These Weolcan Services Terms (hereinafter: ‘Terms’) together with the signing page and those other Exhibits as referred to in Article 2 of the signing page, comprise the entire terms and conditions under which Weolcan will provide Services to Customer.
The following wording(s) in these Terms and related documents have the following meaning:
‘Agreement’: any agreement and/or legal relationship(s) of any nature between Parties in respect of the provision of Services, any amendment thereof or supplement thereto, as well as all acts related to performance of the Agreement(s);
‘Customer’: any (legal) entity with whom Weolcan wishes to enter into, enters into or has entered into a legal relationship;
‘Deliverables’: certain deliverables directly resulting from the Services, as and to the extent explicitly described and agreed upon between Parties in the relevant SOW;
‘Information’: any data, information, system, software or cloud services access and other details, as well as documentation (to be) provided by Customer;
‘Fee’: the fee(s) due and owed by Customer to Weolcan as consideration arising from the Agreement or as otherwise described in these Terms;
‘Order’: any request by Customer to Weolcan to enter into an Agreement;
‘Parties’: respectively Party: Customer and Weolcan, respectively Customer or Weolcan;
‘Proposal’: any proposal and/or offer by Weolcan to Customer concerning the provision of Services as well as matters relating thereto;
‘Services’: all Services, which shall include, but not limited to consultancy, procurement, implementation services and training to be made available in any way by or on behalf of Weolcan and/or activities to be carried out, of whatever nature for Customer;
‘Support Services’: Services that are provided by or on behalf of Weolcan on a subscription basis;
‘Weolcan’: Weolcan B.V., a company under the laws of the Netherlands.
2. Terms & Agreement
2.1 These Terms shall apply to all Proposals, Orders and/or Agreements. Parties agree and recognize explicitly that no other general (and/or special) purchasing, delivery or other conditions shall apply thereto than these Terms.
2.2 All Proposals shall be without engagement and shall consequently only be deemed to be an invitation to place an Order. The previous sentence shall not apply if a term of validity is stated expressly in the Proposal.
2.3 An Agreement shall only be considered as valid and concluded when and after Weolcan has expressly confirmed said Agreement by mail, email and/or other means of electronic communication customary in the market.
3. Services & Deliverables
3.1 Weolcan will make commercially reasonable efforts to make available qualified persons for the performance of Services and will make commercially reasonable efforts to carry out Services as described in Exhibit A of the Agreement to the best of their knowledge and ability.
3.2 In engaging and instructing third parties, Weolcan will in any event reasonably exercise the necessary due care. Weolcan is not liable for damage which is the consequence of failures of such third parties. The Customer hereby authorises Weolcan to accept any limitations of liability of third parties on behalf of Customer.
3.3 For communication purposes related to the implementation, execution and management of a SOW, each Party will designate a project leader, to be set forth in such SOW. At the discretion of the one Party, a project leader of that one Party may be changed from time to time subject to prior written notice to the other Party.
3.4 Weolcan will deliver the Services and Deliverables on an ‘as-is’ basis. All schedules and terms mentioned by Weolcan and/or agreed with Weolcan have been described and planned to the best of their knowledge on the basis of the Information and circumstances known to Weolcan when the related SOW was concluded. The occasional exceeding of such term or schedule shall not be considered an attributable shortcoming of Weolcan. In the case that there is a risk of exceeding such term or it has already been exceeded, Parties shall consult as soon as possible.
4. Fee & Payment
4.1 Fees, prices and rates are expressed in Euro (EUR), unless explicitly stated otherwise, and are exclusive of expenses, VAT and other government levies and taxes that are or may be due, where required. Weolcan’s invoices shall be paid at the latest within thirty (30) days from invoice date. Payment shall take place without any set-off, deduction and/or suspension.
4.2 If Customer fails to pay any fees owed within the term of payment of thirty (30) days from invoice date Weolcan shall have the right (notwithstanding all other rights accruing to them) – without any further notice of default being required – to suspend execution of any Agreement and Weolcan shall have the right to charge Customer for any expenses incurred thereby in this respect, and Customer shall owe interest over said due fees of at least one (1%) percent per month.
5. Obligations Customer
5.1 Customer is obliged to timely and adequately provide its cooperation, information and other means which Weolcan will reasonably need for the proper execution of any Agreement, without charging Weolcan in this respect.
5.2 Customer represents and warrants that any Information provided by Customer is correct and accurate. Customer shall procure to advise Weolcan immediately of any material or other relevant changes in such Information. Parties will work together in good consultation and support each other and reasonably share relevant Information in order to carry out the Agreement. Customer has the obligation to only use the Services within the boundaries of the Terms of the Agreement, these Terms and the applicable laws. Customer is responsible for its use of the Services and Deliverables.
6. Limitation of Liability
6.1 Except in cases of intention or gross negligence on the part of Weolcan, Weolcan shall not be liable for (i) indirect damage (including but not limited to consequential loss, loss of profit, missed savings, damage to data files and damage due to business interruption) or (ii) any other damage exceeding the total sum (excluding VAT) invoiced by Weolcan to Customer and paid by Customer to Weolcan, pursuant to the relevant SOW or the amount of EUR 100.000 (in writing: hundred thousand Euro) per calendar year, whichever is lower. Under ‘other damage’ as referred to in the previous sentence shall exclusively be understood (i) reasonable costs incurred by Customer (a) in order to determine the cause and extent of that ‘other damage’, (b) to prevent or limit such ‘other damage’, and (c) to ensure that the performance of Weolcan meets the Agreement, to the extent that the Agreement has not been dissolved by Customer, and (ii) material damage to goods belonging to Customer and/or third parties that are directly connected to Services delivered by Weolcan, such excluding damage to Deliverables and Information.
6.2 A right of Customer to compensation will only arise if Customer has informed Weolcan accordingly in writing within thirty (30) days or immediately after Customer could discover in reason the arising thereof.
7.1 Both Weolcan and Customer will treat all Information as well as other data, information and know how that each obtains from the other Party with respect to the Services as well as commercial, strategic, technical data, knowledge and/or other information connected with that other Party strictly confidential. Deliverables, if any, are considered to be confidential information of Customer, subject to the condition precedent that Customer has paid any and all Fees to Weolcan related to those specific Deliverables.
7.2 It is only allowed to deviate from the provisions in article 7.1 if (i) the relevant deviation has been explicitly provided for in the Agreement, (ii) the related data, information or know how was already generally known without any breach of confidence by a Party or any third party before the Agreement or relevant SOW was executed, (iii) the prior written permission of the Party concerned was obtained, or (iv) the related data, information or know how must be made available to satisfy a mandatory order by a legal authority, in the latter event the Party concerned will inform the other Party in advance.
7.3 Each Party may divulge that Customer has entered into the Agreement and Weolcan may describe its activities on account of the Agreement in its marketing materials in general, non-confidential terms. Customer agrees furthermore that Weolcan may issue a press release.
8. Term & termination
8.1 Support Services will be delivered for an initial period of one (1) year, commencing on the respective effective date. The provision of thereof will be automatically extended for further periods of one (1) year each after the expiry of the initial term unless and until such time as one Party serves written notice of termination on the other Party, and, such notice has been served at least three (3) calendar months prior to the expiry of the initial term or any anniversary of the expiry of said term.
8.2 Each Party will be entitled to terminate the Agreement with immediate effect, without any further declaration of default and without any prior legal intervention, by registered letter if the other Party (i) becomes insolvent, enters into liquidation (whether voluntary or otherwise), becomes unable to pay its debts as they fall due or any event analogous to any of the foregoing occurs to that other Party and/or (ii) ceases or threatens to cease carrying on its business. The Agreement or a SOW can also be terminated in writing by Weolcan entirely or partially, without any further declaration of default to Customer and without any legal intervention, if Customer fails in (timely) observing any obligation on account of the Agreement or SOW (including but not limited to payment of amounts due by the Customer) and after fourteen (14) days have passed after the date of a written declaration of default to Customer, all this without prejudice to the other rights Weolcan is entitled to.
8.3 Upon any termination of this Agreement, Customer shall pay or reimburse Weolcan for any time and costs incurred through the date of receipt of the notice of termination and any committed costs that Weolcan has incurred or to which Weolcan is obligated on Customer’s behalf in connection with termination of the relevant SOW. A SOW cannot be terminated without cause.
9. Law & Forum
9.1 The laws of the Netherlands shall exclusively apply to these Terms, Proposals and Agreements and/or the performance thereof. The application of the United Nations Convention on Contracts for the International Sale of Goods dated 11 April 1980 is hereby explicitly excluded. All disputes arising from the Terms, Proposals and Agreements and/or the performance thereof and/or related thereto shall exclusively be laid before the competent court in Amsterdam, unless (i) Weolcan as plaintiff or petitioning Party elects for the competent court of the domicile or place of business of Customer or unless (ii) Parties specifically agree in writing on a binding ruling or arbitration in the relevant case.