General Terms and Conditions
of Beyond Sports BV, a private limited liability company under Dutch law, having its registered office and maintaining business premises in Alkmaar, the Netherlands, hereafter referred to as “Beyond Sports”
Article 1: Applicability, offer, contract realization
1.1 These General Terms and Conditions apply to all offers and contracts pursuant to which Beyond Sports delivers goods and/or provides services to the customer.
1.2 Except where specified otherwise by Beyond Sports in writing, all offers issued by Beyond Sports shall be subject to contract.
Article 2: Prices and payment 2.1 All prices are in euros and exclusive of turnover tax (VAT) and other government levies.
2.2 Beyond Sports is permitted to index the agreed prices annually as per the first day of the new calendar year according to the Consumer Price Index published by Statistics Netherlands.
2.3 If a term of payment has not been agreed upon, a term of payment of thirty days applies.
2.4 In case the contract specifies more than one natural and/or legal persons as the customer, each of these persons shall be joint and severally liable in respect of payment of the amounts due.
Article 3: Delivery dates
3.1 Beyond Sports shall make every commercially reasonable effort to observe (delivery) periods or (delivery) dates wherever possible. In any case, Beyond Sports shall not be bound by a (delivery) period or (delivery) date, that can no longer be achieved as a result of circumstances that are outside Beyond Sports’s control or if the customer fails to (timely) fulfil its obligations arising from the contract. Beyond Sports shall also not be bound by a (delivery) date or (delivery) period, if the parties have agreed on a change to the content, scope or execution of the agreement.
3.2 In case a delivery period or date has been exceeded, Beyond Sports shall not be in default until such time as the customer has given written notice of default including a specified and comprehensive description of the breach and has given Beyond Sports a reasonable period to comply with is obligations and this period has expired.
Article 4: Performance, guarantee
4.1 Beyond Sports shall in all cases carry out its services on the basis of a commercially reasonable efforts obligation, unless and in so far as Beyond Sports has explicitly undertaken in the agreement in writing to achieve a specific, sufficiently determined result and the achievement of this result is qualified in this agreement as a duty to reach this result (in Dutch: “resultaatsverplichting”).
4.2 In case of development of software with respect to which parties use an iterative development/design method (for instance Agile/Scrum), the parties shall accept that, at the start, the work shall not be performed on the basis of complete and detailed specifications, and that the specifications may be changed in conformity with the agreed development/design approach during the performance of the contract. The customer shall ensure that it will actively contribute and cooperate, for instance with respect to, testing and decision-making. The customer delivers and is responsible for the Product Owner.
4.3 In case of delivery of software, Beyond Sports shall make every effort to fix errors in the software within a reasonable period insofar as Beyond Sports receives written, detailed notification of these errors within a period of three months following delivery or within three months of acceptance if the parties have agreed to an acceptance test. Under no circumstances shall Beyond Sports be obliged to recover lost or scrambled data. Beyond Sports does not have any obligation to fix errors that are reported following expiry of the guarantee period stated in this article, unless a separate maintenance agreement is entered into by the parties that holds an obligation to this effect.
4.4 Due to the nature of its services, Beyond Sports cannot guarantee that the service and/or software will be fit for the actual and/or intended use by the customer and/or will always operate with no interruptions, errors, defects or, that all errors and defects can always be fixed and that the service and/or software will function effectively in conjunction with all types of software and/or hardware of third parties or updates thereof.
4.5 Where this General Terms and Conditions refer to ‘errors’, this shall mean: the substantial failure to meet the specifications explicitly agreed in writing between the parties. An error shall only be deemed to exist if it can be demonstrated by the customer and can be reproduced. Beyond Sports is under no obligation to fix any defect other than errors that fall under the above definition.
4.6 The customer guarantees the completeness and accuracy of all information that is provided to Beyond Sports.
Article 5: Intellectual property rights
5.1 All intellectual property rights to software and materials developed or made available to the customer on the basis of the agreement, such as hardware, websites, data files, analyses, documentation, designs, reports, and related preliminary material, shall remain exclusively vested in Beyond Sports, its licensors or its own suppliers. Any rights of use granted to the customer shall be non-exclusive, non-transferable to third parties and non-sublicensable. The customer’s right of use shall not extend to the software source code. The software source code shall not be made available to the customer under any circumstances.
5.2 If all design and development costs with respect to the software shall be borne exclusively and in full by the customer, the right of use of the software developed on behalf of the customer shall not be subject to any restrictions.
5.3 If the supplier provides third-party software to the customer, the license terms of the respective third parties apply in the relationship between the supplier and the customer with respect to the software instead of the provisions of these General Terms and Conditions that deviate from those licence terms, provided that the applicability of the license terms of the respective third party was reported to the customer by the supplier in writing.
5.4 Insofar the parties agree that intellectual property rights in software, data files, websites, hardware or other material specifically developed for the customer shall be transferred to the customer, this shall not affect Beyond Sports’s right or option to 1) use and/or to exploit the algorithms, general principles, components, ideas, designs, documentation, programming languages, protocols, work, standards and suchlike that form the basis of the development work on its own behalf or on behalf of a third party for other purposes without any restriction and 2) carry out development work, on its own behalf or on behalf of a third party, that is similar or derived from the development work that is carried out on behalf of the customer.
Article 6: Liability, indemnity
6.1 The total liability of Beyond Sports due to an attributable failure to perform this agreement or due to any other reason, explicitly including any failure to comply with a guarantee and/or indemnification obligation, shall be limited to compensation of the direct damage or loss, not exceeding the sum stipulated for this agreement (excl. VAT). If the agreement is a continuing performance contract with a term of more than one year, the sum stipulated for the agreement shall be set at the total fees (excl. VAT) stipulated for one year. However, the total liability of Beyond Sports for any reason whatsoever shall under no circumstances exceed an amount of €150,000 (one hundred fifty thousand euro).
6.2 The liability of Beyond Sports for resulting loss, indirect damage or loss, loss of profit, reduced goodwill, loss of savings, loss due to penalties, business interruption, claims from the customer’s customers or partners, loss in connection with the use of software, items or other materials provided by third parties that Beyond Sports is instructed to use by the customer and loss in connection with the engagement of secondary suppliers by Beyond Sports on the customer’s instructions shall be excluded. Liability of Beyond Sports due to the scrambling, destruction or loss of data or documents shall also be excluded.
6.3 The limitations of liability stated in this article shall not apply if and insofar as the loss is the result of intentional acts or deliberate recklessness on the part of Beyond Sports’s management.
6.4 If performance by Beyond Sports is still possible, Beyond Sports shall only be liable as a result of an attributable failure to perform the agreement if the customer gives Beyond Sports immediately a detailed and substantiated notice of default in writing, holding a reasonable term in which the breach can be remedied, and Beyond Sports still attributably fails to meet its obligations after this period.
6.5 The customer shall notify Beyond Sports in writing of the loss or damage as soon as possible after it occurs, failing which the corresponding claim for damages shall expire. Claims for damages shall also expire by the mere passage of 12 months from the date on which the claim arose unless the customer has instituted proceedings against Beyond Sports within this term.
6.6 All restrictions and exclusions of liability referred to in these General Terms and Conditions shall also apply in favour of all (legal) persons that Beyond Sports engages to execute the agreement.
Article 7: Acceptance
7.1 In case of development of software, the customer shall perform an acceptance test within fourteen days following delivery, during which the customer shall assess whether the software delivered conforms to the functional or technical specifications agreed between the parties in writing. The customer is not entitled to use the software for operational or productive purposes during the test period. The customer shall provide Beyond Sports with a written, clear and understandable report on the test results.
7.2 The software shall be deemed to have been accepted between the parties:
a. upon the first day following the test period, or
b. if Beyond Sports receives a test report as referred to in article 7.3 before the end of the test period: at such time as the errors described in the test report have been fixed.
Contrary to the above, if the customer uses the software for productive or operational purposes the software shall be deemed to have been accepted from the time at which such use commenced.
7.3 In case errors are discovered in the software during the acceptance test, the customer shall notify Beyond Sports of these errors by means of a written and detailed test report, no later than on the last day of the test period. Beyond Sports shall make every effort to fix these errors within a reasonable period of time.
7.4 The customer may not withhold acceptance of the software 1) on grounds that do not relate to the written specifications agreed between the parties or 2) due to the existence of defects that cannot reasonably be deemed to prevent the operational or productive use of the software, without prejudice to Beyond Sports’s obligations under the guarantee scheme of article 4 of these General Terms and Conditions.
7.5 In case of delivery of the software in parts and/or in stages, the non-acceptance of a specific part and/or stage shall not affect the acceptance of another part and/or a previous stage.
7.6 With the acceptance of the software Beyond Sports is discharged in respect of compliance with its obligations in relation to the provision and delivery of the software, notwithstanding customer’s rights pursuant the guarantee scheme under article 4 of these General Terms and Conditions.
Article 8: Processing of data
8.1 Responsibility for the data processed by Beyond Sports in conformity with the instructions of the customer shall rest solely with the customer. The customer shall guarantee that such processing of the data is not unlawful and does not infringe the rights of third parties. The customer shall indemnify Beyond Sports against legal claims by third parties in relation to this data.
8.2 If the agreement stipulates some form of information security, this security shall meet the specifications agreed upon by the parties in writing. Beyond Sports shall not guarantee that the information security will be effective under all circumstances. If the agreement does not give an explicit description of the required security measures, the security measures shall be of such a level that, having regard to the sensitivity of the data, the state of the art, and the costs associated with the security measures is not unreasonable.
8.3 In case of hosting services provided by Beyond Sports, the customer shall be obliged to remove apparently unlawful information immediately upon the first written request of Beyond Sports. If it fails to do so, Beyond Sports shall be entitled to remove such information or prevent access to such information at its own discretion.
Article 9: Force majeure
9.1 Neither of the parties shall be obliged to meet any obligations, including any guarantee obligation and/or indemnification obligation, if it is prevented from doing so as a result of force majeure. Force majeure shall include: (i) a situation of force majeure encountered by Beyond Sports's own suppliers, (ii) failure by secondary suppliers engaged by Beyond Sports on the customer’s instructions to meet their obligations, (iii) the defectiveness of software, items, hardware, or other materials provided by third parties that Beyond Sports has been instructed to use by the customer, (iv) electricity failure, (v) faults affecting the internet, computer network or telecommunication facilities, (vi) government measures (vii) war, (viii) circumstances outside the parties reasonable control.
9.2 Either of the parties shall be entitled to terminate the agreement in writing if a situation of force majeure lasts for longer than ninety days. In such case services already performed on the basis of the agreement shall be settled on a pro rata basis, and the parties shall not owe one another any other amounts.
Article 10: Additional work
10.1 If Beyond Sports has, at the request or with the prior consent of the customer, carried out work or performed other services that fall outside of the scope or content of the agreed work, such work or services shall be paid for by the customer in accordance with the agreed rates or Beyond Sports’s standard rates in case no rates are agreed upon.
Article 11: Confidentiality and taking over of personnel
11.1 The parties shall ensure that all information received from the other party that is known or should reasonably be known to be of a confidential nature, is kept secret and will only be used for the purpose for which it has been provided.
11.2 During the term of the agreement and for one year following termination of the agreement, each party will refrain from directly or indirectly engaging or otherwise employ employees of the other party who are or were previously involved in the execution of the agreement, without prior written consent of the other party.
Article 12: (Interim) End of Contract
12.1 A fixed term agreement regarding the provision of services may not be terminated by the customer before the end of the term.
12.2 Either of the parties shall be entitled to terminate the agreement in part or in full, with immediate effect, in writing if the other party is granted a moratorium of payments or if a winding-up petition is filed in respect of the other party. Every right of use of the software, websites and suchlike made available to the customer shall end if the customer becomes bankrupt or is liquidated.
12.3 Either of the parties shall only be authorized to rescind the agreement until it has given the other party written notice of default including a specified and comprehensive description of the breach and has given the other party a reasonable period to comply with is obligations, this period has expired and the other party continues to attributably fail to meet its fundamental obligations arising from this agreement. If the customer has at the time of rescission already received goods or services under the agreement, these goods or services and the associated payment obligations shall not be undone unless the goods and/or services are not in conformity with the agreement.
12.4 Fixed-term contracts between the customer and Beyond Sports will be automatically converted into an open-ended contract subject to three months’ notice, if none of the parties have indicated an intent to end the contract.
Article 13: Availability
13.1 If service level agreements are entered into, periods of decommissioning due to maintenance work announced in advance or to circumstances outside of Beyond Sports’s sphere of influence will not be taken into account when assessing availability. The assessment of availability will be based on the service as a whole during the term of the agreement.
Article 14: Applicable law, competent court
14.1 The agreements between Beyond Sports and the customer shall be exclusively governed by Dutch law. The applicability of the Convention on Contracts for the International Sale of Goods 1980 is excluded.
14.2 Any disputes that may arise between Beyond Sports and the customer in relation to an agreement concluded between Beyond Sports and the customer or in relation to further agreements that arise from such an agreement, will be exclusively submitted to the competent sector of the Court of Noord-Holland, The Netherlands.