General Terms and Conditions

General terms and conditions

These are the general terms and conditions that apply to the sale of products or services by EVTools (the "General Terms and Conditions"). EVTools B.V. is located in Amsterdam and registered with the Chamber of Commerce under number 89537122, and is hereinafter referred to as "EVTools."

1. Definitions

1.1 In these General Terms and Conditions and in the Agreement, capitalized terms shall have the following meanings.

(a) Offer: a concrete and specific offer or quotation from EVTools to supply Products and/or Services to the Customer.
(b) User Login: the login account through which the User can utilize the Services.
(c) Add-ons: the additional applications offered by EVTools and selected by the Customer.
(d) User: the persons or entities authorized by the Customer to use the User Login, including parties other than the Customer itself.
(e) Services: all services, including Software as a Service, provided by EVTools based on the Agreement, with the exception of third-party services that the Customer has purchased directly from that third party.
(f) Customer: the legal entity that procures the Products and/or Services from EVTools.
(g) Agreement(s): the arrangements agreed upon between EVTools and the Customer regarding the supply of Products and Services by EVTools to the Customer, to which these General Terms and Conditions apply.
(h) Products: all products, including usage rights, supplied by EVTools based on the Agreement, with the exception of third-party products that the Customer has purchased directly from that third party.
(i) Confidential Information: the content of the Agreement and all data originating from or relating to the parties and/or their relationships, which are provided to the other party or otherwise become known to that party in the context of the Agreement. Confidential information shall in any case include personal data, concepts, texts, images, work processes, and specifications of Products and Services.

2. General Provisions and Scope

2.1 These General Terms and Conditions apply to every legal relationship between EVTools and the Customer, including Agreements, within the framework of which EVTools supplies Products and/or Services to the Customer. Additions to or deviations from these General Terms and Conditions are only applicable if they have been agreed upon in writing between the parties.

2.2 The applicability of any purchase or other terms and conditions of the Customer is expressly rejected. Any purchase or other terms and conditions of the Customer do not apply to the Agreement.

2.3 If a provision of these General Terms and Conditions is null and void or is annulled, the remaining provisions of these General Terms and Conditions shall remain in full force and effect. In such a case, EVTools and the Customer shall consult to agree upon new provisions to replace the null and void or annulled provisions. The purpose and meaning of the null and void or annulled provision shall be taken into account as much as possible. Delay, default, or negligence in the performance of any provision of the Agreement by EVTools shall not be considered a declaration of invalidity and shall in no way prejudice the rights of EVTools.

2.4 If and insofar as EVTools makes available or grants access to third-party products or services to the Customer, the (license or sales) terms and conditions of the respective third parties shall apply to those products or services in the relationship between EVTools and the Customer, superseding any conflicting provisions in these General Terms and Conditions.

2.5 In the event of any conflict or discrepancy between these General Terms and Conditions and the Agreement, the content of the Agreement shall prevail.

2.6 EVTools may amend or supplement these General Terms and Conditions and the terms for the supply of Products from time to time. Amendments or supplements shall be deemed accepted by the Customer 30 days after being provided by EVTools to the Customer and shall apply to the Agreement from that moment, unless the Customer objects to such amendments or supplements in writing within 30 days of their provision by EVTools.

3. Offer and Acceptance of the Agreement

3.1 All offers, quotations, and other statements made by EVTools are only binding after confirmation by EVTools, unless expressly stated otherwise by EVTools. Upon confirmation of an Offer by EVTools, the Agreement shall be deemed concluded, and the Customer acknowledges that these General Terms and Conditions apply thereto, unless expressly agreed otherwise.

3.2 By the execution of an Offer by EVTools with the Customer's consent, the Agreement shall also be deemed concluded, and the Customer acknowledges that these General Terms and Conditions apply thereto, unless expressly agreed otherwise.

3.3 EVTools is not bound by obvious errors or mistakes in the Offer.

4. Obligation to Provide Information and Customer Cooperation

4.1 For the proper execution of the Agreement by EVTools, the Customer shall always provide EVTools with all data or information that EVTools deems useful, necessary, or desirable, and shall timely provide its full cooperation. If the Customer deploys its own personnel in the context of cooperating with the execution of the Agreement, these personnel members shall possess the necessary knowledge, expertise, and experience. The Customer is solely responsible for engaging and communicating with external stakeholders.

4.2 If, during the execution of the Agreement, computer, data, or telecommunication facilities, software, or hardware of the Customer are used, the Customer is responsible for selecting the appropriate resources required for the purpose and for their timely and complete availability, as well as for linking these systems with the Products and Services, unless otherwise agreed. EVTools shall in no event be liable for damages or costs resulting from transmission errors, malfunctions, or the unavailability of these facilities.

4.3 If, during the execution of the Agreement, computer, data, or telecommunication facilities are used, EVTools is entitled to assign access or identification codes to the Customer. EVTools is entitled to change the assigned access or identification codes. The Customer is fully responsible for these codes and shall treat them as confidential and with due care, disclosing them only to authorized personnel. EVTools shall in no event be liable for damages or costs arising from the use or misuse of access or identification codes, except when misuse was possible due to an act or omission by EVTools.

4.4 The Customer is responsible for creating or assigning a relevant User Login, if necessary for the use of Services or Products, as well as responsible for instructing its Users and for the Users' use of the User Login. The Customer must ensure that Users accept the applicable user terms and conditions, and the Customer remains responsible for the Users' use of the Products and Services. The email address linked to the User Login will be used for communication with end-users.

4.5 The Customer is entitled to provide the number of Users specified in the Agreement with access to the Products and/or Services within the User Login. If it appears that the number of Users exceeds the number of Users included in the Agreement, EVTools is entitled to unilaterally amend the Agreement accordingly and shall inform the Customer thereof. The Customer is entitled to reverse the amendment within 30 days of the notification. In that case, EVTools remains entitled to demand compensation from the Customer at the then-current rate for the period in which the number of Users exceeded the permitted amount, or to remove the number of Users exceeding the permitted amount within a reasonable period after notifying the Customer.

4.6 The Customer is responsible for applying for, obtaining, and maintaining, at its own expense, the (software) licenses, approvals, permits, and third-party certificates and accreditations required for the execution of the Agreement.

5. Execution of the Agreement

5.1 EVTools shall execute the Agreement with the diligence that may be expected from a reasonably acting, competent supplier under comparable circumstances and comparable contractual conditions.

5.2 All Services provided by EVTools are performed on the basis of a best-efforts obligation, unless and insofar as EVTools has expressly promised a specific result in the written Agreement, and the relevant result is described with sufficient certainty in the Agreement, and a reference is included stating that this article in the General Terms and Conditions has been deviated from.

5.3 EVTools will make reasonable efforts to adhere as closely as possible to the delivery and/or completion dates, whether final or not, stated by EVTools or agreed between parties. Interim completion dates stated by EVTools or agreed between parties shall always be considered target dates, are not binding on EVTools, and are always indicative.

5.4 EVTools does not warrant that the Services or Products supplied to the Client and used by the Client under the Agreement are free from defects and function entirely without interruptions. EVTools releases new versions of its offered Products and Services, whether or not based on the Client's input or requests, which are automatically implemented for the Client.

5.5 The Products and Services offered by EVTools are not provided exclusively to the Client. Client data is not accessible to users other than the designated Users and the Client.

5.6 EVTools expressly disclaims responsibility for the achievement of results intended by the Client. The Client is responsible for the use of the Products supplied and/or Services rendered by EVTools and for how the Client utilizes the results thereof.

5.7 EVTools will make reasonable efforts to ensure that personnel and freelancers engaged for the provision of Services are sufficiently available and qualified, and possess the relevant training, expertise, and experience.

6. Acceptance

6.1 If the parties have not agreed on an acceptance test, the Client accepts the Services and Products in their 'as is, where is' condition at the time of delivery, including all visible and invisible errors and defects.

7. Intellectual Property

7.1 All intellectual property rights to software, websites, data files, databases, equipment, (training) materials or other materials such as analyses, designs, documentation, reports, quotations, as well as preparatory materials thereof, developed under the Agreement or made available to the Client, rest exclusively with EVTools, its licensors, or its suppliers. The Client obtains only the rights of use expressly granted by these General Terms and Conditions and the Agreement concluded in writing between the parties, and those that mandatorily arise from law.

7.2 EVTools hereby grants the Client and the Users a non-exclusive, non-transferable right to use the Product and Services for the duration of the Agreement and for the number of Users as stipulated in the Agreement. This right of use shall expire if the Client fails to fulfill any obligation under the Agreement and/or the General Terms and Conditions.

7.3 The Client shall not remove or alter any indication(s) concerning the confidential nature, copyrights, trademarks, trade names, or any other intellectual property right from EVTools' software, websites, data files, equipment, or materials, nor shall the Client permit such removal or alteration.

7.4 The Client agrees that EVTools may use the Client's name and logo for EVTools' promotional purposes, and the Client hereby grants EVTools a non-exclusive, non-transferable license for such use. These promotional purposes include, but are not limited to, social media, website, portfolio, and promotions.

8. Personal Data

8.1 The parties shall fulfill their specific obligations under the GDPR and other applicable laws and regulations concerning personal data within the framework of the provision of the Services and/or delivery of the Products.

8.2 If applicable laws and regulations so require, the parties may make further agreements regarding the processing of personal data in the form of a data processing agreement.

9. Additional Work

9.1 The Agreement specifies the scope of the Products and Services and the corresponding number of hours. EVTools may, upon request or with prior consent from the Client, perform work or supply products or services that fall outside the content or scope of the Agreement, including additional implementation activities or overrun work. For this additional work, the Client shall owe the (hourly) rates specified in the Agreement. Should EVTools observe during the process that additional work in the form of overrun activities is desired, EVTools will communicate this in advance.

9.2 EVTools is not obliged to accept a request to perform additional work. EVTools may require that the parties conclude a separate agreement for the performance of such additional work.

9.3 Additional work as referred to in this article may affect the expected or agreed time of completion of Services or delivery of Products, as well as the mutual responsibilities of the Client and EVTools. The Client accepts this when additional work is performed.

9.4 Insofar as a fixed price has been agreed in the Agreement for the work to be performed by EVTools, EVTools will inform the Client in writing, upon request, about the financial consequences for the additional work referred to in this article.

10. Payment

10.1 All prices are exclusive of VAT and other applicable taxes and government levies, and include travel and accommodation costs, office costs, surcharges, transport, and/or packaging costs. All prices are stated in euros, and the Client must make all payments in euros, unless otherwise agreed.

10.2 The fees for Services or Products supplied by EVTools are due monthly in arrears, based on post-calculation. The Client must pay the amounts due within 30 days of the invoice date. The Client is not entitled to suspend payment or set off amounts due.

10.3 The hourly rates applied by EVTools may be changed annually as of January 1st. In addition to other price changes, upon renewal after the first year, EVTools is entitled to apply a price correction each subsequent year based on the CBS (Statistics Netherlands) services price index, series 2015=100, from January compared to January of the preceding year.

10.4 Payments made by the Client shall first serve to settle any accrued interest and costs, and subsequently to settle the longest outstanding due invoice, even if the Client states that the payment relates to another invoice.

10.5 The Client may reasonably dispute the invoiced amounts by informing EVTools in writing within 14 days of receipt of the relevant disputed invoice, specifying the disputed amount and providing substantiation for the dispute. The parties shall then consult regarding the disputed amount, it being understood that a dispute does not suspend the payment term specified in Article 12.6. EVTools may (partially) refund the disputed amount if and to the extent EVTools determines the dispute to be justified.

10.6 In the event of non-payment of an invoice, the Client shall owe statutory commercial interest on the outstanding amount, without further demand or notice of default being required. If, after a demand or notice of default, the Client fails to pay the amount due, EVTools may initiate collection proceedings, in which case the Client shall be liable for payment of all judicial and extrajudicial costs, including collection costs and costs incurred by external experts, in addition to the total amount due.

11. Confidentiality

11.1 Each party shall ensure that all Confidential Information received from the other party is treated confidentially. The party receiving such Confidential Information shall only use it for the purpose for which it was provided.

11.2 The obligation referred to in Article 11.1 does not apply to information that:
(a) is in the public domain at the time of disclosure or will enter the public domain through no act or omission of the receiving party; or
(b) was known to the receiving party without restriction at the time of disclosure.

11.3 Parties may share Confidential Information with a third party if and to the extent necessary to comply with an applicable legal obligation or a request from an independent supervisory body or authority with jurisdiction over that party. To the extent permitted, the party required to provide the information shall immediately notify the other party of such a request or obligation, and the parties shall consult on the content of the disclosure.

11.4 Upon termination of the Agreement, each party shall, at the request of the other party, delete or return all Confidential Information received from the other party.

11.5 During the term of the Agreement and for one year after its expiration or termination, neither party shall employ or otherwise engage any employees of the other party who are, directly or indirectly, involved or have been involved in the performance of the Agreement, except with the prior written consent of the other party. Conditions may be attached to such consent.

12. Audit

12.1 EVTools is permitted to audit the Client's use of the User Logins. The Client shall cooperate with such an audit by providing EVTools with access to information relevant to the audit. The audit shall not unreasonably impede the Client's normal business operations. Each party shall bear its own costs for the performance of the audit.

12.2 If EVTools' investigation, including an audit, reveals that the Client has exceeded the maximum number of permitted Users, the Client shall retroactively compensate EVTools for that number. In addition to the reimbursement, EVTools may also impose a penalty equal to 25% of the lost revenue from the period during which the Client provided access to the User Login to a higher number of Users than permitted.

13. Indemnification

13.1 The Client shall fully indemnify EVTools for all costs, expenses, and damages suffered or incurred by EVTools as a result of:
(a) all possible claims from the Client's customers and other third parties arising in any way from the Client's non-performance of an obligation or warranty under the Agreement, or from any other negligence, culpable act or omission by the Client;
(b) fraud, misuse, or other unlawful use of the Products and/or Services, including such use that, due to the Client's actions, infringes on third-party (intellectual) property rights, unless the damage referred to in this article is due to an attributable shortcoming in the performance of EVTools' obligations under the Agreement or EVTools' compliance with laws and regulations.

13.2 EVTools shall indemnify the Client against all third-party claims based on the assertion that a Product infringes an intellectual property right belonging to them, provided that the Client (i) immediately notifies EVTools in writing of the existence and content of such claims and (ii) leaves the handling, including any settlements, entirely to EVTools. The Client shall provide EVTools with the necessary powers of attorney, information, and cooperation so that EVTools can defend itself against such claims, if necessary, in the Client's name. This indemnification does not apply insofar as the claim relates to modifications made to the relevant Product by the Client, or by a third party on behalf of the Client, in the absence of EVTools' prior written consent. All other or further indemnification obligations of EVTools are excluded. In the event of claims, this shall be the Client's sole remedy.

14. Liability

14.1 EVTools' total liability for an attributable shortcoming in the performance of the Agreement or on any other legal ground, including any compensation for damages and the non-fulfillment of a warranty obligation agreed with the Client, is limited to compensation for direct damage up to a maximum of the fees payable by the Client in a 12-month period preceding the date of the damaging event. EVTools' liability for all other forms of damage, including indirect damage, consequential damage, loss of profit, missed savings, damage resulting from claims by the Client's customers, and third-party software, is excluded. These exclusions and limitations shall cease to apply if and insofar as the damage is the result of intent or willful recklessness on the part of EVTools.

14.2 The provisions in this article and all other limitations and exclusions of liability referred to in these General Terms and Conditions also apply for the benefit of all natural persons and legal entities engaged by EVTools in the performance of the Agreement.

15. Term and Termination of the Agreement

15.1 EVTools may terminate the Agreement with immediate effect without notice of default if:
(a) there is a direct or indirect change in the decisive control over the Client's business;
(b) the Client is granted a suspension of payments, whether provisional or not, a bankruptcy petition has been filed, the Client is irrevocably declared bankrupt, or the Client's business is dissolved or liquidated other than in the context of a restructuring or merger of companies.

15.2 Each party is only entitled to dissolve the Agreement due to an attributable shortcoming in the performance of the Agreement by the other party, in the cases prescribed by law. EVTools shall only be in default after the Client has given EVTools written notice of default, observing a reasonable period of at least 30 days, and EVTools has failed to perform within that reasonable period. The notice of default must contain as complete and detailed a description of the shortcoming as possible, so that EVTools is able to respond adequately
.

15.3 Amounts invoiced before the termination of the Agreement in connection with Products or Services properly delivered before termination remain due. Upon termination of the Agreement in any manner whatsoever, the Client is entitled to a refund of any prepaid amounts. Refunds for an excess of purchased, unused (inactive) Users are not possible.

16. Miscellaneous

16.1 All notices shall be made in writing, including by email. Oral notices, promises, or agreements shall have no legal force unless confirmed in writing.

16.2 These General Terms and Conditions and the Agreement shall be governed by and construed in accordance with Dutch law. The applicability of the Vienna Sales Convention is excluded.

16.3 The competent court in Amsterdam shall have exclusive jurisdiction to hear any disputes arising from or related to these General Terms and Conditions or the Agreement.