General Terms and Conditions

General Terms and Conditions – Embrace The Human Cloud

Below you will find the General Terms and Conditions. These are always applicable when you use the services of Embrace The Human Cloud.

Last modified on: May 1, 2022

Art. 1 Definitions

General Terms and Conditions: The current General Terms and Conditions.
Embrace: Embrace The Human Cloud, consisting of: Embrace Social B.V., Embrace Customers B.V., Embrace Facilities B.V. and Embrace Housing B.V., with offices at Griffeweg 97-8, 9723 DV Groningen.
Service(s): the service as described in the Offer.
Products: any and all products, as described in the Agreement.
Intellectual Property Rights: (intellectual property) rights, including but not limited to copyrights (including, of course, the copyright vested on software), database rights, domain names, trade name rights, trademark rights, design rights, neighbouring rights, patent rights, as well as rights to know-how.
Offer: a written proposal from Embrace The Human Cloud.
Client: the natural person or legal person, whether or not acting in the course of a profession or business, who entered into an Agreement with Embrace The Human Cloud.
Agreement: The signed Offer between the Parties on the basis of which Embrace The Human Cloud supplies its Services to Client, and of which the General Terms and Conditions form an inextricable part.
Party (Parties): Embrace The Human Cloud and Client, collectively or individually.
Confidential Information: non-public information that is related to a Party and information of which a Party indicates that the said information is confidential or that, due to the nature of the information or the circumstances under which the disclosure takes place, must be handled confidentially.
Employee: The person who is employed by one of the Parties, or who performs activities for the relevant Party on a contract basis.

Art. 2 Applicability and interpretation

The General Terms and Conditions are applicable to and form part of each and every act (legal or otherwise) in connection with the preparation, conclusion or implementation of the Agreement. The General Terms and Conditions are also applicable to any and all subsequent Agreements between Client and Embrace, if Client has accepted the same applicability in earlier Agreements with Embrace.
The applicability of potential purchase or other terms and conditions of Client is expressly excluded.
Stipulations or conditions applied by Client that deviate from, or that have not been included in, the General Terms and Conditions are only applicable to the Agreement insofar as the Parties stipulate this in writing.
In the event that, in addition to these General Terms and Conditions, specific product, promotional or service terms and conditions are also applicable, the said terms and conditions shall also be applicable.

Art. 3 Conclusion of the Agreement

Any and all Offers and other proposals of Embrace are subject to contract and are valid for a period of 30 days.
The Agreement is concluded at the moment Client accepts Embrace’s Offer and compliance with the relevant conditions imposed by Embrace.
A proposal shall in any case be deemed to have been accepted if the Agreement is implemented without being challenged. The proposal can be accepted both orally and in writing.

Art. 4 Implementation of the Agreement

Once the Agreement has been established, Embrace shall commence implementation on the date or at the moment stipulated in the Agreement. If a date was not stipulated for compliance then Embrace shall immediately commence the implementation of the Agreement.
When entering into the Agreement, Embrace assumes a best-efforts obligation and undertakes to carry out the assignment included in the Agreement to the best of its understanding and ability and as a diligent professional.
If delivery cannot take place within the stipulated period then Embrace shall inform Client accordingly.
Client is obliged to do everything that is reasonably necessary and advisable to ensure a timely and correct execution of the order. In particular, Client shall ensure that any and all information, of which Embrace indicates that it is necessary or of which Client should reasonably understand that it is necessary for the performance of the contract, is provided to Embrace in a timely manner.
If and to the extent that this is required for the proper implementation of the Agreement, Embrace shall be entitled to hire third parties for the implementation of the Agreement. The General Terms and Conditions are also applicable to the activities performed by third parties in the context of the Agreement. The said third parties do not have representative authority.
Embrace is not obliged to have activities performed by third parties designated by Client. Client shall be liable for goods recommended by or on behalf of Client for the benefit of the implementation of the Agreement, or that are or would be delivered by a supplier designated by Client, as well as for the non or late delivery thereof.

Art. 5 Delivery and acceptance of deliverables

Delivery terms specified by Embrace are indicative and cannot be qualified as a final or definitive deadline, unless the Parties stipulated this in writing.
An adjustment of Client’s wishes may lead to an adjustment of the delivery period. Furthermore, activities performed outside the content or scope of the stipulated activities shall be reimbursed by Client in accordance with Emrace’s usual rates.
The order is deemed to have been completed upon completion of the activities to Client by Embrace.
As long as the order has not been accepted and/or has not yet been paid in full, Client shall not be allowed to use the Service of Embrace.

Embrace will set up the Service(s) to be accessed via internet, and configure these in accordance with the wishes of Client. Client’s wishes are included in the Agreement.
Embrace will deliver the Service(s) when in its professional opinion this meets the description as included in the Agreement or is suitable for use. Client will evaluate the delivered goods within five working days after delivery and approve or reject them in accordance with the criteria stated in the Agreement. If Client does not reject the work delivered within this period, or takes the work into operational use, the work delivered will be deemed to have been accepted.
If the Service(s) is (are) delivered in phases, Customer must approve or reject the part of the work of each phase after delivery of each phase in the manner stipulated in the previous paragraph. Client may not base a rejection at a later stage on aspects approved at an earlier stage.
If Client fully or partially rejects the delivered goods, Embrace shall make every effort to resolve the reason for rejection as soon as possible. Embrace can do this by revising the result or indicating why the reason for rejection does not hold. Client then has ten working days to approve or reject the revision or motivation. If Embrace has been given the opportunity to adjust the work at least twice and one of the parties no longer considers further adjustment useful, both parties have the right to terminate the Order for the rejected part of the Agreement.
Rejection is only possible in the case of serious errors that make normal use of the Services reasonably impossible. If objections relate only to minor aspects, the work is deemed to have been accepted subject to the proviso that these objections are lifted within a reasonable period of time.
For errors discovered after acceptance, there is no liability for Embrace, unless Embrace knew or should have known of these upon delivery.

Art. 6 Account management

Embrace will open an account with the chosen username and the corresponding password with which an employee of Client can log in to a management environment to manage the Service(s).
The main account will be activated after verification. With the main account, Client can log in to the management environment of the Service(s) and create further accounts for its employees. Client is forbidden to create accounts for non-employees (except in the case of secondees or guest users). Client is responsible for managing the accounts, both the connections and cleaning/archiving of created users.
Client will choose ‘strong’ passwords for all accounts and change them regularly. Embrace will enforce that Client passwords meet the latest requirements regarding quality and safety.
All actions that take place within the management environment after logging in with an account of Client are deemed to take place under the responsibility and supervision of Client. In case of suspicion of misuse, Client must inform Embrace as soon as possible, after which Embrace will take appropriate measures.
If Client’s login details have been leaked, or Client suspects that his account has been misused, he must immediately adjust the password for the account and inform Embrace of the situation.

Art. 7 Licensing

When setting up the environment, Embrace grants Client the right to use the Service(s) via the website, app and other channels offered.
Embrace hereby grants Client a non-exclusive license for the Service for the purpose included in the Agreement.
Client owes Embrace a fee for the right of use, as included in the Offer.
Client may use the Application via the interface(s) offered by Embrace. One person may log in per account.
Client is never permitted to change or remove any indications in the Service(s) regarding the authorship or confidential nature of the Application, or any other reference to Embrace.
Embrace will create a main account with which Client can create sub-accounts for other users. The total number of accounts is limited in accordance with the Main Agreement.
Embrace shall create (sub-)domain names within the environment for all environments concerned (test, acceptance, production) and ensure that Client is able to access the Service(s) via this (sub-)domain.
Client undertakes to make the Application accessible only to its employees, who must have reasonable access for the performance of their work, and to third parties who provide services within the context of the Service(s).
Client is not allowed to:
– Give a copy of the Application to third parties;
– Sublicense the Application or make it available to third parties, by means of rental, Software-as-a-service constructions or otherwise;
– Changes to be made to the Service(s);
– Delete or make illegible indications regarding Embrace or its licensors as the rightful claimant(s) of the Service(s) or parts thereof.

The software includes a standard license agreement which applies to the parties involved unless otherwise agreed.

Art. 8 Term and termination of the Agreement

The term of the Agreement is established in the Agreement. If a term is not included in the Agreement, the Agreement is then entered into for a term of 36 months. The Agreement is always renewed automatically for a term of one year up to the moment of termination.
Client can only terminate the Agreement in writing after the first renewal, observing a notice period of three months.
In case of termination, Client must pay the full amount, minus the savings that derive from the termination on the part of Embrace. Embrace shall then deliver the work that has already been completed. If the price was made dependent on the actual costs to be incurred by Embrace, the price payable by Client shall be calculated on the basis of the costs incurred, the work performed and the profit that Embrace would have generated in respect of the entire work. The amounts remain payable after termination of the Agreement and are immediately due and payable from the day of termination.
Embrace can suspend or terminate the Agreement at any time, either in whole or in part, if:
– Client has been declared insolvent;
– Client was granted suspension of payment;
– the business of Client is being dissolved or liquidated;
– the decisive control over the business of Client changes.
Obligations that by their nature are intended to also continue beyond the end of the Agreement shall remain in full force and effect after the Agreement has been terminated and shall apply to Client and its legal successors.

Art. 9 Price and payment

Client shall pay Embrace the amount specified in the Offer. All prices specified by Embrace are in euros. In some cases a down payment is required. The amount of the down payment shall be included in the Agreement.
Any and all prices specified by Embrace are exclusive of sales tax (VAT) and other officially imposed levies, unless indicated otherwise.
A payment term of 30 days applies to each and every invoice.
If a price is based on data supplied by Client and the said data appear to be incorrect, Embrace shall be entitled to adjust the price accordingly, even after the Agreement has already been concluded.
If Client does not comply with its payment obligation(s) in a timely fashion within the applicable payment term, Client shall be in default without any further notice of default by Embrace being required.
In the event of late payment, in addition to the payable amount and the statutory interest accrued on the same, Client shall be obliged to pay full compensation for both extrajudicial and judicial collection costs, including the costs of attorneys, lawyers, bailiffs and collection agencies.
Client renders the payments due to Embrace without discount, appeal for compensation or settlement, unless this was stipulated in writing.
Embrace can ascertain itself within the legal parameters of the fact if Client can meet its payment obligations, but also of any and all facts and factors that are important for a responsible conclusion of the Agreement. If on the basis of said ascertainment Embrace has good grounds not to conclude the Agreement, then Embrace shall be entitled to refuse an order or request or to impose special conditions on the performance, e.g. payment in advance.
Embrace is allowed to make the commencement, implementation, continuation and/or delivery of its services to Client dependent upon payment of its invoices. A suspension of the activities and/or services by Embrace can never lead to liability toward Embrace, on any ground whatsoever.
The unit on which the licence fee for Client is determined is monitored annually. If the number of units differs from the number included in the Offer, this difference will be included on the next invoice. The method of calculation of the renewed licence fee is: (amount charged for units in Offer / number of units included in the Offer) x new number of units.
If applicable, Client shall ensure timely provision of the purchase number to Embrace, at the latest upon signature. If the purchase number changes, Client must inform Embrace of this in a timely manner. Failure to provide (timely) details of the purchase number does not affect the fact that Client must pay the invoice within the term of payment as included in the Order.
Embrace is entitled to index the contract prices annually based on the consumer price index (CPI), where 2010 = 100.

Art. 10 Contract extras

Any and all changes in the implementation of the Agreement, either at the request of Client or as a result of the fact that a different implementation is necessary due to any circumstances whatsoever, shall be regarded as contract extras if additional costs are involved. These General Terms and Conditions are applicable to the contract extras.
If contract extras were performed at the request or with the consent of Client, the contract extras shall be reimbursed by Client. Embrace may refuse to comply with this kind of request or enter into negotiations.
Client accepts that contract extras may delay the Delivery of Services, even if a time of Delivery was stipulated. Client is not entitled to compensation for said delay.
If contract extras (or the demand for this) arises during the implementation of the Agreement then this shall not constitute a ground for termination or rescission of the Agreement for Client.
Cost-increasing circumstances that cannot be blamed on Embrace shall be settled as contract extras. Embrace shall inform Client accordingly as soon as possible. In that case, Client has the option of terminating the Agreement.

Art. 11 Permitted use

Embrace offers its server capacity to Client on the basis of the ‘fair use principle’.
Embrace is entitled to check whether the use by Client of the delivered goods is in accordance with the Agreement. This applies, inter alia, to the nature of the use of the delivered Software.
If it becomes apparent that use by Client deviates from the Agreement, then Client shall compensate Embrace for the costs/expenses incurred by the latter to establish the said use in conformity with the usual rates. If Client does not agree with this then Client shall be entitled to terminate the agreement effective from the date that the adjusted price takes effect.
Client shall only rely on designated and authorised users for the Software, products and/or services to be delivered, who shall use the products of Embrace according to the manner outlined in the offer.

Art. 12 Intellectual property

The products and services to be delivered by Embrace remain the property of Embrace, Client only acquires the rights of use of the present Software, unless expressly stated otherwise in the offer. This right of use is non-exclusive, non-transferable to third parties and cannot be sub-licensed.
The intellectual property rights on these products (or their content), including the copyrights, belong fully to Embrace. This implies, inter alia, that the product (or its content) can by no means be reproduced, disseminated, distributed or made available to third parties without prior written consent of Embrace.
Intellectual property rights that arise during the implementation of this Agreement also belong to Embrace, unless stipulated otherwise.
Intellectual property rights can only be transferred in writing.
If it was stipulated in writing that rights are transferred, Embrace retains the right, after transfer of intellectual property rights to Client, to use the underlying components, general principles, ideas, designs, algorithms, documentation, works, programming languages, protocols, standards and the like for itself or for third parties.
Embrace is entitled to attribution regarding the products it develops.
Client indemnifies Embrace against claims by beneficiaries of
a. the work materials made available to Embrace (e.g. domain names, Software, databases, etc.) and
b. against claims of third parties on account of unauthorised, unlawful and/or infringing use by Client of the products delivered by Embrace.

All rights to the information uploaded or sent by Client, including any intellectual property rights such as copyrights and database rights, belong to Client.

Art. 13 Obligations of Client

The Parties shall handle information that they make available to each other prior to, during or after the implementation of the Agreement confidentially if the said information can reasonably be qualified as confidential, or was expressly designated as confidential by one of the Parties. The Parties shall also impose this obligation on their Employees as well as on third parties hired by them for the implementation of the Agreement.
The confidentiality obligation shall also remain in full force and effect after termination of the Agreement, for any reason whatsoever, and as long as the disclosing party can reasonably claim the confidential nature of the information.

Art. 14 Dissolution of the Agreement

Each of the parties shall only be authorised to dissolve the Agreement on account of an attributable shortcoming regarding the performance of the Order only if the other party, always in all cases after a written notice of default that is as detailed as possible, setting a reasonable term for remedying the shortcoming, fails imputably in the performance of essential obligations arising from the Order, unless otherwise agreed upon. Payment obligations of Client and all obligations for cooperation and/or provision of information by Embrace are in all cases essential obligations from the Order.
If, at the moment of dissolution, Client has already received performances for the execution of the Order, then these performances and the related payment obligations shall not be subject to cancellation, unless Client proves that Embrace is in default with regard to the essential part of these performances.
After termination of the Agreement, regardless of the reason, the right to use of the Service(s) expires. Embrace is then entitled to delete or make inaccessible the Application, and all data placed there by Client, and to cancel all accounts.

Art. 15 Liability

Embrace shall make every effort to implement the Agreement as diligently and securely as possible. Embrace cannot exert influence on the final use of the delivered goods. Client is therefore personally responsible for the use of the result of the Agreement.
Delivery of the Agreement shall release Embrace from any and all liability for defects that Client had already discovered, or should reasonably have discovered, at the time of Delivery, insofar as the guarantee provision is not applicable.
The total liability of Embrace for direct damages incurred by Client as a result of an attributable failure to comply with this Agreement, or as a result of an unlawful act by Embrace, its employees or third parties hired by the same, shall be limited per event or per series of related events to an amount equal to the price stipulated in the Agreement (including VAT). For continuing performance agreements, the fees paid by Client during a period of one (1) year shall be qualified as the stipulated price.
Direct damages are exclusively understood as: the reasonable costs incurred to determine the cause and the scope of the damages, the reasonable costs incurred to have the inadequate performance of Embrace correspond with the Agreement and reasonable costs incurred to prevent or limit damages, insofar as Client demonstrates that these costs resulted in the limitation of direct damages.
Liability of Embrace vis-à-vis Client for indirect damages or consequential damages or damages due to lost turnover or profit, damages due to delays, damages due to loss of data, damages due to the exceeding of time limits as a result of changed circumstances, damages due to lending inadequate cooperation, information or materials by Client and damages due to information or advice given by Embrace of which the content is not explicitly part of the Agreement, is excluded.
Condition for the occurrence of any right to compensation is always that Client reports the damages to Embrace in writing within a reasonable term, but in any case within two (2) months after the damages have occurred.
The liability of Embrace with regard to an attributable failure to comply with the Agreement only arises if Client immediately and properly gives Embrace notice of default in writing, stating a reasonable term to remedy the failure, and Embrace also continues imputable failure to comply with its obligations after the said term. The notice of default must contain a description of the failure that is as detailed as possible in order for Embrace to respond adequately.
Client indemnifies Embrace against any and all claims of third parties (including customers of Client), with regard to compensation for damages, costs or interest, related to this Agreement and/or the Service.
Embrace cannot be held to comply with an obligation pursuant to the Agreement if Embrace is prevented from complying as a result of force majeure. Embrace shall not be liable for any damages resulting from force majeure.
Force majeure includes, but is not limited to: failure to comply properly with obligations of suppliers, disruptions of public infrastructure, defectiveness of goods, equipment or Software or other source material of third parties or the use of which was recommended by Client, power failures, non-availability of Employees, official measures, general transport problems, industrial action, wars, terrorist attacks and internal disturbances.
If a situation of force majeure continues for more than 90 days then the Parties are entitled to rescind the Agreement in writing. The performances that have already been delivered on the basis of the Agreement shall in that case be settled proportionally, without the parties remaining indebted to each other.

Art. 16 Privacy Policy

Personal data are processed with the Embrace Service. In this respect Embrace acts as the processor within the meaning of the General Data Protection Regulation (GDPR).
Client is the processor and indemnifies Embrace against any and all claims of third parties/data subjects pursuant to the GDPR.
Client indemnifies Embrace against possible claims of third parties, based on injudicious or unlawful use or processing of data by Client due to an infringement of the rights of third parties.
Embrace implemented measures in the area of information security, which it deems appropriate considering the risks that are reasonably foreseeable for the contract, taking the current state of technology and the sensitivity of the data into account.
A processor agreement forms part of the Agreement and is included in the software. This shall apply between the parties unless otherwise agreed in writing.
Embrace will not take cognisance of information sent or stored by means of the Application, unless it concerns publicly available information, the cognisance has been explicitly agreed upon, the cognisance is unavoidable or necessary for the improvement of the functioning of the Application or Embrace is obliged to do so by virtue of an authorised order. In such cases Embrace will make every effort to limit the knowledge to a minimum and will observe secrecy regarding that which has been taken note of.
The existence as well as the content of the Agreement will be kept strictly confidential by both parties.

Art. 17 Security and audits

Embrace will protect the Service(s) hardware and software against misuse and unauthorised access to Client’s data.
Embrace will secure the Service(s) in accordance with the current state of technology and implement regular improvements, in any case when published research gives reason to do so.
At Client’s request, a certified ICT security company may, after signing Embrace’s indemnification declaration (see Annex 2), investigate the Application for external security, accessibility and performance aspects. Embrace will include the results of the investigation as points for improvement in its development process and implement the security points identified as urgent or critical with immediate effect. The costs of the audit shall be borne by Client; the costs of carrying out improvements shall be borne by Embrace. Client shall notify Embrace in good time (at least two (2) weeks in advance) of the fact that an audit will be carried out so that Embrace can take this into account.

Art. 18 Exit plan

Within the framework of the continuity of the use and provision of information by Client, the Parties shall, in the event of intended termination of the Agreement within five (5) Working Days after written notification, enter into consultations regarding the transfer of data, knowledge and information to Client or a third party to be designated by Client. The initiative for this lies with Client. The parties will agree on the term and manner in which the transfer will take place.
Upon termination of an Agreement, Embrace may make the following files available to Client:
a) data of Client in a transferable format;
b) documentation in the context of the configuration and layout; as part of the Penetration Test, the Investigator commits:
(c) all other data files built up with ICT performance.

All activities aimed at the exit which are carried out by Embrace within the framework of the present article, will be charged on the basis of subsequent calculation at the then current rates.
In case Client has not indicated immediately after the termination of the Agreement that he wishes to have the aforementioned transfer of the data, Embrace is entitled to remove and destroy the data stored, edited, processed or otherwise entered with the help of the Application, immediately from the server.

Art. 19 Change of the General Terms and Conditions

Embrace reserves the right to change or supplement these General Terms and Conditions. Changes are also applicable to Agreements that have already been concluded, observing a period of 30 days after notification of the change.
Changes are announced via https://www.embracecloud.com, by email to Client, or through another channel of which Embrace can demonstrate that the announcement was sent to Client. Changes of minor importance that are not related to the content can be made at any time and do not require notification.
If Client does not wish to accept a change or addition, Client can terminate the Agreement up to the date of entry into force. Use of the Service after the date of entry into force shall constitute acceptance of the changed or supplemented terms and conditions.

Art. 20 Closing provisions

This Agreement is subject to Dutch law.
Insofar as mandatory statutory provisions do not prescribe otherwise, any and all disputes that may arise in connection with the Agreement shall be brought to the cognisance of the competent Dutch court in the district where Embrace holds its registered office.
The applicability of the United Nations Convention on Contracts for the International Sale of Goods or, in short, ‘CISG’ is hereby expressly excluded.
In these General Terms and Conditions, “in writing” also includes communication by email and facsimile, provided that the identity of the sender and the integrity of the email is sufficiently established.
If a provision in the Agreement or General Terms and Conditions appears to be null and void, this shall not affect the validity of the entire Agreement or General Terms and Conditions. In that case, the Parties shall adopt (a) new provision(s) by way of replacement, which shall give substance to the intention of the original provision as far as legally possible.
Embrace is entitled to transfer its rights and obligations deriving from the Agreement to a third party who acquires Embrace or the business operations of Embrace.