General Terms and Conditions of Studyportals
Article 1 Definitions
In these General Terms and conditions the following definitions will be used, unless explicitly agreed otherwise in writing:
Studyportals ACT: the legal entity Studyportals Analytics and Consulting Team BV;
Customer: contracting party of Studyportals ACT, either acting as a natural person, a self-employed person or a legal entity;
Contract: the Agreement between Studyportals ACT and Customer.
Products and Services include among others:
- Software, such as the “Dashboard”;
- Support and maintenance;
- Strategy consulting projects;
- Market analyses;
- Other products and services related to higher education.
Article 2 General
- The articles and conditions of these General Terms are applicable for every offer, quotation or Agreement between Studyportals ACT and Customer, unless the parties have explicitly agreed otherwise in writing.
- These Agreements are also applicable for all Agreements with Studyportals ACT for which third parties need to be involved.
- General Terms and conditions of Customer, or any other terms, purchase orders, or Agreements, are not applicable, unless explicitly agreed in writing that the General Terms of Customer are applicable, excluding these General Terms.
- If any provision of these General Terms and conditions is void or annulled, the other provisions of these General Terms and conditions shall remain in full force.
Article 3 Offers and Agreements
- All offers and other statements by Studyportals ACT are valid for a period of fourteen days and free of obligation, unless the parties have explicitly agreed otherwise in writing.
- Acceptance of offers needs to be confirmed in writing by Customer to Studyportals ACT within fourteen days.
- An Agreement is concluded after confirmation in writing by Studyportals ACT, or if Studyportals ACT has started to carry out the assignment.
- Offers do not automatically imply continuous assignments or additional orders.
- If the Agreement is preceded by a preliminary study, Studyportals ACT will inform the client clearly and in good time of the conditions in this regard.
- An initial interview and a customised offer are entirely free of charge and without engagement.
Article 4 Implementation of the Agreement
- Studyportals ACT retains the right to have third parties perform (certain parts of) the implementation.
- Customer warrants the accuracy and completeness of the measurements, requirements, performance specifications and other data on which Studyportals ACT bases its offer and which have been stated by or on behalf of Customer to Studyportals ACT.
- Customer delivers the information, measurements, requirements, performance specifications and other data, which Studyportals ACT needs to be able to implement the Agreement, in due time and before commencement of the work.
- If the information as described in this article 5 is not provided to Studyportals ACT in due time, Studyportals ACT retains the right to postpone the implementation of the work and/or charge Customer with the extra costs resulting from the delay according to the usual fees or rates.
- If the implementation is on the premises of Customer, or a location pointed out by Customer, Customer shall make sure that Studyportals ACT, employees of Studyportals ACT, or third parties hired by Studyportals ACT, shall have the required (reasonable) resources available free of charge.
- If the implementation starts earlier than agreed, any additional costs as a result of the early start, shall be charged to Customer. Studyportals ACT shall present a specification of these costs to Customer.
Article 5 Amendment of the Agreement
- If a decent implementation of the Agreement requires amendment or addition of the services, the Agreement can be changed with mutual consent.
- If amendment of the Agreement has financial or other consequences, and/or consequences for delivery times and/or –terms, Studyportals ACT will inform Customer immediately about it.
- Regarding amendment of the Agreement, Studyportals ACT can charge Customer for the extra costs, unless the amendment or addition is the result of circumstances, which can be attributed to Studyportals ACT.
Article 6 Term and termination
- The Agreement shall be active from the Effective Date and shall remain active for the Term specified in the Agreement, or until terminated as specified below.
- Both Parties may terminate any applicable Agreement for convenience or part thereof, by providing the other party with a thirty (30)-day prior written notice, unless the parties have explicitly agreed otherwise in writing.
- Both Parties may terminate any applicable Agreement or part thereof, if the other is in breach of any of its obligations under the Agreement and has failed to remedy such breach within thirty (30) days of receipt of written notice.
- Each of the parties may partly or completely terminate the Agreement with immediate effect and without a notice of default, if the other party is granted a provisional or non-provisional suspension of payments, if a petition for bankruptcy is filed with regard to the other Party or if the other Party’s business is discontinued or terminated for other reasons besides a business reconstruction or merger. Studyportals ACT shall never be obliged, on account of this termination, to refund any fees or funds already received or to pay any damages. In the event of Customer’s bankruptcy, the right to use any deliverables provided to Customer shall be terminated automatically.
- Upon the effective date of termination of all or part of the Agreement, Customer shall not be entitled anymore to use such terminated Services or deliverables provided under the Agreement, and shall immediately destroy or return all copies of any terminated deliverables.
- Customer shall pay Studyportals ACT for all Services performed until the effective date of termination, and for all costs incurred by Studyportals ACT concerning the terminated services.
- Any part(s) of the Agreement that are/is not terminated shall continue to be active.
- If Customer terminates the Agreement no later than five working days before the start of the services and/or activities, Studyportals ACT is entitled to receive payment of 50% of the agreed price or the agreed fee from Customer. Customer is required to pay the bill for expenses for the concluded work up to this point.
- If Customer terminates the Agreement within five working days before the start of the services and/or activities, Studyportals ACT is entitled to receive payment of 100% of the agreed price or the agreed fee from Customer.
Article 7 Suspension
- Studyportals ACT retains the right, without legal proceedings, to suspend to fulfill its obligations under the Agreement if Customer:
- does not, does not in due time, does not completely or does not considerably fulfill one or more obligations in the contract;
- arranges a debt Agreement with its creditors;
- applies for an official moratorium;
- is officially in bankruptcy;
- liquidates, sells or transfers the company;
- transfers the control of the company to a third party;
- dishonestly uses goods, services or software of Studyportals ACT;
- disseminates information which is violating (inter)national laws and regulations;
- will not fulfill its obligations, according to information which gives good reasons for Studyportals ACT to believe Customer will fail to perform.
Article 8 Prices and costs
- All prices used by Studyportals ACT are exclusive of VAT and other taxes, levies, duties, and costs (such as any applicable transportation, packing, delivery, administration or other costs made to properly carry out the Agreement), unless explicitly agreed otherwise in writing.
- Studyportals ACT is entitled to annually adjust its prices on the basis of the Harmonized Index of Consumer Prices (HICP 19 EA).
- Studyportals ACT is entitled to adjust any price if the content of the Agreement or assignment changes, if the Agreement or assignment is prolonged, if third parties change their prices, or if the applicable laws and regulations change.
- Price changes can be implemented without further notice to Customer.
- Customer may terminate the Agreement if the price increase occurs within three (3) months after the Agreement was concluded. After expiration of this term, Customer is allowed to terminate the Agreement if the increase amounts to more than 10%.
Article 9 Payment
- Excluding the right of netting, withholding or a discount Customer pays no later than thirty (30) days after the invoice date, unless the invoice mentions a different payment term. Payments will be done in a manner specified by Studyportals ACT, in the currency mentioned on the invoice.
- Studyportals ACT retains the right to invoice a part of the price at the time before the implementation starts, and to invoice the remaining part at the time of delivery (of the work), or in to invoice in another way, depending on the agreed upon payment term.
- Customer is, without the necessity of a written notice to pay, legally in default, if Customer did not pay within the term of thirty (30) days. Payment has taken place if Customer has credited the bank account of Studyportals ACT.
- In case of liquidation, bankruptcy, seizure or moratorium of Customer, any claims of Studyportals ACT towards Customer are directly and fully recoverable without judicial intervention.
- Studyportals ACT retains the right to deduct the payments made by Customer firstly from the costs, subsequently from the indebted interest and finally deduct the payments from the main sum and the current interest. All costs, concerning payment, including bank costs or costs concerning bills of exchange or other payment methods are for account of Customer.
- Studyportals ACT can reject a payment offer, without being legally in default, if Customer persists in another order of payment ranking.
- Studyportals ACT can reject a payment offer of the entire main sum, if Customer did not pay the indebted and current interest as well as the costs. Customer remains obliged to pay the full price.
- In case of assignments based on no-cure-no-pay, the payment term in the Agreement shall be applicable.
Article 10 Late payment
- If Customer is unable to fulfil its obligations under the Agreement and is legally in default, all:
a) reasonable legal, court, execution and collection costs,
b) costs in order to extrajudicially collect the indebted amount
are without further notification for the account of Customer.
- In case of a claim regarding a debt receivable, Customer owes a minimum of 15% in debt collection costs to Studyportals ACT, of the total amount due, with a minimum of 125 EUR.
- Customer shall pay interest at the minimum statutory rate for late payments in commercial transactions under Dutch law on all sums unpaid at the due date, plus reasonable attorneys’ fees and costs incurred in collecting unpaid amounts.
Article 11 Delivery
- Delivery times and/or delivery terms in offers and/or Agreements of Studyportals ACT are indicative and are never a fixed term, unless the parties have explicitly agreed otherwise in writing.
- In case Studyportals ACT exceeds any delivery time and/or delivery, Studyportals ACT shall only be in default after Customer has sent a default notice with a reasonable performance period and such period has been exceeded without proper performance.
- In case Studyportals ACT exceeds any delivery time and/or delivery term in offers and/or Agreements of Studyportals ACT, Customer is not entitled to termination or compensation, unless the parties have explicitly agreed otherwise in writing.
- Delivery times and/or delivery terms shall only be applicable if the necessary information has been provided to Studyportals ACT and if possible, payments, that need to be paid at the beginning of the implementation, have been received.
Article 12 Liability
- Regardless of the form of action, whether the alleged liability or damages are based on contract (including without limitation, breach of warranty), tort (including without limitation, negligence), statute, or any other legal or equitable theory, Studyportals ACT’s maximum liability for damages is explicitly limited to the amount of fees actually paid by Customer for the services that caused the damages in the preceding twelve (12)-month period prior to the incident that caused the rise to the claim.
- Studyportals ACT is not liable for indirect damages, including incidental, consequential or punitive damages, lost profits, lost savings, lost cost reduction, loss of goodwill, mutilated or damaged data or materials, damages due to business interruptions and any claims from third parties.
- Studyportals ACT is not liable for damage, of any kind, due to the fact that Studyportals ACT used data provided by Customer, which is incorrect or incomplete, unless the incorrectness or incompleteness of the data should have been known to Studyportals ACT.
- Studyportals ACT is not liable for damages, due to (criminal) intent, recklessness, (major) negligence of third parties hired by Studyportals ACT.
- Using and/or publishing any software, website, or other (digital) material is done at the full risk and expense of Customer.
- Customer shall report any damages to Studyportals ACT in writing as soon as possible after the damage occurred. Any claim for damages against Studyportals ACT must be filed with the applicable judicial authority within twelve (12) months after the applicable cause of action has arisen.
- The Parties shall not exclude liability for death or personal injury or for any damage arising out of gross negligence or intentional misconduct.
Article 13 Force majeure
- Studyportals ACT is not liable for damages from events that were beyond its control and that cannot be contributed to Studyportals ACT according to the law, legal act or public legal perception.
- Force majeure includes all anticipated or non-anticipated external causes, of which Studyportals ACT has no control and result in the fact that Studyportals ACT cannot fulfill its obligations. Events concerning hosting- or network providers, or other third parties Studyportals ACT has no control over, strikes and other actions by employees of Studyportals ACT and/or its suppliers are included.
- Studyportals ACT is not liable for damage, which originated from (technical) trouble, interference or jams, or dysfunctional (electronic and/or data) connections or the quality of these connections, regardless of the fact if they are implemented by Studyportals ACT or third parties.
- Studyportals ACT retains the right to claim force majeure if the circumstance, which prevents the fulfillment of the obligation, materializes after Studyportals ACT should have fulfilled its obligation.
- Both parties suspend their contractual obligations during the period of force majeure, until the time when performance is reasonably possible again.
- Both parties are extrajudicially immediately permitted to terminate the Agreement, without a notice of default and without the possibility to claim damages, if the situation of force majeure exceeds a period of one month.
Article 14 Samples, models and prototypes
If Studyportals ACT has showed and/or provided Customer a computer program, code, a (sample) website, a sample, a model, a prototype a document, brochure or any other concept or example, than it is just presuming to be showed and/or provided as an indication, unless the parties have explicitly agreed that the final product shall fully resemble the example.
Article 15 Inspection and defects
- Customer shall inspect the deliverables at the moment of delivery, or at least as soon as possible after delivery. Customer inspects if the quality and quantity of the deliverables are conform the contract, at least inspects if it meets the requirements for the particular business environment.
- Claims because of defects regarding provided services or claims concerning sent invoices from Studyportals ACT to Customer can only be made in writing, within eight (8) days after the defects were identified by Customer. Customer shall still be obliged to receive and to pay the (still to be) provided services. Claims by Customer never give a right to suspend its payment obligation.
Article 16 Warranty
- Studyportals ACT warrants that:
a) all its services shall be performed in a good and workmanlike manner;
b) each deliverable shall materially conform to its specifications as described in the Agreement.
- If the services do not conform to its specifications in the Agreement, and Customer has notified Studyportals ACT within thirty (30) days from the delivery of such services, Studyportals ACT shall use commercially reasonable efforts to make them conform the specifications.
- If Studyportals ACT did not correct the non-conformity within ninety (90) days from the date of such notification, Customer may terminate the applicable services, including the right to use the non-conforming deliverable, within ninety (90) days and receive a full refund of all fees paid for the non-conforming services. This refund represents Studyportals ACT’s sole liability and Customer’s sole remedy for breach of this warranty.
- Studyportals ACT does not provide any warranty in case the deliverable was modified other than by Studyportals ACT, or if the deliverable is used in a manner that was not specified by Studyportals ACT in the Agreement.
- This warranty is in lieu of and excludes all other warranties, representations or conditions for services, whether express or implied, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose, title or non-infringement.
Article 17 Ownership
- All intellectual and industrial property rights to software, websites, databases, equipment or other materials developed or provided by Studyportals ACT, such as analyses, websites, scripts, source code, designs, documentation, reports, offers, as well as preparatory materials in that regard, shall be held solely by Studyportals ACT. Customer shall only acquire any rights of use explicitly granted in these terms and conditions. Any other or more extensive right of Customer to reproduce software, websites, databases or other materials shall be excluded. A right of use to which Customer is entitled shall be non-exclusive and non-transferable to third parties.
- If Studyportals ACT is prepared to undertake to transfer any intellectual or industrial property rights, such an obligation may only be explicitly agreed in writing. If the parties explicitly agree in writing that intellectual or industrial property rights regarding software, websites, databases, equipment or other materials specifically developed for Customer shall be transferred to Customer, this shall not affect Studyportals ACT’s right to apply and to use, either for itself or for third parties, the parts, general principles, ideas, designs, documentation, works, programming languages, source code and the like underlying that development, without any limitation on other purposes. Nor shall a transfer of intellectual or industrial property rights affect Studyportals ACT’s right to undertake developments for itself or third parties, which are similar to those done for Customer.
- Customer shall not be allowed to remove or modify any designation concerning the confidential nature or concerning copyrights, trademarks, business names or other intellectual or industrial property rights from the software, websites, databases, equipment or materials.
- Studyportals ACT shall be allowed to take technical measures to protect and to restrict its intellectual property. Customer shall not be allowed to remove or evade any technical measures.
- All materials, such as websites, promotion materials or other materials, developed by Studyportals ACT can be used for Studyportals ACT’s promotion purposes, unless the parties have explicitly stated otherwise in writing.
- Customer is not entitled to use Studyportals ACT’s trade name and/or Studyportals ACT’s trademarks in any document without Studyportals ACT’s prior written consent.
Article 18 Intellectual property infringement
- Studyportals ACT shall defend, or at its option settle, such claim and pay all costs, damages and expenses (including reasonable legal fees) finally awarded against Customer by a court of competent jurisdiction or agreed to in a written settlement agreement signed by Studyportals ACT arising out of such claim against any third-party cause of action based on the claim that software, websites, databases, equipment or other materials developed by Studyportals ACT itself infringe an intellectual or industrial property right applicable in The Netherlands, provided that Customer immediately informs Studyportals ACT in writing about the existence and substance of the cause of action and let Studyportals ACT handle the matter completely, including with respect to agreeing to any settlements. To that end, Customer shall provide the necessary powers of attorney, information and cooperation to Studyportals ACT to defend – if necessary, in Customer’s name – against these causes of action. This indemnification obligation shall be terminated if the alleged infringement relates (i) to materials provided by Customer to Studyportals ACT for use, adaptation, processing or incorporation, or (ii) to changes Customer has made or caused third parties to make to the software, website, databases, equipment or other materials.
- If it has been established in court as an undeniable fact that the software, websites, databases, equipment or other materials developed by Studyportals ACT itself infringe any intellectual or industrial property right held by a third party or if, in Studyportals ACT’s judgment, it is likely that such infringement will occur, Studyportals ACT shall, if possible, ensure that Customer can continue to have undisturbed use of the delivered objects, or functionally equivalent other software, websites, equipment or the other materials concerned, for example, by modifying the infringing parts or by acquiring a right of use for Customer. If, in its exclusive judgment, Studyportals ACT cannot ensure or cannot ensure except in a manner that is unreasonably burdensome (financially or otherwise) for it that Customer can continue to have undisturbed use of the services and/or deliverables, Studyportals ACT shall terminate the services and/or take back the deliverables, with crediting of the purchasing costs minus a reasonable user’s fee. Any other or more extensive liability or indemnification obligation on Studyportals ACT’s part due to the infringement of a third party’s intellectual or industrial property rights shall be completely excluded, including liability and indemnification obligations on Studyportals ACT’ part for infringements caused by using the software, websites, databases, equipment and/or materials delivered
- in any form not modified by Studyportals ACT,
- in connection with objects or software not delivered or furnished by Studyportals ACT or
- in another manner besides that for which the equipment, software, websites, databases and/or other materials were developed or intended.
- Customer indemnifies Studyportals ACT against claims of third parties concerning any infringement of intellectual property rights on objects or data, provided by Customer.
If Customer provides Studyportals ACT with information carriers, electronic files or software etcetera, it warrants that they are free of viruses, defects or other potentially harmful elements.
Article 19 Training, courses, workshops and assessments
- Studyportals ACT reserves the right to cancel any training, course or workshop on the basis of the number of participants. In such case, Customer shall receive a full refund for the applicable training, course, workshop or assessment.
- If a training, course, workshop or assessment must be cancelled or postponed due to unforeseen circumstance, Customer shall allow Studyportals ACT to provide the services at another occasion.
- After consultation with Studyportals ACT, Customer is allowed to have a participant replaced with another participant in a training, course, workshop or assessment, provided Customer notifies Study Portal of such replacement in due time.
- If Customer, or any participant or candidate designated by Customer, is absent after the start of a training programme, course or assessment, or terminates participation early, or does not participate or is not present for any other reason, any costs already incurred on Studyportals ACT shall be fully charged to Customer.
Article 20 Computer services
- If the contract relates to providing computer services periodically or regularly, the contract shall be entered into for the term agreed between the parties, in the absence of which a one-year term shall apply. The term of the contract shall be tacitly extended each time by the length of the original period, unless Customer or Studyportals ACT terminates the contract in writing with due observance of a notice period of three months before the end of the period concerned.
- Studyportals ACT may modify the substance or scope of the computer services. The specifications shall not materially be changed to a lessor level than Customer has purchased.
- Studyportals ACT shall comply with any statutory obligations, which it has as a processor concerning its processing of personal data. Studyportals ACT shall provide appropriate technical and organisational measures to protect personal and other data against loss or against any form of unlawful processing.
- Customer warrants that all statutory provisions concerning processing of personal data, including provisions in or under the GDPR, have been strictly observed and that all prescribed registrations have been carried out and all required consents to process personal data have been obtained. Customer shall provide Studyportals ACT immediately in writing with all requested information in this respect.
- Customer shall indemnify Studyportals ACT against all third-party claims not attributable to Studyportals ACT, which may be filed against Studyportals ACT because of a violation of the GDPR and/or other laws concerning processing of personal data, or a violation of the laws concerning the statutory retention periods.
- In addition, and/or deviation of article 16 of these General Terms, Studyportals ACT shall not be responsible for checking the accuracy and completeness of the results of the computer services. Customer shall check these results itself after receiving them. Studyportals ACT does not warrant that the computer services shall be provided without errors or without interruptions. If defects in the results of the computer services are a direct consequence of products, software, data carriers, procedures or operating actions for which Studyportals ACT is explicitly responsible under the contract, Studyportals ACT shall repeat the computer services in order to fix these imperfections to the best of its ability, provided Customer notifies Studyportals ACT of these imperfections in writing and in detail as soon as possible, but no later than within one week after receiving the results of the computer services. Repetition shall only be done free of charge if the defects in the computer services are imputable to Studyportals ACT. If the defects cannot be imputed to Studyportals ACT and/or are the result of errors or imperfections on Customer’s part, such as providing incorrect or incomplete information, Studyportals ACT shall charge the costs of any repetition to Customer according to its usual rates. If fixing the defects imputable to Studyportals ACT is not technically or reasonably possible, Studyportals ACT shall credit the amounts owed by Customer for the computer services concerned, without further or otherwise being liable to Customer. The above-mentioned crediting is only applicable for those parts in the services and/or deliverables that contain errors or other defects, which cannot be fixed. For those parts of the services and/or deliverables that do work properly, Customer will receive an invoice pro rata. Customer shall not have any other rights because of defects in the services and/or deliverables besides those described in this section on warranty.
Article 21 Confidential information
- The Parties acknowledge that any oral or written information exchanged among them with respect to this Agreement is Confidential Information. For a term of five (5) years after disclosure of Confidential Information, each Party shall maintain the confidentiality of all such information, and without obtaining the written consent of other Parties, it shall not disclose any relevant information to any third parties, except in the following circumstances: (a) such information is or will be in the public domain (provided that this is not the result of a public disclosure by the receiving party); (b) information disclosed as required by applicable laws or rules or regulations of any stock exchange; or (c) information required to be disclosed by any Party to its legal counsel or financial advisor regarding the transaction contemplated hereunder, and such legal counsel or financial advisor are also bound by confidentiality duties similar to the duties in this section. Disclosure of any confidential information by the staff members or agency hired by any Party shall be deemed disclosure of such confidential information by such Party, which Party shall be held liable for breach of this Agreement.
- Studyportals ACT is authorized to disclose Customer’s Confidential Information to third parties who have entered into an appropriate confidential disclosure agreement with Studyportals ACT to the extent necessary to provide any services and/or deliverables.
Article 22 Miscellaneous
- The legal relationship between the parties is that of independent contractors. These terms are not intended to create a partnership, a corporation, a joint venture or agency relationship between the parties, and Studyportals ACT’s employees shall not be deemed to be an employee of Customer.
- Neither Party may assign or transfer any of its rights or obligations under any Agreement without the prior written approval of the other Party, which approval shall not be unreasonably withheld, conditioned or delayed except that each Party may assign any of its rights under any Agreement to its Affiliates provided, however, that no such assignment shall relieve an assigning Party of its obligations under any Agreement.
- While the Agreement remains in effect and for six (6) months thereafter, Institution agrees to obtain Studyportals’ prior written consent before taking any action to employ or retain any personnel of Studyportals who has performed any services under the Agreement. This consent requirement will apply to any direct or indirect solicitation of, acceptance of solicitation from, employment, retention or other engagement of the services of any such personnel. This section does not apply to hiring in response to general advertisements unrelated to the Agreement.
- If any provision of the Agreement is found by a court of competent jurisdiction or arbitrator to be illegal, void or unenforceable, the other provisions shall remain in full force and effect, and the affected provision will be modified so as to render it enforceable and effective to the maximum extent possible in order to effect the original intent of the parties.
- In case of any dispute between Studyportals ACT and Customer, the applicable Dutch courts shall be competent, unless another court has jurisdiction.
- Dutch law shall be applicable concerning any Agreement between Studyportals ACT and Customer.
- These terms are compiled in the English language and may be provided, for informational purposes only, in a language other than English. The English version shall be the only binding and enforceable version of these terms.
- These General Terms supersede all prior and contemporaneous proposals, agreements, understandings, representations, purchase orders and communications, whether oral or written. If there is a discrepancy, inconsistency or contradiction between these General Terms and any Agreement, these General Terms shall prevail.
- Articles 6, 9 , 10, 12, 16, 17, 18 , 20 and 21 shall survive termination of these General Terms or termination of any Agreement applicable under these General Terms.