Software right of use and service agreement
Version 1.2 January 2018
The contracting parties:
1. The software licensee and maintenance customer as indicated on the order confirmation or invoice, hereafter referred to as the 'User';
2. TransFollow BV, with its registered office and principal place of business at Hofweg 33, Nootdorp,
hereby lawfully represented by R.G. Bruijne,
hereafter referred to as "TransFollow",
- TransFollow has developed software known as "DGSPortal" for the online consultation of the list of materials which are part of a regulation for the transport of dangerous goods. The User also improves this list with his/her own data;
- TransFollow is the copyright holder for DGSPortal and the related documentation;
- TransFollow provides (part of) the available modules of DGSPortal to the User;
- the User has familiarised himself/herself with the operation of DGSPortal and wishes to use (part of) the modules available for it;
- the User wishes to make use of the services that TransFollow offers in connection with the use of DGSPortal;
- the parties wish to set out their mutual rights and obligations as follows;
have agreed the following:
1.1. TransFollow grants the User a non-exclusive, non-transferable right which is not liable for sub-licensing, for the duration of this agreement, to use DGSPortal as well as the accompanying documentation in the Netherlands via a browser which fulfils the requirements indicated by TransFollow.
2. Licence fee
2.1. The fee for the use of the DGSPortal described above shall correspond to the amount indicated on the invoice. Payment must be made within
30 days after the date of invoice, via a transfer to the bank account indicated on the invoice.
3.1. The User ensures that the equipment on which he/she uses DGSPortal always fulfils the minimum (system) requirements as described on the website or in additional information provided by TransFollow.
3.2 TransFollow provides the User with the services of a support department, which the User may make use of for up to 8 hours per year. The support department has the task of advising the User over the telephone about the use and operation of the DGSPortal as well as listing any complaints from the User in connection with the use of the DGSPortal, if possible providing advice about the options to solve the complaints and answer questions about the use of the DGSPortal. For advice about the application of the content of the dangerous goods regulations, the support department will put the User in contact with a safety advisor affiliated with TransFollow.
3.3. The support department is available from Monday to Friday from 9.00 to 17.00, with the exception of public holidays recognised in the Netherlands.
3.4. If, in the support worker's opinion, the problem cannot be resolved over the telephone, there is a possibility to call on a technical support worker, who will try to solve the problem on the spot, in mutual consultation.
3.5. TransFollow will try to remedy complaints which have been reported via the support department as much as possible in a new version or release of the DGSPortal.
3.6. All costs with respect to adjustments as a result of changes in the legislation and regulations on the transport of dangerous goods and which must be carried out in the DGSPortal may be charged by TransFollow to the User separately.
3.7. TransFollow is entitled to temporarily stop access to the DGSPortal without prior notice, in order to perform maintenance or repairs. TransFollow shall endeavour to perform these works outside office hours as far as possible, and inform Users about the works in good time.
3.8. TransFollow has the right to refuse the User access to the DGSPortal and the related modules if, despite written warning, the User fails to pay the fees described in this software right of use and service agreement.
4. Service fee
4.1. The twelve-monthly fee for the DGSPortal service described above shall correspond to the amount indicated on the invoice and must be paid in advance. TransFollow is entitled to adjust these amounts on an annual basis, without prior notice.
4.2. Payment must be made within 30 days after the date of invoice, via a transfer to the bank account indicated on the invoice.
4.3. The costs related to using a technical support worker will be calculated on the basis of actual costs at the applicable rates.
5. Retention period
5.1. TransFollow is entitled to delete the proprietary data of Users with a free trial as of one month after the end of the free trial from the DGSPortal, unless the User transfers to a paid version within this month.
5.2. TransFollow is entitled to delete the User's proprietary data saved in the DGSPortal as of one month after the termination of this software right of use and service agreement from the DGSPortal.
6. New versions and DGSPortal releases
6.1. This agreement covers the current version and release of DGSPortal, as well as new versions and releases of DGSPortal as installed by TransFollow from time to time, on the understanding that TransFolow is entitled to charge the User new or additional fees for new features and functions.
6.2. TransFollow shall inform the User in good time about the installation of a new version or release of DGSPortal, via an announcement in which the content of the new version or release as well as any changed minimum (system) requirements are set out.
6.3. As soon as TransFollow installs a new version or release of DGSPortal, earlier versions can no longer be used by the User. The User shall ensure that the equipment on which he/she uses DGSPortal meets the minimum (system) requirements as described in the above-mentioned announcement directly after installation.
7. Contact persons
7.1. For the performance of this software right of use and service agreement, Mr. F. Keiren shall act on behalf of TransFollow and is also authorised to represent TransFollow in this respect.
7.2. For the performance of this software right of use and service agreement, the User's contact person indicated in the DGSPortal acts for the User and is also authorised to represent the User in this respect.
8. Duration of the software right of use and service agreement.
8.1. The right to use the DGSPortal shall enter into force upon the approval of this software right of use and service agreement and is concluded for a duration of twelve months. After the expiry of this period, this software right of use and service agreement shall be tacitly renewed on a yearly basis for a period of twelve months.
8.2. The right to service as described in Article 3 of this software right of use and service agreement also enters into force once it is approved and is entered into for the duration of this software right of use and service agreement.
9. Termination of the software right of use and service agreement
9.1. Each of the parties has the right to terminate this software right of use and service agreement by means of a written notice and taking into account a period of notice of at least 3 months before the ending of the current period.
9.2. In view of the fact that TransFollow is dependent from its supplier for the performance of this software right of use and service agreement, this agreement shall end by operation of law if the distribution, licence and/or maintenance agreement for DGSPortal between TransFollow and its supplier should end, for any reason.
9.3. Each of the parties has the right to end this software right of use and service agreement with immediate effect, without any legal intervention being required if:
- the other party is in breach, and after written summons setting a reasonable period for remedy, still remains in breach;
- the other party is declared bankrupt, files for protection from creditors or if his/her business is wound up or ended other than as a consequence of a merger or joining together of companies.
9.4. In the event of the termination of the software right of use and service agreement:
9.4.1. - the User shall be denied access to the DGSPortal as of the date of the actual termination;
9.4.2. - all data filled in by the User shall be deleted from the DGSPortal one month after the actual termination;
9.4.3. - all outstanding amounts shall be directly payable as of the date of termination of the agreement and TransFollow is not obliged to refund amounts already paid;
9.4.4. - obligations which remain in force explicitly, or due to their nature, shall apply in full;
10. General terms and conditions
10.1. The accompanying Modules of the ICT~Office Terms and Conditions, filed with the Kamer van Koophandel Midden-Nederland (Midden-Nederland Chamber of Commerce) under number 30174840, apply to this software right of use and service agreement. They consist of the General Module, Module 1 Software Licence, Module 4 ASP, SaaS and computer service as well as Module 8 Education and training. In the event of a conflict between the provisions of this agreement and the above-mentioned Modules of the ICT~Office Terms and Conditions as well as between the Modules themselves, the lower number shall take precedence over the higher number (e.g. 1 takes precedence over 2)
1) this agreement;
2) General Module;
3) Module 4 ASP, SaaS and computer service;
4) Module 1 Software licence;
5) Module 8 Education and Training.
10.2. In addition to the above-mentioned ICT~Office Terms and Conditions, each limitation of liability and exclusion of liability applies, regardless of the legal basis on which the claim is based and is also applicable to all indemnity obligations and to each failure to meet a guarantee or primary responsibility. In addition to Article 9.5 of the above-mentioned ICT~Office Terms and Conditions, the costs of the telecommunications facilities mentioned therein are to be borne by the User.
10.3. The applicability of the second sentence of Article 3.3 of Module 4 ASP, SaaS and computer service as well as Articles 9.2 and 9.5 of Module 1 Software Licence is explicitly excluded.
10.4. The applicability of Articles 6:227b and 6:227c of the Civil Code are explicitly excluded, to the fullest extent permitted by law.
11. Miscellaneous provisions
11.1. Failure to enforce compliance with an obligation under this software right of use and service agreement cannot, at any time, be understood as waiving any rights arising from this agreement.
11.2. The parties may not transfer their rights and obligations under this software right of use and service agreement to a third party, except with permission from the other party, on the understanding that in order to perform works in the context of the performance of this
agreement, TransFollow may use third parties. If, for any reason, TransFollow suspends its
activities in the context of this agreement, the User already votes in favour of transferring the agreement to TransFollow's supplier, if and to the extent that TransFollow and its supplier reach an agreement about such a contract transfer.
12. Personal data protection
12.1. Except when TransFollow has an identified need to process personal data in the context of the agreement with the User, when dealing with personal data, TransFollow acts towards the User as a processor within the meaning of the Personal Data Protection Act. The instruction to process and purpose of this processing is a result of the nature of the agreement concluded. The means are the automated systems deployed by TransFollow.
12.2. For all personal data which TransFollow receives from a User and/or collects itself or has to collect, a duty of confidentiality applies with respect to third parties. TransFollow shall not use this personal data for another purpose other than the purpose for which it obtained the data, except if the other purpose arises from an identified need or legal obligation.
12.3. TransFollow shall delete data if it is no longer necessary for the purposes for which the User provided it and if there is also no identified need or legal obligation that requires the retention of this data.
12.4. If an interested party contacts TransFollow with a request to examine or correct its personal data, TransFollow shall pass on the request to the User, and if possible, put the interested party directly in contact with the User. TransFollow shall not independently examine or perform corrections to personal data without the User's permission.
12.5. TransFollow shall take suitable technical and organisational measures in order to protect personal data against loss or against any form of unlawful processing. Taking into account the technology and costs of implementation, these measures guarantee an appropriate security level with regard to the risks that the processing and nature of the data to be protected entail. TransFollow has set up its information security processes in accordance with ISO27001:2005 and declares that it also acts upon this standard.