this article and OneXillium B.V. incurs additional costs as a result, such costs shall be borne by the contracting party. The contracting party shall be responsible for the immediate payment of these costs.

 

11. Contract Term for Maintenance.

The effective date and the minimum term of any maintenance agreement shall be agreed upon in writing. This minimum term shall be tacitly renewed for 12 months at a time. Either party has the right to terminate this maintenance agreement at the end of the minimum term or renewal period by registered letter, subject to a 90-day notice period.

 

12. Performing maintenance.

With regard to the conclusion and performance of the maintenance agreement, OneXillium B.V. acts as an agent for the relevant software supplier and/or the designated third party. Maintenance of the software is therefore performed by the relevant software supplier or designated third party (principal). The terms and conditions applied by the principal with respect to the maintenance to be provided are applicable and are sufficiently known to the parties. The contracting party shall contact the principal directly regarding the performance of the maintenance. OneXillium B.V. shall provide the contracting party with the applicable terms and conditions and the principal’s necessary contact information prior to the delivery of the software.

 

13. Early Termination of a Software Maintenance Agreement.

Without prejudice to the provisions of the principal’s maintenance terms and conditions, OneXillium B.V. may terminate maintenance agreements relating to software prior to their expiration if any of the following circumstances arise.

• If the contracting party remains in default for more than five days with respect to payment of any amount owed by it
• fails to pay an amount due under this agreement and/or any other agreement entered into between OneXillium B.V. and the contracting party, or fails to comply with or acts in violation of any provision of this agreement, after having been given notice of default in this regard;
• If the contracting party enters into any arrangement with creditors, fails to pay due and payable claims of third parties, files for a stay of payments or bankruptcy, or if a petition for the contracting party’s bankruptcy is filed, or if the contracting party ceases its business operations;
• If the contracting party indicates its intention to relocate its place of residence or registered office outside the Netherlands, or has already done so, or if (a member of one of the contracting party’s governing bodies) is sentenced to a term of imprisonment for a criminal offense;
• If the contractor’s business is dissolved, liquidated, or sold, the contractor shall be in default merely by the occurrence of any one of these circumstances, and the contractor’s remaining maintenance obligations to OneXillium B.V. shall become immediately due and payable. In such a case, OneXillium B.V. may terminate the maintenance agreement without judicial intervention; such termination shall take effect by operation of law at the time OneXillium B.V. notifies the contractor in writing.

14. Fees, taxes, and other costs.

The agreed-upon maintenance fee applies to maintenance and service as described in the principal’s maintenance terms and conditions.

Work performed by OneXillium B.V. that does not fall under the activities listed above will be billed to the contractor at OneXillium B.V.’s rates in effect at that time.

 

OneXillium B.V. may revise the maintenance fees annually in line with price changes implemented by the principal. All taxes and costs, however named, that are levied now or at any time on the amounts owed by the contractor under this (maintenance) agreement, regardless of in whose name they are levied, shall be borne by the contractor, unless otherwise required by law.

 

15. Transfer of Rights and Obligations.

The software licenses supplied by OneXillium B.V. are not transferable to third parties unless the relevant software license expressly provides otherwise. The Contracting Party shall not transfer any rights or obligations arising from this agreement to another party without the prior written consent of OneXillium B.V. With regard to the provision of maintenance, the principal is entitled to transfer technical support services. The contracting party will be notified in writing of any such transfer.

 

16. Warranty and Indemnification.

With regard to claims relating to warranty and/or indemnification, the Contractor shall address the Principal directly. OneXillium B.V. shall in no way be liable for any direct or indirect damages resulting from the failure of the software to function or its improper use. Where applicable, OneXillium may invoke the disclaimers as set forth by the licensor in its license agreement or as agreed upon with the licensee. Notwithstanding the foregoing, OneXillium B.V. will replace data storage media that have become defective due to manufacturing and/or material defects free of charge for a period of three months following delivery of the software. Software bugs and defects resulting from normal wear and tear or improper use are excluded from this warranty. The warranty applies only within the Netherlands.

17. Payment

The amounts owed by the contractor shall be paid on the due date, without any right to deduction or setoff, and are immediately due and payable.

By completing the direct debit authorization form, the contracting party authorizes OneXillium B.V., until further notice, to debit from its bank account all amounts owed by the contracting party to OneXillium B.V. under the maintenance agreement. This is subject to the terms and conditions established by Equens or the banks. If the aforementioned deadline is exceeded, or if there are insufficient funds in the account for collection via a direct debit authorization on the due date, the contracting party shall be deemed to be in default by operation of law, without any notice of default being required. In that case, the contracting party shall owe interest at a rate of 1.5% per month, calculated from the due date of the invoice until the date of full payment. A partial month shall be counted as a full month.

Setoff against an alleged claim against OneXillium B.V. is not permitted. OneXillium B.V. may, where appropriate, require the contracting party to provide security for the obligations arising from this agreement before proceeding with delivery. If the agreement is entered into with multiple contracting parties, each of these contracting parties is jointly and severally liable for the obligations arising from the agreement. Failure to comply with the terms agreed upon regarding payment releases OneXillium B.V. from its obligations toward the contracting party, without prejudice to its right to demand performance of this agreement or full compensation for damages.

All costs incurred by OneXillium B.V. in exercising and enforcing its rights, such as judicial and extrajudicial collection costs, shall be borne by the contracting party. The extrajudicial costs are set at 15% of the amount payable by the contracting party, with a minimum of

€450, unless the actual costs are higher.

18. Direct, indirect, and personal injury damages.

OneXillium B.V. accepts no liability whatsoever for personal injury or property damage to the contracting party’s property that may be caused by the software and/or services provided by OneXillium B.V., unless it is liable under Dutch law. If it is determined that OneXillium B.V. is liable for damages, the amount of compensation shall be limited to the amount paid out by the insurer per incident for personal injury and property damage. Liability for damages resulting from malfunctions, downtime, insufficient and/or incorrect operation of the items, delays in performing repairs, in carrying out maintenance work, in replacing parts, or in exchanging items—in the form of business interruption, loss of revenue, profit, data, and/or savings, and other indirect damages—is expressly excluded.

19. Confidentiality

The parties shall maintain confidentiality with respect to all confidential information that they and their employees learn in connection with the performance of this agreement.

 

20. Breach of contract; failure attributable to the contracting party.

If the contracting party fails to fulfill, or fails to properly or timely fulfill, any obligation under this agreement, OneXillium B.V. is entitled to terminate the agreement without prior notice of default. Following termination, OneXillium B.V. may, without judicial intervention, regain possession of the delivered items. The costs thereof shall be borne by the contracting party. In such cases, OneXillium B.V. is not obligated to pay any compensation to the contracting party. In this context, bankruptcy and suspension of payments shall be regarded as a breach attributable to the contracting party. In the event of termination of the agreement, the contracting party shall grant one or more persons designated by OneXillium B.V. access to the location where the items are situated, so that they may be transported.

21. Extrajudicial costs.

All costs incurred by OneXillium B.V., including the costs of legal counsel, in enforcing and safeguarding its rights under this agreement, shall be borne by the contracting party. Extrajudicial costs are set at 15% of the outstanding amount, with a minimum of €450, unless the actual costs are higher. In that case, the higher costs shall be borne by the contracting party.

 

22. Act on the Prevention of Money Laundering and Terrorist Financing.

Pursuant to the Act on the Prevention of Money Laundering and Terrorist Financing (Wfft), OneXillium may

A B.V. is required to identify the contracting party. The law stipulates that both the legal entity and the person who actually places the order on behalf of the legal entity must be identified. In that case, the contracting party shall provide:

• a clear copy of a recent, valid identification document of the person authorized to sign
• a recent certified extract from the contractor's Commercial Register

OneXillium B.V. is required to report unusual transactions to the reporting center when they occur, as stipulated by law.

 

23. Final Provisions

If one or more of the provisions in this License Agreement are invalid, unlawful, or unenforceable, this shall not affect the validity of the remaining provisions. The parties shall negotiate in good faith to agree on a new provision to replace the invalid or unenforceable provision, which shall, as much as possible, reflect the intent of the invalid or unenforceable provision.

All costs incurred by OneXillium in exercising and enforcing its rights, such as judicial and extrajudicial collection costs, shall be borne by the contracting party. This agreement is governed by Dutch law, sets forth all rights and obligations of the parties toward one another, and supersedes all prior negotiations, commitments, proposals, and correspondence regarding this matter. Amendments to this agreement must be agreed upon in writing. Any disputes shall be submitted to the court in the jurisdiction where OneXillium is established, provided that OneXillium is entitled to submit the dispute to the court that would have jurisdiction to hear the dispute even without the foregoing provision.

Woerden, July 1, 2021