Subduxion B.V. General Terms and Conditions

Effective October 1, 2025

1. Definitions

In these Terms and Conditions, unless otherwise specified, the following definitions will apply:

  • “Acceptance Criteria” means the criteria for acceptance of the Solution or the Customizations (as the case may be) by the Client as set forth in the Commercial Offer.

  • “Acceptance Date” means the date on which the Solution or Customization (as the case may be) is accepted by Client.

  • “Acceptance Report” means a document duly signed on behalf of Client and the Provider, stating that the Solution or Customization (as the case may be) has passed the Acceptance Test, and containing any additional remark or findings resulting from the tests.

  • “Acceptance Test” means a set of tests to be carried out to verify the usage of the Solution or the Customizations (as the case may be) according to the Acceptance Criteria.

  • “Affiliate” means, in relation to the relevant Party, any person or entity controlling, controlled by, or under common control with such Party, whereby “control” means the power, direct or indirect, to direct or cause the direction of the management and policies of such entity whether by contract, ownership of shares, membership on the board of directors, by agreement or otherwise and, in any event and without limitation of the foregoing, any entity owning more than 50% of the voting securities of a second entity shall be deemed to control that second entity (and “controlling” and “controlled” shall have a corresponding meaning).

  • “Authorized User” means (i) each physical person in Client’s organization (ii) each physical person of Client’s clients and Client’s business partners who is granted access by Client and will or must be able to use the Solution and Customizations (as the case may be) as an end user.

  • “Authorized Equipment” means the computer configuration platform (including operating system) in respect of which the applicable License is granted as specified in the relevant Documentation or the Commercial Offer.

  • “Business Day” means a normal working day of the Provider from Monday to Friday, excluding Dutch public holidays.

  • “Business Hours” means 8:30 a.m. to 5:30 p.m., local time in Europe/Amsterdam, on a Business Day.

  • “Client’s Authorized Staff” means the client’s authorized staff, as named in the Commercial Offer.

  • “Client-Induced Incident” means an Incident (i) caused by abuse or misuse of the Solution or the Customizations (as the case may be) by the Client; (ii) caused by any modification or addition to the Solution or the Customizations (as the case may be) or the configuration that is performed without prior written consent of the Provider, or (iii) due to the use of incorrect data for integration or (iv) the failure of any supporting (third party or Client’s) hardware and/or software.

  • “Client’s Authorized Maintenance Staff” shall mean employees or contractors assigned by Client and for which the Provider has granted access to the Provider’s web-based incident management system.

  • “Commercial Offer” means the offer as agreed upon between the Client and the Provider, as set out on the cover page, titled “Commercial Offer”.

  • “Confidential Information” of a Party means the information of such Party, whether in written, oral, electronic or other form, and which (i) is explicitly marked as confidential or proprietary, or (ii) should reasonably be considered confidential or is traditionally recognized to be of a confidential nature, regardless of whether or not it is expressly marked as confidential, including but not limited to, information and facts concerning business plans, customers, prospects, personnel, suppliers, partners, investors, affiliates or others, training methods and materials, financial information, marketing plans, sales prospects, client lists, inventions, program devices, discoveries, ideas, concepts, know-how, techniques, formulas, blueprints, software (in object and source code form), documentation, designs, prototypes, methods, processes, procedures, codes, and any technical or trade secrets, including all copies of any of the foregoing or any analyses, studies or reports that contain, are based on, or reflect any of the foregoing. The Confidential Information of the Licensor shall include, without limitation, the Licensed Materials.

  • “Customizations” mean Client specific adaptations, additions or enhancements of the standard Solution specifically developed by Provider as per the terms agreed in the Commercial Offer and/or a Statement of Work, which is not considered as part of the standard Solution.

  • “Documentation” means the technical and functional Solution information that the Provider generally makes available from time to time to its customers.

  • “Effective Date” means the effective date as set forth in the Commercial Offer.

  • “Hosting Fee” means the periodic hosting fee specified in the Commercial Offer for the Hosting Services.

  • “Hosting Partner” means the third-party provider engaged by the Provider to deliver hosting infrastructure and related services.

  • “Hosting Services” means the hosting services as defined in Article 23.

  • “Hosting Terms” means the Hosting Partner’s terms of use as referenced in the applicable Commercial Offer.

  • “Hotfix” is a patch to fix one or more particular malfunctions within a specific Version of the Solution.

  • “Incident” means a malfunctioning of the Solution.

  • “Initial Term” means the initial period for which these Terms and Conditions are concluded as set out in the Commercial Offer. The Initial Term starts on the Effective Date.

  • “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, copyrightable or mask work rights, neighboring rights and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, rights to know-how and trade secrets, and industrial property rights; (e) layout design rights, design rights, topographic right; (f) Internet domain names; (g) rights to software and computer software programs (including but not limited to source code and object code), rights to data, database sui generis right and documentation thereof; and other proprietary rights of every kind and nature; whether registered or not; and (h) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.

  • “License Fee” means the periodic license fee specified in the Commercial Offer for the license of the Solution.

  • “Licensed Materials” means the applicable Solution, (if applicable) Customizations and Documentation, the Intellectual Property Rights of which are owned by Subduxion IP B.V. (the Licensor), and which are sublicensed and made available to the Client by Subduxion B.V. (the Provider) under these Terms and Conditions.

  • “Location” means Client’s location where the Maintenance Services can be performed, set out in the Commercial Offer.

  • “Maintenance Fee” means the periodic maintenance fee specified in the Commercial Offer for the provision of the Maintenance Services.

  • “Maintenance Services” are the maintenance and support services related to the Solution provided by the Provider to the Client as described in Article 24 of the Terms and Conditions.

  • “Major Intervention” means an intervention by the Provider for which the Provider estimates that the effort shall be equal to or exceed 5 (five) man days of 8 working hours.

  • “Minor Intervention” means an intervention by the Provider for which the Provider estimates that the effort shall be less than 5 (five) man days of 8 working hours.

  • “New Module” means an addition to the Solution which provides one or more significant new functions or architectures which none of the existing modules of the Solution already contained before, or only contained in a limited form before, and therefore cannot be considered as a new Version.

  • “New Release" means a Release that introduces significant new or changed functionality compared to the prior Release (as opposed to a Version or Hotfix that primarily addresses defects).

  • “Object Code” means software as assembled or compiled on magnetic or electronic binary form on software media that is readable and usable by machines but not generally readable by humans without reverse assembly, reverse compiling or reverse engineering.

  • “Personnel” means the employees, contractors, representatives or agents of the Provider.

  • “Party” means a party to these Terms and Conditions.

  • “Professional Services” mean development, implementation and integration services (including, but not limited to Customizations) or such other services in relation to the Solution as may be agreed between the Parties from time to time and set out in the Commercial Offer and/or a Statement of Work.

  • “Professional Services Fee” means the periodic professional services fee specified in the Commercial Offer for the professional services.

  • “Release” means any improved, modified, revised, corrected, upgraded, enhanced or updated version of the Solution from time to time made available by the Provider (on behalf of the Licensor) pursuant to these Terms and Conditions.

  • “Scope” shall mean the scope or business operation for which the Client is entitled to use the Solution and (as the case may be) the Customizations as set out in the Commercial Offer.

  • “Severe Incident” has the meaning given to Priority 1 and Priority 2 incidents in Article 24.5.

  • “Solution” means the software, computer programs, platforms, applications, including but not limited to all algorithms, (source or object) code and methodology pertaining thereto as described in the Commercial Offer. For the avoidance of doubt, the Solution is exclusive of Customizations.

  • “Solution Delivery Date” means the date whereupon the Licensed Materials are delivered to the Client.

  • “Specifications” shall mean the unambiguous functional, technical and performance features as agreed between Parties in writing (in a Statement of Work).

  • “SPOC” means the single point of contact appointed by the Provider under Article 24.6 for Severe Incidents.

  • “Statement of Work” shall mean a statement of work, concluded between the Parties pursuant to these Terms and Conditions for the delivery of Professional Services by the Provider. A Statement of Work will at least contain following information: order date, consultant profiles, location where the Professional Services will be performed, description of the assignment, specifications (if applicable), estimated workload (if known), applicable fee (if applicable), applicable payment terms (if applicable), acceptance criteria (if applicable). The Statement of Work shall at all times be attached to the Commercial Offer and form an integral part thereof.

  • “Subduxion B.V.” or the “Provider” means Subduxion B.V., a private limited company (besloten vennootschap met beperkte aansprakelijkheid) incorporated under Dutch law and registered with the Dutch Chamber of Commerce under number 98353780, having its registered office at High Tech Campus 5, 5656 AE Eindhoven, the Netherlands. Subduxion B.V. is the contracting party towards the Client under these Terms and Conditions, responsible for the provision of the Solution, Professional Services, Hosting Services and related IT and AI consulting services, and is authorized by Subduxion IP B.V. to grant sublicenses of the Licensed Materials to Clients.

  • “Subduxion IP B.V.” or the “Licensor” means Subduxion IP B.V., a private limited company (besloten vennootschap met beperkte aansprakelijkheid) incorporated under Dutch law and registered with the Dutch Chamber of Commerce under number 98356089, having its registered office at Lichttoren 32, 5611 BJ Eindhoven, the Netherlands. Subduxion IP B.V. develops, manages and exploits intellectual and industrial property rights, including patents, trademarks, know-how and licenses, and remains the sole owner of the Intellectual Property Rights in the Solution.

  • “Supported Releases” means the most recent New Release and the previous Release for a period of three (3) months after the most recent New Release was made available by the Provider (on behalf of the Licensor).

  • “Terms and Conditions” means the present terms and conditions regarding the Solution license (License), Maintenance Services, Professional Services and Hosting Services, applicable to all Commercial Offers and Statement of Works (unless expressly stipulated otherwise in writing) issued by Subduxion.

  • “Test Period” means the period specified in the applicable Commercial Offer or such other period as the Parties may agree in writing.

  • “Version” means a set of the software package in which noted shortcomings are repaired.

2. License

2.1 Subject to these Terms and Conditions and timely payment of the License Fee, Subduxion B.V. (the “Provider”), as Provider and contracting party, grants to Client (and its Affiliates, only if indicated in the Commercial Offer) a personal, restricted, non-exclusive, non-transferable and non-assignable sublicense to use the Licensed Materials in Object Code on the Authorized Equipment in accordance with the applicable Documentation for the Scope as set out in the Commercial Offer. Such sublicense is granted by the Provider pursuant to the license rights it holds from Subduxion IP B.V. (the “Licensor”). The right to use the Solution on a different environment requires prior written consent of the Licensor and the Provider. This license shall commence on the Effective Date and shall remain in effect for the term of these Terms and Conditions.

2.2 Client acknowledges and agrees that in order to use the Licensed Materials, Client may need to obtain, at Client’s expense, the right to use any software owned by third parties by either (i) purchasing from the Provider the right to use such third-party software, provided and to the extent the Provider has the right to sublicense such third-party software to Client and offers such opportunity to Client, or (ii) licensing or otherwise obtaining from the vendors of such third-party software the right to use such third-party software. If Client elects to license such third-party software from the Provider, such license shall be executed and attached to the Commercial Offer. Any third-party software licensed thereunder or otherwise included in the Licensed Materials shall be exclusively governed by the terms of the applicable third-party license, and (without limitation) any warranties, indemnification and maintenance and support provided hereunder by the Provider in respect of the Licensed Materials shall not apply in respect of such third-party software (except as expressly otherwise agreed to in writing by the Provider).

2.3 The extent of the licenses granted under these Terms and Conditions is restricted to the scope expressly set forth herein, and there are no implied licenses under these Terms and Conditions. The Provider and the Licensor reserve any right not expressly granted to the Client hereunder.

2.4 The Client shall comply with all applicable laws relating to the use of the Solution, Customizations and Documentation. The Client acknowledges that the Solution, Customizations and Documentation may include encryption and may, accordingly, be subject to export or other restrictions. For the avoidance of doubt, Article 25 (Compliance) applies in conjunction with this Article.

2.5 Client shall not:
a. make back-up copies of the Licensed Materials without the Provider’s authorization, except as permitted under Article 2.6;
b. arrange or create derivative works based on the Licensed Materials without the Provider’s express written consent;
c. assign, distribute, sublicense, hire, transfer, sell, lease, rent, charge or otherwise deal in or encumber the Licensed Materials, or use the Licensed Materials on behalf of any third party or make them available to any third party, except for access and use by Authorized Users (including Client’s clients and business partners) within the agreed Scope;
d. copy, duplicate, reverse engineer, reverse compile, disassemble, record or otherwise reproduce the Licensed Materials or any part of them except as expressly provided in these Terms and Conditions;
e. remove or alter any copyright or other proprietary notice on any of the Licensed Materials.

2.6 If the Solution is hosted on Client’s premises, Client is permitted to make such number of back-up copies of the Licensed Materials as are reasonably necessary for operational security, disaster recovery or back-up purposes. Such copies shall in all respects be subject to these Terms and Conditions and shall be deemed to form part of the Licensed Materials and shall be the property of the Licensor. Only internal copies are permitted. If the Solution is hosted in the Provider’s hosted environment, Client is permitted to make such number of copies of the Documentation as are reasonably necessary for operational security, disaster recovery or back-up purposes, which copies shall be subject to these Terms and Conditions and deemed part of the Licensed Materials.

2.7 The usage rights of the Licensed Materials and any usage restriction are set out in the Commercial Offer. Client is obliged to report to the Provider in writing any infringement on these usage rights within ten (10) days after the infringement takes place. For a period of thirty (30) days after the occurrence of the infringement, Client has the right to regularize the situation, without incurring any penalty. The Provider shall always have the right to set up an audit to investigate the number of users/instances. Client shall effect and maintain adequate security measures to safeguard the Licensed Materials from unauthorized access, use or copying by any person.

2.8 Upon at least ten (10) Business Days’ prior written notice, and no more than once in any twelve (12) month period (unless a material breach is reasonably suspected), the Provider may audit the Client’s use of the Licensed Materials during Business Hours. Audits shall be conducted in a manner that minimizes disruption and shall be subject to the Client’s reasonable security and confidentiality requirements. Response to audit requests shall not require access to Client data beyond what is necessary to verify compliance and shall preserve the confidentiality of Client Data and trade secrets. If an audit reveals unauthorized use, the Client shall promptly pay any additional fees and reasonable audit costs, without prejudice to the Provider’s other rights.

3. Delivery, Installation and Acceptance

3.1 In case of an on-premise solution, the Provider shall deliver the Licensed Materials to the Client on the Solution Delivery Date. From the Solution Delivery Date, risks relating to integrity, security and availability of the Licensed Materials within the Client’s environment shall be borne by the Client. In case of a hosting solution, the Provider shall provide one copy on electronic media of the Documentation, as specified in the Commercial Offer.

3.2 For an on-premise solution, the Client is responsible for installation of the Licensed Materials in accordance with the installation guide issued by the Provider as part of the Documentation. For a hosting solution, the Provider is responsible for installation of the Licensed Materials. If Client requests the Provider to perform Professional Services and the Provider agrees in writing to provide such Professional Services, the Provider shall provide such Professional Services in accordance with a Statement of Work. The provisions of this Article shall apply in respect of the testing, integration, configuration, installation and acceptance of the Licensed Materials, unless otherwise specified. The Provider shall be entitled to attend and witness such acceptance testing and, only if agreed in writing between the Parties pursuant to a Statement of Work, shall provide additional Professional Services to assist Client in acceptance testing.

3.3 Acceptance of the Licensed Materials against the Acceptance Criteria has to take place within a pre-defined Test Period (to be mutually agreed in writing between the Parties) following the Solution Delivery Date. The Client has the responsibility to conduct business-compatible Acceptance Tests within the Test Period. Unless Client can demonstrate within the Test Period that the Licensed Materials do not operate as described in the Acceptance Criteria, the Acceptance Test will be deemed passed. Any serious malfunctioning preventing the Licensed Materials from passing acceptance testing has to be reported to the Provider in writing at the latest five (5) Business Days after it was detected. The Client shall be deemed to have accepted the Licensed Materials without reservation if (i) the Client uses such Licensed Materials in a production environment, (ii) the Licensed Materials perform and function in accordance with the Acceptance Criteria during the acceptance testing, (iii) the Client notifies the Provider that it accepts the Licensed Materials, (iv) the Client has not completed acceptance testing of the Licensed Materials within the Test Period, or (v) the Client has failed to issue a notice of acceptance or non-acceptance within five (5) Business Days from the end of the acceptance testing.

3.4 If the Licensed Materials fail to perform or function in accordance with the Acceptance Criteria during the acceptance testing, the Client shall promptly (and in any event within five (5) Business Days as of the end of such acceptance testing) deliver to the Provider a written notice listing all deficiencies in reasonable detail. Within two (2) weeks after delivery of the resolution, Client will conduct new tests. The deemed-acceptance situations set out above shall apply to such additional acceptance round. Should these tests not be conclusive, meaning that the resolution provided does not solve the reported problem, the acceptance procedure as set out here above shall be applicable until acceptance has taken place. The Licensed Materials shall not be deemed to have failed to perform or function in accordance with the Acceptance Criteria as a result of any deficiency which (i) was not attributable to the Provider, or (ii) was or reasonably should have been discovered by the Client in a prior acceptance testing but which has not been notified to the Provider, or (iii) which is minor in nature as defined by the Acceptance Criteria.

3.5 Upon passing the acceptance tests, both Parties will formalize this by signing an acceptance form. Signature of the acceptance form shall not be unreasonably withheld by the Parties. It is understood that in the event of deemed acceptance, the Licensed Materials shall be deemed accepted regardless of such acceptance form being signed.

3.6 The Provider warrants that, for ninety (90) days from the Acceptance Date, the Solution will substantially conform to the Documentation when used in accordance with the Terms and Conditions. The sole and exclusive remedy for breach of this warranty is repair, replacement, or workaround, at the Provider’s option. This warranty does not apply to (i) Client-Induced Incidents, (ii) use contrary to the Documentation, or (iii) third-party software.

4. Intellectual Property Rights

4.1 Subduxion IP B.V. (the “Licensor”) exclusively owns and retains all right, title and interest in and to all Intellectual Property Rights in or pertaining to the Licensed Materials, the Maintenance Services deliverables, the Professional Services deliverables (including any Customizations), the Provider’s website and all documentation (including the Documentation) and materials pertaining or relating thereto (including any copies and portions thereof), whether in machine-readable or printed form, including, without limitation, (i) all software and materials which are related to the Licensed Materials, the Maintenance Services and the Professional Services, (ii) all modifications and customizations (including the Customizations) to, and derivative works, compilations or collective works of, the Licensed Materials, and (iii) all related technical know-how. The Client agrees to be bound by and observe the proprietary nature of the Licensed Materials. The Client agrees not to remove, suppress or modify in any way any proprietary marking, including any trademark or copyright notice, on or in the Licensed Materials, or visible during their operation, or on media or on any Documentation. Client shall incorporate or reproduce such proprietary markings in any permitted back-up or other copies. For the avoidance of doubt, the Provider acts as authorized provider and sublicensor under rights granted by the Licensor.

4.2 The Solution may contain open-source components licensed under their respective OSS licenses. To the extent required, such licenses shall govern those components. Nothing in these Terms and Conditions is intended to limit rights granted under applicable OSS licenses.

5. Infringements Claims by Third Parties

5.1 The Client will give prompt written notice to the Licensor (Subduxion IP B.V.) with a copy to the Provider (Subduxion B.V.) of any third-party claim alleging an actual or threatened infringement by the Licensed Materials or other material made available by Provider (on behalf of the Licensor). The Licensor shall have the right to control and direct the defense and settlement of such claim (in coordination with the Provider as appropriate). Client shall be entitled to participate in such proceedings at its own cost. The Licensor (and where relevant the Provider) must keep the Client regularly informed of the status of the proceedings and/or settlement negotiations. Client agrees to reasonably cooperate with the Licensor and the Provider in the defense and settlement of such a claim. If, in the Licensor’s reasonable opinion, the Licensed Materials or such other material are likely to become or actually become the subject of a claim of infringement, the Licensor shall have the right, at its sole option and expense, to: (i) modify or replace the (alleged) infringing material so that it becomes non-infringing while preserving substantially equivalent functionality, or create a workaround; or (ii) obtain for the Client the right to continue to use such material as per the terms of these Terms and Conditions. The Provider shall implement any such remedy operationally towards the Client.

5.2 Client shall indemnify, defend and hold Subduxion IP B.V., Subduxion B.V. and their Affiliates harmless from and against any damages, losses, costs and expenses (including reasonable attorneys’ fees) suffered or incurred arising out of Client’s infringement of any third party’s intellectual property rights or Client’s breach of Article 2.5.

5.3 In case any alleged or actual Intellectual Property Rights infringement relating to the Licensed Materials arises, the Client shall immediately cease the use of the specific (allegedly) infringing elements upon written instruction of the Licensor or the Provider while the remedy under Article 5.1 is being implemented. If the Client neglects this obligation, the Provider may, at its sole discretion, suspend or terminate the Terms and Conditions with immediate effect and without any compensation or indemnification being due by the Provider or the Licensor.

5.4 The Licensor and/or the Provider shall have no liability for any claim which is based upon (i) Client’s unauthorized use of the Licensed Materials, (ii) Client’s or any third party’s modification of any of the Licensed Materials, (iii) Client’s failure to integrate or install any corrections to such Licensed Materials issued by the Provider and/or Licensor, if indicated that such update or correction was required to prevent a potential infringement, or (iv) Client’s use of the Licensed Materials in unauthorized or incompatible combination with any non-Subduxion solutions or services.

6. Confidential Information

6.1 Each Party shall treat as confidential and keep secret all Confidential Information relating to the other and shall not disclose to any third party, other than its agents or consultants where such disclosure is necessary, any Confidential Information learned during the negotiation and performance of these Terms and Conditions. Confidential Information disclosed under these Terms and Conditions shall not be used by the recipient thereof for any purpose other than as required for the performance of its obligations under these Terms and Conditions and/or Commercial Offer.

6.2 Client shall take precautions to maintain the confidentiality of the Confidential Information and in particular the Client covenants that it:
a. shall not copy or otherwise exploit any component of the Confidential Information other than as herein provided, nor make any disclosures with reference thereto to any third party. b. shall ensure that all copies of the Confidential Information (made in accordance with the provisions of these Terms and Conditions) contain a permanently legible reproduction of the Licensor’s copyright notice and a confidentiality notice. c. shall promptly notify the Provider if it becomes aware of any breach of confidence and give the Disclosing Party all reasonable assistance in connection with the same.

6.3 The provisions of this article shall not apply to any secret or information which: a. is published or comes into the public domain other than by a breach of the Terms and Conditions; or b. can be shown to have been known by the receiving Party before disclosure by the disclosing Party; or c. is lawfully obtained from a third party; or d. can be shown to have been created by the receiving Party independently of the disclosure and other than as part of the project.

6.4 For the purposes of this Article, references to “Subduxion” shall be deemed to include both the Provider and the Licensor, and Confidential Information shall include, without limitation, all Licensed Materials and any information relating to Intellectual Property Rights owned by the Licensor.

7. Payment Terms

7.1 The License Fee, Maintenance Fee, Hosting Fee and Professional Services Fee (whichever is applicable) will become payable as set out in the Commercial Offer. All payments of invoices correctly issued by the Provider to the Client under these Terms and Conditions shall be final and non-refundable. Invoices are sent by email in PDF format to the Client’s contact person(s) named in the Commercial Offer. The Client may explicitly request the Provider in writing to send a copy of the invoices to a physical address, without prejudice to relevant legal requirements.

7.2 The Client agrees to make all payments due to the Provider under the provisions of these Terms and Conditions or any Statement of Work within thirty (30) days of the invoice date, unless Parties have agreed otherwise in writing. All payments shall be made in EUR. In the event of late payment, all outstanding payment obligations of the Client to the Provider shall become immediately due and payable.

7.3 The License Fee, Maintenance Fee, Hosting Fee and the Professional Services Fee shall be subject to annual indexation on 1 January of each year, whereby the new index shall be based on the Consumer Price Index (CPI, all households, series published by Statistics Netherlands (CBS)) as measured in September of the preceding year. If the CBS index is no longer published, it shall be replaced by a comparable index published by CBS, or failing that, by another generally accepted index reflecting the development of consumer prices in the Netherlands. A negative index shall have no impact on the fees. The base index is the index applicable three (3) months before the signing of these Terms and Conditions.

Every invoice issued by the Provider shall be deemed definitively accepted by the Client if it is not disputed by registered letter sent to the Provider, setting out the grounds of the dispute, within ten (10) days after the invoice date.

7.4 Any invoice amount not paid within thirty (30) days from the invoice date shall automatically be subject to statutory commercial interest as referred to in Article 6:119a of the Dutch Civil Code, accruing daily as from the due date until receipt of full payment. In addition, the Client shall reimburse the Provider for all reasonable (extra)judicial costs incurred in connection with the collection of the overdue amounts. If the Client fails to pay any outstanding amounts within thirty (30) days after receipt of a written notice of default, the Provider shall be entitled to suspend its obligations and the Client’s rights hereunder until full payment has been received.

7.5 All fees payable to the Provider under these Terms and Conditions shall be paid without the right of set-off or counterclaim and free and clear of all deductions or withholdings whatsoever, unless such deduction or withholding is required by law. In that case, the Client shall pay such additional amounts as are necessary in order that the net amounts received by the Provider after all deductions and withholdings shall not be less than the amounts that would have been received in the absence of such deductions or withholdings. Sums stated to be payable under these Terms and Conditions do not include VAT or other applicable taxes, which shall be additionally charged to the Client. The Client is responsible for payment of all general, state or local import, usage, value added, withholding or other taxes associated with the supply or use of the Licensed Materials, the Maintenance Services, the Hosting Services and the Professional Services. The Client shall promptly reimburse the Provider for any such taxes or duties paid by the Provider.

8. Limitation of Liability of the Parties

8.1 Subject to the maximum extent permitted by applicable law, the contractual liability of the Provider under these Terms and Conditions in respect of each event (or series of connected events) shall not exceed the total fees paid by the Client to the Provider under these Terms and Conditions during the twelve (12) months immediately preceding the date of the event (or last of the series of connected events) giving rise to the claim, and this limitation shall apply per cause of damage. For Hosting Services, the specific liability cap in Article 23.5 applies as a lex specialis.

For the avoidance of doubt, the Licensor shall not bear any direct liability towards the Client under these Terms and Conditions, except in relation to Intellectual Property Rights as expressly provided in Article 5.

The Provider shall not be liable in any way, whether contractually or extra-contractually, for discontinuing any older Release of the Solution.

The Client shall at all times during and after the term of these Terms and Conditions indemnify, defend and hold harmless the Provider, the Licensor, and their Affiliates from and against any and all claims, demands, actions, proceedings, damages and losses resulting from (i) any breach of these Terms and Conditions by the Client, Authorized Users or end users; (ii) any negligent or wrongful acts or omissions of the Client, Authorized Users or end users; (iii) any misrepresentation or failure to act by the Client, Authorized Users or end users; and/or (iv) any faults and omissions in the performance of its obligations pursuant to these Terms and Conditions resulting in third party claims.

8.2 Under no circumstances shall the Provider, the Licensor, or their Affiliates be liable to the Client for any indirect, incidental, punitive, exemplary, special, or consequential damages (including but not limited to loss of profit, lost revenue, loss of business, loss or corruption of data, loss of customers or contracts, loss of goodwill, reputational damage, or the cost of procuring replacement goods or services), whether arising from negligence, breach of contract, breach of statutory duty or otherwise. Each Party shall have a duty to mitigate its damages. The exclusions and limitations of liability in this Article 8 shall also extend to the benefit of the Provider’s and Licensor’s Affiliates, subcontractors, and personnel to the same extent as they apply to the Provider and the Licensor.

8.3 Nothing in this Article 8 shall limit or exclude liability: (a) for death or personal injury caused by a Party’s negligence where such limitation or exclusion is not permitted by mandatory law; (b) for a Party’s fraud or willful misconduct; or (c) to the extent such limitation or exclusion is otherwise not permitted under mandatory law. The Parties may agree in the Commercial Offer or a Statement of Work that specific obligations (including Article 5 (IP infringement) and Article 6 (Confidential Information)) are subject to different caps or carve-outs, which shall then prevail.

9. Force Majeure

9.1 Neither Party shall be liable for any delay in performing, or failure to perform, any of its obligations under these Terms and Conditions if such delay or failure results from an event of Force Majeure.

Force Majeure shall mean any circumstance beyond the reasonable control of the affected Party which prevents or materially hinders the performance of its obligations, including but not limited to: war or threat of war, armed conflict, insurrection, terrorism, fire, explosion, natural disasters such as floods or earthquakes, government embargoes or restrictions on import or export, pandemics, internet or telecommunications failures, general power outages, strikes or other industrial disputes, third-party contractual default, or any other comparable event agreed by the Parties to constitute Force Majeure.

9.2 A Party invoking Force Majeure shall promptly, and in any event within five (5) Business Days after becoming aware of such event, notify the other Party in writing, specifying the nature of the Force Majeure, the date it commenced, its expected duration, and the steps being taken to mitigate its effects.

9.3 The affected Party shall use its best efforts to minimize the consequences of the Force Majeure and to resume performance of its obligations as soon as reasonably possible.

9.4 If the Force Majeure event continues for a period exceeding sixty (60) consecutive days, either Party shall have the right to terminate the relevant Commercial Offer or Statement of Work by written notice, without liability for such termination.

10. Privacy and Data Protection

10.1 The Client shall (i) comply with all applicable legal requirements regarding privacy and data protection, in particular the General Data Protection Regulation of 27 April 2016 (“GDPR”); and (ii) provide sufficient notice to, and obtain sufficient consent and authorization from, Authorized Users, end users and any other data subjects whose personal data are processed in the context of the Solution and/or the Customizations, to permit the processing of such data by the Client and the Provider, its hosting partners (if applicable), and their respective affiliates and subcontractors.

If and to the extent required by law, the Client shall inform the relevant Authorized Users (and where applicable, end users) that their data may be disclosed to law enforcement or other governmental authorities as directed by the Provider, and shall obtain any necessary consents in this respect.

10.2 The Provider shall process Client’s personal data solely for the performance of these Terms and Conditions and in accordance with the Data Processing Agreement (“DPA”) annexed to this Agreement. The Provider shall only disclose data to law enforcement or other governmental authorities to the extent required by law. The Provider does not and will not assume any obligations with respect to Client’s data or the Client’s use of the Solution and/or the Customizations other than as required by applicable law and as provided in the DPA.

10.3 The Provider may engage Affiliates and third-party subprocessors for the processing of personal data, subject to the DPA. The Provider shall remain responsible for its subprocessors. Where processing involves transfers of personal data outside the EEA, the Provider shall ensure an adequate transfer mechanism under the GDPR (including EU Standard Contractual Clauses where applicable).

For the avoidance of doubt, the Licensor shall not act as processor or controller under this Agreement, unless expressly specified in the DPA.

11. Non-Assignment

The Client shall not assign or otherwise transfer any of its rights or obligations under these Terms and Conditions without the prior written consent of the Provider. Such consent must be requested by registered letter and shall identify the prospective transferee. Subject to any restrictions on assignment herein contained, the provisions of these Terms and Conditions shall inure to the benefit of and shall be binding upon the Parties hereto and their respective successors and permitted assignees.

12. Non-Recruitment

For the term of these Terms and Conditions and for a period of two (2) years thereafter, the Client shall not, directly or indirectly, recruit, solicit or employ any personnel employed or engaged by the Provider or its Affiliates in connection with the performance of these Terms and Conditions. This restriction shall apply in any jurisdiction where such personnel were primarily employed or engaged. In the event of a breach of this Article, the Client shall pay to the Provider liquidated damages in the amount of EUR 120,000 per infringement or the actual higher damage suffered by the Provider, whichever is greater, without prejudice to the Provider’s right to initiate legal proceedings and/or to claim additional damages.

13. Term & Termination

13.1 These Terms and Conditions shall commence on the Effective Date and continue in effect for the Initial Term. Thereafter, they shall automatically renew for successive one (1) year periods (each a “Renewal Term”), unless either Party provides written notice of non-renewal at least six (6) months prior to the expiry of the Initial Term or any subsequent Renewal Term.

13.2 The Provider may suspend the Professional Services and/or user rights granted hereunder, or terminate these Terms and Conditions by written notice to the Client, if the Client fails to pay any amount due and does not cure such failure within thirty (30) days after receipt of a written notice of default. The Client acknowledges and agrees that any use of the Licensed Materials outside the scope of the license granted under these Terms and Conditions, unless expressly approved in writing by a duly authorized representative of the Provider or Licensor, shall constitute a material breach. In such event, the Provider (and, insofar as Intellectual Property Rights are concerned, the Licensor) shall be entitled to immediately terminate (or, at the Provider’s option, suspend) the relevant licenses and/or these Terms and Conditions, without prejudice to any other rights or remedies.

13.3 Either Party may terminate these Terms and Conditions by written notice if the other Party commits a material breach and fails to cure such breach within thirty (30) days of written notice thereof. Notwithstanding the foregoing, the Provider shall have the right to terminate these Terms and Conditions (or suspend the Client’s rights) immediately upon written notice if the Client breaches the license terms or infringes the Intellectual Property Rights of the Licensor. Either Party may also terminate these Terms and Conditions by written notice, effective immediately, if the other Party becomes the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, or otherwise liquidates or ceases to carry on business.

13.4 Upon termination of these Terms and Conditions for any reason: (i) the Client shall promptly pay the Provider all fees and amounts accrued and due up to the termination date, including without limitation the License Fee, Maintenance Fee, Hosting Fee and any Professional Services fees under outstanding Statements of Work; (ii) all licenses granted to the Client shall automatically terminate; (iii) the Client shall return or permanently delete (at the Provider’s option) all copies of the Licensed Materials and all Confidential Information of the Provider and/or the Licensor, regardless of the form or medium. The Client may retain one copy only where required for statutory or regulatory compliance purposes.

13.5 If these Terms and Conditions are terminated during the Initial Term (except in the case of termination due to a proven material breach by the Provider as per Article 13.3), the Client shall remain liable for the full License and Maintenance Fees for the entire Initial Term, which shall become immediately due and payable.

13.6 The following provisions survive termination or expiry to the extent applicable by their nature: Articles 4-27, including without limitation 5, 6, 7 (fees due), 8, 9, 10, 16, 19, 20, 23.4-23.6, 24.14, 25, and 27.

13.7 For the avoidance of doubt, the Client expressly acknowledges that the Licensor shall not be liable for any commercial or operational damages, costs or losses resulting from termination or suspension under this Article 13. The Licensor’s role under these Terms and Conditions is strictly limited to the ownership and protection of Intellectual Property Rights, and its remedies are confined to enforcement of such rights. All commercial obligations, including payment, service delivery and liability for termination of the contractual relationship with the Client, rest solely with the Provider.

14. Severability

If any provision of these Terms and Conditions is held to be invalid or unenforceable, the remaining provisions shall continue in full force and effect. The Parties shall use their best efforts to promptly negotiate in good faith a valid replacement provision that reflects as closely as possible the economic intent of the invalid or unenforceable provision.

15. Waiver and entire agreement

15.1 The terms and conditions of these Terms and Conditions may be modified or amended only by a written agreement executed by duly authorized representatives of both Parties. A waiver of any right or provision under these Terms and Conditions shall only be valid if made in writing and signed by the Party granting such waiver. No waiver or consent shall be deemed to constitute a waiver or consent with respect to any other provision, whether or not similar, nor shall any waiver or consent constitute a continuing waiver or consent. Each waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given.

15.2 These Terms and Conditions, together with the Commercial Offer(s), the Data Processing Agreement, and any duly executed Statements of Work, constitute the entire agreement and understanding between the Parties with respect to the subject matter hereof, and supersede all prior oral or written agreements, representations or understandings relating thereto. No statement, representation, warranty, covenant or agreement not expressly set forth in these Terms and Conditions (including its annexes) shall affect, or be used to interpret, change or restrict, the express provisions hereof.

15.3 For the avoidance of doubt, modifications, waivers or consents relating to Intellectual Property Rights under Article 4 or licenses under Article 2 shall only be valid if executed in writing by a duly authorized representative of the Licensor, in addition to the Provider.

16. Notices

16.1 Any notice required under these Terms and Conditions shall first be given by electronic mail to the addresses listed below and shall be deemed received on the next Business Day after sending, provided no hard bounce-back or similar non-delivery message is received. If sent outside Business Hours or on a non-Business Day, deemed receipt occurs on the next Business Day. If a bounce-back is received or if email delivery is otherwise not feasible, notices shall be made in writing and served by personal delivery, overnight courier or registered mail.

16.2 For the purposes of these Terms and Conditions, any notices of a general commercial or operational nature (including, without limitation, delivery, installation, acceptance, invoicing, service and maintenance) shall be addressed to Subduxion B.V. (the “Provider”) by email at info@subduxion.com or by post at High Tech Campus 5, 5656 AE Eindhoven, the Netherlands. Notices relating to Intellectual Property Rights (including infringement claims pursuant to Article 5) shall be addressed to Subduxion IP B.V. (the “Licensor”) by email at legal@subduxion.com or by post at Lichttoren 32, 5611 BJ Eindhoven, the Netherlands, with a simultaneous copy to the Provider at the contact details set out above.

16.3 All Notices shall be deemed to have been given: (1) if by hand, at the time of actual delivery thereof to the receiving Party at such Party’s address as provided above; (2) if sent by overnight courier, on the next Business Day following the day such notice is delivered to the courier service; or (3) if sent by registered or certified mail, on the 5th Business Day following the day such mailing is made.

17. Interpretation

In these Terms and Conditions (unless the context shall otherwise require or permit):
a. Reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted;
b. Words importing the singular include the plural, words importing any gender include every gender and words importing persons include bodies corporate and unincorporate; and in each case vice versa;
c. The headings or captions to the articles are for ease of reference only and shall not affect the interpretation or construction of these Terms and Conditions;
d. References to “Subduxion” shall be construed in accordance with the definitions of “Provider” (Subduxion B.V.) and “Licensor” (Subduxion IP B.V.), depending on the context.

18. Relationship of the Parties

The relationship between the Provider and the Client is that of independent contractors. Neither Party is agent for the other and neither Party has any authority to make any contracts, whether expressly or by implication, in the name of the other Party, without that Party’s prior written consent for express purposes connected with the performance of these Terms and Conditions. As of the Effective Date, the Provider shall be entitled to reference the Client as a customer in its commercial and marketing documentation, client listings, as a sales reference, as well as on the Provider’s websites. The Client may reasonably object in writing, in which case the Provider shall refrain from further public references. Any joint press release shall be issued within a reasonable period from the Effective Date or the Acceptance Date, subject to prior written approval of both Parties, which approval shall not be unreasonably withheld or delayed.

19. Dispute Resolution

19.1 The Provider and the Client shall exercise reasonable good faith efforts to resolve any dispute, controversy or claim arising in connection with these Terms and Conditions by means of the escalation procedure specified in this Section (“Escalation Procedure”). For the avoidance of doubt, the Escalation Procedure shall not limit either Party’s termination rights or other remedies under these Terms and Conditions.

19.2 General Principles:
While the Escalation Procedure is being followed, the Client and the Provider shall:

  1. Meet as often as reasonably necessary and provide each other with non-confidential information reasonably related to the disputed matter;

  2. Aim to resolve the dispute at the lowest possible level in the escalation hierarchy;

  3. Record any agreed resolution in writing;

  4. Maintain an electronic log-file consisting of all communications and relevant related information, including any meeting minutes;

  5. Be free to seek the assistance of experts (including technical and legal experts).

Third parties may attend escalation sessions upon written consent of both Parties, provided such third party signs a confidentiality undertaking.

Escalation Procedure
The Escalation Procedure shall be conducted per the contact persons indicated in the Commercial Offer as follows:

  • Level 1 Escalation: Client’s solution manager - Provider’s services manager

  • Level 2 Escalation: Client’s contract manager - Provider’s account manager

  • Level 3 Escalation: Client’s contract executive - Provider’s contract executive

The operational contact of the Party identifying a dispute shall notify the other Party’s contact person at Level 1 electronically (“Notification”), to be confirmed in writing.

Level 1 shall attempt to resolve the matter within five (5) Business Days after Notification. If not resolved, either Party may escalate to Level 2, with transfer of the log-file (Reference Date 1).

Level 2 shall attempt resolution within five (5) Business Days from Reference Date 1. If not resolved, either Party may escalate to Level 3, with transfer of the log-file (Reference Date 2).

Level 3 shall attempt resolution within ten (10) Business Days from Reference Date 2. If still not resolved, the Escalation Procedure shall be deemed exhausted.

19.3 The Provider shall be entitled to accelerate the procedure by (i) skipping one or more Escalation Levels, and/or (ii) escalating to a higher level prior to expiry of the periods specified above.

19.4 Upon exhaustion of the Escalation Procedure, either Party may initiate legal proceedings in accordance with the “Applicable Law” clause of these Terms and Conditions. Nothing in this Article shall restrict either Party’s right to seek interim or injunctive relief to preserve any legal right or remedy or to protect proprietary or trade secret rights.

Order of Precedence
19.5 In the event of any conflict or inconsistency between the documents forming part of these Terms and Conditions, the following order of precedence shall apply (highest to lowest):
(i) the Data Processing Agreement (DPA);
(ii) the Commercial Offer (including any schedules expressly incorporated therein);
(iii) any Statement of Work (solely for the Professional Services it governs);
(iv) these Terms and Conditions; and
(v) the Documentation.

For the avoidance of doubt, the website policies referenced in Article 27 rank below these Terms and Conditions, subject to Article 27.2 (mandatory data protection law precedence).

20. Applicable Law and Jurisdiction

These Terms and Conditions, together with any Commercial Offer and Statement of Work, shall be governed by and construed in accordance with the laws of the Netherlands. The Parties submit to the exclusive jurisdiction of the competent courts of Oost-Brabant, location Eindhoven, the Netherlands. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply to these Terms and Conditions or any Commercial Offer.

21. Special Terms and Conditions

The Provider shall comply with any additional special terms and conditions set out in the applicable Commercial Offer. Such special terms shall prevail over these Terms and Conditions solely with respect to the specific subject matter they explicitly govern.

22. Professional Services

22.1 Upon request of the Client, and for the duration of these Terms and Conditions and any applicable Commercial Offer, the Provider may provide Professional Services to the Client. Professional Services shall be agreed in advance in a Statement of Work, unless otherwise expressly agreed in these Terms and Conditions.

22.2 Unless otherwise stated in the relevant Statement of Work, all Professional Services shall be charged on a time-and-materials basis, based on an eight (8) hour Business Day.

22.3 Subduxion B.V. shall remain solely responsible for the delivery and performance of Professional Services. For the avoidance of doubt, the Licensor shall not be deemed to provide Professional Services under these Terms and Conditions.

22.4 Subduxion B.V. may engage subcontractors for performance of the Services and remains responsible for their acts and omissions as for its own.

23. Hosting

23.1 If the Solution is provided on a hosted basis, the Provider shall deliver the hosting solution through its designated hosting partner (the “Hosting Partner”) and is entitled to subcontract such services (“Hosting Services”) to the Hosting Partner. The Client acknowledges and accepts the Hosting Partner’s terms of use as referenced in the Commercial Offer (the “Hosting Terms”), provided that (i) such Hosting Terms shall only apply to the extent reasonably customary in the industry, and (ii) the Provider shall notify the Client of any material changes.

23.2 The Provider shall use commercially reasonable efforts (obligation of means) to ensure an availability of 99.00% of the hosting environment, measured on a 24x7 basis, subject to the Service Level Terms set out in the Hosting Terms. These warranties shall not apply in case of accidents, misuse, or use not in accordance with the Hosting Terms or these Terms and Conditions. Except as expressly stated in this Article, neither the Provider nor the Hosting Partner provides any other warranty, express or implied, including warranties of merchantability, fitness for a particular purpose, satisfactory quality, title or non-infringement. Availability is measured monthly, excluding Planned Maintenance notified under Article 23.3 and emergency maintenance reasonably required for security.

23.3 The Provider shall use commercially reasonable efforts to provide uninterrupted Hosting Services, except for:

  • Planned maintenance: Services may be unavailable during maintenance. Where reasonably feasible, such maintenance shall be scheduled outside Business Hours. The Client will be notified as soon as reasonably possible once the maintenance period is known.

  • Unplanned maintenance: The Provider may carry out unplanned maintenance where necessary (including for security reasons). The Client will be notified as soon as reasonably practicable.

23.4 The Client and its Authorized Users authorize the Hosting Partner to process personal data as contemplated by these Terms and Conditions. The Client shall (i) comply with all applicable privacy and data protection requirements (including the GDPR), and (ii) provide sufficient notice to, and obtain all necessary consents and authorizations from, end users and any other data subjects, to permit processing of personal data by the Client, the Provider, the Hosting Partner, and their respective Affiliates and subcontractors. Data processing by the Provider and/or Hosting Partner shall be governed by the applicable Data Processing Agreement annexed to these Terms and Conditions.

23.5 The maximum aggregate liability of the Provider in respect of the Hosting Services shall be limited to direct damages only and shall not exceed the total amount of Hosting Fees paid by the Client to the Provider in the twelve (12) months preceding the event giving rise to liability. The Provider shall remain the sole point of contact for the Client; the Hosting Partner shall not be directly liable to the Client.

23.6 If the Client requests a change of Hosting Partner, the Client shall pay a reasonable relocation fee covering the Provider’s time, costs and expenses incurred in connection with such change.

24. Maintenance

24.1 This Article 24 applies only if Maintenance Services are explicitly included in the Commercial Offer. In case of an on-premises solution, the Parties expressly agree that the Maintenance Services and the related rights and obligations under this Article 24 shall only apply if the Client grants the Provider direct access to the production environment during the term of the License, which the Provider shall only access for the provision of such Maintenance Services. Any such access is at the Client’s risk, except in cases of gross negligence or willful misconduct by the Provider.

24.2 As of the Acceptance Date, and subject to the timely payment by the Client of the License Fees and Maintenance Fees, the Provider shall provide Maintenance Services in relation to the Solution in the Client’s production environment, in order to allow the Solution to substantially meet the functionalities set out in the Documentation. Maintenance Services are provided on the current New Release and the immediately preceding Release, for a period of three (3) months after such New Release was made available to the Client. Professional Services may be provided in relation to Client-Induced Incidents or other out-of-scope incidents (including regulatory maintenance). Such Professional Services are not included in the License Fee, Maintenance Fee or Hosting Fee, and shall be separately invoiced in accordance with the rate card set out in the Commercial Offer.

24.3 The Client shall conduct a first review of any incident encountered by the Client or its Authorized Users when using the Solution, and shall notify the Provider through its Authorized Staff, via the web-based ticketing system provided by the Provider. Upon receipt of such ticket, the Provider shall investigate the malfunction and determine, in its sole discretion, whether the incident constitutes a covered Incident or a Client-Induced Incident. This classification shall be final and binding unless the Client demonstrates clear and objective evidence to the contrary. If the Provider is unable to replicate the incident remotely or at the Client’s Location, the incident shall be deemed a Client-Induced Incident.

24.4 The Provider shall offer Professional Services for Client-Induced Incidents or out-of-scope incidents. Minor Interventions may be requested by email or via a Statement of Work. Major Interventions require a Statement of Work. The Client shall reimburse the Provider for investigation costs of Client-Induced Incidents on a time-and-materials basis, as set out in the Commercial Offer. All Incidents covered by the recurring License and Maintenance Fees shall be addressed in accordance with the process and service levels set out herein. Incident Reports must be submitted via the web-based ticketing system, in the agreed format (“Incident Report”).

24.5 Each Incident Report must specify the perceived business impact and assign a priority level. Priorities, Response Times, Resolution Times and update frequencies are as follows:

Priority 1 (Severe)
Impact: Solution unavailable for all Authorized Users, or errors with severe impact on all Authorized Users (including the Client’s clients).
Response Time: 4 hours (Business Day)
Resolution Objective: 8 hours (Business Day), permanent fix targeted within 4 weeks
Update Frequency: every 2 hours (Business Day)

Priority 2
Impact: Solution operational for the majority of Authorized Users, but only with (a) significant efforts by the Client, (b) material additional costs, or (c) serious functional restrictions.
Response Time: 8 hours (Business Day)
Resolution Objective: 16 hours (Business Day), permanent fix targeted within 4 weeks
Update Frequency: every 4 hours (Business Day)

Priority 3
Impact: Solution operational but with functional limitations for Authorized Users.
Response Time: 3 Business Days
Resolution Objective: 10 Business Days, permanent fix within 2 months
Update Frequency: weekly

Priority 4
Impact: Solution operational, minor anomalies with limited impact.
Response Time: 20 Business Days
Resolution Objective: 20 Business Days, permanent fix within 6 months
Update Frequency: semi-annual review

24.6 For Severe Incidents (Priority 1 or 2), the Provider shall appoint a single point of contact (SPOC) immediately upon validation of the Incident, and maintain this SPOC until resolution. The SPOC shall provide updates according to the agreed frequency.

24.7 For avoidance of doubt:
When the Client reports a Severe Incident, the Incident Report must state the name and title of the Client’s Authorized Staff within the Client’s organization who will be available at all times during the resolution of such Severe Incident. This person must have sufficient working knowledge of the problem.

“Response Times” are defined as the time between (i) the Incident being reported by means of a duly completed Incident Report to the Provider by one of the Client’s Authorized Staff, and (ii) the written acknowledgement by the Provider that the Incident Report has been received and its contents understood. Actual Response Times depend on the level of access and assistance provided by the Client. If the Provider requires additional information from the Client to understand the Incident, the clock is paused from the request until receipt of the requested information.

“Resolution Time” starts once the information contained in the Incident Report has been understood and the Incident has been assigned to the Provider. Resolution Time includes, without limitation:

  • Time for analysis, replication, and investigation;

  • Time for providing a resolution and testing by the Provider;

  • Time for packaging and delivering the resolution to the Client.

The following periods are excluded from the calculation of Resolution Time: (i) the time between the Provider’s request for information and the Client’s provision thereof; (ii) the time between delivery of a resolution to the Client and the Client’s application/installation/testing thereof; and (iii) the time between the Provider’s request for remote access and actual access being granted.

Resolution Time constitutes an obligation of means, not of result.

“Permanent Fix” is defined as a fix resolving the root cause of the problem giving rise to the Incident.

An Incident shall be deemed resolved if one (or more) of the following applies:

  • A Permanent Fix has been delivered to the Client;

  • A workaround has been provided to the Client;

  • An emergency Hotfix has been delivered to the Client;

  • A temporary workaround reducing the business impact has been provided, resulting in a new priority classification;

  • The Solution is operating as it did prior to the occurrence of the problem.

24.8 If an Incident has been resolved but the root cause persists, a new Incident addressing the investigation and correction of the root cause shall be created by the Provider. Resolution Time objectives are targets only. For Severe Incidents, the Provider shall use all possible and reasonable efforts to meet the Resolution Time objectives. Any requests for additional information necessary to progress the investigation and resolution, and the provision of such information, shall be documented via the Incident handling system, followed by direct contact between the SPOCs of both Parties. If the Provider cannot resolve the Incident within the applicable timeframe, the Provider warrants that it shall continue to work on the Incident without interruption during Business Hours until the Severe Incident is deemed resolved.

24.9 For the avoidance of doubt, Maintenance Services do not cover Incidents or malfunctions of the Solution caused by, or occurring as a result of, any of the following:

  • Abuse or misuse of the Solution;

  • Modifications or additions to the Solution not performed by or with the written consent of the Provider;

  • Failure of or changes to the Authorized Equipment;

  • Incorrect installation of a fix by a party other than the Provider;

  • Incorrect configuration not performed by or with the consent of the Provider;

  • The use of incorrect data or data structures;

  • Use of any Release other than a Supported Release;

  • Faults on the Authorized Equipment or in any programs used in conjunction with the Authorized Equipment or Supported Release;

Any environment other than the Client’s production environment.

24.10 For on-premises solutions, the Client shall be responsible for installing all New Releases, Versions and Hotfixes of the Solution. The Provider shall inform the Client of any New Modules developed by or for the Provider when such become generally available. Upon request by the Client, New Modules shall be provided subject to (i) execution of an addendum to the Commercial Offer and/or these Terms and Conditions, and (ii) payment of any applicable additional License Fee and Maintenance Fee.

The Provider shall not be liable, whether contractually or extra-contractually, for discontinuing the maintenance of an older Release after three (3) months from the release of a New Release.

24.11 The Provider does not warrant that any Customizations or Professional Services delivered in relation to the currently licensed Solution shall remain compatible with any New Release, Version, or Hotfix. If Customizations or Professional Services are no longer compatible, the Provider may agree to make necessary adjustments to achieve compatibility. Such adjustments shall be subject to a separate Statement of Work duly executed by both Parties. The Client is obliged to follow the lifecycle of the Solution and implement New Releases, Versions, or Hotfixes in order to remain eligible for Maintenance Services. Failure to do so does not release the Client from its obligation to pay the agreed Maintenance Fees under the Commercial Offer and/or any Statement of Work.

24.12 Maintenance of Customizations and Professional Services is excluded from the standard Maintenance Services under these Terms and Conditions. The Client may request the Provider to provide Professional Services for such maintenance. In that case, a separate Statement of Work shall be concluded and approved in writing by both Parties, specifying the scope of such Professional Services.

24.13 Unless otherwise agreed in writing in a Statement of Work, such Professional Services for the maintenance of Customizations shall be subject to an annual maintenance fee equal to thirty percent (30%) of the original Professional Services Fees associated with the relevant Customizations or Professional Services under these Terms and Conditions.

24.14 Upon expiry or termination of Hosting Services, and subject to full payment of all amounts due, the Provider shall, upon the Client’s written request made within thirty (30) days, make available to the Client a machine-readable export (e.g., JSON/CSV and file blobs) of Client Data then stored in the hosting environment. Exports are provided once at no additional charge, save for reasonable professional services if custom formats or volumes beyond standard export are requested. After such period, the Provider may irreversibly delete Client Data from its systems, subject to any legal retention obligations.

25. Compliance

25.1 Each Party represents and warrants that it (i) complies with applicable anti-bribery and anti-corruption laws, (ii) is not subject to sanctions administered by the EU, UN, UK or US authorities, and (iii) shall comply with applicable export control and sanctions laws in connection with the Solution, including restrictions on the export of encryption technology.
25.2 The Provider may suspend performance where reasonably necessary to comply with applicable export control or sanctions laws and shall notify the Client without undue delay of the grounds for such suspension to the extent legally permissible.

26. Governing Language; Counterparts and E-signature

26.1 These Terms and Conditions are drawn up in English. If translated, the English version shall prevail in case of any discrepancy.
26.2 These Terms and Conditions and any Commercial Offer or Statement of Work may be executed in counterparts and by electronic signature; together they constitute one instrument.

27. Policies & Website Terms

27.1 The following policies published on the Provider’s website https://www.subduxion.com/legal form an integral part of these Terms and Conditions and are binding upon the Client and its Authorized Users:

  • Acceptable Use Policy (AUP);

  • Privacy Policy;

  • Information Security Policy;

  • Cookie Notice;

  • Disclaimer;

  • Copyright Notice.

27.2 In the event of any conflict or inconsistency between these Policies and the Terms and Conditions, the Terms and Conditions shall prevail, subject to Article 19.5 and except where mandatory data protection laws require otherwise (in which case the Privacy Policy and/or Data Processing Agreement shall take precedence to the extent of such mandatory requirements).

27.3 The Provider may update these Policies from time to time to reflect changes in law, security practices, or service features. The latest version published on the Provider’s website shall apply. Material changes will be notified to the Client at least thirty (30) days prior to taking effect, unless earlier implementation is required for safety, security, or legal compliance.

27.4 For the avoidance of doubt, the Acceptable Use Policy governs End User conduct; the Privacy Policy and Cookie Notice govern data collection and processing; the Information Security Policy outlines applicable technical and organizational measures; and the Disclaimer and Copyright Notice govern website usage and intellectual property.