General Terms and Conditions
version 2.0 | 12 januari 2021
These are the General Terms and Conditions of DrawBridge54.
DrawBridge54 offers an approach consisting of toolset, training, workshop facilitation & support.
With this approach, clients are able to simplify the execution of change. The approach enables continuous connection between management and its operational teams. Resulting in the acceleration of the execution of change.
- The toolset is provided as SaaS (Software as a Service), the underlying elements such as hosting for example, are included. Client only pays per user for the use of the functionality.
- The training services consist of both methodology and technical application training, both executed as training on the job. DB54 also provides workshop facilitation for smoother and faster execution of the change process.
- Support is included, which means that DrawBridge54 answers question of clients and solves defects.
The DB54 Toolset is delivered in a way that client can immediately work with it. However, to get most out of its functionality, it is advisable to acquire training(s) and/or facilitation services. The services are delivered by DrawBridge54 directly or through its Partner
Article 1. Definitions
1.1. Agreement: the agreement regarding the delivery of the Service, the delivery of Training, or a combination thereof.
1.2. Client: other party in the Agreement.
1.3. DB54: the limited liability company “Drawbridge54 B.V.”, trading under the trade name and trademark “DrawBridge54” and any successor thereof, or every affiliated company which uses these General Terms and Conditions, also the other party in the Agreement.
1.4. DB54 Toolset: the online, web-based approach (consisting of seven (7) sprints per operational team).
1.5. Defect: a sudden shortcoming, fault, or imperfection in the Service.
1.6. Workshop Facilitation: a service rendered by DB54 to walk Client through each sprint of the DB54 approach.
1.7. Functionality: the functions and possibilities of the DB54 Toolset at the basis of the Service.
1.8. General Terms and Conditions: these general terms and conditions.
1.9. Pilot: a “lump sum” agreement between DB54 and Client, familiarizing the Client with use of the approach by a limited group of Users, for a limited amount of time, to assess the DB54 Toolset.
1.10. Service: the functionality of DB54 Toolset which is delivered through the internet to Client (Software as a Service, SaaS for short)
1.11. Support: providing Client with information and advice regarding the use of the Functionality by DB54 through e-mail and/or a website and/or a helpdesk during Working Hours, as well as supporting Client with finding the causes of Defects during Working Hours, as well as solving the Defects during Working Hours.
1.12. Training: all trainings, including -but not limited to- open training, in-house training, training for interim managers and / or webinar(s) regarding the use of the Service or regarding change management in general.
1.13. User: employees, agents, contractors, hired staff, vendors and customers who are authorized by Client to use the Functionality.
1.14. Working Hours: from 9.00 en 17.00 (Dutch time) on Working Days.
1.15. Working Days: Monday to Friday, with the exception of national Dutch holidays.
1.16. Partner: official partner of DB54, which party mediates in the conclusion of agreements between DB54 and clients.
Article 2. Applicability general terms and conditions and formation of the agreement
2.1. Unless agreed otherwise, the Agreement between DB54 and Client is entered by accepting the quotation of DB54 by Client. Acceptance can be done, inter alia, by signing a quote issued by DB54.
2.2. The Agreement is solely governed by The General Terms and Condition of DB54.
Article 3. Rendering the service
3.1. The Service is rendered as SaaS (Software as a Service). Therefore, Client only pays per User for the use of the Functionality. Client is therefore not granted a classic license, but is granted a right for Client and its Users to use the Functionality of the DB54 Toolset. Client pays a subscription fee as agreed upon.
3.2. Hosting is included in the Service. Therefore, Client does not have to select and contract a vendor for hosting.
3.3. Client shall use the Service in normal way so damage to the Service, third parties or interruptions in the availability of the Service can be avoided.
3.4. To avoid unauthorized access, Client will make sure that its Users will administer their login credentials regarding the Service with care.
3.5. Client will use DB54 designated software, such as for example the indicated internet browsers, to make use of the Service.
3.6. Since the Service is a web based solution, Client is responsible for: acquiring the necessary facilities, inter alia, installing and configuring appropriate telecommunication services, software (designated internet browsers), hardware and infrastructure in order to make use of the Service. In case Client fails to do so, DB54 is not responsible for the unavailability of the Service due to internal failures in the infrastructure of Client or other aforementioned facilities. DB54 is not responsible for the costs incurred by the Client regarding the use of the aforementioned facilities, inter alia, the costs of use and data.
3.7. The Service has at least an availability of 99% in a calendar year. In case a SLA (Service Level Agreement) is agreed upon, the service is rendered in accordance with the service levels as agreed upon in the SLA.
Article 4. Support and Maintenance
4.1. Support is included and will be rendered on the basis of “best effort”. In case a SLA is agreed upon, the support is rendered in accordance with the service levels as agreed upon in the SLA.
4.2. DB54 will start with activities regarding a support call issued by Client, inter alia questions of Users and solving Defects, as soon as possible.
4.3. A Defect will be processed in case the Defect is clear and the Defect can be reproduced by Client and the DB54, which means that in case Client and DB54 cannot show the Defect by repeating the actions which lead to the Defect, DB54 cannot process the Defect.
4.4. In case DB54 presumes that solving a Defect will take such period of time that it can affect the availability of the Functionality, DB54 shall provide a temporary sufficient solution.
4.5. Prior to the implementation of updates/other changes in the Functionality, DB54 will consult Client, in case this implementation can result in an expected loss of the performance of the Service. This paragraph does not apply in case the updates are necessary due to Client / DB54 (data) security reasons.
Article 5. Intellectual property rights
5.1. DB54 guarantees that it owns all the necessary intellectual property rights and/or licenses regarding the Service, inter alia, rights and/or licenses regarding the DB54 Toolset.
5.2. All intellectual property rights regarding by DB54 to Client provided material, inter alia, documentation regarding trainings, manuals and presentations, reports, roadmaps, remain vested in DB54, its licensors and/or suppliers. Client is granted a license to use this material, which license does not encompass more than using the material for internal (training) purposes.
5.3. DrawBridge54 is a registered trademark.
5.4. The (intellectual) property rights regarding the data Clients accrues by using the Service under the Agreement, are always vested in Client. DB54 is willing, and warrants hereby, that upon first request of Client, provide Client with the aforementioned data in portable document format (PDF) stored on a common medium, or sending it by e-mail (encrypted). The involved activities are invoiced based prices and rates in effect at that moment.
Article 6. Prices and Rates, Invoicing and Payment
6.1. The prices and rates mentioned in the Agreement. All prices and rates are exclusive of V.A.T.
6.2. DB54 is yearly entitled, per January 1st, to increase the agreed upon prices and rates. In case the prices and rates are raised more than five percent (5%), compared with previous calendar year, Client has the right to terminate the Agreement with immediate effect. However, during the period as mentioned in paragraph 7.6, DB54 will charge client the old, non-indexed, prices and rates.
6.3. The remuneration for the Service is invoiced monthly in installments. Functionality that was added in the interim is immediately invoiced pro rata until the next invoice date.
6.4. Other services such as Training, Workshop Facilitation, consulting which are not covered by the Agreement, are rendered against the applicable rates for the involved employees of DB54. In that case invoicing will be done in monthly arrears on the basis of time and materials, unless explicitly agreed otherwise.
6.5. The by DB54 to Client issued invoices are due and payable within 30 (thirty) days after invoice date.
Article 7. Duration, Termination, Renewal and Exit
7.1. The Agreement for the Service is entered into for the period as mentioned in the Agreement. The Agreement is renewed tacitly for a period of one (1) year after the initial or renewed duration, unless the Agreement is terminated by one of the parties taking in to account a notice period of three (3) months before lapse of the initial or renewed period.
7.2. All other Agreements, inter alia, agreements for Trainings or Workshop Facilitation, automatically end in case all parties in the Agreement have fulfilled the obligations under the Agreement reciprocally.
7.3. Without prejudice to what is agreed upon, DB54 is entitled to terminate the Agreement, partially or completely and with immediate effect, in writing without any prior notice: (i) in case Client commits an imputable failure regarding one or more of its obligations and/or compliance is impossible; (ii) in case it becomes clear to DB54 that Client is not in a position and/or willing to fulfill its obligations; (iii) in case Client has applied for a suspension of payments, has been granted this suspension of payments or has filed for bankruptcy, has been declared bankrupt, is about to liquidate its company, ceases its operations or appears to be insolvent.
7.4. All rights granted to Client under the Agreement regarding the use of the Functionality expire in case of termination of the Agreement, regardless in which way the Agreement was terminated.
7.5. Obligations, which, by their nature are intended to survive the termination, will remain in force after termination. The termination of the Agreement will not explicitly exempt parties from inter alia confidentiality, intellectual property rights, applicable law and dispute resolution. This also applies in case the termination was due to an attributable shortcoming on the part of DB54.
7.6. In case this Agreement is terminated, regardless reason, DB54 is willing and guarantees hereby in case requested, to continue the delivery of the Service for a period of two (2) months, provided that Client compensates DB54 or Partner (in case Partner invoiced) in accordance with the agreed upon prices and rates. After the aforementioned two (2) months, the Service is terminated, unless Parties agreed upon an extension. After termination of Services, DB54 provides Client free of charge one time only with the data as mentioned in next paragraph in portable document format (PDF) stored on a common medium or sent by email (encrypted). After, DB54 destroys the data of Client immediately after providing, however, not before Client confirmed that the received data is sufficient and complete. This paragraph does not apply in case the Agreement is terminated under paragraph 7.3.
7.7. The data Clients accrues under this Agreement by using the Service of DB54 will always remain property of Client. DB54 is willing, and guarantees hereby in case requested by Client, to provide Client with the aforementioned data in portable document format (PDF), stored on a common medium or sent by email (encrypted). The activities resulting from the request as mentioned in this paragraph, will be charged by DB54 at then current prices and rates.
Article 8. Limitation of Liability
8.1. The total liability of DB54 due to an attributable shortcoming in the fulfillment of the Agreement (breach), or due to any other reason, inter alia, tort, is limited to a compensation for direct damages and limited to an amount that equals the remuneration (V.A.T. excluded) DB4 or Partner (in case Partner invoiced) received from Client in the two (2) calendar months prior to the damage causing event, where a series of consecutive events is deemed one event.
8.2. The liability of DB54 for indirect damages, consequential damages, lost profits, lost savings, loss of goodwill, damage due to business interruption, damages resulting from claims of customers of client, damages related to the use of by client to db54 designated procedures, third party materials or third party software and damages related to the use of suppliers designated by Client to DB54 is excluded.
8.3. Unless compliance by DB54 is permanently impossible, the liability of DB54 for an attributable shortcoming in the fulfillment of the Agreement will only be valid if Client immediately notifies DB54 of the default situation, giving DB54 a reasonable period of time to remedy the situation and DB54 remains in default after the aforementioned period of time. The notice must give a detailed and complete description of the shortcomings, so that DB54 will have the opportunity to respond adequately.
8.4. The stipulations as set out in this article and all other limitations and exclusions of liability specified in these general terms and conditions, also apply for the benefit of all persons and/or legal entities used by DB54 during the execution of the Agreement, including Partners.
8.5. The limitations of liability as set out in this article are void in case of willful misconduct or conscious recklessness of the top level management of DB54.
Article 9. Force Majeure
9.1. DB54 is not obliged to perform any obligation if prevented from doing so due to a circumstance for which DB54 cannot be attributed, nor under the law, legal act or due to generally prevailing opinions. In case DB54 invokes force majeure against Client, DB54 shall notify Client in writing as soon as possible, however, within a reasonable period of time.
9.2. In case of force majeure situation that lasts longer than twenty (20) days and Client has sent DB54 a notice of default, Client has the right to terminate the Agreement extra-juridical and with immediate effect by means of a registered letter. Client is not entitled to any damages. Payments done for the Service or a training, are in case of force majeure no subject of reimbursement.
Article 10. Non-Disclosure
10.1. Information and/or documentation is considered confidential if it is designated by one party as such, or if the other party has knowledge of the fact, or should have known, that information and/or documentation is confidential.
10.2. The parties, and the staff of the parties, shall make use of confidential information which has been received or made available only in accordance with the stipulations in the agreement. They shall not make this material available to third parties directly nor indirectly, nor approve the use of, without prior approval of the other party. Parties, and the staff of the parties, shall take all necessary precautions in order to protect the information from unauthorized use and disclosure.
10.3. The provisions in this article shall not apply if one party has to disclose confidential information pursuant to a court order or government decree.
10.4. To prevent unauthorized persons from gaining (possible) access to the delivered Service and data, Client is obliged to take measures.
10.5. Client acknowledges that the Functionality of the underlying software, the screen lay outs, the interfaces, graphical elements and icons are subject to intellectual property rights as mentioned in Article 5. The stipulations regarding non-disclosure, as set out in this article also apply to inter alia the screen prints / captures, algorithms and business rules of the Service.
10.6. Client will refrain from directly or indirectly developing a solution similar to the DB54 Toolset, or assign a third party to develop a solution similar to the DB54 Toolset.
Article 11. Processing Personal Data
11.1. DB54 will not provide Client access to the DB54 Toolset without a between parties concluded data processing agreement. DB54 puts a standard data processing agreement at the disposal of Client. In case Client wants to modify this data processing agreement, or Client wants parties to enter into a data processing agreement of Client, the involved time at the side of DB54 is invoiced based on actual costs. DB54 does not warrant that it agrees with the changes or proposal of Client regarding the DB54 standard data processing agreement, or with the data processing agreement of Client.
Article 12. Training and Workshop Facilitation
12.1. In case the Agreement entails a Training or Workshop Facilitation, paragraphs 12.2 and 12.3 apply.
12.2. Any materials handed out by DB54 may not, without the written permission of DB54, be shared and/or provided to third parties.
12.3. Trainings in principle take place in the region of Utrecht, the Netherlands, unless the parties have agreed upon a different location or the Client opts for in house Training. In case of in house Training, Client is responsible for all the required facilities, which DB54 indicates are necessary for giving the Training, at the location. In case of a different location, DB54 will charge all costs related to the Training (such as, but not limited to: location, food and beverages, travelling expenses) to the Client.
12.4. Article 5 (intellectual property rights) applies mutatis mutandis to Trainings and Workshop Facilitation.
12.5. In principle, the Trainings or sessions in the context of Workshop Facilitation, and in particular the agreed dates, cannot be changed and / or terminated in the interim. However, DB54 can, but is not obliged to, agree a different date and / or replacement assignment with the Client.
Article 13. Agreement is concluded through Internet
13.1. In case the Agreement was concluded through the Internet, paragraphs 13.2 to 13.3 apply.
13.2. Paragraph 2.1 is not applicable. The Agreement between Client and DB54 is entered into by following the online order process on the website of DB54. The Agreement becomes effective upon payment. During the online order process Client has acknowledged that these General Terms and Conditions apply, by checking a checkbox. The conformation of the Agreement which was sent to Client by e-mail, is regarded the body of the Agreement.
13.3. Paragraph 6.3 and 6.5 are not applicable. During the online order process parties agreed upon an online payment method (inter alia: direct debit, credit card, iDEAL or Paypal). With some payment methods a payment can only made once (iDEAL for example). In that case: (i) the Agreement is terminated automatically after lapse of the duration for which Client has paid, unless Client extends the Agreement by paying again for a certain duration; and (ii) paragraph 7.1 does not apply. Some other payment methods allow periodic payments (such as direct debit and credit card). In that case paragraph 7.1 fully applies.
13.4. Since DB54 assumes that Client acts in the online agreement in the course of a profession or business, the right of withdrawal of article 6:230o of the Dutch Civil Code does not apply. If and insofar as the right of withdrawal would apply, for example because there is so-called “reflexwerking”, then the right of withdrawal is excluded as the Customer has immediate access to the Functionality of the Service after payment and the Customer hereby states that DB54 may start immediately with the execution of the Agreement.
Article 14. Partner
14.1. In case the Agreement was concluded through the help of a PartnerPartner, paragraphs 14.2 to 14.4 apply.
14.2. Paragraph 2.1 is not applicable. The Agreement between Client and DB54 is entered into by signing the order form, which PartnerPartner provided Client with. In the order form is stated that these general terms and conditions are applicable. By signing the order form, Client acknowledges that these General Terms and Conditions apply.
14.3. Article 7 is not applicable since Support is rendered by Partner. Partner may charge additional costs for Support.
14.4. Paragraph 6.3 to 6.5 are not applicable. Article 12 is not applicable. The Agreement for the Service is entered into between Client and DB54, the invoices however are issued by Partner. The payment terms and conditions are set by Partner. In case an invoice regarding the Agreement issued by Partner was paid by Client, the payment is deemed a release payment. For other additional Services, including Training(s), Client enters into an agreement with Partner. DB54 is not a party in the agreement(s) for any additional services.
Article 15. Pilot
15.1. In case of a Pilot, paragraphs 15.2 to 15.3 apply.
15.2. For a Pilot a lump sum agreed upon amount is (every time) charged by DB54 to Client, therefore, paragraph 6.3 does not apply.
15.3. Paragraph 7.1 does not apply. The Agreement for the Service is entered into for three (3) months. The Agreement is renewed tacitly for a period of again three (3) months after the initial or renewed duration, unless the Agreement is terminated by one of the parties taking in to account a notice period of one (1) month before lapse of the initial or renewed period.
15.4. The data Clients accrues under the Pilot will always remain property of Client. DB54 is willing, and guarantees hereby in case requested by Client, to provide Client with the aforementioned data in portable document format (PDF), stored on a common medium or sent by email (encrypted).
Article 16. General Stipulations
16.1. For reason of continuity, professionality and efficacy, DB54 has the right to transfer all rights and obligations ensuing from the agreement, without any limitations, to third parties. Client shall be notified thereof as soon as possible.
16.2. DB54 is entitled to make use of third parties to execute the Agreement, whether by of subcontracting or the hiring of personnel.
16.3. The Agreement is governed by the Laws of the Netherlands. Disputes arising out of the Agreement will be solely submitted to the court in Amsterdam.
16.4. In these terms and conditions, the expression “in writing” also includes electronic messages such as e-mail. When “registered letter” is stated, it means a registered letter sent by mail.
16.5. To the extent that any provision of the general conditions is declared void and/or annulled, all other conditions between parties remain in force. In such a case, parties will agree to a new set of provisions, which will correspond as much as possible to the void or annulled conditions.
16.6. Due to dependence of Client (data) input, delivery terms given by DB54 at any given moment are indicated deadlines and can not to be considered binding terms. The lapse of the delivery term will not result in an attributable shortcoming.
16.7. Headings and captions used in the General Terms and Conditions are for reference purposes only.
16.8. If reference is made to an article in these General Terms and Conditions, this is a reference to an article in these General Terms and Conditions, unless the external location is indicated behind the article.