- 1.1. Client: the contractual partner of Supplier, as well as the Users of Client.
- 1.2. Documentation: the description of various aspects of the System.
- 1.3. User: any employee of Client who has access to the Portal;
- 1.4. Hardware: material objects, such as the case, the sensors and the computer equipment that must form part of the System to conform it to the Agreement.
- 1.5. Supplier: WERKMAN EQUINELYTICS B.V., a limited liability company having its registered office and its principal place of business in Groningen, entered in the Dutch Commercial Register under number 69101906.
- 1.7. Portal: the online software to which Software-as-a-Service (‘Saas’) access is provided to communicate with the System during the term of the Agreement.
- 1.8. In writing/Written: the term ‘In writing’ or ‘Written’ shall include by e-mail, fax or any other electronic medium that is suitable for long-term consultation and storage.
- 1.9. Software: computer software in object code (including apps and firmware) that must form part of the System to conform it to the Agreement, excluding the Portal.
- 1.10. System: a functioning combination of Hardware and Software and relevant Documentation intended for farriers and other horse experts, which allows Client to measure and display the horse’s gait by means of, among other things, sensors on the horse’s hoof, data traffic and the use of the Portal.
- 1.11. Accessories: additional components for the System, including extra sensors, with which the System can be extended.
2. Subject of the Agreement
- 2.1. Supplier delivers to Client the System ordered and the Accessories ordered, by means of a physical transfer to an address to be indicated by Client and in a manner to be chosen by Client.
- 2.2. During the term of the Agreement, Supplier also makes the Portal available by allowing Client to create and use an account in the Portal for a maximum of one (1) User or more if Client has ordered this in the manner specified by Supplier.
- 2.3. Supplier makes the Portal available as Software-as-a-Service, for which reason the visual appearance and the functionality of the Portal may change from time to time. Client understands and accepts this.
- 2.4. Supplier allows Client to measure and display the horse’s gaits by providing the System and the Portal. Client is expected to use its professional capabilities to interpret the data displayed by Supplier. Client understands that the results of measurements made by the System will strongly depend on the horse’s condition, the actual use of the System, the condition of the measuring environment including the subsoil, the distance between the various Hardware parts, and other factors that are outside the sphere of influence of Supplier or its System.
- 2.5. The obligations for Supplier are best efforts obligations, whereby Supplier undertakes to make every effort to deliver the System and the Portal to Client in a correct manner.
- 3.1. Supplier hereby grants Client, for the term of the Agreement, a nonexclusive, nontransferable license for normal use of (a) all Software that, at the time of delivery, forms part of the System, (b) the Portal and (c) the Documentation, which license Client hereby accepts. Client is authorised to allow the System to be used by a maximum of one (1) User, or as many more within the own organization as Client has ordered licenses for. Client will notify Supplier if this number is exceeded. Such exceedance has no direct consequences for the use of the Software, but will be settled financially in accordance with the stipulations of clause 6.
- 3.2. The right of use is subject to the following restrictions:
- Client is not allowed to lease to third parties or allow third parties to use the System or parts thereof, or to use the System or parts thereof for or during educational purposes or workshops.
- Client is not allowed to change the System or parts thereof.
- Client is only allowed to multiply the Documentation to the number of Users paid for byClient. Subsequently, the copies made may only be used for internal purposes by Client’sown staff. Further publication of the Documentation is not allowed.
- Client is not allowed to reconstruct the source code of the Software using reverseengineering. In the event that Client needs information to ensure interoperability of the Software with computer software of itself or third parties, Client will present Supplier a written, substantiated request to provide the necessary information. Subsequently, Supplier will inform Client, within a reasonable period, whether Client is allowed access to the requested information and under which conditions such information is provided.
- Client is not allowed to remove any indication regarding copyrights, brands, trade names or other (intellectual) property rights from the Software and the Documentation.
- 3.3. Client undertakes to synchronise the Software and the data from the System with the Portal on a regular basis, but at least once (1 time) a month, and to incorporate any (security) updates provided into the System.
- 3.4. Client shares the data measured with Supplier via the Portal, so that these data can be used in anonymous form for, among other things, benchmarking, data analysis, scientific research and other statistical purposes.
- 3.5. Supplier is authorised to investigate whether Client uses the Software in a manner that complies with the terms of the Agreement. Client undertakes to cooperate with such an investigation and to provide Supplier access to the Location for this purpose. Supplier bears both its own and the Client’s costs involved in such an investigation.
- 3.6 Client is not allowed to link the System with products that do not originate from Supplier or its affiliated suppliers of horse products in advertisements or other communications.
4. Ownership and risk
- 4.1. The ownership of the Hardware will pass to Client at the time of payment of the amount referred to in clause 6.1.
- 4.2. The risk of damage and/or loss of the System will pass to Client at the time of first use by Client. The risk of damage and/or loss of the Hardware will already pass to Client at the time of dispatch to Client.
- 4.3. Client must accurately observe Supplier’s instructions for applying the sensors to the hoofs of horses to avoid any risk of incorrect measurements or incidents. This includes ensuring that the hoofs are dry and fat-free before applying the sensors. Supplier shares the instructions with Client via, among other things, the Portal. In the event that the sensors or other components of the Hardware are visibly damaged, Client must stop using these components and have them replaced by new components from Supplier.
- 4.4. Client must use the Hardware for its designed purpose only and must never equip it with other software than the Software provided by Supplier. Also, Client must never use accessories or any other equipment in combination with the Hardware that have not been supplied or approved by Supplier.
- 4.5. The System is not designed for processing personal data as referred to in the General Data Processing Regulation. Any damage or fine resulting from such improper use will be at Client’s expense and risk.
5. Term and termination of the Agreement
- 5.1. The Agreement commences on the order date or on the delivery date, whichever is sooner, and terminates after two (2) years. After this first term, the Agreement will be tacitly renewed each year for one (1) year, subject to early termination.
- 5.2. Either party is allowed to terminate the Agreement in writing towards the end of the term, subject to a notice period of one (1) month, as described in the preceding subclause.
- 5.3. A party has the right to dissolve the Agreement (in whole or in part) with immediate effect extrajudicially by Written Notification, without this creating any liability towards the other party and without prejudice to any other right of the party that invokes the dissolution, in the event that one of the following circumstances occurs:a. An application for the other party’s bankruptcy is filed;
b. The other party is declared bankrupt;
c. The other party has been granted a provisional or definitive moratorium on payments; d. The other party’s company is wound up.
- 5.4. In all situations other than those mentioned in clause 8, each of the parties is only authorized to dissolve the Agreement if the other party, always after as detailed a Written notification of default as possible stating a reasonable term for remedying the failure has been given, fails attributably in complying with (fundamental) obligations under the Agreement.
6. Fee and payment
- 6.1. Client will pay, once only for the provision of the Hardware and periodically for the provision of the services and the license relating to the use of the System, the amount mentioned in the offer, at the time of ordering or on Supplier’s web page. Unless explicitly specified otherwise In writing, amounts are in euros and exclusive of VAT. Shipment and insurance costs are for Client.
- 6.2. Supplier is allowed to demand advance payment for the provision of the Hardware and for making the System and the Portal available.
- 6.3. In the event that Client wishes to allow the System to be used by additional Users, it owes the amount mentioned in Supplier’s price list for each additional User. The most current price list is always available on Supplier’s website or can be obtained from Supplier.
- 6.4. Client will pay the amount invoiced within thirty (30) calendar days after receipt of the correct invoice. Insofar as Client believes that an invoice is not correct, it will inform Supplier of this within ten (10) days after receipt of the relevant invoice.
- 6.5. If Client does not fulfil its payment obligations under this clause, Supplier is entitled to suspend its consideration (in whole or in part), including denying access to the Portal, without being liable for any damage or inconveniences that may arise as a result thereof on the part of Client.
- 7.1. Supplier is only liable for damage resulting from imputable failure to perform its obligations and/or from unlawful conduct towards Client, except for the other provisions in this clause and the Agreement.
- 7.2. Liability under the preceding subclause is limited, per incident or combination of similar and connected incidents, to no more than the fee that Supplier has received from Client under the Agreement during the twelve (12) preceding months, and in any case to the maximum amount that the insurer actually pays to Supplier in a particular case, whereby any excess is deducted from it.
- 7.3. Liability of parties for indirect or consequential damage is fully excluded. Examples of these are lost profits, reputation damage of lost savings.
- 7.4. Client can only claim reimbursement of its damage as referred to under the first subclause of this clause when Client declares Supplier in default for imputable failure and/or unlawful conduct and Supplier has not, within the determined reasonable term, fulfilled its obligations or cancelled the unlawful situation. The obligation to provide a notice of default ceases in the event that compliance or remedy is permanently impossible.
- 7.5. The limitations of liability under the Agreement cease when the damage has been caused by intent or gross negligence of Supplier’s management.
8. Force majeure
- 8.1. In the event of force majeure on the side of one of the Parties, the obligations under the Agreement will be suspended for as long as the situation of force majeure continues to exist.
- 8.2. The other party’s obligations will be suspended for as long as the situation of force majeure continues to exist. This suspension will, however, not apply to obligations to which the force majeure does not relate and that have already arisen before the situation of force majeure occurred.
- 8.3. In the event that the situation of force majeure has lasted three (3) months, or as soon as it is ascertained that the situation of force majeure will last more than three months, each of the parties is entitled to dissolve the Agreement early extrajudically In writing, on the understanding that such an early dissolution is no longer possible if the commitment of which the fulfilment was temporarily prevented due to force majeure, has been fulfilled at a later date, or if the nature or extent of the failure does not justify an early dissolution. In the event of an early dissolution due to force majeure, Client is still obliged to pay the amounts of the agreed price due periodically or by advance payment over the period prior to the occurrence of the situation of force majeure.
- 8.4. Force majeure on the part of Supplier includes, among other things:
- Force majeure of Supplier’s suppliers;
- Government measures;
- Power outage;
- Failure of the Internet and other data networks or means of telecommunication;
Force majeure does, in any case, not include Client’s inability to pay.
- 9.1. Clauses 3 (Licenses), 7 (Liability) and other stipulations that must continue to exist by their nature, such as those concerning the choice of law and the competent court, will remain valid after termination of the Agreement.
- 9.2. The general (purchasing) terms and conditions of Client are not applicable.
- 9.4 Notifications that parties will give each other under the Agreement must be given In writing. Commitments and arrangements agreed orally have no effect unless confirmed In writing by one of the parties.
- 9.5. The Agreement can only be amended by an additional Written agreement among the parties. 5
- 9.6. Failure by any party to exert any right or any legal remedy does not entail waiver of that right or legal remedy.
- 9.7 Dutch law applies to the Agreement.
- 9.8. If any dispute between parties cannot be solved amicably, the court of the Supplier’s place of business will be exclusively authorized to decide in respect of the dispute.