Terms of Delivery TMS B.V. Products & Services

15-12-2020

Article 1. Definitions

For the following terms in these Terms of Delivery TMS B.V. Products & Services and in the User Agreement TMS B.V. Products & Services, the following definitions apply:

“Customer”: a natural or legal person who has completed the Registration, as well as a natural or legal person who has entered into a User Agreement with Supplier;

“Corrective maintenance”: the repair of identified defects and malfunctions;

“Documentation”: the written and/or electronic documentation belonging to the TMS B.V. Platform;

“User”: Anyone who is active on the TMS B.V. Platform by means of Log-in Data provided by Customer;

“User Agreement”: the ‘User Agreement TMS B.V. Products & Services’ as concluded between Supplier and Customer with regard to the TMS B.V. Products & Services;

“TMS B.V. Agent”: a third party to be designated by TMS B.V. who is authorized to sell TMS B.V. Products & Services on the basis of conditions established by TMS B.V.;

“TMS B.V. Platform”: Supplier’s website, accessible via an URL to be designated by TMS B.V. to which Supplier grants Customer a Users access for use in accordance with the provisions of the Terms of Delivery and the User Agreement;

“TMS B.V. Products & Services”: all products and/or services to be provided by Supplier, as further described in the User Agreement and including but not limited to Talent Manager, HR Manager, Performance Manager, Flex Manager, Talent-x, Teampeak, Quest, and Opportunity Wall;

“TMS B.V. Support”: Offering telephonic, written, and/or electronic helpdesk support with regard to the use and functioning of the TMS B.V. Platform;

“Supplier”: TMS B.V. or one of its subsidiaries acting as supplier;

“Terms of Delivery”: these ‘Terms of Delivery of TMS B.V. Products’;

“Log-in Procedure”: the procedure prescribed by Supplier that Customer and User must follow in order to gain access to the TMS B.V. Platform, using a secured encrypted connection (Secure Sockets Layer);

“Log-in Data”: code(s) exclusively intended for Customer and/or User, with which access can be obtained to the TMS B.V. Platform;

“Employee”: an employee of the Customer or Supplier, or a natural person who is authorized to perform work for and/or under the responsibility of the Customer or Supplier;

“Inadequacy”: all shortcomings of the TMS B.V. Platform that prevents its functioning as described in the accompanying Documentation. The lack of functionality in a new version of the TMS B.V. Platform that was present in an earlier version is not considered an Inadequacy;

“Registration”: completing a form via the Website with which details of a prospective Customer are recorded;

“System requirements”: the minimum requirements set for the hardware and software of Customer for the proper use of the TMS B.V. Products & Services;

“Confidential Information”: the confidential information relating to Customer or Supplier, including (a) information designated in writing as “confidential”, (b) information that is not generally known, (c) information that has not been made publicly available by the party to which the information relates and/or from which the information originates, and (d) information of which the confidential nature must be assumed;

“Website”: Supplier’s website, accessible via the URL https://www.tmsgroup.org;

“Business days”: Monday to Friday, with the exception of official days off in the Netherlands.

Article 2. Quotations, offers and agreements

These Terms of Delivery apply to the User Agreement, as well as to all negotiations, offers, quotations, and other agreements with Supplier that relate to TMS B.V. Products & Services unless the parties have explicitly agreed otherwise.
Supplier is entitled to unilaterally change the Terms of Delivery. Supplier will inform Customer as much as possible two (2) months before the changes take effect, both by letter and/or email and via TMS B.V. Platform, inform about the intended changes.
If Customer does not agree with the proposed changes, Customer can cancel the User Agreement, in deviation from the provisions of Article 5.2, on the date on which the changes come into effect. If Customer does not expressly object to the announced changes in writing within fifteen days of receipt of the notification from Supplier before the announced changes take effect, Customer will be deemed to have agreed to the changes
All offers or quotations with regard to the TMS B.V. Products & Services are without obligation and revocable, as long as no agreement has been reached with Customer about this. TMS B.V. cannot be held to its quotations or offers if Customer can reasonably understand that the quotations or offers, or any part thereof, contain an obvious mistake or clerical error.
If the acceptance deviates from the offer included in the quotation or offer, TMS B.V. not bound by it. In that case, the agreement will not be concluded in accordance with this deviating acceptance, unless TMS B.V. indicates otherwise. A composite quotation does not oblige TMS B.V. to perform part of the assignment for a corresponding part of the stated price. Offers or quotations do not automatically apply to future orders.
Customer can, after they have gained access to the TMS B.V. Platform, request an extension. Supplier will confirm the extension requested by Customer electronically. An addendum to the User Agreement is created when it has been duly signed by both parties.

Article 3. Right of use TMS B.V. Platform

Supplier hereby grants Customer the non-exclusive right to use the TMS B.V. Platform during the term of the User Agreement for the internal business operations of Customer and for the number of Users included in the User Agreement as well as for any expansion placed during the User Agreement. The right of use also includes the right to the TMS B.V. Platform associated Documentation.
The right of use commences when the User Agreement is concluded.
Customer will only use the TMS B.V. Platform in accordance with the provisions of these Terms of Delivery.
Supplier is entitled to make innovations in the TMS B.V. Platform at its own discretion. Supplier will inform Customer in a timely manner of the processing of updates and/or upgrades insofar as these are important for the use, in the opinion of Supplier.

Article 4. Scope of the right of use

Customer may not allow the TMS B.V. Platform to be used for the benefit of any natural or legal person other than Customer, its Employees, and its Users.
Customer is explicitly not allowed to use the TMS B.V. Platform for or by more than the number of Users stated at the conclusion of the User Agreement.
Customer is not permitted to transfer any rights or obligations arising from the User Agreement or the Terms of Delivery to third parties.

Article 5. Duration and termination of the Agreement

The User Agreement is entered into for a period of three (3) years unless the parties have explicitly agreed otherwise in the User Agreement.
After the expiry of the term referred to in Article 5.1, the User Agreement will each time be tacitly renewed for a consecutive period of one (1) year, unless one of the parties completes the User Agreement at least three (3) months before the end of the current period in writing.
TMS B.V. is entitled to terminate the User Agreement with immediate effect when Customer notifies Supplier that it is no longer able to meet its payment obligations or at the time that Supplier must infer from the circumstances that Customer can no longer meet its payment obligations or when (the company of) Customer ceases its activities. The User Agreement will end by operation of law and with immediate effect when the (company of) Customer is liquidated, granted a moratorium, or is declared bankrupt.
The User Agreement can be dissolved in writing without judicial intervention if the other party, after proper written notice of default, still fails to fulfill its obligations under the User Agreement within one month of the notice of default.
Supplier is under no circumstances obliged to pay any compensation as a result of termination as described in articles 5.2, 5.3, and 5.4.
Upon termination of the User Agreement, Customer will immediately cease the use of the TMS B.V. Platform. Customer and Users will also no longer have access to the TMS B.V. Platform after the termination of the User Agreement and the data contained therein. Supplier will not, for whatever reason, refund any fees to Customer upon termination of the User Agreement.
The term of the User Agreement will not be changed as a result of an increase in the number of Users by Customer during the User Agreement.
Termination of part of the User Agreement by Customer is only possible with due observance of a notice period of three (3) months insofar as it concerns the termination of one or more Users and/or modules and Customer explicitly indicates which specific Users and/or modules must be canceled.
If a term has been agreed or stated for the performance of certain activities or for the delivery of certain services, this is never a strict deadline. If a term is exceeded, Customer must therefore give notice of default in writing. TMS B.V. must be offered a reasonable period of time to still execute the agreement.

Article 6. Fee and payment

All prices and other rates charged by Supplier are exclusive of VAT and exclusive of other government levies that are borne by Customer and exclusive of any costs to be incurred in the context of the agreement, including travel and accommodation, shipping, and administration costs unless indicated otherwise.
Customer owes one-off and periodic fees under the User Agreement. These fees are further specified in the User Agreement. The fees must be paid to Supplier unless Parties have agreed otherwise.
The fees are due regardless of whether and to what extent Customer uses the TMS B.V. Platform.
Supplier is entitled to adjust the fee annually with any price changes if these are (at most) in line with the CBS Consumer Price Index (series: all households 2012 = 100).
Unless explicitly agreed otherwise in the User Agreement, payment of any fee by Customer is always made within thirty (30) days of the invoice date.
If Customer does not or not timely fulfill its payment obligations under this article 6, Customer will be given notice of default by Supplier by means of a written reminder or reminder by email. If the payment obligation has not yet been fulfilled by Customer within five (5) working days after notice of default by Customer, the latter will be in default at the then applicable statutory commercial interest, per month or part of a month. If and for as long as Customer is in default, Supplier will be entitled to block access to the TMS B.V. Platform. Customer continues to owe Supplier the agreed fee during the period that access to the TMS B.V. Platform is blocked
All reasonable costs incurred by Supplier, both in and out of court, as a result of Customer’s failure to comply with its payment obligations, will be borne by Customer.

Article 7. Obligations of Supplier

Supplier guarantees that a backup is made regularly (at least once a day) of the data, which Customer and Users entered through the TMS B.V. Platform. This backup is only made for internal security reasons by Supplier. For example in the event of calamities, such as a major power outage or fire. This backup is not provided to Customer.
Supplier guarantees that the data provided by Customer and Users through the TMS B.V. Platform must be secured as best as reasonably possible against loss, theft, unauthorized access, and modification by non-Users.
Subject to the provisions of Article 9.4, Supplier refrains from inspecting the data that Customer and Users through the TMS B.V. Platform with Supplier, and will not make any data available to third parties, unless Supplier is obliged to do so by law, a court order or by decision of a government body. In that case, Supplier is obliged to inform Customer before disclosure, if possible, so that the disclosure can take place in the least harmful manner for Customer.

Article 8. Obligations and cooperations of Customer

Customer must have a bank or giro account with a bank registered with the Dutch Banking Association.
Customer must immediately notify Supplier in writing or via the TMS B.V. Platform of any change in its address and/or payment details.
Customer is obliged to observe the usage rules of Article 10.
If Customer does not fulfill its obligations arising from these Terms of Delivery, Customer will be given notice of default by Supplier in writing or by email. If Customer still does not fulfill their obligations within five (5) business days after notice of default, Supplier is entitled to limit the use of the TMS B.V. Platform by Customer.
Customer is responsible for the functioning of its hardware and software, configuration, peripheral equipment, and internet connection required for the use of the TMS B.V. Products & Services.
Customer guarantees that the equipment and software for the purpose of the TMS B.V. Products & Services meet the System Requirements. Customer is responsible for taking the necessary measures to protect their equipment, software and telecommunication, and internet connections against viruses, computer crime, and unlawful use by third parties.
Customer shall provide Supplier with all information and cooperation, including the provision of Supplier with correct and up-to-date name and address details, that Supplier requires for the maintenance of the TMS B.V. Products & Services.

Article 9. Usage Rules

Customer will in no way cause nuisance or damage to (customers of) Supplier when using the TMS B.V. Products & Services, and will adhere to Supplier’s user instructions. Customer is not permitted to perform actions that can be assumed to cause damage to the systems of (customers of) Supplier.
Customer is not permitted to use the TMS B.V. Products & Services in violation of statutory provisions or the Terms of Delivery.
Customer is responsible for the content and correctness of the data that they have placed with the Supplier through the TMS B.V. Platform.
Customer undertakes towards Supplier to use the TMS B.V. Products & Services in such a way that the amount of information stored by them and the volume of data transport realized by them does not deviate significantly from the average use of the TMS B.V. Products & Services by other Customers as stated by Supplier. If, in the opinion of Supplier, this use by Customer deviates significantly from the average use, Supplier will contact Customer in order to agree on specific conditions with Customer for the additional use. If parties do not reach an agreement on these specific terms and conditions, Supplier is entitled to limit Customer’s use of the TMS B.V. Platform without prior notice.

Article 10. Support

During the User Agreement, Customer is entitled to support as described in the User Agreement.
TMS B.V. Support does not include:
1. services regarding system configuration, hardware, and networks;
2. structural work such as defining layouts, overviews, reports, import definitions and links with third-party software;
3. on-site support;
4. expanding the functionality of the TMS B.V. Platform at the request of Customer;
5. converting files;
6. services regarding external databases of third parties, not being a third party as referred to in Article 9.1;
7. installation, configuration, training, or other services not expressly described in the User Agreement;
8. support for (operating) software from manufacturers other than Supplier, which also includes the software of third parties that can be launched from the TMS B.V. Platform;
9. file repairs, where the cause cannot be attributed to the TMS B.V. Platform;
10. providing newly available products;
11. support for the internet connection;
12. support in an environment that is not supported according to the system requirements.
Support may only be requested by officers of Customer who have been designated for this purpose on the basis of the User Agreement.
If Supplier carries out work on the instructions of Customer with regard to the subjects referred to under 10.2 a) through l), Supplier will charge Customer separately for these activities, in addition to the fee as referred to in Article 6, in accordance with the prices and costs incurred by the Supplier at that time.

Article 11. Availability

Supplier makes every effort to ensure optimal availability of and access to the TMS B.V. Platform.
Supplier is entitled, without prior notification, to (temporarily) shut down access to the TMS B.V. Platform or to limit its use, insofar as this is necessary for (preventive) maintenance or adjustments or improvements to be made to one or more TMS B.V. Products & Services, without this entailing a right to compensation of Customer towards Supplier. Supplier will make every effort to keep this to a minimum and, if possible, to inform Customer in good time.

Article 12. Log-in Procedure

Customer and Users are obliged to follow the Log-in Procedure.
Supplier is entitled to adjust the Log-in Procedure at its own discretion. Supplier will inform the Customer and Users of this in a timely manner.
Customer and Users are responsible for the Log-in Data and must handle it with due care. The Log-in Data is not transferable and may not be used outside Customer’s organization. Customer and the Users are obliged to mediate absolute confidentiality regarding the Log-in Data with regard to everyone. Customer is liable for any use of their Log-in Data. All actions of the Users in this matter are at the expense and risk of Customer.

Article 13. TMS B.V. Platform

Supplier provides Customer and Users with access to the TMS B.V. Platform by providing Log-in Data.
The Supplier has the right at all times to restrict the access of the Customer and/or Users to the TMS B.V. without stating reasons. Limit or block the platform indefinitely, if abuse or otherwise improper use is suspected.

Article 14. Intellectual property rights

All copyrights, patent rights, trade name rights, trademark rights, other intellectual and industrial property rights, as well as all similar rights to protect information with regard to the TMS B.V. Platform and Documentation, are the exclusive property of Supplier. None of the provisions included in the User Agreement or the Terms of Delivery can be interpreted as leading to a full or partial transfer of those rights to Customer.
Customer is not permitted to designate the intellectual property rights of Supplier on or in the TMS B.V. Platform, or Documentation to change, remove or make unrecognizable. Customer is not permitted to use or register any trademark, design, or domain name of Supplier or a corresponding name or sign in any country, anywhere in the world.
Supplier indemnifies Customer against any compensation and all costs and expenses that Customer is ordered to pay pursuant to a legal action instituted by a third party in connection with an infringement or alleged infringement of valid patents, copyrights, trademarks, or other rights of third parties through the use by Customer, in accordance with the User Agreement and Documentation, of the TMS B.V. Platform or any part thereof, provided that Customer immediately notifies Supplier in writing of such legal claim when it is announced, Customer allows Supplier to defend the relevant claims at its own discretion and to reach a settlement, provided that Customer provides all relevant information and other cooperation to the Supplier at Supplier’s first request.
If a judicial prohibition on the use by Customer of the TMS B.V. Platform has been imposed due to an infringing act as referred to in Article 15.3 or, in the opinion of Supplier, there is a chance that the TMS B.V. Platform will be the subject of a successful infringement claim, then Supplier has the right, at its own discretion and at its own expense (I) for Customer, to continue to use the TMS B.V. Platform as stipulated in these Terms of Delivery; (II) to replace or adapt the TMS B.V. Platform in such a way that it no longer infringes, provided that its functionality remains essentially unchanged; or (III) if the foregoing options (I) and (II) are not reasonably feasible, terminate the User Agreement and/or these Terms of Delivery, as well as the rights granted under the User Agreement and/or these Terms of Delivery.
Without prejudice to the provisions of Article 15.3, Supplier is not liable under this article to the Customer insofar as a claim is related to (I) use of the TMS B.V. Platform in connection with data, equipment, or software not supplied by Supplier, whereby the TMS B.V. Platform would not in itself infringe or otherwise be the subject of the claim; (II) incorrect use of the TMS B.V. Platform or use in a manner not described in the Documentation; (III) an adjustment of the TMS B.V. Platform if it has been implemented by a (legal) person other than Supplier; or (IV) Supplier’s compliance with Customer’s explicit instructions. Customer indemnifies Supplier against claims as described in points (I) to (IV) of this article.
Customer acknowledges and accepts that the full and exclusive liability of Supplier for infringement of patents, copyrights, trademarks, or other intellectual property rights is as stipulated in this Article 15 as well as in Article 16.
Supplier is authorized to take and maintain technical provisions to protect the (intellectual property rights to the) TMS B.V. Platform and the Documentation and in view of the agreed restrictions in the use of the TMS B.V. Platform. Customer is not permitted to circumvent or remove such technical provisions.

Article 15. Liability

Except in the event that special statutory provisions exclude a limitation of the liability of Supplier for damage resulting from intent or gross negligence, Supplier is only liable for damage as described in the following paragraphs of this article.
In the event of physical injury, regardless of whether this injury results in death, the liability of Supplier is, in any case, limited to an amount of EUR 50,000 per damage-causing event. In the event of property damage, the liability of Supplier is, in any case, limited to EUR 10,000 per damage-causing event. In both cases, a series of related events counts as one event.
Supplier is never liable for indirect damage, including but not limited to: lost profit, lost savings, reduced goodwill, damage due to business interruption. Supplier is also never liable for indirect damage as a result of claims from Customer’s customers, corruption or loss of data resulting from the actions of Customer or suppliers or customers put forward by Customer, damage related to the use of items, materials prescribed by Customer to Supplier, or software of third parties, damage related to the engagement of suppliers prescribed by Customer to Supplier, for consequential damage thereof, regardless of the nature of the act (breach of contract, tort or otherwise), even if Supplier has been notified of the chance of the occurrence of that damage.
Supplier is never liable for any damage of whatever nature suffered by Customer in connection with the temporary non-availability, the temporary incorrectness, or the temporary unavailability of TMS B.V. Platform.
Supplier is never liable for any damage of whatever nature suffered by Customer in connection with the (non-)functioning of software of Customer or of third parties, of equipment of Customer, Supplier or third parties, or of internet connections of Customer, Supplier or third parties.
Supplier does not accept any liability for the incorrect, incomplete, or late sending or receiving of data sent through the TMS B.V. Platform will be placed with Supplier.
Insofar as Supplier cannot claim the liability exclusions or limitations described in this article, its liability is limited to the amount for which Supplier is insured. Supplier will provide Customer with a copy of the insurance policy on first request.
Customer acknowledges and accepts that the compensation for the TMS B.V. Products & Services has been determined with due observance of the limitation of liability as referred to in this article.
Customer acknowledges and accepts that the TMS B.V. Platform can never be perfect or 100% free of Imperfections and that not all Inadequacies will (can) be repaired.
Customer indemnifies Supplier against claims from third parties arising from or in connection with the User Agreement or the Terms of Delivery unless Customer could enforce these claims against Supplier with due observance of the provisions of this article if Customer would have suffered the damage itself.
The liability of Supplier on account of an attributable shortcoming in the performance of an agreement with Customer will in all cases only arise if Customer immediately and properly gives written notice of default to Supplier, whereby a reasonable term is set for remedying the shortcoming, and Supplier attributable shortcoming after that term continues to fail in the performance of its obligations. The notice of default must contain a description of the shortcoming that is as complete and detailed as possible so that Supplier is able to respond adequately.
Any right to compensation lapses in any case if Customer has failed to take measures to (I) limit the damage immediately after it has occurred; (II) prevent (other or additional) damage from occurring; or (III) if Customer fails to notify Supplier of the damage as soon as reasonably possible and to provide it with all relevant information.
Any claim for compensation against Supplier will lapse by the mere passage of 24 months after the claim arose.

Article 16. Privacy

Insofar as Customer makes use of the TMS B.V. Platform to process personal data, Customer is responsible for this within the meaning of the General Data Protection Regulation. Customer guarantees that it will process the personal data lawfully. Supplier will only process the personal data on the instructions of Customer and in accordance with the instructions of Customer, including the provisions of the User Agreement.
Customer indemnifies Supplier against all claims from third parties with regard to the User Agreement between Supplier and Customer and/or the data processed by Customer in the context of the User Agreement that may be instituted against Supplier due to a violation of the Dutch Personal Data Protection Act and/or other legislation regarding the processing of personal data that cannot be attributed to Supplier.
Supplier may outsource parts of the processing of personal data to a third party with due observance of Article 22.1, whereby Supplier remains responsible for compliance with the User Agreement. Supplier ensures that the third party maintains confidentiality with regard to the personal data as well as observes the necessary instructions and security measures as stipulated in the User Agreement and these Terms of Delivery.

Article 17. (Delivery) periods

All (delivery) periods are determined by Supplier to the best of its knowledge and are observed as much as possible. As soon as Supplier is aware of a circumstance that may impede timely delivery, it will consult with Customer. Under no circumstances is Customer entitled to compensation in connection with late delivery. Supplier has the right to make partial deliveries at all times.

Article 18. Exclusion

Except if expressly stated in the User Agreement, Supplier does not provide any other or further guarantees, promises, conditions with regard to the TMS B.V. Products & Services and Supplier hereby disclaims all other warranties, assurances, or conditions, whether express, implied, or by virtue of law (including, without limitation, warranties or conditions of merchantability, non-infringement of other rights or fitness for a particular purpose) with regard to the TMS B.V. Products & Services.

Article 19. Force majeure

A party is not bound to fulfill any contractual obligation, with the exception of an obligation to pay, arising from the User Agreement or the Terms of Delivery, if performance is impeded by force majeure. Force majeure includes, but is not limited to: military action, government action, weather conditions, failure of or disruptions in telecommunication and internet connections, delay or shortcoming in the fulfillment of obligations by suppliers of Supplier, transport problems, and strikes.
If Supplier has already partially fulfilled its obligations upon the commencement of force majeure, or can only partially fulfill its obligations as a result of the force majeure, it is entitled to invoice separately for the performance already delivered or the deliverable part of the performance and Customer is obliged to pay this invoice as if it concerned a separate agreement.
As soon as it is clear that the force majeure situation will last longer than six (6) weeks, the other party has the right to terminate the User Agreement without being liable for damages.

Article 20. Other provisions

The Supplier may transfer or outsource its rights or obligations under the Terms of Delivery or the User Agreement to a subsidiary, a TMS B.V. Agent, or another third party engaged by it for this purpose. In the event of transfer or outsourcing, these Terms of Delivery and Conditions also apply to the Customer.
Any notification or other communication in connection with the User Agreement or the Terms of Delivery must be sent via TMS B.V. Platform or in writing to the address of the other party as stated in the User Agreement.
If any provision of the User Agreement or of these Terms of Delivery is wholly or partially void, voidable, or contrary to the law, it will be deemed to be independent and not applicable. In such a case, the parties will consult to replace the relevant provision by a provision of the same purport that is not wholly or partially void, voidable, or contrary to the law. The other provisions of the User Agreement or these Terms of Delivery remain in full force.
Delays or omissions on the part of Supplier with regard to enforcing any right that Supplier has on the basis of the User Agreement or the Terms of Delivery will never constitute a waiver of right against Customer. If a party waives a right that it has under the User Agreement or Terms of Delivery, this does not imply that that party also waives this right or any other rights in a subsequent event.
The User Agreement and the Terms of Delivery fully reflect what has been agreed between the parties with regard to the TMS B.V. Products & Services and supersede all prior and contemporaneous, express or implied understandings, agreements, representations, and warranties, whether written or oral. Subject to the provisions of Article 2.2 and Article 6.4, the User Agreement can only be amended by means of a written agreement signed by both Customer and Supplier.
The applicability of all or part of any purchase or other general terms and conditions of Customer is hereby expressly rejected unless this has been expressly accepted by Supplier.

Article 21. Applicable law and disputes

Dutch law applies exclusively to the Terms of Delivery and the User Agreement.
All disputes, disagreements, or claims arising from or in connection with these Terms of Delivery or the User Agreement, or the non-fulfillment, termination, or invalidity thereof, will be submitted to the competent court in The Hague.

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