(1) Contracked B.V., with registered office at Jan Tinbergenstraat 314 in Hengelo (7559ST), the Netherlands, (hereinafter referred to as “Contracked”);
(2) ESCROW4ALL B.V. with registered office at MediArena 7, Amsterdam (1099 CZ), the Netherlands, (hereinafter referred to as “Escrow4all”);
(a) pursuant to an agreement, Contracked has issued licensee(s) with a right of use in respect of the Product (as defined below), which Product can be accessed by licensee(s) online;
(b) Contracked acknowledges that licensee(s) has an interest in the continuous and uninterrupted use of the Product;
(c) Contracked is prepared to take measures in order to ensure the continuous and uninterrupted use of the Product by licensee(s) insofar as possible;
(d) Contracked is prepared to deposit with Escrow4all essential information required for the continuous and uninterrupted use of the Product, with due observance of the following provisions;
It is agreed as follows:
The following definitions shall have the following meaning in these General Terms:
Agreement: the escrow agreement between Contracked and Escrow4all, including the annexes hereto, with agreement number SA2P10059;
Beneficiary: any person, firm, company and other legal person or entity:
- to whom a right of use in respect of the Product has been granted (Licensee); and
- who has been issued with an (electronic) Escrow Confirmation by Escrow4all;
Beneficiary Declaration: an automated request through which Contracked subscribes a Licensee to the escrow arrangement;
Escrow Confirmation: an automated confirmation - by email or other electronic communication - to be issued to Licensee by Escrow4all - within 5 business days after receipt of a Beneficiary Declaration - confirming escrow cover pursuant to the terms and conditions of the Agreement and the related General Terms Escrow Arrangement;
General Terms Escrow Arrangement: the terms of the Agreement submitted as regulations, which are indissoluble applicable to and be part of the escrow arrangement between Contracked, Beneficiary and Escrow4all;
User: a Beneficiary;
Basic Information: information relating to the Product which is required to gain access to the Product, to render and keep the Product operational online and to maintain the Product, not including the source code and the Technical Documentation;
Continuity Plan: a set of services and information aimed at enabling User, in certain situations, to continue use of the Product for a certain period of time independently of Contracked;
Hosting Services: the provision of space on a server which is connected to the internet;
SaaS Agreement: the agreement between Contracked and User that grants User a right to use the Product;
Product: the (online) software application(s) for which User, in accordance with the SaaS Agreement, has been granted a right of use and as further specified in Annex I ‘Product’;
Excess for Performance of Continuity Plan: a one-time contribution, as specified in Clause 7.1, immediately due by Beneficiary to Escrow4all, for the coverage of costs for the services to be rendered by Escrow4all as further specified in Clause 5.9 (a);
2.1 The Agreement provides for a number of continuity services to be delivered by Escrow4all for the benefit of User. Said continuity services are aimed at enabling User in certain situations to continue use of the Product and/or to maintain the Product independently of Contracked for a period of 12 months.
3.1 For the purpose of the Continuity Plan, Contracked will make the Basic Information available to Escrow4all within 20 business days of the Agreement taking effect.
3.2 Contracked warrants that the Basic Information is accurate and is sufficient to guarantee, insofar as possible, User’s continued use of the Product under the circumstances referred to in Clause 5.1 below.
3.3 Contracked warrants and represents that it is entitled to transfer the Basic Information to Escrow4all and agrees to indemnify and hold harmless Escrow4all from and against any claim by a third party in relation to use of the Basic Information by Escrow4all and/or release of the Basic Information to User in accordance with the Agreement.
3.4 Contracked will ensure by contract the continues provision of Hosting Services with regard to the Product by a provider of Hosting Services that has declared that it agrees to the agreement as laid down in Annex III ‘Agreement Continuation Hosting Services’.For purposes of the declaration referred to above, Contracked will formally request its provider of Hosting Services to sign the Agreement Continuation Hosting Services. Contracked is entitled at all times to contract a new provider for the provision of Hosting Services with regard to the Product, provided that this provider is prepared to enter into an Agreement Continuation Hosting Services.
3.5 Contracked shall, from time to time, but no later than 10 business days after changes to the Basic Information have come into effect, provide, in writing, these changes to Escrow4all.
3.6 Contracked grants Escrow4all the right to:
- use the Basic Information for the verification purposes as described in Clause 4 below;
- make a back-up copy of the Basic Information, in as far as this is required for Escrow4all to meet its obligations under the Agreement;
- in the events referred to in Clause 7 below, to use the Basic Information, to contact the contact persons identified therein, to make the Basic Information available to User and to perform technical and/or other activities relating to the Product in order to provide User with technical support.
3.7 Contracked shall throughout the term of the Agreement hold available a copy of the Basic Information as back-up.
4.1 Escrow4all shall verify the Basic Information as provided by Contracked in accordance with the specifications as laid down in Annex IV ‘Technical Verification Basic Information’. Escrow4all shall inform User and Contracked of its findings.
4.2 If verification shows that the Basic Information is not accurate or complete, then Contracked shall restore the discrepancy within 10 business days after notification to that effect by Escrow4all.
Grounds for requests for performance
5.1 Provided that User has a valid right of use in respect of the Product, User will be entitled to request the performance of the Continuity Plan if:
- Escrow4all has received a written notification from the provider of Hosting Services in respect of the Product that the provider of Hosting Services is entitled to dissolve or otherwise terminate the agreement it concluded with Contracked due to a circumstance that is attributable to Contracked;
- without any prior announcement from Contracked, use of the Product has been rendered impossible during an uninterrupted period of at least 72 hours; OR
- Contracked discontinues its business operations without transferring its obligations under the SaaS Agreement to one or more third parties in a legally valid manner; OR
- Contracked is declared bankrupt or is granted a suspension of payments;
AND insofar as, based on objective standards, the continuity of Beneficiary’s use of the Product is at risk.
5.2 If, in User’s opinion, a circumstance as described in Clause 5.1(b), (c) or (d) has occurred and it, in view of this circumstance, wishes Escrow4all to perform the Continuity Plan, it will so notify both Contracked and Escrow4all, by registered letter with acknowledgement of receipt, describing the circumstance in question. The letter should be signed by an authorised officer of User and should be submitted together with any accompanying documents in User’s possession that support its analysis. In case of a request in accordance with Clause 5.1(b) User will also declare, in writing, that the occurance of the circumstance is not the result of defects and/or shortcomings of User and/or its supplier in network, telecommunication and related services which are essential for use of the Product.
5.3 Escrow4all will confirm its receipt of a written notification from the provider of Hosting Services in accordance with Clause 5.1 (a) above, as well as of any request from User in accordance with Clause 5.2 above, within 3 days of such receipt to both Contracked and User.
5.4 If Contracked objects to User’s request for performance of the Continuity Plan in accordance with Clause 5.2above, Contracked will be entitled to submit the question whether User is entitled to request the performance of same to the Foundation for ICT Dispute Resolution (Stichting Geschillenoplossing Organisatie en Automatisering) with its registered offices in Haarlem, the Netherlands – hereafter: SGOA for a ruling in arbitral preliminary relief proceedings in accordance with SGOA’s Arbitration Regulations. SGOA’s ruling will be binding on all parties.
If Contracked involves SGOA, this will not suspend the performance of the Continuity Plan. If SGOA rules that the grounds advanced do not justify the request for performance, the performance of the Continuity Plan will be halted immediately. In addition, User will owe Contracked an immediately due and payable penalty, without any warning or notice of default being required, of € 1,000 (in words: one thousand euros), without prejudice to the other rights vested in Contracked, including the right to claim damages.
5.5 The performance of the Continuity Plan may be halted at all times if it has been reasonably demonstrated that Contracked will perform/resume its obligations under the SaaS Agreement. In that event, User will discontinue its use of any information obtained forthwith and destroy the relevant information as well as any copies thereof.
5.6 If the performance of the Continuity Plan is halted in accordance with Clause 5.4 or 5.5 above, the Continuity Plan laid down in the present Clause will again take full effect and may again be invoked by User in appropriate cases.
5.7 In the event of any abuse by Contracked or User of the Continuity Plan, which includes any unjustified request for performance thereof, Escrow4all will be entitled to recover any costs incurred by it in connection with the performance of the Continuity Plan from the relevant party.
Following a request for performance
5.8 The date of Escrow4all’s receipt of a written notification from the provider of Hosting Services in accordance with Clause 5.1 (a) above or a request from User in accordance with Clause 5.2 above will be presumed to be the effective date of the Continuity Plan’s performance, hereafter referred to as ‘the Effective Date’.
5.9 Under the Continuity Plan, User will be entitled to:
- the continuation of the Hosting Services required for the use of the Product, starting on the Effective Date and running for the period of no longer than 12 months;
- if required and at User’s request, technical support by Escrow4all for purposes of rendering the Product operational and/or the Product’s use. Escrow4all will charge the costs of this support to User on the basis of actual costing, in accordance with its standard rates at that time. The rates applied by Escrow4all at the time of the Agreement’s entry into effect are laid down in Annex V ‘Fee Schedule’.
Regarding security, confidentiality and use of the Basic Information
6.1 Escrow4all will provide for adequate security and safe storage of the Basic Information. Escrow4all will take any measures it may reasonably be expected to take in this context, taking account of the intent of the Agreement and the interests of both User and Contracked in the due care to be observed by Escrow4all in respect of the Basic Information.
6.2 If despite the security measures and other precautions taken by Escrow4all damage is done to, or loss takes place of, the Basic Information, Escrow4all shall be obliged to promptly notify Contracked. Contracked shall be obliged to promptly provide a new copy of the Basic Information to Escrow4all in accordance with Clause 3.1. The costs of providing a new copy shall be to the account of Escrow4all unless and to the extent that Contracked has not complied with its obligations to keep back-up copies as set out under Clause 3.7.
6.3 If and insofar as Escrow4all learns of any confidential information, it will maintain this confidentiality, which duty of confidentiality it will also impose on its personnel and any authorised third parties. For purposes of this Clause, confidential information will include:
- the Basic Information provided;
- any information and matters that have been identified as such by User and/or Contracked;
- any information and matters of which Escrow4all should reasonably understand that they are confidential, without such confidential nature having been brought expressly to its attention.
6.4 Escrow4all shall not disclose or divulge the Basic Information to any third person save such of its employees who need the Basic Information for verification purposes under the Agreement. Escrow4all will see to it that immediately after a verification procedure the Basic Information and any copy made will be removed from the verification system used for the verification.
6.5 Escrow4all will use the Basic Information only for purposes for which it is authorised under the Agreement.
7.1 The Excess for Performance of Continuity Plan per Beneficiary is € 75 plus sales tax (BTW/VAT) where applicable due by Beneficiary.
7.2 For the continuity services to be rendered by Escrow4all, Beneficiary shall pay a fee of 5% on top of the subscription fee as detailed in the SaaS Agreement.
8.1 The Agreement shall commence on the date of the Agreement and shall be entered into for indefinite time.
8.2 The Agreement may be terminated:
a - By User in respect of itself only on 1 month notice by delivering a notice to this effect to Contracked and Escrow4all.
b - By Contracked, in the event that Escrow4all:
- has petitioned for suspension of payment(s) and/or has been declared bankrupt;
- has been dissolved and l-quidated or closes down its businesses;
- has committed a material breach of the Agreement, which is not esolved within 20 business days after written notice of default.
c - By Contracked and User as a unanimous request.
d - By Escrow4all, in the event that the fees have not been paid, and Contracked has not paid such fees after receipt of a written notice of default by Escrow4all, pursuant to which a reasonable term for payment is granted.
8.3 Contracked has no right to unilaterally terminate the Agreement other than in the specific circumstance as defined under Clause 8.2 sub B above.
8.4 In case the Agreement is terminated in accordance with Clause 8.2 sub B, Contracked is obliged to deposit the Basic Information with another escrow provider on terms and conditions similar to those in the Agreement. Escrow4all thereupon is obliged to transfer the Basic Information, to either the escrow provider or, in case User decides not to continue the escrow arrangement, to Contracked itself.
8.5 If the Agreement is terminated other than the circumstance described in Clause 8.2 sub B Escrow4all shall destroy the Basic Information or, upon written request of Contracked and at Contracked’s cost, return the Basic Information to Contracked.
8.6 The Agreement is considered terminated once 12 months have passed since ‘the Effective Date’.
9.1 In all cases where the Agreement mentions the obligations to give written notice, such notice shall be sent to the following addresses:
10.1 Escrow4all shall be liable to Contracked and/or User for direct damage arising out of, or in connection with, the performance of the Agreement due to gross negligence or wilful misconduct, in which case its obligation to pay damages shall not exceed a sum of € 5.000 (in words: five thousand euro) in total.
10.2 Escrow4all shall not be liable to Contracked, User and/or third parties for any indirect damage including, but not limited to, industrial damage, loss of data, loss of profits and/or other consequential damages.
10.3 Escrow4all shall be responsible for the diligent execution of the verifications. Escrow4all shall not be responsible for the completeness, accuracy, functionality and/or correctness of the Basic Information and the Continuity Plan.
10.4 Escrow4all will provide the continuity services with due care and with professional competence, on the basis of a best effort obligation, except if and insofar as the parties have expressly agreed otherwise.
11.1 Contracked undertakes to make the terms of the Agreement part of any transfer of ownership of the intellectual property rights of the Product to a third party.
11.2 In the event of a transfer as described in Clause 11.1, Contracked shall provide written notification to this effect to both User and Escrow4all.
12.1 The Agreement and all disputes arising from or in relation to the Agreement will be governed by the laws of the Netherlands.
12.2 Any disputes arising out of, in relation with or in connection with the Agreement or any agreements resulting from will be brought exclusively before the competent court in Amsterdam.