Dessa villkor gäller för butiker som har avtal som förnyats efter den 10 januari 2023

OPTIMIZERS GENERAL TERMS AND CONDITIONS

(VERSION AUGUST 2021)

These terms and conditions (“Terms and Conditions”) govern the purchase of Services (as defined below) by a Customer (as defined below) from Optimizers (as defined below). Optimizers is a company with limited liability, incorporated and registered in the Netherlands with company number 75348217 whose registered office is at Ampèrestraat 3 d, in (3861NC) Nijkerk, the Netherlands.

AGREED TERMS

1. INTERPRETATION

The definitions and rules of interpretation in this Section apply to these Terms and Conditions.

1.1 Definitions

“Apps”: software applications that offer distinct functionality (including, but not limited to, App4Sales, App4Customers, Portal4Sales, Portal4Salespro, App4Picking, Portal4SalesPIM, App2Track, Tweakwise, Warpspeed) as selected in Schedule 1.

“Authorized Users“: those employees and independent contractors of the Customer who are entitled to install the Apps and Web Applications via the Optimizers Cloud Platform through the Subscription Services under an Optimizers Agreement, as further described in Section 20.5(b).

“Business Day“: generally accepted working day in the country from which Optimizers maintenance and support services are provided, with the exception of official public holidays.

“Confidential Information“: information that is proprietary or confidential for a Party and is either clearly labelled as such or identified as Confidential Information in Section 10.4 or Section 10.5.

“Configuration Services“: the configuration and related work, to be performed by Optimizers for the initial set-up, and to configure the Optimizers Cloud Platform so that the Optimizers Cloud Platform conforms to the Software Specification.

“Consultancy Services“: the provision of advice that can relate to, among other things, the implementation, installation, setting up, or training on the use of, the Software.

“Customer“: means a Person that enters into an Optimizers agreement with Optimizers or is negotiating an Optimizers Agreement with Optimizers.

“Customer Data“: the data that was entered into the information fields of the Software or into the database to which the Software is connected by the Customer, by the Authorized Users, ERP/API Connectors, or by Optimizers on the Customer’s behalf.

“Customer Personal Data”: as defined in Section 6.

“Customized Software“: the software and/or components developed in accordance with the Software Specifications by Optimizers on the instructions of the Customer that are not part of the Optimizer’s standard software (i.e. Optimizers Cloud Platform).

“Deliverable“: a defined level of functionality within a particular phase of the Configuration Services, to be elaborated and more particularly described in the Project Plan.

“API Connectors“: any connectors that connect the Optimizers Cloud Platform and the Customer’s Business systems and that are specially created for the Customer.

“Errors”: as defined in Section 18.2.

“Force Majeure”: as defined in Section 14.1.

“Licensing Services“: the services provided by Optimizers that allow Authorized Users to access and use the Software via (on-premise or private cloud) servers.

“Maintenance“: any error corrections, updates and upgrades that Optimizers may provide or perform with respect to the Software and Subscription Services, as well as any other support services provided to the Customer under these Terms and Conditions or other Optimizers Agreements, all as described in Sections 21 – 23.

“Maintenance Events“: as defined in Section 21.1.

“Normal Business Hours“: 08:30 to 17:00 Central European Time (CET), during each Business Day.

“Optimizers”: the relevant Optimizers Group Entity that agrees to provide the Optimizers Service(s) to Customer as documented in the Optimizers Agreement.

“Optimizers Agreement”: Any agreement concluded between the Parties in respect of one or more Optimizers Services, including any amendment of such agreement, all factual and legal acts to prepare such agreement, offers and order confirmations and these Terms and Conditions.

“Optimizers Cloud Platform”: the software platform as developed by Optimizers, through which a Customer can download, install and run Apps and Web Applications as further defined in Schedule 1.

“Optimizers Group Entity“: Either Optimizers or one of its subsidiaries. A “subsidiary” is an entity that meets the definition provided in Section 2:24a of the Dutch Civil Code, or is a legal entity for which Optimizers Group B.V. has (i) more than 50% of either the share capital or the voting rights, and (ii) the ability to direct its management and affairs.

“Optimizers Services” or “Services”: The Configuration Services, Consultancy Services, Subscription Services, Licensing Services, Private Cloud Services and or Maintenance when applicable, and all as defined in these Terms and Conditions and further described in the Optimizers Agreement and/or Project Plan.

“Party/Parties“: Optimizers and the Customer.

“Person“: means a natural person or legal entity or company with legal personality.

“Privacy Policy“: the privacy policy of Optimizers, made separately available on Optimizers’ website, which applies to Optimizers’ processing of the Customer Personal Data and is in accordance with the applicable laws and regulations.

“Private Cloud Services“: those services as described in the Optimizers Agreement and/or Project Plan.

“Private Cloud Software“: the software as described in the Optimizers Agreement and/or Project Plan.

“Project Plan“: the plan to be developed in the planning stage of the Configuration Services and/or Consultancy Services.

“Seats”: as defined in Section 20.5.

“Service Level Agreement“: the service level agreement set out in Schedule 2.

“Software“: Optimizers’ proprietary software in machine-readable object code form only, consisting of the Optimizers Cloud Platform, ERP/API Connectors, Web Applications and Apps, including any error corrections, updates, upgrades, modifications and enhancements to it provided to the Customer under an Optimizers Agreement.

“Software Specification“: the functionality and performance specifications for the Software, as set out in the release notes that are published on the Optimizers Cloud Platform and Customized Software.

“Subscription Services“: the services provided by Optimizers that allow Authorized Users to access and use the Optimizers Cloud Platform.

“Support”: as defined in Section 23.1.

“System Requirements“: the minimum requirements that Optimizers sets for the Customer’s hardware and software to be able to access the Optimizers Services.

“Terminal”: any computer device on which the Apps are installed and/or which runs the Web Applications, that at a minimum complies with the System Requirements and any other specifications and/or requirements, that have been specified in the release notes that are published on the Optimizers Cloud Platform.

“Terms and Conditions”: as defined in the Recitals above.

“Update”: a version of the Software in which an adjustment or an improvement is made.

“Virus“: any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.

“Web Application”: software applications that offer distinct functionality, and may be accessible via the internet by a web browser.

PART A – GENERAL PROVISIONS

The General Provisions apply to every use, maintenance and support of all Software and all Services provided by Optimizers. The special provisions as included in Part B, C, D, E and F specifically apply to the purchase of the specific product or instruction by Customer of the specific service to be provided by Optimizers.

2. GENERAL

2.1 These Terms and Conditions apply to every Optimizers Agreement.

2.2 Optimizers expressly rejects the applicability of the Customer’s purchasing or general terms and conditions to any Optimizers Agreement.

2.3 Optimizers is solely responsible and liable for the correct and timely performance of its obligations towards Customer under the Optimizers Agreement. Each and any of the other Optimizer Group Entities are not responsible and cannot be held liable by Customer for the timely and correct performance of Optimizers’ obligations.

2.4 Optimizers is entitled to revise these terms and conditions from time to time. The amended terms and conditions enter into effect on the date mentioned in the message in which Optimizers announces the amendments.

2.5 Terms, documents or other communications between the Parties that deviate from these Terms and Conditions will be binding only if they have been agreed in writing by both Parties and will apply only to the case in question.

2.6 Section, Schedule and paragraph headings shall not affect the interpretation of these Terms and Conditions. A reference to writing or written includes e-mail communication.

2.7 If there is a conflict between the provisions of these Terms and Conditions and the provisions in another Optimizers Agreement, the provisions in the other Optimizers Agreement will control. If there is an inconsistency between any of the provisions in the main body of these Terms and Conditions and the Schedules, the provisions in the main body of the Terms and Conditions shall prevail.

2.8 These Terms and Conditions have been drawn up in different languages. Of there is a difference in opinion about the content or purport of these Terms and Conditions the English text will be binding.

3. OFFER AND AGREEMENT

3.1 All offers or quotations by Optimizers regarding the Optimizers Services are non-binding and revocable.

3.2 The Customer can place an order for Optimizers Services in the manner indicated by Optimizers. Each order is subject to Optimizers’ acceptance and Optimizers may accept or refuse an order at its sole discretion.

4. PRICES, CHARGES AND PAYMENT

4.1 All prices and rates applied by Optimizers exclude VAT and other taxes, levies and surcharges of any nature imposed now or in the future by government or any other competent authority.

4.2 Payments by the Customer must be made unconditionally, without deferment, discounts, right to suspend or settlement, within 14 days of the invoice date.

4.3 The Customer owes Optimizers the fees for the Optimizers Services, irrespective of whether the Customer actually uses them or not.

4.4 Optimizers is authorised to unilaterally increase the amount of the fees within 30 days of the start of any calendar year on the basis of the general figure of the CPI index for the Netherlands by. This adjustment will be announced by email and/or otherwise.

4.5 Separate from price index-based increase as per Section 4.4, Optimizers can additionally increase the fees, at its sole discretion, by providing Customer with a minimum of 60 days’ prior notice. In the event that the Customer does not accept such fee increase, the Customer may terminate the applicable Optimizers Agreement as of the date on which the fee increase would take effect by providing at least 30 days’ prior written notice.

4.6 Optimizers may, at its sole discretion, allow the Customer to pay the fees in installments. Upon expiry or termination of the Optimizers Agreement, Optimizers may immediately claim any outstanding amounts not yet paid by the Customer in accordance with such agreement, along with any accrued and unpaid interest.

4.7 Optimizers may, at its sole discretion, offer Customer various payment methods. To the extent Optimizers offers a specific payments method to the Customer and the Customer accepts it, the Customer agrees that additional conditions may be imposed by Optimizers or third parties related to that payment method.

4.8 If the Customer and Optimizers have agreed that payment will be perfomed via direct debit collection, the Customer will provide Optimizers with the correct authorization and the Customer must have a bank account with a national or international bank that is registered with the local central bank. To the extent a direct debit is not possible, the invoiced amount must be paid within 14 days of the invoice date.

4.9 If Optimizers has not received payment within five days after the due date, and without prejudice to any other rights and remedies of Optimizers:

(a) Optimizers shall be under no obligation to provide any or all of the Optimizers Services while the invoice(s) concerned remain unpaid; and

(b) Interest shall accrue on a daily basis on such due amounts at the rate of the statutory interest rate as meant in article 6:119a Dutch Civil Code.

(c) In addition, Optimizers will be entitled to the payment of a lump sum indemnity for the recovery costs with a minimum amount of EUR 40 according to Decree Payment of Out-of-Court Debit Costs (Besluit vergoeding voor buitengerechtelijke incassokosten). All internal and external costs of Optimizers that relate to the collection of the amounts due by the Customer, including but not limited to the costs of lawyers and bailiffs actually incurred by Optimizers are at the Customer’s expense.

(d) In addition, Optimizers will be entitled to nullify applicable (payment) discounts agreed between Optimizers and Customer in the Optimizers Agreement.

5. COOPERATION, DELIVERY PERIOD AND COMPLAINTS

5.1 The Parties acknowledge that the success of activities in the field of information and communication technology generally depends on proper and timely mutual cooperation. Optimizer’s timely fulfilment of its obligations under any Optimizers Agreement, is conditioned on the Customer cooperating fully in a timely manner and providing Optimizers with all data or information that Optimizers deems to be useful, necessary and desirable for such purpose.

5.2 If a Customer fails to deliver data, documents, hardware, software, materials or employees that Optimizers deems useful, necessary or desirable for the purpose of performing its obligations under any Optimizers Agreement, then Optimizers is not liable for any resulting damage, delays, errors or non-conformities and Optimizers shall be entitled to suspend the execution of such Optimizers Agreement in part or in full.

5.3 All delivery periods are determined by Optimizers to its best knowledge, on the basis of the information available at that time, and are observed as much as possible, but are not strict deadlines. Exceeding of the delivery period does not entitle the Customer to compensation for damages, repayment or discounts, or to terminate the Optimizers Agreement.

5.4 The Customer must inform Optimizers in writing within 2 weeks after the Optimizers Services are made available by Optimizers of any complaints in respect of an incorrect delivery or performance of an incorrect or faulty service by Optimizers. Such a notification does not suspend the Customer’s payment obligations.

5.5 The risk of loss, theft, embezzlement or damage of items, data (including: usernames, codes and passwords), documents, software or data files that are created, provided or used in the context of the performance of the Optimizers Agreement passes to the Customer when the Customer or an auxiliary person comes into actual possession of them.

6. CUSTOMER DATA

6.1 The Customer shall own all rights, titles, and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data. The Customer guarantees that it and/or the applicable Authorized Users have all rights to any and all data that is generated or uploaded by the Authorized Users, and the Customer will indemnify Optimizers in full with respect to any third-party claim and liability in that respect.

6.2 In the light of the above, the Customer warrants that its use of the Software and Customer Data is in full compliance with the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016, on the protection of natural persons in regards to the processing of personal data and on the free movement of such data, as well as all applicable legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data. Upon a Customer’s written request, Optimizers shall perform any and all reasonable efforts to assist the Customer with its compliance in consideration for a remuneration that will be charged against Optimizers standard tariffs that are then in place.

6.3 In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for Optimizers to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Optimizers. Optimizers shall not be responsible for any loss, destruction, alteration, or disclosure of Customer Data caused by any third party.

6.4 Optimizers cannot be held liable for Customer Data such as variable rates, fees and percentages that need to be input into the Software by Customer (including but not limited to VAT, BUMA, Vecta Garantiefonds, wages levies and social insurance percentages). The variable percentages already input by Optimizers in the Software are pro forma only, from which no rights can be derived.

7. OPTIMIZERS’ OBLIGATIONS

7.1 Optimizers hereby agrees that the Optimizers Services will be performed substantially in accordance with the Software Specification.

7.2 If the Software does not conform to the foregoing undertaking, Optimizers will, at its expense, use all commercially reasonable efforts to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. If the non-conformity persists without relief for more than 30 days after Customer has provided written notice to Optimizers, then the Customer may terminate the affected Subscription Services, and Optimizers shall refund to Customer any prepaid fees covering the remainder of the term of the affected Subscription Services after the date of termination. This Section 7.2 sets forth the Customer’s sole and exclusive right to remedy (and Optimizers’ sole liability) in connection with Optimizers’ obligation to provide the Subscription Services. Notwithstanding the foregoing, the Subscription Services are provided “as-is” and Optimizers does not warrant that the Customer’s use of the Software and the Optimizers Services will be uninterrupted or error-free.

7.3 Optimizers’ obligations in Section 7.1 shall not apply to any defect, issue or non-conformity caused by use of the Software contrary to Optimizers’ instructions or any modifications or alterations to the Software made by any Person other than Optimizers.

7.4 Except for the warranties expressly stated in this Agreement, to the maximum extent allowed by law, Optimizers disclaims all warranties of any kind, express or implied, oral or written, including warranties arising under statute, warranties of merchantability, accuracy, title, non-infringement or fitness for a particular purpose or any warranties arising from usage of trade, course of dealing or course of performance. Without limiting the generality of the foregoing, Optimizers specifically does not warrant that the Subscription Service, Software, Configuration Services, Consulting services, Maintenance, documentation, or Deliverables will meet the requirements of Customer or others or that they will be accurate or operate without interruption or error. Customer acknowledges that in entering this Agreement it has not relied on any promise, warranty, or representation not expressly set forth herein.

7.5 These Terms and Conditions shall not prevent Optimizers from entering into agreements with third -parties, or from independently developing, using, selling, or licensing materials, products, or services which are similar to those provided under any Optimizers Agreement.

8. CUSTOMER’S OBLIGATIONS

The Customer and its Authorized Users shall:

(a) use the Software and the Optimizers Services in full compliance with these Terms and Conditions and any applicable Optimizers Agreement;

(b) provide Optimizers with:
(i) all necessary co-operation in relation to this Agreement; and
(ii) all necessary access to such information as may be required by Optimizers;
in order to render the Optimizers Services, including but not limited to Customer Data, security access information, and software interfaces to the Customer’s other business applications;

(d) comply with all applicable laws and regulations with respect to its activities under any applicable Optimizers Agreements; and

(e) carry out all other Customer responsibilities set out in any applicable Optimizers Agreement or these Terms and Conditions (including in any of the Schedules) in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Optimizers may adjust any timetable or delivery Schedule set out in any applicable Optimizers Agreement as reasonably necessary.

9. PROPRIETARY RIGHTS

9.1 The Customer acknowledges and agrees that Optimizers and/or its licensors own all intellectual property rights in the Software and the Optimizers Services. Except as expressly stated herein, these Terms and Conditions do not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Software, Optimizers Services or any related documentation.

9.2 The Customer may not fully or partially change, remove or render unrecognizable Optimizer’s trademark, design, and logo from the Software, Optimizers Services or any related documentation. The Customer may not use or register any trademark, design, logo or domain name of Optimizers or any corresponding name of sign in any jurisdiction worldwide.

10. CONFIDENTIALITY

10.1 Each Party may be given access to Confidential Information from the other Party in order to perform its obligations under the applicable Optimizers Agreements. A Party’s Confidential Information shall not include information that:

(a) is or becomes publicly known other than through any act or omission of the receiving party; or

(b) was in the other Party ‘s lawful possession before the disclosure; or

(c) is lawfully disclosed to the receiving Party by a third-party without restriction on disclosure, and without breach of any agreement entered into with a Party; or

(d) is independently developed by the receiving Party, which independent development can be shown by written evidence; or

(e) is required to be disclosed by an order of any court of competent jurisdiction or any regulatory or administrative body.

10.2 Each Party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third-party, or use the other’s Confidential Information for any purpose other than for activities conducted pursuant to an Optimizers Agreement.

10.3 Each Party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents (including Authorized Users) in violation of the terms of these Terms and Conditions.

10.4 The Customer acknowledges that the Software, the results of any tests of the Software and the Optimizers Services constitute Optimizers’ Confidential Information.

10.5 Optimizers acknowledges that the Customer Data is the Confidential Information of the Customer.

10.6 No Party shall make, or permit any person to make, any public announcement concerning any Optimizers Agreement without the prior written consent of the other parties (such consent is not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, but not limited to, any relevant securities exchange in which such Party’s stock is listed), any court or other authority of competent jurisdiction.

10.7 Clause 10 shall survive expiration or termination of these Terms and Conditions, however arising.

11. INDEMNITY

11.1 The Customer shall defend, indemnify and hold harmless Optimizers against claims, actions, proceedings, losses, damages, expenses, and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Software or Optimizers Services, including with respect to any data that is generated or uploaded through the Software, provided that:

(a) the Customer is given prompt notice of any such claim;

(b) Optimizers provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and

11.2 Optimizers shall defend the Customer, its officers, directors, and employees against any claim that the Software infringes any copyright, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:

(a) Optimizers is given prompt notice of any such claim;

(b) the Customer provides reasonable co-operation to Optimizers in the defence and settlement of such claim, at Optimizers’ expense; and

11.3 Neither Party shall be responsible for any loss, destruction, alteration, or disclosure of Confidential Information caused by any third-party, unless such third-party received access to the Confidential Information as a result of a breach of these Terms and Conditions.

11.4 In the defence or settlement of a claim, Optimizers may obtain for the Customer the right to continue using the Software, replace or modify the Software so that it becomes non-infringing or, if such remedies are not reasonably available, terminate the applicable Optimizers Agreement without liability to the Customer. Optimizers shall have no liability if the alleged infringement is based on:

(a) a modification of the Software by anyone other than Optimizers; or

(b) the Customer’s use of the Software in a manner contrary to the instructions given to the Customer by Optimizers; or

(c) the Customer’s use of the Software after notice of the alleged or actual infringement from Optimizers or any appropriate authority.

11.5 The foregoing states the Customer’s sole and exclusive rights and remedies, and Optimizers’ entire obligations and liability, for copyright infringement.

12. LIMITATION OF LIABILITY

12.1 This Section 12 sets out the entire liability of Optimizers (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:

(a) arising under or in connection with any Optimizers Agreement;

(b) in respect of any use made by the Customer of the Optimizers Services, the Software, the Deliverables or any part of them; and

(c) in respect of any representation, misrepresentation, guarantee, statement or tortious act or omission, arising under or in connection with an Optimizers Agreement.

12.2 Except as expressly and specifically provided in these Terms and Conditions:

(a) the Customer assumes sole responsibility for results obtained from the use of the Software and the Optimizers Services by the Customer, and for conclusions drawn from such use. Optimizers shall have not be held liable for any damages caused by errors or omissions in any information, instructions or scripts provided to Optimizers by the Customer in connection with the Optimizers Services, or any actions taken by Optimizers at the Customer’s direction;

(b) Optimizers shall not be held liable for any damages, costs, or expenses that arise as a result of, or are caused by any defect, malfunction, non-conformity or unavailability of software and/or ERP/API Connectors that are (wholly or partially) provided or created by third -parties, which hamper the use of the Software in any way;

(c) Optimizers shall not be held liable for any damages, costs, or expenses that arise as a result of, or are caused by any use of Terminals that are not in compliance with System Requirements or any release notes; and

(d) Optimizers Services and Software are provided to the Customer “as-is” and all warranties, representations, conditions, and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, disclaimed by Optimizers.

12.3 Nothing in these Terms and Conditions shall limit or exclude the liability of either Party for:

(a) damage resulting from intentional or wilful recklessness (in Dutch: opzet of bewuste roekeloosheid) of a Party or its managerial personnel; or

(b) mandatory liability arising under product liability laws of the Territory.

12.4 The Service Level Agreement state the Customer’s full and exclusive right and remedy, and Optimizers’ only obligation and liability in respect of, the performance and/or availability of the Service, or their non-performance and non-availability.

12.5 Without prejudice to Section 12.3(b), Optimizers disclaims all liability for any:

(a) loss of revenue or profit;

(b) loss of goodwill;

(d) loss or corruption of data or information;

(e) loss of anticipated saving;

(f) loss of use or other intangible losses;

(g) cost of procurement of substitute software or services; or

(h) special, indirect, incidental, punitive, or consequential damage,
suffered by the Customer under or in connection with any Optimizers Agreement.

12.6 Without prejudice to Section 12.3(b), Optimizers’ total liability arising under or in connection with any Optimizers Agreement, whether arising in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall be limited to the fees paid under such Optimizers Agreement in the prior 12 months.

13. TERM AND TERMINATION

13.1 Optimizers Agreements shall commence on the effective date of such agreement and shall continue for an indefinite period of time, unless the Parties have agreed otherwise. To the extent that Parties agreed to a fixed term, then at the end of the fixed term, the Parties agree that the term of the Optimizers Agreement will be automatically extended, for a duration equal to the prior term, unless either Party notifies the other Party of its intent not to renew the Optimizers Agreement 60 days prior to the then applicable expiration or termination date.

13.2 An Optimizers Agreement may be terminated by either Party by providing the other Party a 60 days’ prior written notice, unless the Parties have agreed otherwise in the Optimizers Agreement.

13.3 The Customer is not entitled to early termination of an Optimizers Agreement that has been entered into for a definite period of time.

13.4 Without affecting any other right or remedy available to it (including Optimizer’s right to seek full payment), either Party may terminate the applicable Optimizers Agreement with immediate effect by giving written notice to the other Party if:

(a) the other Party fails to pay any amount due under an Optimizers Agreement on the due date for payment, and remains in default for not less than 15 days after being notified in writing to make such payment;

(b) the other Party breaches any other term of an Optimizers Agreement that justifies the termination of the agreement, and its consequences (“material breach”) which breach is then irremediable or (if such breach is remediable) fails to remedy that breach within a reasonable period of time at least fifteen 15 days after notified in writing;

(c) the other Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due, or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of the Dutch Insolvency Act;

(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other Party;

(e) an application is made to the court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given, or if an administrator is appointed, over the other Party (being a company);

(f) the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

13.5 On termination of an Optimizers Agreement for any reason:

(a) all rights and licences granted under such Optimizers Agreement shall immediately terminate;

(b) each Party shall return and make no further use of any equipment, property, materials, and other items (and all copies of them) belonging to the other Party;

(c) Optimizers may destroy or otherwise dispose of any of the Customer Data in its possession unless Optimizers receives, no later than 10 days after the effective date of the termination of the applicable Optimizers Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Optimizers shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Optimizers in returning or disposing of Customer Data; and

(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of an Optimizers Agreement which existed at or before the date of termination shall not be affected or prejudiced; and

(e) no obligation of either Party will come into existence to re-perform (undo) any and all obligations that have already been performed by either Party before the termination of the Agreement (in Dutch: ongedaanmakingsverplichting), as meant in article 6:271 Dutch Civil Code.

14. FORCE MAJEURE

14.1 If either Party is affected by force majeure as meant in article 6:75 Dutch Civil Code, it shall immediately notify the other Party of the matters constituting the force majeure, and shall keep that Party fully informed of the continuance of the force majeure, and of any relevant change of circumstances whilst such force majeure continues.

14.2 Optimizers mag zich beroepen op overmacht in geval van een schending van een verplichting die niet aan Optimizers kan worden toegerekend, in ieder geval in de volgende s

14.2 Optimizers may invoke force majeure in case of any breach of an obligation that cannot be attributed to Optimizers and in any case include: accidents, riots, war, terrorist act, epidemic, pandemic, quarantine, civil commotion, breakdown of communication facilities, breakdown of web host, breakdown of internet service provider, any failure of Optimizer’s suppliers, any failure of an API provided by third party, natural catastrophes, governmental acts or omissions, changes in laws or regulations, national strikes, fire, explosion, generalized lack of availability of raw materials or energy.

14.3 If the force majeure continues for longer than sixty (60) days, either Party may at any time while such force majeure continues immediately terminate this Agreement by notice.

15. ENTIRE AGREEMENT

15.1 The applicable Optimizers Agreement, together with any documents referred to in it, and these Terms and Conditions will constitute the complete agreement between the Parties relating to its subject matter and will supersede and extinguish any prior drafts, agreements, undertakings, representations, warranties, and arrangements of any nature, whether in writing or oral, relating to such subject matter. General terms and conditions of Customer are expressly excluded. Such general terms and conditions do not apply and are not incorporated into the Optimizers Agreement, even if subsequent documentation should make reference to any such general terms and conditions. No variation of an Optimizers Agreement shall be effective unless it is in writing and signed by the Parties (or their authorized representatives).

16. ASSIGNMENT

16.1 The Customer shall not, without the prior written consent of Optimizers, assign, transfer, or sub-contract all or any of its rights or obligations under any Optimizers Agreement. Any assignment and or transfer in violation of the foregoing will be void and have no effect (and this provision will have property law effect (goederenrechtelijk effect)).

16.2 Optimizers may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under an Optimizers Agreement. Customer hereby irrevocably and unconditionally provides in advance (bij voorbaat) its cooperation and/or consent to such assignment, novation and/or transfer. In the event that any (legal) formality or other action is required to effectuate such assignment or transfer, Optimizers may perform such in the name and on behalf of Customer.

17. GOVERNING LAW AND CHOICE OF FORUM

17.1 This Agreement shall be governed by the laws of Netherlands with exclusion of the United Nations Convention on Contracts for the International Sale of Products (CISG) (Weens Koopverdrag) regardless of the conflict of law principles.

17.2 Any disputes arising from or in connection with this Agreement, tort, or otherwise shall be exclusively adjudicated by the competent court of Amsterdam, the Netherlands.

The costs relating to legal proceedings including but not limited to the actual costs Optimizers incurs for lawyers, bailiffs and translators, will be payable in full by the Customer if the Customer in the party that is completely or mostly unsuccessful in those proceedings.

PART B – SPECIAL PROVISIONS IN RESPECT OF CONFIGURATION SERVICE

The provisions included in this part B apply, in addition to the General Provisions of these terms and conditions, if the Optimizers Agreement (also) relates to Configuration Services as concluded between the Parties.

18. CONFIGURATION SERVICES

18.1 Optimizers shall perform the Configuration Services in accordance with the timetable set out in the Optimizers Agreement and Project Plan. Optimizers shall use commercially reasonable efforts to meet the performance dates, but any such dates shall be estimates only, and time shall not be of the essence in such Optimizers Agreement.

18.2 On delivery of each Deliverable, the Customer shall be able to access the Deliverable online. Within 2 weeks of Optimizers’ delivery to the Customer of any Deliverable, the Customer shall review the Deliverable to confirm that it functions in material conformance with the applicable portion of the Software Specification. If the Deliverable fails in any material respect to conform to the applicable portion of the Software Specification, the Customer shall give Optimizers a detailed description of any such non-conformance (“Error”), in writing, within the 2 weeks review period.

18.3 With respect to any Errors contained in any Deliverables delivered to the Customer during the Configuration Services, Optimizers shall use commercially reasonable efforts to correct any such Error within a reasonable time and, on completion, submit the corrected Deliverable to the Customer. The provisions of this Section 18.3 shall then apply again, up to three additional times. If Optimizers is unable to correct such Error after three attempts, either Party may terminate the Optimizers Agreement, without further liability, upon prior written notice to the other Party.

18.4 If the Customer does not provide any written comments in the 2 week period described above, or if the Deliverable is found to conform to the Software Specification, the Deliverable shall be deemed Accepted.

18.5 “Acceptance” as used in the Agreement shall mean that the Customer waives any claims in relation to the Services that are based on any non-conformity, fault, or defects.

PART C – SPECIAL PROVISIONS IN RESPECT OF CONSULTANCY SERVICES

The provisions included in this part C apply, in addition to the General Provisions of these terms and conditions, if the Optimizers Agreement (also) relates to Consultancy Services as concluded between the Parties.

19. CONSULTANCY SERVICES

19.1 Where agreed in an Optimizers Agreement, Optimizers will perform the Consultancy Services to the best of its ability, where relevant in accordance with the arrangements and procedures determined with the Customer in writing. Optimizers shall make every effort to ensure that the Consultancy Services that are provided under the Optimizers Agreement are provided with due care and in accordance with the arrangements and procedures agreed in writing with Customer where applicable. Optimizers is not subject to an obligation to produce a certain result.

19.2 Optimizers will send the Customer an order confirmation and add a schedule for the performance of the Consultancy Services. After receipt of the order confirmation signed for approval by the Customer, Optimizers will draw up a Project Plan in consultation with the Customer if this has been agreed in the order confirmation. Optimizers will start the actual performance of the Consultancy Services, exclusively in accordance with the Project Plan.

19.3 If Optimizers is providing services on the basis of information to be provided by Customer, this information shall be prepared by Customer in accordance with the conditions to be imposed by Optimizers and provided at the risk and expense of Customer. Customer shall at all times guarantee that all materials, information, software, procedures and instructions that it makes available to Optimizers for the purpose of providing the services is accurate and complete and that all data media issued to Optimizers meet Optimizers’ specifications. The use made by Customer of services or advice issued by Optimizers shall in all cases be at Customer’s risk and expense.

19.4 Consultancy Services will be performed in stages, as such, Optimizers is entitled to postpone the commencement of the services that form part of a next stage until the Customer has approved the results of the preceding stage in writing.

19.5 In the provision of the Consultancy Services, Optimizers is entitled to use or instruct, in its sole discretion, any Person, who will work as a subcontractor of Optimizers under the management and supervision of Optimizers. Optimizers is entitled to replace such subcontractor, at its sole discretion, and without any need for notice to or consent from Customer. If the Customer has entered into the Optimizers Agreement with a view to performance by a certain Person, Optimizers will always be authorised to replace that Person with one or more other Persons, at its sole discretion

19.6 Consultancy Services will be performed on Business Days during Normal Business Hours. Depending on the activities, the Consultancy Services can be performed remotely or at the Customer’s business location, at Optimizer’s sole discretion.

19.7 Up to 5 Business Days before the agreed start date of the Consultancy Services, the Customer can cancel the purchase of the Consultancy Services or request Optimizers to determine a new start date which new start date will not be before the original start date. If the Customer does not provide such 5 Business Days’ prior notice, Optimizers is entitled to charge the Customer for the Consultancy Services that the Customer agreed to purchase in accordance with the applicable Optimizers Agreement, and for any costs incurred by Optimizers in connection with the Consultancy Services.

19.8 All Consultancy Services prices and rates are exclusive of VAT and exclusive of travel, accommodation and hotel expenses. Consulting Services on site are invoiced for at least 4 hours per visit per consultant. On Business Days after 6 P.M., the hourly rates are increased up to 150% of the normal rate and up to 200% during the weekend.

PART D – SPECIAL PROVISIONS IN RESPECT OF SUBSCRIPTION SERVICES

The provisions included in this part D apply, in addition to the General Provisions of these terms and conditions, if the Optimizers Agreement (also) relates to Subscription Services as concluded between the Parties.

20. SUBSCRIPTION SERVICES

20.1 In these terms and conditions, “subscription” means Optimizer’s provision of a right to use the Software as further described to in Section 20.5 of these Terms and Conditions, and/or Service Level Agreement as referred to in Schedule 2.

20.2 Optimizers shall perform the Subscription Services on the Optimizers Cloud Platform. The Service Level Agreements shall apply effective from the start of the month after the Configuration Services have been completed.

20.3 The Customer owes Optimizers a monthly subscription fee for each part of the Software for which a right of use is granted pursuant to the Optimizers Agreement as well as for the Service Level Agreement.

20.4 To the extent that Customer wishes to extend the right of use to additional users that exceed the agreed-upon number of Authorized Users, the Customer shall promptly inform Optimizers. Optimizers will charge the subscription fee for the use of the Software by the Authorized Users, as well as any additional users requested by the Customer.

20.5 In relation to Authorized Users:

(a) the Customer’s access to the Subscription Services shall be limited to the number of “mac addresses” that can be used by individual Authorized Users, employees or independent contractors of the Customer, as shown in the order (“Seats”);

(b) de Klant dient een schriftelijke lijst bij te houden van de actuele Bevoegde Gebruikers van de Software en de Klant dient deze lijst aan Optimizers te verstrekken wanneer Optimizers dat redelijkerwijs

(b) the Customer shall maintain a written list of current Authorized Users of the Software, and the Customer shall provide such list to Optimizers as may be reasonably requested b

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