General Terms and Conditions

Article 1. Definitions

1.1. Except and to the extent elsewhere in these General Terms and Conditions (hereinafter: “Terms and Conditions”), terms defined with capital letter will have the following meanings:

Article 2. Scope

2.1. These Terms and Conditions apply to and form part of all Framework Agreements and/or offers and/or Agreements where Embrace provides its Application(s) to the Client. The provisions of these Terms and Conditions apply in full to any (agreement relating to the performance of the) Agreement for the benefit of the Client.

2.2. The applicability of any general or specific conditions or provisions of the Client that deviate from these Terms and Conditions, under whatever name, is expressly excluded.

2.3. These Terms and Conditions may only be deviated from by the Parties in writing and explicitly.

2.4. If any provision of these Terms and Conditions is null and void or destroyed, the remaining provisions of these Terms and Conditions will remain in full force and effect. Embrace and Client will then consult, with the aim of agreeing on new provisions of as much as possible the same purport to replace the void or voided provisions.

2.5. Embrace is authorised to unilaterally amend provisions of these Terms and Conditions at any time. Once the amended Terms and Conditions have been disclosed to the Client, these will apply between Embrace and the Client.

2.6. In case of conflict between any provision in the Agreement and these Terms and Conditions, the provisions in the Agreement take precedence over the provisions in these Terms and Conditions unless the Agreement deviates from the Terms and Conditions to Embrace’s detriment.

2.7. The provisions of these Terms and Conditions do not affect Embrace’s rights under the law.

Article 3. Conclusion of the Agreement

3.1. All quotes, offers and other expressions of Embrace are non-binding, unless expressly stated otherwise in writing. Agreements and acceptances of quotes and offers by the Client will be deemed irrevocable.

3.2. The Client guarantees the accuracy and completeness of the data provided by or on behalf of it to Embrace on which Embrace has based its offer, except for obvious typing errors.

3.3. An Agreement between Embrace and the Client will only be formed when the offer has been signed (digitally) by the Client or Embrace has proceeded to execute the Agreement.

3.4. The content of the Agreement appears from the offer and, in its absence, from what Embrace has proceeded to deliver the Application(s).

3.5. If and to the extent required for proper execution of the Agreement, Embrace has the right at all times to have certain work performed by (a) third party (parties), whether or not affiliated to it. The applicability of Articles 7:404, 7:407(2) and 7:409 of the Dutch Civil Code is expressly excluded.

Article 4. Prices, invoicing and payment

4.1. The Client will pay the fee for the Application(s) set out in the Agreement.

4.2. All prices stated by Embrace are in EUR and exclusive of import and export duties, sales tax (if applicable) and any government levies and/or taxes.

4.3. Embrace will charge the amounts due per year, in advance, to the Client. Embrace will send an invoice to the Client for this purpose. Payment must be made within 30 days of the invoice date. This period is the final payment date and is accordingly a deadline.

4.4. In case of a periodic payment obligation of the Client, Embrace may adjust applicable prices and rates in writing and in accordance with the index or other criteria included in the Agreement, on the term mentioned in the Agreement. If the Agreement does not expressly provide for the adjustment of the prices or rates, Embrace may adjust the applicable prices and rates in writing subject to at least three months’ notice. If the Client does not wish to agree to the adjustment in the latter case, the Client is entitled to terminate the Agreement in writing within thirty days of notification of the adjustment, with effect from the date on which the new prices and/or rates would take effect.

4.5. The Client is not entitled to suspend any payment or to set off any amounts due.

4.6. If the Client does not pay the amounts due or does not pay them on time, the Client will be in default immediately, without the need for a reminder or notice of default. The Client will owe statutory commercial interest on the outstanding amount from the moment it is in default until the moment of full payment of the full amount due. If payment is not made within one month after the day on which payment should have been made at the latest, the statutory interest rate will be increased by 3% as from the day on which this month has passed.

4.7. If the Client remains in default of payment of the claim after a demand for payment or notice of default, Embrace may hand over the claim and the Client, in addition to the total amount then due (including additional interest), will also be required to pay all reasonable judicial and extrajudicial costs, including all costs calculated by external experts. This is without prejudice to Embrace’s other legal and contractual rights.

4.8. If Embrace has incurred expenses or costs, without a price having been agreed, Embrace will be entitled to charge the Client the actual costs and/or the usual rates for this.

4.9. Embrace is always entitled to set off all that the Client owes against counterclaims of the Client.

Article 5. Commencement, duration and end of the Agreement

5.1. The execution of the Agreement will commence within a reasonable period of time after its conclusion. If no commencement date has been agreed in the Agreement, Embrace will start performing the Agreement immediately. Client will ensure that it has the facilities required for the use of the Application(s) at its disposal immediately after the conclusion of the Agreement.

5.2. If and to the extent that the Agreement between the Parties is a term agreement, the Agreement has been entered into for the agreed term, failing which the term of three (3) years will apply.

5.3. The duration of the fixed-term Agreement is tacitly renewed each time for the duration of 1 year, unless the Client or Embrace terminates the Agreement in writing with due observance of a period of notice of three months before the end of the relevant period.

Article 6. Execution of the Agreement

6.1. Embrace executes the Agreement on the basis of a best-efforts obligation and it undertakes to deliver the Application(s) in accordance with professional prudence.

6.2. Any agreed deadlines do not apply as fatal deadlines as Embrace depends on various factors and circumstances, such as the quality of the data and information provided by the Client and the cooperation of the Client and relevant third parties.

6.3. Embrace provides the Application(s) on behalf of the Client. The Client may only use the Application(s) for its own company or organisation and only to the extent necessary for Embrace’s intended use. The Client is not free to allow third parties to use the Application(s) provided by Embrace.

6.4. Embrace is not required to follow Client instructions in the execution of the Agreement, in particular not if these are instructions which change or supplement the content or scope of the Application(s) to be delivered. If such instructions are followed, the relevant work will be reimbursed in accordance with Embrace’s then-current customary rates.

6.5. Embrace may make changes to the content or scope of the Application(s). If such changes are substantial and result in a change of the procedures in force at the Client, Embrace will inform the Client as quickly as possible. The costs of this change will be borne by the Client. In that case, the Client may terminate the Agreement in writing by the date on which the change takes effect, unless such change is related to changes in relevant legislation or other regulations issued by competent authorities or the Client bears the costs of such change.

6.6. Embrace may continue the execution of the Agreement using a new or modified version of the Application(s). Embrace is not required to maintain, change or add certain features or functionalities of the Application(s) specifically for the Client.

6.7. Embrace may temporarily decommission the Application(s) in whole or in part for preventive, corrective or adaptive maintenance or other forms of service. Embrace will not allow the decommissioning to last longer than necessary and will, if possible, allow it to take place at times when the Application(s) is usually used least intensively.

Article 7. Liability of Embrace

7.1. Embrace’s total liability due to an attributable breach of the Agreement or on any legal ground whatsoever will be limited to compensation of damages as detailed in this article.

7.2. Direct damages will be limited to a maximum of the amount of the price stipulated for that Agreement (excluding VAT). If the Agreement is mainly a continuing performance agreement with a term of more than one year, the price stipulated for that Agreement will be set at the total of the fees (excluding VAT) stipulated for one year. In no case, however, will Embrace’s total liability for direct damages, on any legal basis, exceed EUR 500,000.

7.3. Damage due to death, physical injury or because of material damage to property is limited to EUR 1,250,000.

7.4. Embrace’s liability for indirect damage is excluded. Indirect damage means all damage that is not direct damage and accordingly in any case, but not limited to: consequential damage (in particular due to breakdowns and/or downtime), loss of profit, lost savings, diminished goodwill, damage due to business stagnation, damage resulting from claims of customers of the Client, damage related to the use of the Application(s) provided by Embrace by employees of the Client and damage related to the use of suppliers prescribed by the Client to Embrace. Also excluded is Embrace’s liability related to mutilation, destruction or loss of data or documents.

7.5. Also damages resulting from acts or omissions of the Client or third parties: (i) in breach of instructions provided by Embrace and/or (ii) in breach of the Agreement and these Terms and Conditions and damage as a direct or indirect result of incorrect, incomplete and/or faulty information provided to Embrace by or on behalf of the Client does not qualify for compensation.

7.6. The exclusions and limitations of liability of Embrace described in Articles 7.2 to 7.5 do not affect the other exclusions and limitations of liability of Embrace described in these Terms and Conditions.

7.7. The exclusions and limitations described in Articles 7.2 to 7.5 will lapse if and to the extent the damage is the result of intent or deliberate recklessness of Embrace’s management.

7.8. Unless performance by Embrace is permanently impossible, Embrace’s liability due to attributable shortcoming in the execution of an Agreement arises only if the Client immediately gives Embrace written notice of default, such that a reasonable period for the purification of the shortcoming is given and Embrace remains imputably in breach of its duties even after such period. The notice of default must contain as complete and detailed a description of the shortcoming as possible, so that Embrace is given the opportunity to respond adequately.

7.9. A condition for the emergence of any right to compensation is always that the Client reports the damage to Embrace in writing as soon as possible after its occurrence and in any case within two months. Any claim for damages against Embrace will expire by the mere lapse of twelve months from the arising of the claim, unless the Client has filed an action for damage before the expiry of that period.

7.10. The provisions in this article as well as all other limitations and exclusions of liability mentioned in these Terms and Conditions also apply to all (legal) entities which Embrace and its suppliers use in the execution of the Agreement.

7.11. The Client will indemnify Embrace for all claims of third parties, including but not limited to third parties engaged by the Client and employees of the Client, for compensation of any damage resulting from or related to the (execution of the) Agreement with/by Embrace.

7.12. In the event of a legally valid invocation of force majeure as referred to in Article 11, the Client cannot claim compensation for any damage suffered by it.

Article 8. Dissolution and termination of the Agreement

8.1. Each of the Parties will only be entitled to dissolve the Agreement on account of an attributable failure in the execution of the Agreement if the other Party, in all cases after a written notice of default which is as detailed as possible and in which a reasonable period is given to remedy the failure, imputably fails to fulfil cardinal duties under the Agreement. Payment duties of the Client and all duties to cooperate and/or provide information by the Client or a third party to be engaged by the Client will, in all cases, count as cardinal duties under the Agreement.

8.2. If, at the time of dissolution, the Client has already received performances while executing the Agreement, these performances and the related payment duties will not be the object of undoing, unless the Client proves that Embrace is in default with regard to the essential part of these performances. Amounts which Embrace has invoiced before the dissolution in connection with what it has already duly performed or delivered in executing the Agreement, will remain due in full with due observance of the provisions in the previous sentence and will become immediately payable at the time of dissolution.

8.3. The Client is not entitled to prematurely terminate an Agreement that has been entered into for a definite period of time or an Agreement that ends by completion.

8.4. Each of the Parties may terminate the Agreement in writing with immediate effect, in full or in part, without notice of default, if the other Party is granted a moratorium on payment – provisional or otherwise – if bankruptcy is applied for in respect of the other Party, if the other Party’s business is wound up or terminated other than for the purpose of reconstruction or amalgamation of companies. Embrace can also terminate all or part of the Agreement with immediate effect without notice of default if the decisive control over the Client’s company changes directly or indirectly. Embrace is never liable for any restitution due to the termination referred to in this paragraph. If the Client has been irrevocably declared bankrupt, the right of the Client to use Embrace’s Application(s) will then terminate, without any notice of termination by Embrace being required.

8.5. Duties which by their nature are intended to continue beyond the end of the Agreement will remain in full force and effect even after the end of the Agreement and will apply to the Client and its legal successors.

Article 9. Suspension

9.1. Embrace is authorised to suspend the fulfilment of the obligation under the Agreement, if the Client does not, not fully or not timely fulfil the duties under the Agreement, or if Embrace has good reason to fear that the Client will (start to) fail in its duties.

9.2. Embrace may retain the data, documents and/or data files received or realised under the Agreement, despite an existing obligation to surrender or transfer, until the Client has paid all amounts due to Embrace.

Article 10. Changes and additional work

10.1. If Embrace has performed work or other performance at the request or with prior consent of the Client which falls outside the content or scope of the agreed work and/or performance, this work or performance will be compensated by the Client according to the agreed rates and, in the absence thereof, according to Embrace’s then-current customary rates. Embrace is not required to comply with such a request and it may require that a separate written Agreement be concluded for that purpose.

10.2. The Client realises that changes and additional work (may) result in the postponement of possible deadlines and dates. New deadlines and dates specified by Embrace replace previous ones.

10.3. If a fixed price has been agreed for the Agreement, Embrace will inform the Client in writing on request about the financial consequences of the extra work or performances as referred to in this article.

Article 11. Force majeure

11.1. Neither Party will be bound to fulfil any obligation, including any legal and/or agreed warranty obligation, if prevented from doing so as a result of force majeure. Force majeure on the part of Embrace includes: (i) force majeure of any suppliers of Embrace; (ii) government action; (iii) power outage; (iv) failure of the Internet, data network or telecommunication facilities; (v) unavailability of employees; (vi) (cyber) crime, (cyber) vandalism, war or terrorism.

11.2. In case of force majeure, Embrace has the right to suspend the performance of the Agreement, without Embrace being required to pay any damages.

11.3. In the event of force majeure, the Client will in no case be entitled to compensation or the right to carry out work in excuting the Agreement.

11.4. If a force majeure situation lasts longer than sixty days, either Party has the right to terminate the Agreement in writing. All works already performed under the Agreement will, in that case, be settled pro rata without the Parties owing each other anything else.

Article 12. Security

12.1. If Embrace is required under the Agreement to provide some form of information security, the security will comply with the specifications on security agreed in writing between the Parties. In the absence of an explicitly defined method of security, the security will comply with a level that, given the state of the art, the implementation costs, the nature, scope and context of the information to be secured known to Embrace, the purposes and normal use of its Application(s) and the likelihood and severity of foreseeable risks, is not unreasonable.

12.2. The access or identification codes, certificates or other security devices provided to the Client by or on behalf of Embrace are confidential and will be treated as such by the Client and will only be disclosed to authorised personnel from the Client’s own organisation. Embrace is entitled to change assigned access or identification codes and certificates. The Client is responsible for managing authorisations and providing and timely revoking access and identification codes.

12.3. If the security or testing thereof relates to software, Equipment or infrastructure not supplied to the Client by Embrace itself, the Client guarantees that all necessary licences or approvals have been obtained to perform said services. Embrace is not liable for any damages arising in connection with the performance of this service. The Client will indemnify Embrace against any legal claim on any account in connection with the performance of this service.

12.4. Embrace is entitled to adjust the security measures from time to time if this is necessary due to changed circumstances.

12.5. Embrace may give instructions to the Client regarding security which aim to prevent or minimise incidents or the consequences of incidents that may affect security. If the Client does not follow such instructions of Embrace or does not follow them in time, Embrace will not be liable and the Client will indemnify Embrace for any damage resulting therefrom.

12.6. Embrace will at all times be permitted to make technical and organisational provisions to protect data files, websites, software made available or other works to which access is (directly or indirectly) provided to the Client, also in connection with an agreed restriction in the content or duration of the right to use these objects. The Client will not remove or bypass such technical device(s) (or have them removed).

12.7. At the Client’s request, a certified ICT security company may, after signing Embrace’s indemnification statement, examine the Application(s) for external security aspects. The cost of the audit is for the Client, the cost of implementing any necessary improvements is for Embrace.

Article 13. Intellectual property

13.1. All intellectual property rights to the Application(s), websites, data files, databases, Equipment, training materials or other materials such as analyses, designs, documentation, reports, offers, as well as preparatory materials thereof, developed (i.e.: customised) under the Agreement and/or made available to the Client, are vested exclusively in Embrace, its licensors or service providers. The Client only acquires the rights of use expressly granted by these Terms and Conditions, the written Agreement concluded between the Parties and by mandatory law. Any right of use granted to the Client is non-exclusive, non-transferable, non-pledgeable and non-sublicensable.

13.2. If Embrace is willing to undertake to transfer any intellectual property right, such undertaking can only be made in writing and expressly. If the Parties agree in writing that a right of intellectual property in respect of software, data files, equipment, know-how or other works or materials specifically developed by the Client will pass to the Client, this will not affect Embrace’s right or ability to use and/or exploit the components, designs, algorithms, documentation, works, protocols, standards and the like underlying that development for other purposes without any restriction, either for itself or for third parties. Embrace also has the right to use and/or exploit the general principles, ideas and programming languages used for the creation, or on which the development of any work was based, for other purposes without any restriction, either for itself or for third parties. Nor does the transfer of an intellectual property right affect Embrace’s right to make developments for itself or a third party that are similar or derived from those made or to be made for the benefit of the Client.

13.3. The Client will not remove or change (or have removed) any indication(s) regarding the confidential nature or regarding copyrights, brands, trade names or any other intellectual property right from the software, data files, equipment or materials.

13.4. The Client guarantees that no rights of third parties oppose the provision to Embrace of Equipment, software, data files and/or other materials, designs and/or other works for the purpose of use, maintenance, processing, installation or integration, including having the appropriate licences. The Client indemnifies Embrace against any claim by a third party based on the fact that such provision, use, maintenance, processing, installation or integration infringes any right of that third party.

13.5. Embrace is never required to perform data conversion, unless explicitly agreed in writing with the Client.

13.6. Embrace has the right to use the image, logo or name of the Client in its external communication.

Article 14. Confidentiality

14.1. The Client and Embrace will ensure that all information received from the other Party of which it is known or should reasonably be known to be of a confidential nature will remain secret. This prohibition does not apply if and insofar as the provision of the relevant data to a third party is necessary pursuant to a court decision, a statutory regulation, on the basis of a statutory order from a government agency or for the proper performance of the Assignment. The Party that receives confidential information will only use it for the purpose for which it was provided. Information is in any case considered confidential if it has been designated as such by one of the Parties.

14.2. The Client acknowledges that the Application(s) made available by or via Embrace are always of a confidential nature and that they contain trade secrets of Embrace and/or its suppliers.

Article 15. Privacy and data processing

15.1. Embrace processes personal data within the meaning of the General Data Protection Regulation (“GDPR”) of the Client in the context of the Agreement. This personal data will be processed in accordance with Embrace’s Privacy Statement, as well as applicable laws and regulations.

15.2. If in Embrace’s opinion this is relevant for the execution of the Agreement, the Client will, if requested, inform Embrace in writing about the manner in which the Client performs its duties under personal data protection legislation.

15.3. The Client will indemnify Embrace for claims by persons whose personal data have been or are being processed for which the Client is responsible under the law, unless the Client proves that the facts underlying the claim are attributable to Embrace.

15.4. The responsibility for the data, processed by the Client using an Embrace Application, lies with the Client. The Client guarantees Embrace that the content, use and/or processing of the data is not unlawful and does not infringe any right of a third party. The Client indemnifies Embrace against any legal claim by a third party, on whatever grounds, in connection with such data or the performance of the Order.

15.5. If Embrace, pursuant to a request or authorised order of a government authority or in connection with a statutory obligation, performs work in relation to data of the Client, its employees or users, all related costs may be charged to the Client.

Article 16. Assignment of rights and duties

16.1. The Client is not permitted to assign rights or duties arising from the Agreement to a third party in whole or in part without Embrace’s prior written consent.

16.2. However, Embrace is permitted to assign rights or duties under the Agreement to, respectively have them taken over by, a third party, without the prior consent of the Client. The Client hereby grants Embrace in advance cooperation in any contract takeover of the legal relationship from the Agreement by Embrace to a third party.

Article 17. Applicable law and dispute resolution

17.1. The Agreement and all agreements resulting from or related to it as well as these Terms and Conditions are exclusively governed by Dutch law, to the exclusion of Dutch private international law and the Vienna Sales Convention.

17.2. All disputes, including disputes considered as such by only one of the Parties which may arise as a result of and in connection with the Agreement, agreements resulting therefrom and/or these Terms and Conditions, will be referred to the exclusively competent venue of the District Court of the Northern Netherlands, location Groningen.

Article 18. Advice and consultancy

The provisions in this Article 18 apply if Embrace provides services in the field of advice and consultancy which are not performed under the management and supervision of the Client.

Implementation of advisory and consultancy services

18.1. Embrace will perform the advisory and consultancy services entirely independently, at its own discretion and not under the supervision and direction of the Client.

18.2. Embrace is not bound by a turnaround time of the Agreement because the turnaround of the Agreement in the field of consultancy or advice depends on various factors and circumstances, such as the quality of the data and information provided by the Client and the cooperation of the Client and relevant third parties.

18.3. Embrace’s services will be performed exclusively on Embrace’s usual working days and times.

18.4. The use made by the Client of any advice and/or consultancy report issued by Embrace is at all times at the Client’s risk. The burden of proof that (the manner of) advisory and consultancy services do not comply with what was agreed in writing or with what may be expected of a reasonably acting and competent contractor, rests entirely with the Client, without prejudice to Embrace’s right to provide contrary evidence by all means.

 18.5. Without Embrace’s prior written consent, the Client is not entitled to make any communication to a third party about Embrace’s method, methods and techniques and/or the content of Embrace’s advice or reports. The Client will not provide Embrace’s advice or reports to any third party or otherwise disclose them.

Remuneration

18.6. The Client will pay for the advisory and consultancy services the fee included in the Agreement. At Embrace’s option, the fee to be paid is calculated on the basis of: (i) an estimate of hours and the corresponding costs in the Agreement or (ii) subsequent calculation. If the hours and costs estimated in the Agreement are exceeded, the cost of such excess will be charged to the Client on a retrospective basis.

These Terms and Conditions will come into force on 6 March 2023.