General Terms and Conditions

The private company with limited liability (NL: besloten vennootschap) Edups B.V., having its registered office and place of business at Schiedamse Vest 154, (3011 BH) Rotterdam, the Netherlands and its affiliated companies, hereinafter referred to as: ‘Edups’.

1. Definitions

In these General Terms and Conditions, the following terms shall have the following meanings:

1.1 Customer: the legal entity or natural person acting in the course of a profession or business, to whom Edups has made an offer to enter into an Agreement, or with whom Edups concludes an Agreement, or with whom Edups has any legal relationship, or for whom Edups performs any legal act.

1.2 Agreement: any agreement concluded between a Customer and Edups, any amendment or addition thereto, as well as all legal acts in preparation for and in performance of that agreement, to which these General Terms and Conditions apply.

1.3 Software: the platform maintained by Edups under the name “Edups”, or other software, made available to the Customer and/or its Users against payment of a License Fee.

1.4 User: any user (affiliated with the Customer) of the Software holding a personal registered account.

1.5 License Fee: the license fee as set out in the Agreement.

2. Applicability and offers

2.1 These general terms and conditions (hereinafter: ‘General Terms and Conditions’) apply to all quotations, offers and Agreements whereby Edups offers or supplies Software of any kind whatsoever to the Customer, unless and to the extent expressly agreed otherwise in writing. Once these General Terms and Conditions apply to a quotation, offer and/or Agreement, they also apply, without further declaration, to all new or resulting quotations, offers and/or Agreements between the parties, unless expressly agreed otherwise in writing.

2.2 The applicability of any general (purchasing) terms and conditions of the Customer is expressly rejected, unless Edups and the Customer have agreed otherwise in writing.

2.3 If these General Terms and Conditions conflict with (general) terms and conditions of the Customer that have been declared applicable to an Agreement by Edups and/or the Customer, the provisions of these General Terms and Conditions shall prevail.

2.4 If any provision of these General Terms and Conditions is null and void or is voided, the remaining provisions of these General Terms and Conditions shall remain in full force and effect.

3. The offer

3.1 All quotations and offers made by Edups are without obligation and may be revoked by Edups at any time, even if the quotation or offer contains a period for acceptance.

3.2 Quotations and offers may only be accepted in writing. Nevertheless, Edups has the right to accept an oral acceptance as if it had been made in writing.

3.3 Unless expressly agreed otherwise, quotations and offers made by Edups are valid for 30 (thirty) days.

3.4 The offer contains a complete and accurate description of the products and/or services offered by Edups. The description is sufficiently detailed to enable a proper assessment of the offer by the Customer. Obvious mistakes or errors in the offer do not bind Edups.

3.5 The Customer guarantees the accuracy and completeness of the data provided by or on behalf of it to Edups, on which Edups bases its offer.

3.6 A quotation or offer drawn up by Edups does not automatically apply to future products and/or services.

3.7 Edups reserves the right to refuse orders without stating reasons.

4. Formation of Agreements

4.1 An Agreement with Edups is only formed upon written confirmation thereof by Edups and replaces any non-binding quotations issued, or any oral arrangements.

4.2 Amendments to or additions to an Agreement may only be agreed between the parties in writing.

4.3 Each Agreement is entered into subject to the condition precedent that the Customer – in the sole judgment of Edups – proves to be sufficiently creditworthy for the financial performance of the Agreement.

4.4 Edups is entitled, at or after the formation of the Agreement and before performing (further), to require the Customer to provide adequate security that both the payment obligations and the other obligations will be met, which security the Customer is obliged to provide. Whether the security to be provided by the Customer is adequate is at the sole discretion of Edups.

4.5 Edups has the right to engage third parties for the performance of an Agreement.

5. License Fee and adjustment

5.1 The License Fee is paid for the granting of the license and is, unless stated otherwise, exclusive of VAT, any costs and duties, and any other levies imposed by governmental authorities.

5.2 Insofar as possible, Edups shall notify the Customer of price changes in advance.

5.3 If the Customer does not agree with a price increase by Edups, the Customer has the right to terminate the Agreement with Edups in writing. If the Customer has not terminated the Agreement within 14 (fourteen) days after Edups’ notification of the price increase, the Customer shall be deemed to have agreed to the price and/or rate increase.

Edups may make the Software available to the Customer for a limited, free-of-charge trial, demonstration or pilot period (the “Trial Period”), the duration of which shall be specified by Edups. During the Trial Period, the Software is provided “as is” and without any of the warranties set out in Article 7.4. Edups may terminate the Trial Period at any time and without prior notice, unless agreed upon otherwise in a written and signed agreement. Continued use of the Software after expiry or termination of the Trial Period requires a signed Agreement and payment of the applicable License Fee.

6. Payment

6.1 Payment shall be made by direct debit or on the basis of invoices sent by Edups, in the currency in which the invoice was issued.

6.2 The Customer shall pay the amounts owed by it within 14 (fourteen) days of delivery of the invoice, unless Edups has deviated from this in writing in the order confirmation.

6.3 All payments made by the Customer shall first be applied in settlement of all interest and costs owed. Only thereafter shall the payments be applied in settlement of the oldest outstanding and due invoices, regardless of whether the Customer states that the payment relates to a later invoice.

6.4 The Customer is at no time entitled to suspend its payment obligation towards Edups or to set it off against any claim of the Customer against Edups, on any ground whatsoever, unless Edups has given express written consent thereto.

6.5 All payment terms set by Edups are strict deadlines. The Customer shall be in default without further notice of default in the event of late payment.

6.6 Edups is entitled, from the due date of the invoice, to charge an amount of EUR 50.00, increased by EUR 10.00 for every month that payment remains outstanding.

6.7 All costs incurred by Edups in satisfying the claim, whether in or out of court, shall be borne by the Customer. These extrajudicial collection costs shall be calculated in accordance with the Extrajudicial Collection Costs (Compensation) Decree (Besluit vergoeding voor buitengerechtelijke incassokosten) applicable under Section 6:96(5) of the Dutch Civil Code, subject to a minimum of € 150.

6.8 Edups is authorized to apply payments received first to the penalty referred to in Article 6.6, then to the (extrajudicial) collection costs, and only thereafter to the amounts still outstanding.

6.9 Complaints regarding invoicing must be submitted to Edups in writing, with a clear description of the complaint, no later than ten (10) calendar days after the invoice date, failing which the invoice shall be deemed correct. Complaints shall not suspend the Customer’s (payment) obligation.

7. Performance of the Agreement and delivery periods

7.1 By entering into the Agreement, Edups assumes a best-efforts obligation. The parties expressly do not agree on any result to be achieved. All delivery periods and/or response times stated by Edups have been determined in good faith on the basis of the information available at the time the Agreement was entered into. The delivery periods used by Edups are target periods and not strict deadlines.

7.2 Delivery of the Software takes place digitally by making a link available.

7.3 Edups may release updates to the Software; these are implemented automatically. If a new module or additional functionality is involved, additional costs may be associated with it.

7.4 Edups warrants that the Software, under normal use, functions as described in the Agreement. Edups does not warrant uninterrupted or error-free operation of the Software.

7.5 Edups reserves the right to discontinue support for older versions of the Software over time.

8. Complaints

8.1 The Customer must lodge a complaint within ten (10) calendar days after delivery of the Software. The complaint must be submitted by registered letter and must be substantiated. If no complaint is lodged within the aforementioned period, the Customer shall be deemed to accept the performance of the Agreement.

8.2 Complaints shall not suspend the Customer’s (payment) obligation.

8.3 If it is established that a complaint is unfounded, the costs thereby incurred, including the investigation costs, on the part of Edups, shall be borne entirely by the Customer.

8.4 Any form of warranty shall lapse if a defect has arisen as a result of, or follows from, improper or inappropriate use thereof.

8.5 Work and repair costs falling outside the scope of this warranty shall be charged by Edups in accordance with its standard rates.

9. Intellectual property rights

9.1 All intellectual property rights in the Software made available to the Customer under the Agreement shall vest exclusively in Edups or its suppliers.

9.2 Nothing in these General Terms and Conditions and/or the Agreement implies any transfer of IP Rights. Provided that the Customer fully complies with its obligations arising from the Agreement with Edups, the Customer shall obtain solely the strictly personal, non-exclusive, non-transferable, non-pledgeable and non-sublicensable right of use to the Software for the purposes set out in the Agreement and subject to the conditions set out in the Agreement.

9.3 The Customer is not permitted to sell, rent out, sublicense, or dispose of the Software, or to grant any limited rights therein, or to make it available to a third party in any manner or for any purpose whatsoever, or to grant a third party access thereto, whether remotely or otherwise.

9.4 The Customer is not permitted to remove or alter any indication regarding the confidential nature or regarding copyrights, trademarks, trade names, database rights or (other) (intellectual) property rights.

10. Force majeure

10.1 Force majeure for Edups shall be deemed to include all circumstances beyond the control of Edups that prevent the normal performance of the Agreement.

10.2 Force majeure includes, among other things: illness and/or incapacity for work, extreme weather conditions, operational disruptions at Edups or its suppliers, epidemics and pandemics, defaults by its suppliers, war, mobilization, riots, floods, closed shipping lanes and other transport disruptions or transport difficulties, stagnation in, or restrictions or cessation of, supplies by public utility companies, fire, accidents, strikes, governmental measures, etc.

10.3 If Edups is unable to fulfil its obligations towards the Customer due to a non-attributable failure, those obligations shall be suspended for the duration of the force majeure situation, or Edups shall have the option to rescind the Agreement in whole or in part, without the Customer having any right on that basis to rescind the Agreement or to claim any right to or compensation for costs, damages or interest.

10.4 In the event of (partial) rescission of the Agreement, the Customer shall nevertheless remain obliged to pay for what Edups has already delivered.

10.5 In the event of force majeure, Edups shall be obliged to notify the Customer thereof without delay.

11. Liability and indemnification

11.1 Edups accepts liability only insofar as follows from this article.

11.2 Any liability of Edups for damages is excluded, including, without limitation, additional and substitute damages in any form whatsoever, compensation for indirect or consequential damages, claims by third parties, or damages for loss of profit.

11.3 The total liability of Edups for an attributable failure in the performance of an Agreement – insofar as such liability exists – shall always be limited to direct damages and shall be limited to the amount covered and paid out by the insurer. If the insurer does not make a payout, or if Edups is not insured, liability for compensation of direct damages shall be limited to a maximum of € 5,000. Indirect and consequential damages are expressly excluded.

11.4 All claims and/or actions, on whatever ground, that the Customer has against Edups must be notified to Edups in writing and brought before a court within twelve (12) months after the moment the Customer became aware thereof or could reasonably have been aware thereof, failing which such claims shall lapse.

11.5 The Customer shall indemnify Edups against all damages arising from claims by third parties relating to the Software made available by Edups, including, without limitation, claims by third parties resulting from damage arising from acts or omissions of the Customer during the performance of the Agreement or other causes attributable to the Customer. If Edups is held liable by third parties on that basis, the Customer shall be obliged to assist Edups, both out of court and in court, and to promptly do everything that may be expected of it in that case. If the Customer fails to take adequate measures, Edups shall be entitled, without notice of default, to take such measures itself. All costs and damages incurred by Edups and third parties as a result thereof shall be borne entirely by, and at the risk of, the Customer.

11.6 The limitation of liability of Edups as described in this article does not apply in the event of intent or gross negligence on the part of Edups.

12. Processing of personal data and account management

12.1 Edups complies with the obligations imposed on it under legislation concerning the processing of personal data. Edups shall ensure appropriate technical and organizational measures to secure (personal) data against loss or against any form of unlawful processing.

12.2 If this is, in the opinion of Edups, relevant for the performance of the Agreement, the Customer shall, upon request, inform Edups in writing of the manner in which the Customer complies with its obligations under data protection legislation.

12.3 The Customer shall indemnify Edups against claims by persons whose personal data are or have been processed and for which the Customer is responsible by law, unless the Customer proves that the facts underlying the claim are attributable to Edups.

12.4 Responsibility for the data processed by the Customer using a product of Edups lies with the Customer. The Customer warrants to Edups that the content, use and/or processing of the data is not unlawful and does not infringe any right of a third party. The Customer shall indemnify Edups against any claim by a third party, on whatever ground, in connection with such data or the performance of the Agreement.

12.5 Edups advises reviewing the Edups privacy statement for more information on how Edups processes personal data.

12.6 At the start of the services, Edups shall make available a dataset including, among other things, an overview of medicines.

12.7 Edups is entitled to use all data in the Platform in anonymized form for other purposes, such as the further development of the Platform and marketing purposes.

12.8 The Customer is responsible for proper account management and shall ensure that an account is archived as soon as the User will no longer use the Platform.

13. Term, termination and rescission of the Agreement

13.1 Each Agreement is entered into for a fixed term, unless it follows from the nature or purport of the assignment granted or of the Agreement that it has been entered into for an indefinite term. Upon expiry of its term, an Agreement shall be tacitly renewed each time for a period of one (1) year. Termination of the Agreement shall take place in writing (by e-mail/registered letter) subject to a notice period of three (3) months. In the case of an Agreement that is tacitly renewed, Edups is authorized to apply the annual indexation as of 1 January based on the Services Price Index (Dienstenprijsindex) of Statistics Netherlands (CBS) (based on the final figure).

13.2 Edups has the right to rescind the Agreement by written notice and without prior written notice of default, with immediate effect, if:

1. circumstances that come to the attention of Edups after the conclusion of the Agreement give good reason to fear that the Customer will not fulfil its obligations;
2. the Customer, despite notice of default, is attributably in default in the performance of any obligation incumbent on it;
3. the Customer has used what was delivered or made available by Edups in violation of the applicable rights of use or restrictions of use and/or has infringed any intellectual property right relating to what was delivered or made available;
4. the Customer is granted a suspension of payments (surseance van betaling), or an application therefor is filed;
5. the Customer is declared bankrupt;
6. an application for a debt rescheduling arrangement (schuldsaneringsregeling) is filed for the Customer;
7. the Customer is placed under guardianship (curatele) or administration (bewind);
8. the Customer discontinues its business operations, in whole or in part, or otherwise liquidates.

13.3 In the event of termination of the Agreement, all payments owed by the Customer to Edups shall become immediately due and payable.

13.4 Edups shall never be liable to the Customer for any damages or payment as a result of termination of the Agreement pursuant to Article 15.2, without prejudice to Edups’ right to full compensation by the Customer for breach of its obligations as referred to above, and without prejudice to any other rights to which Edups is entitled.

14. Assignment of rights and obligations

14.1 The Customer is not entitled, without the prior written consent of Edups, to transfer its rights and obligations arising from the Agreement to third parties.

14.2 Edups reserves the right to transfer the rights and obligations under an Agreement, in whole or in part, to a third party without the prior consent of the Customer. The Customer is obliged, at Edups’ first request, to render all cooperation deemed necessary by Edups for the transfer.

15. Miscellaneous provisions

15.1 If one or more provisions in an Agreement between Edups and the Customer and/or these General Terms and Conditions are null and void or voidable, this shall not affect the validity of the Agreement, the General Terms and Conditions or the remaining provisions therein. The invalid part of these terms shall be deemed to be replaced by provisions that, as far as possible and permitted, have the same effect as the invalid part.

15.2 All costs incurred by Edups in preserving or exercising its rights against the Customer under the Agreement and/or these General Terms and Conditions, whether in or out of court, shall be borne by the Customer.

15.3 Edups reserves the right to amend or supplement these General Terms and Conditions. Amendments shall be communicated by Edups to the Customer in writing and in good time.

16. Governing law and disputes

16.1 All offers made by, and Agreements with, Edups are governed exclusively by Dutch law. The applicability of the Vienna Convention on the International Sale of Goods is excluded.

16.2 Disputes that may arise between Edups and the Customer in connection with an Agreement concluded between Edups and the Customer, or in connection with any resulting third-party agreements, shall, except where mandatory law provides otherwise, be settled by the competent court in the district of Rotterdam, the Netherlands.