Terms & Conditions

Terms and Conditions of DWS NETWORKS

These terms and conditions apply to all offers and agreements arising therefrom between DWS NETWORKS, located in Amersfoort, Chamber of Commerce 96116102, and its counterparties (“Client”). Provisions or conditions stipulated by the Client that deviate from or are not included in these terms and conditions are binding on DWS NETWORKS only if and to the extent explicitly accepted in writing.

1. Offer and Acceptance

1.1 DWS NETWORKS shall prepare an offer indicating which services (“the Services”) it proposes to perform, what is included in the Services, and the fee payable for such Services. Only the description of Services specified in the offer is binding.

1.2 In general, the Services include maintenance of hardware and software, configuration and installation of hardware, configuration and installation of software, hardware supply, remote support, on-site support, consultancy, provision of VOIP, cloud workstations, third-party SAAS services, and all related activities. Other work will only be performed if stated in the offer.

1.3 An offer is entirely without obligation and valid for 30 days after issuance, unless otherwise specified in the offer. DWS NETWORKS can never be obliged to accept acceptance after this period, but if DWS NETWORKS does so, the offer is considered accepted.

1.4 The agreement is concluded at the moment DWS NETWORKS receives the communication indicating the Client’s acceptance of the offer. This communication may be made via email.

1.5 If the Client does not explicitly indicate acceptance of the offer but nonetheless agrees or creates the impression that DWS NETWORKS should perform work that falls within the description of the Services, the offer shall be deemed accepted. This also applies if the Client requests DWS NETWORKS to perform certain work without awaiting a formal offer.

1.6 Changes to the Services are only possible with the consent of both parties, unless otherwise provided in these terms and conditions.

2. Delivery and Acceptance

2.1 After performing work or parts thereof, DWS NETWORKS shall deliver the result when, in its professional opinion, it meets the specifications or is suitable for use.

2.2 The Client shall evaluate the delivered work within a reasonable period and approve or reject it. If the Client does not reject the delivered work within this period, it shall be deemed accepted.

2.3 If work is delivered in phases, the Client shall approve or reject the work of each phase as set forth above. The Client may not base approval or rejection of a later phase on aspects already approved in an earlier phase.

2.4 If the Client rejects the delivered work wholly or partially, DWS NETWORKS shall make efforts to address the reason for rejection as quickly as possible, either by revising the result or providing a reasoned explanation why the rejection is unfounded. The Client shall then have a reasonable period to approve or reject the revised work or explanation.

2.5 If, after revision or explanation, the Client continues to reject the delivered work wholly or partially, DWS NETWORKS is entitled to charge additional fees for any further revisions. DWS NETWORKS shall indicate whether additional fees will apply for subsequent revisions.

2.6 If either party considers further revisions no longer meaningful, both parties are entitled to terminate the agreement for the relevant Service. In that case, the Client shall pay for the hours actually worked by DWS NETWORKS, up to a maximum of the quoted amount for the rejected work. However, the Client is not entitled to use the rejected work in any way.

2.7 After acceptance of the delivered work, any liability for defects in the work shall lapse, unless DWS NETWORKS knew or should have known of the defect at the time of acceptance. In any case, liability for defects expires one year after termination of the Agreement for any reason.

3. Delivery of the Services

3.1 Once the agreement has been concluded, DWS NETWORKS shall perform the Services as soon as possible in accordance with the offer, taking into account reasonable requests of the Client.

3.2 The Client is obliged to do and refrain from doing everything reasonably desirable and necessary to enable proper and timely performance of the Services. In particular, the Client shall ensure that all data that DWS NETWORKS indicates are necessary, or that the Client should reasonably understand are necessary, for performing the Services are provided in a timely manner.

3.3 The Client shall grant DWS NETWORKS access to all locations, services, and accounts under its control (such as web hosting accounts) reasonably required for delivering the Services.

3.4 DWS NETWORKS guarantees that the Services will be performed diligently, properly, and to the best of its ability.

3.5 DWS NETWORKS is entitled, but never obliged, to verify the accuracy, completeness, or consistency of the source materials, requirements, or specifications provided, and upon detecting any deficiencies, to suspend the agreed work until the Client has remedied such deficiencies.

3.6 Unless otherwise agreed, DWS NETWORKS is not a party to the provision of third-party services, such as software licenses or hosting required for the Services, even if DWS NETWORKS procures these services on behalf of the Client.

3.7 DWS NETWORKS has the right to temporarily limit or suspend the delivery of Services if the Client fails to comply with any obligation under the agreement or acts in violation of these terms and conditions.

3.8 DWS NETWORKS will make efforts to ensure uninterrupted availability of its Services but provides no guarantees unless otherwise agreed through a service level agreement.

3.9 Additional agreements on (different) availability of (telephone) support and response times, if agreed upon by the parties, shall be recorded in a service level agreement.

4. Provisions on Maintenance

4.1 Maintenance refers to keeping existing hardware and/or software functioning in accordance with the offer or further agreement and, more generally, to error correction.

4.2 DWS NETWORKS will endeavor to perform maintenance to the best of its ability, but often relies on its supplier(s) and third parties for updates, patches, or replacement parts. DWS NETWORKS is entitled not to install certain updates or patches if, in its judgment, this would not benefit proper software functioning or the Client’s interests.

4.3 As part of maintenance, DWS NETWORKS will strive to correct errors in the Works, including websites, databases, software, documentation, advice, reports, analyses, designs, texts, photos, videos, sound recordings, images, audiovisual material, logos, or corporate identity (“Works”) and associated software. DWS NETWORKS is, however, dependent on suppliers and third parties. For new functionality or changes that materially alter software operation, DWS NETWORKS shall consult the Client beforehand.

4.4 DWS NETWORKS will attempt to implement changes requested by the Client in the software. DWS NETWORKS may refuse any request that, in its judgment, is not feasible or may impair proper functioning or availability of the software.

4.5 If, in DWS NETWORKS’s opinion, a requested change may negatively impact software operation or security, it shall notify the Client in writing. If the Client insists on the change and DWS NETWORKS implements it, this is at the Client’s own risk and without any liability for DWS NETWORKS.

4.6 If the Client wishes to implement a modification to results delivered by DWS NETWORKS independently, this is entirely at the Client’s own risk and responsibility unless the Client has notified DWS NETWORKS in advance and obtained written approval. DWS NETWORKS may attach conditions to such approval.

5. Provisions on Remote Support

5.1 Remote support is provided via telephone, email, and other mutually agreed channels.

5.2 At the Client’s request, DWS NETWORKS will propose software that allows its computers to be accessed remotely. It is the Client’s responsibility to ensure that their network and security environment allow this software to function.

5.3 If remote support does not lead to a satisfactory solution or is not feasible given the nature of the problem, DWS NETWORKS will make efforts, at its standard hourly rate, to resolve the issue on-site at the Client’s location.

6. Sale of Equipment

6.1 No warranties are provided for equipment supplied as part of the Services, except to the extent offered by the manufacturer or importer. The Client must claim such warranties directly from the manufacturer or importer. DWS NETWORKS may mediate upon request but shall not be liable if the manufacturer or importer refuses repair or replacement or charges for such services.

7. Installation and Configuration

7.1 DWS NETWORKS will, in accordance with the offer or further specifications, proceed with the configuration and installation of equipment and software for the Client to realize a working environment.

7.2 The choice, purchase, and management of the environment in which the configuration and installation take place is solely the responsibility of the Client, except for equipment supplied under “Sale of Equipment.” DWS NETWORKS will provide guidance regarding the desired configuration. If the designated environment does not meet DWS NETWORKS’s requirements, it may refuse installation or configuration.

7.3 At DWS NETWORKS’s request, the Client shall grant its employees and auxiliary personnel all necessary access to the environment to enable installation, configuration, maintenance, and adjustments. Physical access to the Client’s equipment will only occur if necessary and after prior consultation with the Client.

7.4 If third-party software is installed, the Client must possess adequate licenses and ensure strict compliance with all terms. The Client indemnifies DWS NETWORKS against claims from third parties regarding software installation and licensing, unless such claims result from information or licenses provided by DWS NETWORKS.

8. Development of Works

8.1 If a Service involves developing, configuring, or modifying Works, DWS NETWORKS has the right, unless otherwise agreed, to use images, software, and components from third parties during development, configuration, or modification.

8.2 DWS NETWORKS is permitted to use open-source software where rights are held by third parties. This includes delivering open-source software to the Client and incorporating open-source software into Works created or modified as part of a Service. If a specific open-source license requires that parts of the software must be distributed as open source, DWS NETWORKS will adequately inform the Client of all applicable license conditions.

8.3 After delivery, responsibility for proper compliance with third-party licenses lies with the Client when using the developed Works.

9. Intellectual Property Rights

9.1 All intellectual property rights to all Services or Works developed or delivered under the agreement remain exclusively with DWS NETWORKS or its licensors. Rights may only be transferred to the Client if explicitly stated in the offer or separately agreed in writing.

9.2 The Client only obtains the usage rights and powers arising from the scope of the agreement or granted in writing. Otherwise, the Client shall not reproduce or disclose the Works or other materials resulting from the Services. Any use, reproduction, or disclosure of materials beyond the scope of the agreement or granted usage rights constitutes a copyright infringement. The Client shall pay an immediately due and non-reducible fine of €1,000,000 per infringing act to DWS NETWORKS. This does not affect DWS NETWORKS’s right to claim damages or take other legal measures to stop the infringement.

9.3 The Client is permitted to make modifications to Works for which it receives usage rights. If the Client makes modifications, DWS NETWORKS shall not be liable for any resulting damage.

9.4 The Client is not entitled to a copy of source files (such as image, website, or software source code) of delivered Works unless explicitly and unequivocally agreed in writing.

9.5 The Client is not permitted to remove or alter any notice regarding copyright, trademarks, trade names, or other intellectual property rights from Works licensed to it, including notices regarding confidentiality and proprietary status.

10. Prices and Payment

10.1 DWS NETWORKS will invoice all work on a monthly basis based on actual hours worked. For work performed outside normal business hours, DWS NETWORKS may charge a surcharge of up to 200% of the standard rate.

10.2 DWS NETWORKS will send an electronic invoice to the Client for amounts owed.

10.3 The payment term for invoices is fourteen (14) days from the invoice date, unless a longer payment term is stated on the invoice. If the Client fails to pay within this period, the Client is automatically in default without notice being required. Overdue amounts accrue statutory interest.

10.4 If the Client believes that an invoice, or part thereof, is incorrect, the Client must notify DWS NETWORKS within the payment term. Payment of the disputed amount (but not the undisputed portion) is suspended until DWS NETWORKS has investigated the claim. If the dispute is found to be unjustified, the Client must pay the disputed amount within seven (7) days.

10.5 In the event of late payment, the Client shall, in addition to the owed amount and accrued interest, fully reimburse both extrajudicial and judicial collection costs, including attorney fees, bailiff fees, and collection agency fees. In particular, DWS NETWORKS is entitled to charge administrative fees of €50.

10.6 The claim for payment becomes immediately due if the Client is declared bankrupt, applies for suspension of payments, has its assets fully seized, dies, enters liquidation, or is dissolved.

11. Confidentiality

11.1 Both parties shall treat information exchanged before, during, or after the performance of the agreement as confidential if it is marked as confidential or if the receiving party knows or should reasonably know it is confidential. Parties shall impose the same obligation on their employees and any third parties engaged to perform the agreement.

11.2 DWS NETWORKS will endeavor to avoid accessing data stored or transmitted by the Client via hardware or software covered by the Services, unless necessary for proper performance of the agreement or required by law or court order. In such cases, DWS NETWORKS will minimize access to the extent reasonably possible.

11.3 DWS NETWORKS may use knowledge obtained during the performance of the agreement for other assignments, provided no Client information is disclosed to third parties in violation of confidentiality obligations.

11.4 The obligations in this article remain in effect after termination of the agreement for as long as the disclosing party can reasonably claim the information is confidential.

12. Non-Competition

12.1 The Client is not permitted, during the term of the agreement and for one year thereafter, to hire employees of DWS NETWORKS or otherwise have them work, directly or indirectly, without prior written consent from DWS NETWORKS.

12.2 This prohibition does not apply if an employee independently responds to a publicly advertised job vacancy published through usual channels.

12.3 For this purpose, “employees of DWS NETWORKS” includes individuals employed by DWS NETWORKS or any affiliated company, or who were employed by DWS NETWORKS or any affiliated company within the past year, regardless of the reason for termination.

13. Privacy

13.1 In performing the agreement, DWS NETWORKS processes personal data, with the Client acting as the data controller and DWS NETWORKS as the processor. Agreements regarding processing and security are recorded in the Data Processing Agreement, which forms an integral part of these general terms and conditions.

14. Liability

14.1 DWS NETWORKS is only liable to the Client in case of attributable failure to perform the agreement and solely for replacement damages, meaning compensation equal to the value of the unperformed obligation.

14.2 Any liability of DWS NETWORKS for other forms of damage is excluded, including but not limited to consequential, indirect, lost revenue or profit, data loss, and delay due to changed circumstances.

14.3 Liability under Section 14.1 is limited to what DWS NETWORKS’s insurer pays. DWS NETWORKS will make all reasonable efforts to obtain such payment from its insurer.

14.4 If no payment is made by the insurer, liability per event (with a series of consecutive events considered one event) is limited to the amount (excluding VAT) payable by DWS NETWORKS under the agreement over six (6) months.

14.5 Liability for attributable failure only arises if the Client sends DWS NETWORKS a direct and proper written notice of default, providing a reasonable period to remedy the failure, and DWS NETWORKS fails to cure the default within that period. The notice must describe the failure in sufficient detail to allow DWS NETWORKS to respond appropriately.

14.6 Force majeure, including but not limited to internet or telecom outages, power failures, domestic unrest, mobilization, war, transport disruption, strikes, lockouts, business disturbances, supply delays, fire, flooding, import/export restrictions, or inability to perform due to suppliers, releases DWS NETWORKS from performance obligations. If the force majeure lasts more than ninety (90) days, the agreement may be suspended or terminated without any obligation to pay damages.

15. Duration and Termination

15.1 The agreement is concluded for the term necessary to provide the Services. Early termination is only permitted as set out in these terms or by mutual agreement.

15.2 Upon termination, DWS NETWORKS is entitled to immediately delete all Client data stored by DWS NETWORKS. DWS NETWORKS is not obligated to provide the Client with a copy of such data.

15.3 The agreement terminates automatically if a party is declared bankrupt, applies for suspension of payments, has its assets fully seized, dies, enters liquidation, or is dissolved.

16. Amendments to the Agreement

16.1 After acceptance, the agreement may only be amended with mutual consent.

16.2 For ongoing agreements, DWS NETWORKS may unilaterally amend or expand these general terms once per calendar year, with notice at least two months prior to the amendments taking effect. Specific agreements cannot be overridden by changes in the general terms.

16.3 If the Client objects within this period, DWS NETWORKS will consider whether to withdraw the objectionable changes. DWS NETWORKS will inform the Client of its decision. If DWS NETWORKS does not withdraw the changes, the Client may terminate the agreement effective on the date the changes take effect.

16.4 DWS NETWORKS may amend the general terms at any time if required by changed laws or regulations. No objection from the Client is permitted in this case.

16.5 The same procedure applies to pricing. DWS NETWORKS may pass on price changes imposed by suppliers at any time. Proof of the change will be provided upon request.

17. Final Provisions

17.1 Dutch law governs this agreement. To the extent not mandatorily prescribed otherwise, all disputes shall be submitted to the competent Dutch court in the district where DWS NETWORKS is established.

17.2 If any provision of the agreement is invalid, this does not affect the validity of the remainder. Parties will replace it with new provisions that, as far as legally possible, reflect the original intention.

17.3 “In writing” includes email and fax, provided the sender’s identity and content integrity are reasonably established. Parties will endeavor to confirm receipt and content of email communications.

17.4 DWS NETWORKS’s version of any communication received or stored shall be considered authentic, unless the Client proves otherwise.

17.5 Each party may only transfer its rights and obligations under the agreement to a third party with prior written consent from the other party. DWS NETWORKS may, however, transfer its rights and obligations to a parent, subsidiary, or sister company without consent.