Chapter 1. General Provisions 

Art. 1 Applicability of general conditions of Count-IT

• These conditions apply to all offers and agreements under which Count-IT provides goods and/or services of any kind and under any name to the customer.
• Deviations from and additions to these general terms and conditions are valid only if agreed upon in writing between the parties.
• The applicability of purchasing or other terms and conditions of customer is expressly rejected.
• If any provision of these general conditions is void or destroyed, the other provisions of these general conditions shall remain in full force. Count-IT and customer will in that case consult with the aim of agreeing new provisions to replace the void or voided provisions.

Art. 2 Offers

• All offers and other expressions of Count-IT are without obligation, unless otherwise agreed in writing by Count-IT Customer warrants the accuracy and completeness of the information provided by or on behalf of him to Count-IT on which Count-IT has based its offer.

Art. 3 Price and payment

• All prices are exclusive of sales tax (VAT) and other government levies. All prices communicated by Count-IT are in euros and all payments must be made in euros.
• No rights or expectations may be derived by Client from a pre-calculation or budget issued by Count-IT unless the parties have agreed otherwise in writing. An available budget made known to Count-IT by Client shall only count as an agreed (fixed) price between the parties for the services to be performed by Count-IT if this has been expressly agreed in writing.
• If, according to the agreement concluded between the parties, Customer consists of several natural persons and/or legal persons, each of those (legal) persons shall be jointly and severally liable to Count-IT for compliance with the agreement.
• With respect to the performances performed by Count-IT and the amounts owed for them by the customer, the data from Count-IT's records provide full evidence, without prejudice to the customer's right to provide evidence to the contrary.
• If there is a periodic payment obligation of the Client, Count-IT is entitled to adjust in writing, according to the index or other yardstick included in the agreement, applicable prices and rates at the time specified in the agreement. If the Agreement does not expressly provide for Count-IT to adjust the prices or rates, Count-IT shall always be entitled to adjust the applicable prices and rates in writing subject to at least three months' notice. If, in the latter case, Customer does not wish to agree to the adjustment, Customer is entitled within thirty days after notification of the adjustment to terminate the Agreement in writing with effect from the date on which the new prices and/or rates would take effect.
• The parties will stipulate in the agreement the date or dates on which Count-IT will charge Customer the fee for the agreed performance. Amounts due shall be paid by Customer in accordance with the agreed or invoiced payment terms. Customer is not entitled to suspend any payment nor to set off amounts due.
• If Customer fails to pay the amounts due or fails to pay them on time, Customer shall, without the necessity of a reminder or notice of default, owe statutory interest for commercial agreements on the outstanding amount. If after a demand for payment or notice of default the customer remains in default, Count-IT may pass on the claim for collection, in which case in addition to the total amount owed, the customer will also be liable for all judicial and extrajudicial costs, including all costs calculated by external experts. This does not affect the other statutory and contractual rights of Count-IT.

Art. 4 Duration of the agreement

• If and to the extent that the agreement concluded between the parties is a continuing performance agreement, the agreement is entered into for the term agreed between the parties, failing which the term of one year shall apply.
• The duration of the agreement is tacitly extended each time for the duration of the originally agreed period, unless Customer or Count-IT terminates the agreement in writing with three months' notice before the end of the relevant period.

Art. 5 Confidentiality and acquisition of personnel

• Customer and Count-IT shall ensure that all data received from the other party that is known or reasonably should be known to be of a confidential nature is kept secret This prohibition does not apply to Count-IT if and to the extent that disclosure of the relevant data to a third party is necessary because of a court order, a legal requirement or for the proper execution of the Agreement by Count-IT. The party receiving confidential data will only use it for the purpose for which it was provided. Data shall in any case be considered confidential if it has been designated as such by either party.
• Customer acknowledges that software derived from Count-IT is always confidential in nature and contains trade secrets of Count-IT, its suppliers or the producer of the software.
• Each of the parties shall, during the term of the agreement as well as for one year after the end thereof, only with the prior written consent of the other party, employ or otherwise, directly or indirectly, allow employees of the other party who are or have been involved in the execution of the agreement to work for them. Such permission may be subject to conditions, including the condition that Customer pays Count-IT reasonable compensation.

Art. 6 Privacy and data processing

• If necessary for the performance of the Agreement, Customer shall, upon request, inform Count-IT in writing as to how Customer performs its obligations under data protection legislation.
• Customer shall indemnify Count-IT for claims by persons whose personal data have been registered or are being processed in the context of a register of persons held by Customer or for which Customer is otherwise responsible under the law, unless Customer proves that the facts underlying the claim are attributable to Count-IT.
• Responsibility for any Data processed by Customer using a Count-IT service lies entirely with Customer. Customer warrants to Count-IT that the content, use and/or processing of the Data is not unlawful and does not infringe any right of a Customer indemnifies Count-IT against any legal claim by a third party, on any basis whatsoever, in connection with such Data or the performance of the Agreement.

Art. 7 Security

• If Count-IT is required under the Agreement to provide some form of information security, such security shall conform to the specifications on security agreed between the parties in writing. Count-IT does not warrant that the information security is effective under all circumstances. If an explicitly defined form of security is lacking in the Agreement, the security will meet a level that, given the state of the art, the sensitivity of the data and the costs associated with providing security, is not unreasonable.
• Access or identification codes and certificates provided to Customer by or on behalf of Count-IT are confidential and will be treated as such by Customer and will only be disclosed to authorized personnel from Customer's own organization. Count-IT is entitled to change assigned access or identification codes and certificates.
• Customer shall adequately secure its systems and infrastructure and have anti-virus software in operation at all times.

Art. 8 Retention of property and rights and suspension

• All items delivered to the customer shall remain the property of Count-IT until all amounts owed by the customer to Count-IT under the agreement entered into between the parties have been paid in full to Count-IT. A customer acting as a reseller shall be permitted to sell and redeliver all items subject to Count-IT's retention of title to the extent customary in the ordinary course of its business.
• The property law consequences of the retention of title to an item destined for export shall be governed by the law of the State of destination if that law contains more favorable provisions for Count-IT in this regard.
• Rights are granted or transferred to Customer, where applicable, on the condition that Customer has paid all amounts due under the Agreement.
• Count-IT may retain any data, documents, software and/or data files received or realized under the Agreement, notwithstanding any existing obligation to surrender or transfer, until Customer has paid all amounts due to Count-IT.

Art. 9 Transfer of risk

• The risk of loss, theft, embezzlement or damage to items, data (including user names, codes and passwords), documents, software or data files manufactured, delivered or used in the execution of the agreement shall pass to customer at the time they are placed in the actual control of customer or a helper of customer.

Art. 10 Intellectual Property

• If Count-IT is willing to undertake to transfer a right of intellectual property, such an undertaking may only be made in writing and expressly. If the parties agree in writing that a right of intellectual property in respect of software, websites, data files, equipment or other materials developed specifically for the Customer shall be transferred to the Customer, this shall not affect the right or the ability of Count-IT to use and/or exploit the components, general principles, ideas, designs, algorithms, documentation, works, programming languages, protocols, standards and the like underlying that development for other purposes, either for itself or for third parties, without any limitation. Nor does the transfer of an intellectual property right affect Count-IT's right to make developments for itself or a third party that are similar or derived from those made or to be made for the benefit of Customer.
• All rights of intellectual property to the software, websites, data files, equipment, training, testing and examination materials or other materials such as analyses, designs, documentation, reports, offers, as well as preparatory materials thereof, developed or made available to the Customer under the Agreement, belong exclusively to Count-IT, its licensors or its Customer acquires the rights of use expressly granted by these General Terms and Conditions, the written agreement concluded between the parties and the law. Any right of use granted to Customer is non-exclusive, non-transferable, non-pledgeable and non-sublicensable.
• Customer will not (cause to) remove or change any indication(s) about the confidential nature or about copyrights, brands, trade names or any other right of intellectual property from the software, websites, data files, equipment or materials.
• Even if the Agreement does not expressly provide for this, Count-IT is always permitted to install technical provisions to protect hardware, data files, websites, software made available, software to which access is provided (directly or indirectly) to the Customer, and the like in connection with an agreed limitation in the content or duration of the right to use these objects. Customer shall not remove such technical provision(s) or have them removed or circumvented.
• Count-IT indemnifies Count-IT against any claim by a third party based on the allegation that software, websites, data files, hardware or other materials developed by Count-IT itself infringe an intellectual property right of that third party, on the condition that the customer immediately informs Count-IT in writing of the existence and substance of the claim and leaves the handling of the case, including the conclusion of any settlements, entirely to Count-IT. Client shall provide Count-IT with the necessary powers of attorney, information and cooperation in order to defend itself against such claims. This indemnification obligation shall lapse if the alleged infringement relates (i) to materials made available by Client to Count-IT for use, adaptation, processing or maintenance, or (ii) to changes that Client has made or caused to be made to the software, website, data files, hardware or other materials without Count-IT's written consent. If it is irrevocably established in court that the software, websites, data files, hardware or other materials developed by Count-IT itself infringe any intellectual property right belonging to a third party or if, in the opinion of Count-IT, there is a good chance that such an infringement will occur, Count-IT will, if possible, ensure that the customer can continue to use the delivered, or functionally equivalent other software, websites, data files, hardware or materials. Any other or further indemnification obligation of Count-IT due to infringement of an intellectual property right of a third party is excluded.
• The Client warrants that no rights of third parties oppose the provision to Count-IT of hardware, software, material intended for websites, data files and/or other materials and/or designs for the purpose of use, maintenance, adaptation, installation or integration. The Client indemnifies Count-IT against any claim by a third party based on the allegation that such provision, use, maintenance, adaptation, installation or integration infringes any right of that third party.
• Count-IT is never obliged to perform data conversion unless expressly agreed in writing with the customer.

Art. 11 Cooperation obligations

• Parties recognize that the success of work in the field of information and communication technology depends on correct and timely mutual cooperation. Client will always provide all cooperation reasonably required by Count-IT in a timely manner.
• Customer bears the risk of selecting the items, goods and/or goods to be delivered by Count-IT and/or Customer always takes the utmost care to ensure that the requirements to be met by Count-IT's performance are correct and complete. Dimensions and data stated in drawings, images, catalogs, websites, quotations, advertising material, standardization sheets, etc. are not binding on Count-IT, provided that Count-IT has expressly stated otherwise.
• If Customer deploys personnel and/or auxiliary persons in the performance of the Agreement, such personnel and auxiliary persons will have the necessary knowledge and experience. In the event that Count-IT employees perform work at the Customer's site, the Customer shall provide the necessary facilities, such as a workspace with computer and network facilities, in a timely manner and free of charge. Count-IT is not liable for damages or costs due to transmission errors, malfunctions or non-availability of these facilities, unless customer proves that such damages or costs are the result of intent or deliberate recklessness of the management of Count-IT.
• The workspace and facilities will comply with all legal requirements. The Client indemnifies Count-IT against claims by third parties, including Count-IT employees, who suffer damage in connection with the performance of the agreement that is the result of acts or omissions by the Client or unsafe situations in its organization. Customer shall make the house and security rules applicable within its organization known to the employees deployed by Count-IT prior to the commencement of the work.
• If Customer provides Count-IT with software, hardware or other resources in connection with Count-IT's services and products, Customer warrants that Count-IT will obtain all necessary licenses or approvals relating to such resources that Count-IT may require.
• Customer is responsible for the management, including control of settings, use of the products and/or services provided by Count-IT and how the results of the products and services are deployed. Customer is also responsible for instruction to, and use by, users.
• Customer shall itself install, set up, parameterize, tune the (auxiliary) software required on its own equipment and, if necessary, adjust the equipment, other (auxiliary) software and operating environment used in the process and achieve the interoperability desired by Customer.

Art. 12 Information obligations

• To enable proper performance of the Agreement by Count-IT, Client will always provide Count-IT with any data or information reasonably required by Count-IT in a timely manner.
• Customer warrants the accuracy and completeness of the data, information, designs and specifications provided by it to Count-IT. If the data, information, designs or specifications provided by the Customer contain inaccuracies known to Count-IT, Count-IT will inquire about them with the Customer.
• In connection with continuity, Client will appoint a contact person or contact persons to serve as such for the duration of Count-IT's work. Client contacts will have the necessary experience, specific subject matter knowledge and understanding of Client's desired objectives.
• Count-IT is only obliged to provide Customer with periodic information on the execution of the work through Customer's designated contact person.

Art. 13 Project and steering committees

• If both parties participate in a project or steering committee with one or more employees deployed by them, the provision of information will take place in the manner agreed for the project or steering committee.
• Decisions taken in a project or steering group in which both parties participate will only bind Count-IT if the decision-making is made in accordance with what has been agreed in writing between the parties or, in the absence of written agreements to that effect, if Count-IT has put the decisions in writing Count-IT is never obliged to accept or implement a decision if, in its opinion, it is incompatible with the content and/or proper execution of the Agreement.
• Customer warrants that the persons appointed by it to serve on a project or steering committee are entitled to make decisions binding on Customer.

Art. 14 Deadlines

• Count-IT will make reasonable efforts to meet the (delivery) deadlines and/or (delivery) dates mentioned by Count-IT or agreed between the parties, whether or not they are final. Interim (delivery) dates mentioned by Count-IT or agreed between the parties are target dates, are not binding for Count-IT and are always indicative in nature.
• If the exceeding of any deadline is imminent, Count-IT and Customer will consult to discuss the consequences of the exceeding for further planning.
• In all cases - therefore, even if parties have agreed on a final (delivery) deadline or (delivery) date - Count-IT will not be in default due to a failure to meet the deadline until after the customer has given Count-IT written notice of default, in which the customer gives Count-IT a reasonable period to remedy the failure (on the agreed) and this reasonable period has expired. The notice of default must contain as complete and detailed a description of the failure as possible, so that Count-IT is given the opportunity to respond adequately.
• If it has been agreed that the performance of the agreed work will take place in phases, Count-IT is entitled to postpone the commencement of the work belonging to a phase until Customer has approved in writing the results of the preceding phase.
• Count-IT is not bound by any deadline (delivery) date or (delivery) date if the parties have agreed on a change in the content or scope of the agreement (additional work, change in specifications ) or a change in the approach to the execution of the agreement, or if the customer does not, does not timely or does not fully comply with its obligations under the agreement. The fact that (the demand for) additional work occurs during the execution of the agreement shall never be a ground for customer to terminate or dissolve the agreement.

Art. 15 Dissolution and termination of the agreement

• Each of the parties is authorized to dissolve the agreement due to an attributable failure to perform the agreement only if the other party, in all cases after a written notice of default that is as detailed as possible and in which a reasonable period is given to remedy the failure, attributably fails to fulfill essential obligations under the agreement. Customer's payment obligations and all obligations to cooperate and/or provide information by Customer or a third party engaged by Customer shall in all cases be considered essential obligations under the agreement.
• If at the time of dissolution Customer has already received performance in execution of the Agreement, such performance and the related payment obligations shall not be subject to undoing, unless Customer proves that Count-IT is in default with respect to the essential part of such performance. Amounts that Count-IT has invoiced before the dissolution in connection with what it has already duly performed or delivered in performance of the Agreement shall, subject to the provisions of the previous sentence, continue to be due in full and shall become immediately payable at the time of dissolution.
• If a contract which by its nature and content does not end in completion has been entered into for an indefinite period, it may be terminated in writing by either party after proper consultation and stating reasons. If the parties have not agreed on a notice period, a reasonable notice period must be observed. Count-IT shall never be liable for any compensation due to termination.
• Customer is not entitled to prematurely terminate an assignment agreement entered into for a definite period.
• Either party may terminate the agreement in writing with immediate effect, in whole or in part, without notice of default, if the other party is granted a suspension of payment - provisional or otherwise -, if bankruptcy is filed with respect to the other party, if the other party's company is liquidated or terminated other than for the purpose of reconstruction or merger of companies. Count-IT may also terminate all or part of the Agreement without notice of default with immediate effect if the decisive control of the Customer's business changes directly or indirectly. Count-IT shall never be liable for any refund of funds already received or for compensation due to termination as referred to in this paragraph. If the customer has irrevocably entered into a state of bankruptcy, the right of the customer to use the software, websites and suchlike that has been made available and the right of the customer to access and/or use the services of Count-IT shall terminate, without any act of termination on the part of Count-IT being required.

Art. 16 Liability of Count-IT

• The total liability of Count-IT due to an attributable failure in the fulfillment of the agreement or on any legal ground whatsoever, expressly including any failure in the fulfillment of a warranty obligation agreed with the customer, is limited to compensation of direct damages up to a maximum of the amount of the price (excluding VAT) stipulated for that agreement. If the agreement is primarily a continuing performance agreement with a term of more than one year, the price stipulated for that agreement shall be set at the total of the fees (excluding VAT) stipulated for one year. The stipulated price means the total of all fees for delivered hardware, software, licenses and related services as agreed in the offer.
• Count-IT's total liability for damages due to death, bodily injury or due to material damage to property shall never exceed €250,000 (two hundred and fifty thousand Euros).
• Count-IT's liability for indirect damages, consequential damages, lost profits, lost savings, diminished goodwill, damages due to business interruption, damages resulting from claims of customers of the customer, damages relating to the use of goods, materials or software of third parties prescribed by the customer and damages relating to the use of suppliers prescribed by the customer are excluded. Also excluded is any liability of Count-IT related to mutilation, destruction or loss of data or documents.
• The exclusions and limitations of liability of Count-IT described in articles 16.1 to 16.3 do not affect the other exclusions and limitations of liability of Count-IT described in these general conditions.
• The exclusions and limitations referred to in Articles 16.1 to 16.4 shall lapse if and to the extent that the damage is the result of intentional or deliberate recklessness on the part of Count-IT's management.
• Unless performance by Count-IT is permanently impossible, Count-IT's liability for attributable failure in the performance of an Agreement shall arise only if the Customer immediately gives Count-IT written notice of default, setting a reasonable deadline for remedying the failure, and Count-IT remains attributably in breach of its obligations even after that deadline. The notice of default must contain as complete and detailed a description of the failure as possible, so that Count-IT is given the opportunity to respond adequately.
• A condition for any right to compensation is always that Customer reports the damage to Count-IT in writing as soon as possible after its occurrence. Any claim for damages against Count-IT lapses by the mere lapse of twenty-four months after the claim arises, unless Customer has filed a legal claim for compensation of damages before the expiry of that period.
• Customer indemnifies Count-IT against all third party claims for product liability resulting from a defect in a product or system delivered by Customer to a third party that consisted in part of hardware, software or other materials delivered by Count-IT, unless and to the extent Customer proves that the damage was caused by such hardware, software or other materials.
• The provisions of this article as well as all other limitations and exclusions of liability mentioned in these general conditions also apply in favor of all (legal) persons Count-IT engages in the execution of the agreement.

Art. 17 Force majeure

• Neither party is obliged to fulfill any obligation, including any legal and/or agreed warranty obligation, if it is prevented from doing so as a result of force majeure. Force majeure on the part of Count-IT includes: (i) force majeure of suppliers of Count-IT, (ii) failure to properly fulfill obligations of suppliers prescribed to Count-IT by Customer, (iii) defectiveness of goods, equipment, software or materials of third parties, the use of which has been prescribed to Count-IT by Customer, (iv) government measures, (v) electricity failure, (vi) failure of internet, datanet work or telecommunication facilities, (vii) war and (viii) general transport problems.
• If a force majeure situation lasts longer than sixty days, either party has the right to dissolve the agreement in writing. What has already been performed under the agreement will in that case be settled proportionately, without the parties owing each other anything else.

Art. 18 Modification and additional work.

• If Count-IT has performed work or other performance at the request or with the prior consent of the Customer that falls outside the content or scope of the agreed work and/or performance, such work or performance shall be reimbursed by the Customer in accordance with the agreed rates and, in the absence thereof, in accordance with Count-IT's usual rates. Count-IT is not obliged to comply with such a request and it may require that a separate written agreement be concluded for that purpose.
• To the extent that a fixed price has been agreed for the services, Count-IT will, if requested, inform Customer in writing of the financial consequences of the additional work or performance as referred to in this article.

Art. 19 Transfer of rights and obligations

• Customer shall never sell, transfer or pledge its rights and obligations under the agreement to a third party.
• Count-IT is entitled to sell, transfer or pledge its claims for payment of fees to a third party.

Art. 20 Applicable law and disputes

• The agreements between Count-IT and customer are governed by Dutch law. Applicability of the Vienna Sales Convention 1980 is excluded.
• Disputes arising as a result of the agreement concluded between the parties and/or as a result of further agreements resulting therefrom shall be settled by arbitration in accordance with the Arbitration Regulations of the Foundation for the Settlement of Automation Disputes (Stichting Geschillenoplossing Automatisering), having its registered office in The Hague, the Netherlands, without prejudice to the right of either party to request a settlement in (arbitral) summary proceedings and without prejudice to the right of either party to take precautionary legal measures. The place of arbitration shall be The Hague.
• If a dispute arising from the agreement concluded between the parties or further agreements resulting therefrom falls within the jurisdiction of the Subdistrict Court, each of the parties shall be entitled, contrary to the provisions of Article 20.2, to bring the case before the legally competent District Court as a subdistrict court case. The foregoing authority shall accrue to the parties only if no arbitral proceedings have already been instituted in respect of that dispute in accordance with the provisions of Article 20.2. If, with due observance of the provisions of this Article 20.3, the case has been submitted by one or more of the parties for hearing and decision to the legally competent District Court, the Subdistrict Court of that District Court shall have jurisdiction to hear and decide the case.
• Each of the parties is in all cases entitled to commence an ICT-Mediation procedure in accordance with the ICT-Mediation Regulations of the Stichting Geschillenoplossing Automatisering (Foundation for the Settlement of Automation Disputes) with respect to a dispute arising from the agreement concluded between the parties or further agreements resulting therefrom. The other party is obliged to actively participate in a pending ICT-Mediation, which legally enforceable obligation includes in any case attending at least one joint meeting of mediators and parties, in order to give this extrajudicial form of dispute resolution a chance. Each of the parties is free to terminate the ICT-Mediation procedure at any time after a first joint meeting of mediators and parties. The provisions of this paragraph do not preclude a party who deems it necessary from requesting a provision in (arbitral) summary proceedings or taking conservative legal measures.

Chapter 2. Services

The provisions contained in this chapter ‘Services’ shall, in addition to the General Provisions of these general conditions, apply when Count-IT provides services of any kind (and whether or not detailed in any of the other chapters of these general conditions) to Customer.

Art. 21 Implementation

• Count-IT will use its best efforts to perform its services with care, where appropriate in accordance with the agreements and procedures established in writing with the Customer. All services of Count-IT are performed on the basis of a best efforts obligation, unless and to the extent that Count-IT has expressly promised a result in the written agreement and the relevant result is also described with sufficient definiteness in the agreement.
• Count-IT shall not be liable for any damages or costs resulting from use or misuse made of access or identification codes or certificates, unless the misuse is the direct result of an intentional or knowingly reckless act or omission of Count-IT's management.
• If the Agreement has been entered into with a view to performance by one particular person, Count-IT is always entitled to replace that person by one or more persons with the same and/or similar qualifications.
• Count-IT is not obliged to follow any instructions of the Client in the performance of its services, in particular if such instructions change or supplement the content or scope of the agreed services. However, if such instructions are followed, the relevant work shall be compensated in accordance with Count-IT's usual rates.

Art. 22 Service Level Agreement

• Any service level agreements (Service Level Agreement) shall only be expressly agreed in writing. Customer shall always inform Count-IT without delay of any circumstances that affect or may affect the Service Level and its availability.
• If service level agreements have been made, then the availability of software, systems and related services will always be measured in such a way that the previously announced decommissioning by Count-IT due to preventive, corrective or adaptive maintenance or other forms of service, as well as circumstances outside Count-IT's sphere of influence, are excluded. Subject to evidence to the contrary to be provided by Customer, the availability measured by Count-IT shall be deemed full proof.

Art. 23 Backup

• If the services provided to Client under the Agreement include the making of backups of Client data, Count-IT shall, subject to the periods agreed upon in writing, and in the absence thereof once a week, make a full backup of Client data in its possession. Count-IT will keep the backup for the agreed period, and in the absence of agreements to this effect, for the usual period at Count-IT. Count-IT will store the backup with due care and diligence.
• Customer himself remains responsible to fulfill all legal administration and retention obligations applicable to him.

Chapter 3. Software-as-a-Service (SaaS).

The provisions contained in this chapter ‘Software as a Service (SaaS)’ shall, in addition to the General Provisions of these general conditions and the provisions contained in the chapter ‘Services’, apply if Count-IT provides services under the name or in the field of Software-as-a-Service (also referred to as: SaaS). For the purposes of these general conditions, SaaS means: the remote provision and maintenance by Count-IT of software available to the Customer via the Internet or another data network, without a physical carrier containing the relevant software being provided to the Customer.

Art. 24 Implementation of SaaS service

• Count-IT only provides the SaaS service on behalf of the Customer. Customer is not free to allow third parties to use the SaaS services provided by Count-IT.
• If Count-IT, pursuant to a request or authorized order issued by a government agency or in connection with a legal obligation, performs work on data of Customer, its employees or users, all associated costs will be charged to Customer.
• Count-IT may make changes to the content or scope of the SaaS service. If such changes result in a change of the procedures in force at Customer, Count-IT will inform Customer of this as timely as possible and the costs of this change will be borne by In that case, Customer may terminate the Agreement in writing by the date on which the change comes into effect, unless this change is related to changes in relevant legislation or other regulations issued by competent authorities or Count-IT will bear the costs of this change.
• Count-IT may continue the performance of the SaaS service using a new or modified version of the Count-IT is not required to maintain, modify or add features or functionalities of the service or software specifically for Customer.
• Count-IT may temporarily take all or part of the SaaS service out of service for preventive, corrective or adaptive maintenance or other forms of service. Count-IT will not allow the decommissioning to last longer than necessary and, if possible, it will take place outside business hours.
• Count-IT is never obliged to provide the Customer with a physical carrier containing the software to be made and kept at the Customer's disposal as part of the SaaS service.

Art. 25 Warranty

• Count-IT does not warrant that the software to be made available under the SaaS Service is error-free and functions without interruption. Count-IT will make every effort to repair errors as referred to in article 30.3 in the software within a reasonable period of time if and insofar as it concerns software that has been developed by Count-IT itself and the defects in question have been reported to Count-IT by the Customer in writing and described in detail. Count-IT may, where appropriate, defer repair of the defects until a new version of the software is put into use. Count-IT does not warrant that defects in software that has not been developed by Count-IT itself will be remedied. Count-IT is entitled to implement temporary solutions or program detours or problem-avoiding restrictions in the software. If the software has been developed by order of the customer, Count-IT may charge the costs of repair to the customer in accordance with its usual rates.
• Based on the information provided by Count-IT on measures to prevent and limit the consequences of malfunctions, defects in the SaaS services, mutilation or loss of data or other incidents, the Customer will identify the risks for its organization and, if necessary, take additional measures Count-IT declares its willingness, at the request of the Customer, to provide reasonable cooperation in further measures to be taken by the Customer, subject to (financial) conditions to be set by Count-IT. Count-IT shall never be obliged to restore mutilated or lost data.
• Count-IT does not guarantee that the software to be made available as part of the SaaS service will be adapted in a timely manner to changes in relevant laws and regulations.

Art. 26 Protection of personal data

• Customer is entitled under the laws governing the processing of personal data (such as the Law Protection Personal Data) obligations to third parties, such as the obligation to provide information, as well as to allow inspection, correction and deletion of personal data of data subjects. The responsibility for compliance with these obligations rests entirely and exclusively with Customer. The parties hold that Count-IT is a ‘processor’ within the meaning of the Personal Data Protection Act with respect to the processing of personal data.
• Count-IT shall, to the extent technically possible, provide support for the obligations to be met by the Customer as referred to in Article 26.1. The costs associated with such support are not included in the agreed prices and fees of Count-IT and shall be borne by the Customer.

Art. 27 Commencement of service; compensation

• Performance of the SaaS service to be provided by Count-IT shall begin within a reasonable period of time after entering into the Agreement. Customer shall ensure that it has the facilities required for the use of the SaaS service at its disposal immediately after entering into the Agreement.
• Customer shall pay for the SaaS service the fee included in the In the absence of an agreed payment schedule, all amounts relating to the SaaS service provided by Count-IT shall be due in advance each calendar month.

Chapter 4. Software  

The provisions in this ‘Software’ chapter apply, in addition to the General Provisions, if Count-IT makes software available to Customer for use other than on the basis of a Saas service.

Art. 28 Right of use and restrictions on use

• Count-IT shall make available to Customer on a user license basis the agreed computer programs and the agreed user documentation for use during the term of the Agreement, hereinafter referred to as ‘the software’. The right to use the software is non-exclusive, non-transferable, non-pledgeable and non-sublicensable.
• The obligation to make Count-IT available and the Customer's right of use extend exclusively to the so-called object code of the software. The Customer's right of use does not extend to the source code of the software. The source code of the software and the technical documentation created during the development of the software will not be made available to the Customer, even if the Customer is willing to pay a financial compensation for this.
• Customer shall always strictly observe the agreed restrictions, of whatever nature or content, on the right to use the software.
• If the parties have agreed that the software may only be used in combination with certain equipment, Customer shall be entitled to pay for the software on other equipment with the same qualifications for the duration of the malfunction, should the equipment fail.
• Count-IT may require that the Customer does not use the software until after the Customer has obtained one or more codes required for use from Count-IT, its toeCount-IT or the producer of the software. Count-IT is always entitled to take technical measures to protect the software against unauthorized use and/or against use in a different manner or for different purposes than agreed between the parties. The Customer shall never (have) technical provisions intended to protect the software removed or circumvented.
• Customer may only use the software in and for its own company or organization and only insofar as this is necessary for the intended use. Customer shall not use the software for the benefit of third parties, for example in the context of ‘Software-as-a-Service’ (SaaS) or ‘outsourcing’.
• The Customer shall never be permitted to sell, lease, alienate or grant limited rights to the software and the carriers on which the software is or will be recorded, or to make the software available to a third party in any way, for any purpose or under any title whatsoever. Nor will Customer give a third party access - whether remotely (online) or otherwise - to the software or place the software with a third party for hosting, not even if the third party in question uses the software exclusively for Customer's benefit.
• If requested, Customer shall immediately cooperate with any investigation to be conducted by or on behalf of Count-IT regarding compliance with the agreed usage restrictions. Customer will provide access to its premises and systems upon Count-IT's first request. Count-IT shall treat as confidential all confidential business information it obtains from or at the Customer as part of an investigation, to the extent that such information does not relate to the use of the software itself.
• The parties hold that the agreement concluded between the parties, insofar as it relates to the provision for use of software, shall never be considered a purchase agreement.
• Count-IT is not obliged to provide software maintenance and/or support to users and/or administrators of the software. If, notwithstanding the foregoing, Count-IT is requested to provide maintenance and/or support with respect to the software, Count-IT may require the customer to enter into a separate written agreement for that purpose.

Art. 29 Delivery and installation

• Count-IT will, at its option, deliver the software on the agreed format data carrier or, in the absence of agreements to that effect, on a format data carrier to be determined by Count-IT, or make the software available to the customer online for delivery. Any agreed user documentation will be provided in paper or digital form in a language determined by Count-IT at Count-IT's discretion.
• Count-IT will only install the software at the customer's premises if such has been agreed. In the absence of such agreements, the Customer shall install, configure, parameterize and tune the software and, if necessary, adapt the hardware and operating environment.

Art. 30 Acceptance

• If no acceptance test has been agreed between the parties, the Customer shall accept the software in the condition it is in at the time of delivery (‘as is, where is’), therefore with all visible and invisible errors and defects, without prejudice to Count-IT's obligations under the warranty provisions of Article 34. In the aforementioned case, the software shall be deemed accepted by the Customer upon delivery or, if installation to be performed by Count-IT has been agreed in writing, upon completion of the installation.
• If an acceptance test has been agreed between the parties, the provisions of Articles 3 through 30.10 shall apply.
• Where these general conditions refer to ‘errors’, this is understood to mean the substantial failure of the software to meet the functional or technical specifications of the software expressly made known in writing by Count-IT, and, if the software is wholly or partly custom-made software, to the functional or technical specifications expressly agreed in writing. An error will only exist if the Customer can demonstrate it and it is reproducible. The Client is obliged to report errors immediately. Count-IT has no obligation with respect to defects in or to the software other than in respect of errors within the meaning of these general conditions.
• If an acceptance test has been agreed, the test period shall be fourteen days after delivery or, if installation to be performed by Count-IT has been agreed in writing, fourteen days after completion of the installation. During the test period Customer is not entitled to use the software for productive or operational purposes. Customer shall conduct the agreed acceptance test with qualified personnel and with sufficient scope and depth.
• If an acceptance test has been agreed, Customer is obliged to test whether the delivered software meets the functional or technical specifications expressly made known in writing by Count-IT and, if and insofar as the software is wholly or partly custom-made software, the functional or technical specifications expressly agreed in writing.
• The software will be deemed accepted between the parties:
  1. If the parties have agreed to an acceptance test: on the first day after the test period, or
  2. If Count-IT receives a test report as referred to in Article 7 before the end of the test period: at the time that the errors mentioned in that test report have been repaired, without prejudice to the presence of errors which do not prevent acceptance according to Article 30.8, or
  3. If Customer makes any use of the software for productive or operational purposes: at the time of the relevant commissioning.
• If the agreed acceptance test reveals that the software contains errors, Customer shall report the test results to Count-IT in writing, clearly, in detail and comprehensibly no later than the last day of the test period. Count-IT shall use its best efforts to remedy said errors within a reasonable period of time, whereby Count-IT is entitled to implement temporary solutions, program workarounds or problem avoiding restrictions.
• The Customer may not withhold acceptance of the software for reasons not related to the specifications expressly agreed between the parties in writing and, furthermore, not because of the existence of minor errors, being errors that do not reasonably prevent the operational or productive use of the software, without prejudice to Count-IT's obligation to remedy these minor errors under the warranty provisions of Article 34. Acceptance may furthermore not be withheld due to aspects of the software that can only be judged subjectively, such as aesthetic aspects of user interfaces.
• If the software is delivered and tested in stages and/or parts, the non-acceptance of a particular stage and/or part does not affect the acceptance of an earlier stage and/or another part.
• Acceptance of the software in one of the ways referred to in this article means that Count-IT is discharged for the fulfillment of its obligations regarding the provision and delivery of the software and, if installation of the software by Count-IT has also been agreed, of its obligations regarding the Acceptance of the software does not affect the customer's rights under article 30.8 regarding minor defects and article 34 regarding the warranty.

Art. 31 Availability

• Count-IT shall make the software available to Customer within a reasonable time after entering into the Agreement.
• Immediately after the Agreement has been terminated, Customer shall provide Count-IT with all copies of the software in its possession. If it has been agreed that Customer shall destroy the relevant copies at the end of the Agreement, Customer shall notify Count-IT of such destruction in writing without delay. Count-IT is not obliged at or after the end of the Agreement to provide assistance in view of a data conversion desired by the Customer.

Art. 32 User fee

• The fee payable for the right of use by Customer is due at the agreed times, or in the absence of an agreed time:
  1. If the parties have not agreed that Count-IT will take care of installation of the software:
     • Upon delivery of the software;
     • Or in the case of periodically payable user fees upon delivery of the software and thereafter at the start of each new user fee period;
  2. If the parties have agreed that Count-IT will provide installation of the software:
     • Upon completion of that installation;
     • Or in the case of periodic user fee payments due at the completion of that installation and thereafter at the start of each new user fee period.

Art. 33 Changes to the software

• Subject to exceptions provided by law, Customer is not entitled to modify the software in whole or in part without Count-IT's prior written consent. Count-IT is entitled to refuse its consent or to attach conditions thereto. Customer bears the full risk of all changes made by or on behalf of Customer by third parties - with or without the consent of Count-IT.

Art. 34 Warranty

• Count-IT shall use its best efforts to repair errors within a reasonable period of time if they have been reported in detail to Count-IT in writing within a period of three months after delivery, or, if an acceptance test has been agreed, within three months after acceptance. Count-IT does not warrant that the software is suitable for the actual and/or intended use. Nor does Count-IT guarantee that the software will work without interruption and/or that all errors will always be corrected Recovery will be carried out free of charge, unless the software has been developed by order of the customer other than for a fixed price, in which case Count-IT will charge the costs of recovery according to its usual rates.
• Count-IT may charge the costs of repair according to its usual rates if there are user errors or improper use by the customer or other causes not attributable to Count-IT. The repair obligation lapses if the customer makes changes or has changes made to the software without written permission from Count-IT.
• Repair of errors shall take place at a location and in a manner to be determined by Count-IT. Count-IT is entitled to implement temporary solutions or program workarounds or problem avoiding restrictions in the software.
• Count-IT is never obliged to restore mutilated or lost data.
• Count-IT has no obligation of any kind or content with respect to errors reported after the expiration of the warranty period referred to in Article 2.

Art. 35 Supplier software

• If and to the extent that Count-IT makes software from third parties available to Customer, the (license) conditions of those third parties shall apply to the relationship between Count-IT and Customer, notwithstanding any provisions to the contrary in these General Terms and Conditions, provided that the applicability of the (license) conditions of those third parties has been notified in writing by Count-IT to the customer and those conditions have been notified to the customer before or when the agreement is entered into. Notwithstanding the foregoing sentence, the customer shall not be entitled to invoke Count-IT's failure to comply with the aforementioned information obligation if the customer is a party as referred to in article 6:235 paragraph 1 or paragraph 3 BW.
• If and to the extent that the said third-party conditions in the relationship between customer and Count-IT are deemed not to apply or are declared inapplicable for whatever reason, the provisions of these general conditions shall apply in full.

Chapter 5. Development of software and websites

The provisions of this chapter ‘Development of software and websites’ apply, in addition to the General Provisions and the provisions of the chapter ‘Provision of Services’, if Count-IT designs and/or develops software and/or a website on behalf of the Customer and, if applicable, installs the software and/or website.

Art. 36 Specifications and development of software/website

• If specifications or a design of the software or website to be developed have not already been provided to Count-IT prior to or at the time of entering into the Agreement, the parties will by mutual agreement specify in writing which software or website will be developed and in what manner the development will take place.
• Count-IT will develop the software and/or website with care, all in accordance with the expressly agreed specifications or design and - where appropriate - in accordance with the project organization, methods, techniques and/or procedures agreed in writing with the customer. Before starting the development work, Count-IT may require the customer to agree in writing to the specifications or design.
• If parties use a development method which is characterized by the starting point that the design and/or development of (parts of) the software or website takes place in an iterative manner (for example Scrum), parties accept that at the start of the work will not be carried out on the basis of complete or fully worked out specifications and also that specifications, which may or may not have been agreed upon at the start of the work, can be adjusted during the execution of the agreement in mutual consultation with due observance of the project approach belonging to the development method in question. During the execution of the agreement the parties will jointly make decisions in good consultation with regard to the specifications that will apply to the next phase of the project (e.g. a ‘timebox’) and/or to the next partial development. Customer accepts the risk that the software and/or website will not necessarily meet all specifications. Customer will ensure a permanent, active input and cooperation of relevant end users, supported by Customer's organization, including with respect to testing and with respect to (further) decision making. Customer guarantees that the employees it assigns to key positions have the necessary decision-making powers for these positions. Customer guarantees the promptness of the progress decisions to be taken by it during the execution of the agreement. In the absence of timely and clear progress decisions on the part of the Customer according to the project approach belonging to the relevant development method, Count-IT is entitled - but not obliged - to make such decisions as it deems appropriate.
• If parties use a development method as referred to in article 36.3, the provisions of article 1, article 30.4 to 30.8 and article 34.1 do not apply. Customer accepts the software and/or website in the state it is in at the time of the end of the last development phase (‘as is, where is’). Count-IT is not obliged to repair errors after the final development phase, unless expressly agreed otherwise in writing.
• In the absence of specific agreements to that effect, Count-IT shall complete the design and/or development work within a reasonable period to be determined by Count-IT after entering into the agreement.
• If requested, Customer shall provide Count-IT with the opportunity to perform the work outside the usual business days and working hours at Customer's office or location.
• Count-IT's performance obligations regarding the development of a website do not include the provision of a so-called ‘content management system’.
• The performance obligations of Count-IT do not include maintenance of the software and/or the website, and/or providing support to users and/or administrators thereof. If, contrary to the foregoing, Count-IT must also provide maintenance and/or support, Count-IT may require the customer to enter into a separate written agreement for that purpose. These activities will be charged separately at Count-IT's usual rates.

Art. 37 Delivery, installation and acceptance

• The provisions of Article 29 on delivery and installation shall apply mutatis mutandis.
• Unless Count-IT will ‘host’ the software and/or Website on its own computer system for the benefit of the Customer pursuant to the Agreement, Count-IT will deliver the Website to the Customer on an information carrier and in a form to be determined by it or make it available to the Customer online for delivery.
• The provisions of Article 30 of these General Terms and Conditions on acceptance shall apply mutatis mutandis.

Art. 38 Right of use

• Count-IT will make the software and/or website developed on behalf of customer and any accompanying user documentation available to customer for use.
• Only if agreed in writing, the source code of the software and the technical documentation created in the development of the software will be made available to Customer, in which case Customer will be entitled to make changes to the software.
• Count-IT is not obliged to make available the auxiliary software and program or data libraries required for the use and/or maintenance of the software.
• The provisions of Article 28 on right of use and restrictions on use shall apply mutatis mutandis.
• Only if the contents of the written agreement expressly show that all design and development costs are borne fully and exclusively by Customer, no restrictions on Customer's right to use the software and/or website shall apply - in deviation from the provisions of Article 38.4.

Art. 39 Compensation

• In the absence of an agreed payment schedule, all amounts related to the design and development of software and/or websites shall be due in arrears each calendar month.
• The price for the development work also includes the fee for the right to use the software or website for the duration of the agreement.
• The fee for the development of the software does not include a fee for the auxiliary software and program and data libraries required by Customer, any installation services and any modification and/or maintenance of the software. Nor does the fee include the provision of support to users thereof.

Art. 40 Warranty

• The provisions of Article 34 on warranty shall apply mutatis mutandis.
• Count-IT does not warrant that the Website it has developed will work properly in conjunction with all types or new versions of web browsers and any other software. Nor does Count-IT warrant that the Website will work properly in conjunction with all types of equipment.

Hchapter 6. Software maintenance and support

The provisions contained in this chapter ‘Software Maintenance and Support’ shall, in addition to the General Provisions of these general conditions and the provisions of the chapter ‘Provision of Services’, apply if Count-IT provides services in the field of software maintenance and support (support) in the use of software.

Art. 41 Maintenance services

• If agreed Count-IT will carry out maintenance with respect to the software specified in the agreement. The maintenance obligation includes the repair of errors in the software within the meaning of article 30.3 and - only if agreed in writing - the provision of new versions of the software in accordance with article 42.
• Customer shall report in detail any errors found in the software. After receipt of the report, Count-IT shall in accordance with its usual procedures make best efforts to repair errors and/or make improvements in subsequent new versions of the software. Depending on the urgency and the version and release policy of Count-IT, the results will be made available to the Client in the manner and on the term to be determined by Count-IT Count-IT is entitled to implement temporary solutions or program workarounds or problem avoiding restrictions in the software. The Customer itself shall install, set up, parameterize and tune the corrected software or the provided new version of the software and if necessary adjust the used hardware and user environment.
• The provisions of Articles 34.3 and 34.4 shall apply mutatis mutandis.
• If Count-IT performs the maintenance online, Customer shall provide proper infrastructure and network facilities in a timely manner.
• Customer will provide all cooperation required by Count-IT for the maintenance, including the temporary cessation of use of the software and making a backup of all data.
• If the maintenance relates to software not supplied to Customer by Count-IT itself, Customer shall, if Count-IT considers it necessary or desirable for the maintenance, make available the source code and the technical (development) documentation of the software (including data models, designs, changelogs and the like). Customer warrants that it is entitled to such provision. Customer grants Count-IT the right to use and modify the software, including the source code and technical (development) documentation, as part of the performance of the agreed maintenance.
• The maintenance by Count-IT does not affect the Customer's own responsibility for the management of the software, including control of the settings and the manner in which the results of the use of the software are deployed. The Customer itself shall install, set up, parameterize and tune (auxiliary) software and, if necessary, adjust the hardware, other software and operating environment used in the process and achieve the interoperability desired by the Customer.

Art. 42 New versions of software

• Maintenance includes provision of new versions of the software only if and to the extent agreed in writing. If the maintenance includes the provision of new versions of the software, such provision takes place at the discretion of Count-IT.
• Three months after an improved version is made available, Count-IT is no longer obliged to fix errors in the previous version and to provide support and/or maintenance with respect to a previous version.
• Count-IT may require Customer to enter into a further written agreement with Count-IT for the provision of a version with new functionality and to pay a further fee for the provision. Count-IT may take over functionality unchanged from a previous version of the software, but does not guarantee that each new version contains the same functionality as the previous one Count-IT is not obliged to maintain, change or add certain features or functionalities of the software specifically for the customer.
• Count-IT may require Customer to adapt its system (hardware, software, etc.) if necessary for the proper functioning of a new version of the software.

Art. 43 Support services

• If Count-IT's services under the Agreement include support to users and/or administrators of the software, Count-IT will advise by telephone or e-mail on the use and operation of the software referred to in the Agreement. Count-IT may impose conditions on the qualifications and number of persons eligible for support. Count-IT will process properly substantiated requests for support within a reasonable time in accordance with its usual procedures. Count-IT does not guarantee the accuracy, completeness or timeliness of responses or support provided. Support will be provided on business days during Count-IT's usual business hours.
• If Count-IT's services under the Agreement include the provision of so-called ‘standby services’, Count-IT shall keep one or more staff members available during the days and at the times specified in the Agreement. In that case, in case of urgency, Customer is entitled to call in the support of the available staff members if there is a serious malfunction in the functioning of the software. Count-IT does not guarantee that all malfunctions will be remedied in a timely manner.
• The maintenance and other agreed services referred to in this section shall be performed as of the day the agreement is entered into, unless the parties have agreed otherwise in writing.

Art. 44 Compensation

• In the absence of an expressly agreed payment schedule, all amounts relating to maintenance of software and the other services provided for in the agreement as referred to in this chapter shall be due in advance each calendar month.
• Amounts relating to the maintenance of the software and the other services set out in the agreement as referred to in this chapter shall be due from the start of the agreement. The fee for maintenance and other services shall be due regardless of whether Customer has (taken) the software in use or makes use of the possibility for maintenance or support.

Chapter 7. Advising and consulting 

The provisions contained in this chapter ‘Advising and Consultancy’ shall, in addition to the General Provisions of these general conditions and the provisions of the chapter ‘Provision of Services’, apply if Count-IT provides services in the field of advising and consultancy.

Art. 45 Implementation of advisory and consultancy services

• The turnaround time of an assignment in the field of consultancy or advice depends on various factors and circumstances, such as the quality of the data and information provided by Client and the cooperation of Client and relevant third parties. Unless otherwise agreed in writing, Count-IT will therefore not commit in advance to a turnaround time for the assignment.
• Count-IT's services shall be performed exclusively on Count-IT's usual business days and hours.
• The use made by the Client of any advice and/or consultancy report issued by Count-IT is always at the risk of The burden of proof that (the manner of) advice and consultancy services do not comply with what has been agreed in writing or with what may be expected of a reasonably acting and competent Count-IT rests entirely with the Client, without prejudice to Count-IT's right to provide evidence to the contrary by all means.
• Without the prior written consent of Count-IT, Client shall not be entitled to make any communication to a third party about Count-IT's method, methods and techniques and/or the content of Count-IT's advice or reports. Client shall not provide or otherwise disclose Count-IT's advice or reports to any third party.

Art. 46 Reporting

• Count-IT shall periodically inform Client on the performance of the work in the manner agreed in writing. Client will notify Count-IT in writing in advance of circumstances that are or may be of interest to Count-IT, such as the method of reporting, the issues for which Client wishes attention, prioritization of Client, availability of Client resources and personnel, and special or possibly unknown facts or circumstances for Count-IT. Client shall ensure the further dissemination and perusal of the information provided by Count-IT within the organization of Client and assess such information partly on that basis and notify Count-IT accordingly.

Art. 47 Compensation

• In the absence of an expressly agreed payment schedule, all fees relating to services provided by Count-IT as referred to in this section shall be payable in arrears each calendar month.

Chapter 8. Posting services

The provisions contained in this ‘Secondment Services’ chapter shall, in addition to the General Provisions of these General Conditions and the provisions of the ‘Services’ chapter, apply if Count-IT provides one or more employees to Client to work under Client's supervision and direction.

Art. 48 Secondment services

• Count-IT will make the employee named in the agreement available to Customer to perform work under Customer's direction and supervision. The results of the work shall be at customer's risk. Unless otherwise agreed in writing, the employee will be made available to Customer for forty hours per week during Count-IT's usual working days.
• Client may only use the provided employee for work other than that agreed upon if Count-IT has given its prior written consent.
• Customer shall only be permitted to lend the provided employee to a third party to work under the management and supervision of that third party if this has been expressly agreed in writing.
• Count-IT will endeavor to ensure that the employee provided remains available for work during the duration of the Agreement during the agreed days, with the exception of illness or retirement of the employee. Even if the Agreement has been entered into with a view to performance by a particular person, Count-IT is always entitled, after consultation with the Customer, to replace that person by one or more persons with the same qualifications.
• Customer is entitled to request replacement of the provided employee
  (i) if the employee provided demonstrably does not meet explicitly agreed-upon quality requirements and the customer notifies Count-IT of this within three working days after the commencement of the work, giving reasons, or
  (ii) in the event of long-term illness or retirement of the posted employee. Count-IT will give immediate priority consideration to the request. Count-IT does not guarantee that replacement will always be possible. If replacement is not possible or not immediately possible, the customer's claims for further performance of the Agreement as well as all claims of the customer for non-performance of the Agreement shall lapse. Customer's payment obligations over the work performed shall remain unaffected.

Art. 49 Duration of the secondment agreement

• Notwithstanding the provisions of Article 4 of these general terms and conditions, if the parties have not agreed on the duration of secondment, the contract shall be for an indefinite term, in which case a notice period of one calendar month shall apply to each of the parties after any initial term. Notice of termination must be given in writing.

Art. 50 Working hours, working time and working conditions

• The working hours, rest periods and working hours of the employee provided shall be equal to the times and duration customary at Customer. Customer guarantees that the working and rest times and working hours comply with the relevant laws and regulations.
• Client will inform Count-IT of a proposed (temporary) closure of its business or organization.
• Client is bound towards Count-IT and the provided employee to comply with the relevant laws and regulations regarding the safety of the workplace and the work environment.

Art. 51 Overtime compensation and travel time

• If the assigned employee works longer than the agreed or customary number of working hours per day on behalf of or at the request of the customer, or works outside Count-IT's usual working days, the customer shall owe the agreed overtime rate for these hours or, in the absence of an agreed overtime rate, the overtime rate customary at Count-IT. Upon request, Count-IT will inform Client of the applicable overtime rates.
• Costs and travel time will be charged to Client in accordance with Count-IT's usual rules and standards. Upon request, Count-IT will inform Client of the rules and standards customary for this purpose.

Art. 52 User liability and other liability

• Count-IT shall ensure the timely and complete payment of the income tax, social security contributions and sales tax due for the assigned employee in connection with the agreement with the customer. Count-IT shall indemnify the Customer for all claims of the tax authorities or of the authorities for the implementation of social insurance legislation that are due because of the agreement with the Customer, on the condition that the Customer immediately informs Count-IT in writing of the existence and content of the claim and leaves the handling of the case, including making any settlements, entirely to Count-IT. To this end, Customer shall provide Count-IT with the necessary powers of attorney, information and cooperation to defend itself, if necessary on behalf of Customer, against such claims.
• Count-IT accepts no liability for the quality of the results of work performed under the supervision and direction of client.

Chapter 9. Education and Training

The provisions contained in this chapter ‘Education and Training’ shall, in addition to the General Provisions of these general conditions and the provisions of the chapter ‘Provision of Services’, apply if Count-IT provides services, under any name and in any manner (e.g. in electronic form), in the field of education, courses, workshops, training, seminars and the like (hereinafter referred to as: training).

Art. 53 Registration and cancellation

• Registration for a course must be in writing and is binding upon confirmation by Count-IT.
• Customer bears responsibility for the choice and suitability of the training for the The lack of the required prior knowledge in a participant does not affect Customer's obligations under the agreement. Customer is permitted to replace a participant for training with another participant upon prior written consent of Count-IT.
• If in the opinion of Count-IT the number of registrations warrants it, Count-IT is entitled to cancel the training course, combine it with one or more training courses, or have it take place at a later date or time. Count-IT reserves the right to change the location of the training course. Count-IT is entitled to make organizational and content changes to a training course.
• The consequences of a cancellation of participation in a training course by customer or participants are governed by the rules customary at Count-IT. A cancellation must always be made in writing and prior to the training or the relevant part thereof. Cancellation or non-appearance does not affect the customer's payment obligations under the agreement.

Art. 54 Implementation of training

• Client accepts that Count-IT determines the content and depth of training.
• Client will inform and monitor participants' compliance with the obligations of the agreement and the (rules of conduct) prescribed by Count-IT for participation in the training.
• If Count-IT makes use of its own hardware or software in conducting the training, Count-IT does not warrant that such hardware or software is error-free or functions without interruption. If Count-IT conducts the training at the customer's location, the customer will ensure the availability of properly functioning hardware and software.
• Taking an exam or test is not part of the agreement.
• Customer shall owe a separate fee for the documentation, training materials or resources provided or produced for the training. The foregoing also applies to any training certificates or duplicates thereof.
• If the training is offered on the basis of e-learning, the provisions of the ‘Chapter Software-as-a-Service (SaaS)’ shall apply mutatis mutandis to the extent possible.

Art. 55 Price and payment

• Count-IT may require the customer to pay the fees payable in this regard prior to the start of the training. Count-IT may exclude participants from participation if customer has failed to ensure timely payment, without prejudice to all other rights of Count-IT.
• Unless Count-IT has expressly indicated that the training is exempt from VAT within the meaning of Article 11 of the Turnover Tax Act 1968, the customer shall also owe VAT on the fee. After entering into the agreement, Count-IT is entitled to adjust its prices in the event of any change in the regime of VAT for training established by or pursuant to law.

Chapter 10. Hosting

The provisions contained in this ‘Hosting’ chapter shall, in addition to the General Provisions of these General Conditions and the provisions of the ‘Services’ chapter, apply if Count-IT provides services, under any name, in the field of ‘hosting’ and related services.

Art. 56 Hosting services

• Count-IT will perform the hosting services agreed upon with customer.
• If the object of the agreement is the provision of disk space of equipment, Customer shall not exceed the agreed disk space, unless the agreement expressly regulates the consequences thereof. The agreement covers the provision of disk space on a server reserved exclusively and specifically for Customer only if this has been expressly agreed in writing. All use of disk space, data traffic and other loading of systems and infrastructure is limited to the maximum agreed upon between the parties Data traffic not used by customer in a certain period will not be transferable to a next period. For exceeding the agreed maximums, Count-IT will charge an additional fee in accordance with the customary rates.
• Customer is responsible for the management, including control of the settings, the use of the hosting service and the way the results of the service are deployed. In the absence of explicit agreements in this regard, Customer will itself install, set up, parameterize, tune the (auxiliary) software and, if necessary, adjust the hardware, other software and operating environment used in the process, and interoperability Count-IT is not obliged by Customer to perform data conversion.
• Only if expressly agreed in writing shall the agreement also include the provision or making available of backup, fallback and recovery services.
• Count-IT may temporarily take all or part of the hosting service out of service for preventive, corrective or adaptive maintenance. Count-IT will not allow the decommissioning to last longer than necessary, allow it to take place outside business hours if possible, and commence it, as circumstances dictate, after consultation with Customer.
• If Count-IT performs services for Client under the Agreement with respect to a domain name, such as the application, renewal or disposition or transfer to a third party, Client must consider the rules and practices of the relevant authority or authorities. If requested, Count-IT will provide a written copy of those rules to customer. Count-IT expressly accepts no responsibility for the accuracy or timeliness of the service or the achievement of the results intended by Customer. Client shall pay all costs associated with the application and/or registration in accordance with the agreed rates, or in the absence of agreed rates, the rates customary at Count-IT. Count-IT does not guarantee that a domain name requested by Client will be granted to Client.

Art. 57 Notice and Take Down

• Customer shall at all times behave diligently and not unlawfully towards third parties, in particular by respecting the intellectual property and other rights of third parties, respecting the privacy of third parties, not distributing data in violation of the law, not gaining unauthorized access to systems, not distributing viruses or other harmful programs or data and refraining from criminal offenses and violation of any other legal obligation.
• To prevent liability towards third parties or to limit the consequences thereof, Count-IT is always entitled to take measures in respect of an act or omission by or at the risk of the Client. The Client shall at the first written request of Count-IT promptly remove data and/or information from the systems of Count-IT, failing which Count-IT shall be entitled at its option to remove the data and/or information itself or to make access thereto impossible. Count-IT is furthermore entitled in case of violation or imminent violation of the provision of article 57.1 to deny the Customer access to its systems immediately and without prior notice. The foregoing is without prejudice to any other measures or the exercise of other legal and contractual rights by Count-IT against Customer. Count-IT shall in that case also be entitled to terminate the Agreement with immediate effect, without being liable to the Customer for that reason.
• Count-IT cannot be required to form an opinion on the merits of third party claims or the defense of the Customer or to be involved in any way in a dispute between a third party and the Customer. Customer will have to discuss the matter with the relevant third party and inform Count-IT in writing and properly substantiated with documents.

Chapter 11. Purchase of equipment

The provisions contained in this section ‘Purchase of Equipment’ shall apply, in addition to the General Provisions of these General Conditions, if Count-IT sells Equipment of any kind and/or other items (tangible objects) to Customer.

Art. 58 Purchase and sale

• Count-IT sells the equipment and/or other items by nature and number as agreed in writing, as Customer purchases them from Count-IT.
• Count-IT does not warrant that the equipment and/or items are suitable for the actual and/or customer intended use upon delivery, unless the written agreement clearly specifies the purposes of use without reservation.
• Count-IT's sales obligation does not include assembly and installation materials, software, consumables, batteries, stamps, ink (cartridges), toner supplies, cables and accessories.
• Count-IT does not warrant that the assembly, installation and operating instructions accompanying the equipment and/or items are error-free and that the equipment and/or items possess the properties specified in these instructions.

Art. 59 Delivery

• Equipment and/or items sold by Count-IT to Customer will be delivered to Customer ex warehouse. Only if agreed in writing, Count-IT will deliver or arrange for delivery of the goods sold to the customer at a place to be designated by the customer. In that case, Count-IT will notify customer, if possible in good time prior to delivery, of the time at which it or the carrier used intends to deliver the equipment and/or goods.
• The purchase price of the equipment and/or items does not include the costs of transportation, insurance, hoisting and lifting, hiring of temporary facilities, etc. These costs will be charged to customer as appropriate.
• If Client requests Count-IT to dispose of old materials (such as networks, cabinets, cable trays, packaging materials, equipment) or if Count-IT is legally required to do so, Count-IT may accept such request by written order at its usual rates. If and to the extent that Count-IT is not permitted by law to require payment of a fee (e.g. under the so-called ‘old for new regulation’), it shall, where appropriate, not require such fee from the Customer.
• If the parties have so agreed in writing, Count-IT will (have) the Equipment and/or items installed, (have) configured and/or (have) connected. Any obligation to install and/or configure Equipment by Count-IT does not include performing data conversion and installing software. Count-IT is not responsible for obtaining any necessary permits.
• Count-IT is always entitled to execute the agreement in partial deliveries.

Art. 60 Test setup

• Only if this has been agreed in writing, Count-IT will be obliged to install a trial set-up regarding the equipment in which the Customer is interested. Count-IT may attach (financial) conditions to a trial installation. A test set-up involves the temporary installation of standard equipment, excluding accessories, on view in an area provided by the customer before the customer makes a final decision whether or not to purchase the equipment. Customer is liable for use, damage, theft or loss of equipment that is part of a trial setup.

Art. 61 Environmental requirements

• Customer shall provide an environment that meets Count-IT's specified requirements for the equipment and/or items, including temperature, humidity and technical environment requirements.
• Customer shall ensure that work to be performed by third parties, such as construction work, is performed adequately and in a timely manner.

 Art. 62 Warranty

• Count-IT shall endeavor to the best of its ability to remedy material and manufacturing defects in the sold equipment and/or other sold goods, as well as in parts supplied by Count-IT under warranty, within a reasonable period of time free of charge if such defects have been reported to Count-IT within a period of three months after delivery and described in detail. If, in the reasonable opinion of Count-IT, repair is not possible, repair will take too long or if repair would involve disproportionately high costs, Count-IT shall be entitled to replace the Equipment and/or the items free of charge with other, similar, but not necessarily identical Equipment and/or items. Data conversion necessary as a result of repair or replacement is not covered by the warranty. All replaced parts shall become the property of Count-IT. The warranty obligation lapses if errors in the equipment, items or in the parts are entirely or partially the result of incorrect, careless or incompetent use, external causes such as fire or water damage, or if the customer makes or causes to be made changes to the equipment or to the parts supplied by Count-IT under warranty without Count-IT's consent. Count-IT will not withhold such permission on unreasonable grounds.
• Any other or further appeal by Customer for non-conformity of the delivered equipment and/or items than the provisions of Article 62.1 is excluded.
• Costs of work and repair outside the scope of this warranty will be charged by Count-IT according to its usual rates.
• Count-IT has no obligation under the purchase agreement with respect to errors and/or other defects reported after the expiration of the warranty period referred to in Article 62.1.

Art. 63 Equipment from toeCount-IT

• If and to the extent that Count-IT sells equipment originating from a third party to the customer, the conditions of sale of that third party shall apply in the relationship between Count-IT and the customer with respect to that equipment, to the exclusion of any deviating provisions in these General Terms and Conditions, provided that the applicability of the conditions of sale of that third party has been notified in writing by Count-IT to the customer and those conditions have been provided to the customer prior to or at the time of the conclusion of the agreement. Notwithstanding the previous sentence, the Customer shall not be entitled to invoke Count-IT's failure to comply with the aforementioned information obligation if the Customer is a party as referred to in article 6:235 paragraph 1 or paragraph 3 of the Dutch Civil Code.
• If and to the extent that the said third-party conditions in the relationship between customer and Count-IT are deemed not to apply or are declared inapplicable for whatever reason, the provisions of these general conditions shall apply in full.

Chapter 12. Equipment rental

The provisions contained in this section ‘Equipment Rental’ apply, in addition to the General Provisions of these General Conditions, if Count-IT rents equipment of any kind to Customer.

Art. 64 Rental and leasing

• Count-IT rents to customer the equipment mentioned in the rental agreement and the accompanying user documentation.
• The rental does not include the provision of software on separate data carriers and the consumables necessary for the use of the equipment, such as batteries, ink (cartridges), toner supplies, cables and accessories.
• Rental shall commence on the day the equipment is made available to Customer.

Art. 65 Pre-inspection

• Count-IT may, before or on the occasion of the provision, prepare a description of the condition of the Equipment by way of a pre-inspection in the presence of the Customer, specifying any defects found. Count-IT may require Customer to sign the prepared report containing this description for approval before Count-IT provides the Equipment to Customer for use. Any defects in the Equipment stated in that report shall be the responsibility of Count-IT. When defects are found, the parties will agree whether, and if so how and when, the defects listed in the condition will be repaired.
• If Customer does not cooperate properly with the pre-inspection as referred to in Article 65.1, Count-IT has the right to carry out this inspection outside Customer's presence and prepare the report itself. This report is binding on customer.
• If no pre-inspection is performed, customer is deemed to have received the equipment in good and undamaged condition.

Art. 66 Use of the equipment

• Customer shall only use the equipment in accordance with its intended purpose under the Agreement and at the locations specified in that Agreement in and for the benefit of its own organization or business. Use of the equipment by or on behalf of third parties is not permitted. The right to use the equipment is not transferable. Customer shall not be permitted to sublet the equipment to a third party or otherwise grant a third party the (joint) use thereof.
• Customer itself will install, assemble and make ready for use the equipment.
• Customer is not permitted to use the equipment or any part thereof as collateral or security object in any way or otherwise dispose of it.
• Customer shall use the equipment with care and keep it in his custody with due diligence. Customer will take sufficient measures to prevent damage. In the event of damage to the Equipment, Customer shall notify Count-IT immediately Customer is liable to Count-IT for damage to the Equipment. In all cases, the customer is liable towards Count-IT in case of theft, loss or misappropriation of the equipment during the rental period.
• Customer shall not alter or add anything to the equipment in whole or in part. If, where applicable, changes or additions are nevertheless made, Customer shall undo or remove them no later than the end of the lease.
• As between the parties, defects to changes and additions made to the equipment by or on behalf of the customer and all defects to the equipment resulting from those changes or additions are not defects within the meaning of article 7:204 of the BW. Customer has no claim whatsoever towards Count-IT in respect of these defects. Count-IT is not obliged to repair or maintain these defects.
• Customer shall not be entitled to any compensation in connection with changes or additions made by Customer to the leased equipment that have not been undone or removed at or after the end of the lease for any reason.
• Customer shall immediately notify Count-IT in writing of any attachment of the Equipment, stating the identity of the person levying the attachment and the reason for the attachment. Customer shall immediately give the seizing bailiff access to the lease agreement.

Art. 67 Maintenance of leased equipment

• Customer shall not maintain the rented equipment itself or have it maintained by a third party.
• Customer shall immediately notify Count-IT in writing of any defects found by it in the Leased Equipment. Count-IT shall use its best efforts, by way of corrective maintenance, to repair defects in the Equipment that are for its account within a reasonable period of time. Count-IT is also entitled, but not obliged, to perform preventive maintenance on the Equipment. Upon request, Customer shall give Count-IT the opportunity to perform corrective and/or preventive maintenance. Parties will discuss in advance the days and times when maintenance will take place. During the period of maintenance Customer is not entitled to replacement equipment.
• Excluded from the obligation to repair defects are:
  • Repairing defects that customer accepted at the time of entering into the lease;
  • The repair of defects resulting from external causes;
  • The repair of defects attributable to Customer, its employees and/or third parties engaged by Customer;
  • Repair of defects resulting from careless, improper or injudicious use or use contrary to the documentation;
  • Repair of defects resulting from use of the equipment contrary to its intended use;
  • Repair of defects resulting from unauthorized modifications or additions made to the equipment.
• If Count-IT repairs or causes to be repaired the defects referred to in the preceding paragraph, Customer shall owe the associated costs according to Count-IT's usual rates.
• Count-IT is always entitled to choose to omit repair of defects and replace the Equipment with other similar, but not necessarily identical Equipment.
• Count-IT is never obliged to restore or reconstruct lost data.

Art. 68 Final inspection and return

• Customer will return the equipment to Count-IT in its original condition at the end of the rental agreement. Transportation costs associated with the return shall be borne by Customer.
• Customer will cooperate in a joint final inspection of the condition of the equipment before or no later than the last working day of the rental period. A report of the findings thereon will be drawn up jointly by the parties, to be signed by both parties. If customer does not cooperate with this final inspection, Count-IT is entitled to carry out this inspection outside the presence of customer and to draw up the said report itself. This report is binding on the customer.
• Count-IT is entitled to have the defects listed in the final inspection report, which are reasonably for the account and risk of the Customer, repaired at the Customer's expense. Customer is liable for damages incurred by Count-IT due to temporary unusability or further unrentalability of the Equipment.
• If, at the end of the rental, Customer has not undone a change it has made to the equipment or removed an addition to it, the parties shall agree that Customer shall be deemed to have waived any right to those changes and/or additions.

Chapter 13. Maintenance of equipment

The provisions set forth in this Chapter ‘Maintenance of Equipment’ shall, in addition to the General Provisions of these General Conditions and the provisions of the Chapter ‘Services’, apply if Count-IT maintains Equipment of any kind on behalf of the Customer.

Art. 69 Maintenance services

• Count-IT will perform maintenance with respect to the equipment mentioned in the agreement, provided the equipment is located in the Netherlands.
• During the time Count-IT holds the equipment to be serviced, Customer is not entitled to temporary replacement equipment.
• The content and scope of the maintenance services to be performed and any associated service levels will be set out in a written agreement. Failing that, Count-IT shall be obliged to make every effort to remedy to the best of its ability any malfunctions duly reported to Count-IT by the Customer within a reasonable period of time. For the purposes of these general conditions, ‘malfunction’ means the failure of the Equipment to meet, or not meet without interruption, the specifications of the Equipment expressly made known in writing by Count-IT. There is only a malfunction if the Customer can demonstrate such malfunction and, moreover, the malfunction in question can be reproduced. Count-IT is also entitled, but not obliged, to preventive maintenance.
• Customer shall, immediately after a malfunction of the Equipment occurs, notify Count-IT by detailed description.
• Customer shall provide all cooperation required by Count-IT for the maintenance, such as the temporary cessation of the use of the Equipment. Customer is required to provide access to the Equipment site to Count-IT personnel or third parties designated by Count-IT, to provide all other necessary cooperation and to make the Equipment available to Count-IT for maintenance purposes.
• Before offering the Equipment to Count-IT for maintenance, Customer shall ensure that a complete and properly functioning backup copy of all software and data recorded in or on the Equipment has been made.
• At Count-IT's request, an appropriate employee of Customer will be present for consultation during maintenance activities.
• Customer is authorized to connect equipment and systems not supplied by Count-IT to the Equipment and to install software thereon.
• If, in the opinion of Count-IT, the maintenance of the Equipment requires that the connections of the Equipment with other Equipment or with software be tested, the Customer shall make the relevant other Equipment and software as well as the test procedures and data carriers available to Count-IT.
• The test material required for maintenance that is not part of Count-IT's normal equipment must be provided by the customer.
• Customer bears the risk of loss, theft or damage to the Equipment during the period Count-IT holds it for maintenance work It is left to Customer to insure this risk.

Art. 70 Maintenance allowance

• The maintenance price does not include:
  • Cost of (replacing) consumables such as batteries, stamps, ink (cartridges), toner supplies, cables and accessories;
  • Cost of (the replacement of) parts and also maintenance services for the repair of failures caused in whole or in part by attempts at repair by others than Count-IT;
  • Work on behalf of equipment overhaul;
  • Equipment modifications;
  • Relocation, relocation, reinstallation of equipment or work as a result.
• The fee for maintenance is due regardless of whether customer has (taken) the equipment in use or takes advantage of the opportunity for maintenance.

Art. 71 Exclusions.

• Work due to the investigation or repair of faults resulting from or related to user errors, improper use of the equipment or external causes, such as faults in the Internet, data network connections, voltage supplies, or links with equipment, software or materials not covered by the maintenance agreement, are not part of Count-IT's obligations under the maintenance agreement.
• Count-IT's maintenance obligations do not include:
  • The investigation or repair of failures resulting from or related to modification of the Equipment other than by or on behalf of Count-IT;
  • The use of the Equipment in violation of the applicable conditions for it and the Customer's failure to allow the Equipment to be used in a timely manner are also not covered by Count-IT's maintenance obligations to investigate or repair malfunctions related to software installed on the Equipment.
• If Count-IT performs research and/or maintenance in connection with the provisions of clause(s) 71.1 and/or 71.2, Count-IT may charge the costs of such research and/or maintenance in accordance with its usual rates. The foregoing shall not affect all that Customer owes Count-IT in respect of maintenance.
• Count-IT is never obliged to restore data mutilated or lost as a result of malfunctions and/or maintenance.