GENERAL TERMS AND CONDITIONS
Forensic Experts Scandinavia AB
(called Forensic Experts or FES below)
1.1. All offers and other statements by Forensic Experts are without obligation in principle.
1.2. The Client guarantees the correctness and completeness of the information provided by it or on its behalf to Forensic Experts and on which Forensic Experts based its offer.
1.3. Forensic Experts commits that it will deliver software or goods or provide services for the benefit of the Client following the Client´s acceptance of an offer to that effect subject to the conditions laid down in an Agreement as well as these General Terms and Conditions.
1.4. The Parties have agreed that these General Terms and Conditions apply to all sales orders and services to the relevant business unit of the Client and affiliated businesses during the contract period of the Agreement(s) that were concluded and any extension of that contract period.
2. Commencement and duration
2.1. Unless otherwise provided for in the Agreement, an Agreement has a term of one year and this term is each time tacitly renewed for a period of one year, with the exception of timely notice of termination by one of the Parties. Notice of termination must be given in writing at least three months before the end date.
2.2. A term of at least three months must be observed in respect of all forms of termination.
2.3. With respect to the software delivered by Forensic Experts, the Client is only allowed also after termination of the Agreement(s) to improve, correct, maintain, modify or expand the software or have this done following the express, written approval of Forensic Experts.
3. Obligations on the part of Forensic Experts
3.1. Forensic Experts guarantees:
a. the careful, timely and expert performance of all deliveries and services to be provided by it under the Agreement(s);
b. that it will carry out the deliveries and services in a careful and expert manner in accordance with the requirements included in the Agreement(s) as may be expected of a reasonable colleague in similar circumstances.
3.2. Forensic Experts does not guarantee the absence of defects, malfunctions or faults. Forensic Experts shall only resolve defects for its own account if these are the result of a failure to comply with the duty of care as described in the previous paragraph.
3.3. Terms are only final if this has been concluded expressly. The binding nature of the agreed terms lapses if the Client makes changes to the assignment or cooperates less adequately than Forensic Experts was entitled to expect.
3.4. In case of the delivery of software, Forensic Experts shall be obliged to provide the object code, but never the source code. Deviations from the above are possible in the agreement in case of custom software.
3.5. Upon delivery of software, the Client acquires rights of use subject to the conditions (of use) referred to in the Agreement or other documentation that has been submitted. A right of use that accrues to the Client is non-exclusive, non-transferable, cannot be pledged or sublicensed without written agreement between the Parties. The Client does not have the right either to modify the software without Forensic Experts’s approval.
3.6. In case of maintenance contracts, Forensic Experts delivers updates/new versions to the extent this has been agreed. If such is required by a new version of the software, Forensic Experts shall have the right to demand within reasonable boundaries that the Client’s systems are adjusted accordingly, and also that conditions of use that are related to the relevant software are adjusted. Forensic Experts is no longer obliged to maintain or support an old version three months after Forensic Experts makes an update/new version available.
4.1. Software and (other) services are delivered and accepted ‘as is, where is’.
4.2. If the Parties agree an acceptance or test procedure, the delivery shall be considered to have been accepted if no significant defects are reported within 14 days after the notice of completion in a detailed manner as a result of which the error can be traced. Defects that preclude the intended use of the software that was delivered in accordance with the functional and technical specifications shall be considered to be significant defects. Other defects cannot preclude acceptance.
4.3. Depending on the agreed ‘Service Level’, the Client shall have the right to demand of Forensic Experts within three months after delivery or acceptance by means of a written request that it resolves defects described in a detailed manner within a reasonable term if possible. This right on the part of the Client lapses after the three-month period or after a maintenance contract for the relevant software has ended.
4.4. The hours involved in resolving errors shall be charged in case of invoicing on the basis of subsequent calculation.
5. Obligations to cooperate
5.1. The Parties acknowledge that the success of activities in the area of information and communication technology depends on correct and timely mutual cooperation. The Client shall always render all cooperation requested by Forensic Experts within reason.
5.2. The Client bears the risk of the selection of the articles, goods and/or services to be provided by Forensic Experts. The Client always exercises the utmost care in order to ensure that the requirements the performance of Forensic Experts should satisfy are made available correctly and in full. The dimensions and information stated in drawings, images, catalogues, websites, offers, advertising material, standardisation materials etc. are not binding on Forensic Experts unless Forensic Experts itself has expressly indicated otherwise.
5.3. If Forensic Experts or the Client deploys personnel and/or auxiliary persons in the performance of the Agreement, such personnel and these auxiliary persons shall have the necessary knowledge and experience. In the event Forensic Experts employees perform activities at the Client’s location, the Client shall arrange for the necessary facilities on time and free of charge, such as a workspace with computer and network facilities. Forensic Experts is not liable for losses or costs resulting from transmission errors, malfunctions or the fact that these facilities are unavailable.
5.4. The workspace and facilities shall comply with all legal requirements. The Client indemnifies Forensic Experts against all claims from third parties including Forensic Experts employees who sustain damage as a result of an act or omission on the part of the Client or unsafe situations within its organisation. The Client informs the employees deployed by Forensic Experts of the internal regulations and safety rules that apply within its organisation before the start of the activities.
5.5. In the event the Client makes software, equipment or other resources available to Forensic Experts in connection with the Forensic Experts services and products, the Client guarantees that it has obtained the necessary licences or approvals with respect to these resources, which Forensic Experts may require.
5.6. The Client is responsible for the management, including checking the settings, the use of the products delivered and/or the services provided by Forensic Experts and the manner in which the results of the products and services are deployed. The Client is also responsible for issuing instructions to and the use by users.
5.7. The installation, setup, parameterisation, tuning of the necessary (auxiliary) software and if necessary adjusting the equipment, other (auxiliary) software and operating environment used, is part of Forensic Experts’s responsibilities if such has been agreed expressly.
6. Duties of disclosure
6.1. In order to make proper performance of the Agreement by Forensic Experts possible, the Client shall always provide Forensic Experts in a timely manner with all data or information to be demanded by Forensic Experts within reason.
6.2. The Client guarantees the correctness and completeness of the data, information, designs and specifications provided by it to Forensic Experts.
6.3. For the sake of continuity, the Client shall appoint a contact person or contact persons who shall act as such for the duration of Forensic Experts’s activities. The Client’s contact persons shall have the necessary experience, specific knowledge of the subject matter and insight into the objectives desired by the Client. The Client is responsible for its own internal communication.
The Client is responsible for obtaining in the interim information regarding the progress of the project from Forensic Experts.
7.1. The services/delivery agreed in an Agreement are delivered on the basis of subsequent calculation, unless expressly otherwise provided for in the Agreement.
7.2. If the Parties agree a fixed price such shall only concern what is stated in the relevant Agreement.
7.3. The hourly rates laid down in writing for this purpose shall apply if the Parties agree that Forensic Experts shall provide the services on the basis of subsequent calculation. If this is the case, the Client shall agree to:
a. An amount determined by multiplying the number of hours Forensic Experts demonstrably worked by the hourly rates that have been agreed. The payable amount shall be determined on the basis of the number of hours worked against the rate laid down in the Agreement and, if the Client has issued a written instruction to perform activities outside normal working hours, also the surcharges that have been laid down in writing for this purpose.
b. Travel and accommodation costs are only reimbursed to the extent these costs have been laid down in the Agreement or have been approved separately in advance by the Client.
c. The actual costs incurred by third parties, to the extent these third parties were engaged by Forensic Experts with the approval of the Client.
d. The other costs included and specified in the Agreement.
7.4. The amounts referred to in the Agreement(s) are increased by the turnover tax rate that applies at the time of the performance of the activities. Prices are always stated in local currencies.
7.5. The Client cannot derive rights or expectations from a cost estimate or budget provided by Forensic Experts, unless the Parties have agreed otherwise in writing in an Agreement.
7.6. If several natural persons and/or legal entities act as Client, all natural persons and/or legal entities shall be liable jointly and severally towards Forensic Experts.
8. Invoicing and Payment
8.1. Forensic Experts shall invoice additional work separately following completion of the additional work. The nature and scope of the additional work performed shall be stated expressly in the invoices and specified on the basis of authentic documents.
8.2. The Client shall pay the amounts owed by it to Forensic Experts within the agreed thirty (30) calendar days or in accordance with the payment conditions stated on the invoice. The Client does not have the right to suspend any payment or to set off payable amounts.
8.3. The Client owes statutory interest for commercial agreements on the outstanding amount in respect of payments not made within the payment term, without requiring a demand for payment or notice of default. If the Client fails to pay the claim following a demand for payment or notice of default, Forensic Experts shall have the right to hand the claim over for collection, in which case the Client shall also be obliged to reimburse all actual judicial and extrajudicial costs, which includes all costs charged by external experts, in addition to the overall payable amount. The matters set out above do not prejudice Forensic Experts other statutory and contractual rights.
8.4. In case of a regular payment obligation on the part of the Client, it will be the case that Forensic Experts has the right to adjust the applicable prices and rates in writing and in accordance with the index or other standard included in the Agreement within the term provided for in the Agreement. If the Agreement does not provide expressly for the possibility on the part of Forensic Experts to adjust the prices or rates, Forensic Experts always has the right to adjust the applicable prices and rates in writing while observing a term of at least three months (with a maximum increase of 10% in one year). If the Client does not wish to agree to the adjustment in the latter case, the Client shall have the right to terminate the Agreement in writing within thirty days after notification of the amendment to the Agreement effective as from the date on which the new prices and/or rates were to enter into effect.
9. Confidentiality and taking over personnel
9.1. The Parties shall observe strict confidentiality with respect to the information concerning each other’s organisation and the information and software acquired when providing the services. Forensic Experts and the Client commit towards each other that they will implement the measures that may be expected of them within reason in order to guarantee confidentiality with respect to each other’s organisation, the Products and services, as well as the data managed by them, which data are used
by the Parties or their personnel in the performance of the Agreement(s) or that come to their attention. The Parties shall oblige their personnel to comply with all confidentiality provisions.
9.2. If a Party is obliged to disclose confidential information by or on behalf of a government agency, such is not precluded by this Agreement, provided it notifies the other Party thereof without delay and before the disclosure so that the other Party is able to apply the possible legal remedies against this.
9.3. During the term of the Agreement and for a period of one year after it has ended, each Party shall employ or have work for it otherwise, directly or indirectly, employees of the other Party who are or were involved in the performance of the Agreement only after prior, written approval from the other Party. Conditions may be attached to this approval, including the condition that the Parties pay each other a reasonable compensation.
9.4. If one of the Parties acts in contravention of this article, the relevant Party shall forfeit to the other Party in each of these cases, without requiring any demand or notice of default, an immediately due and payable penalty of €10,000 per event. This penalty does not prejudice the other Party’s other rights, including the right to compensation.
10. Data protection
10.1. The Parties are obliged to cooperate fully with each other in order to enable the other Party to comply with its obligations on the basis of the General Data Protection Regulation (GDPR) and related regulations. To the extent the obligation(s) entail activities for Forensic Experts, these may be charged to the Client, such only to the extent these activities concern adjustments to the services in a functional sense.
10.2. Forensic Experts shall ensure that as processor within the meaning of the legislation referred to in this article it shall comply with all related obligations, to the extent it is enabled to do so by the Client and to the extent this is in keeping with the Client’s instructions. The Client shall ensure that the controller within the meaning of the aforementioned legislation shall comply with all related obligations. Forensic Experts indemnifies the Client against all third-party claims on the basis of the aforementioned legislation attributable to a failure on the part of Forensic Experts to comply with this legislation with due observance of this Agreement. The Client indemnifies Forensic Experts against all third-party claims that may be brought against Forensic Experts on the basis of the aforementioned legislation, unless the Client demonstrates that the claim is attributable to a failure on the part of Forensic Experts to comply with this legislation with due observance of this Agreement. The responsibility for the data that are processed by the Client while using a product or service provided by Forensic Experts lies fully with the Client. The Client guarantees towards Forensic Experts that the content, use and/or processing of the data are not unlawful and do not infringe any third-party rights. The Client indemnifies Forensic Experts against all claims from third parties on any basis whatsoever in connection with these data or the performance of the Agreement.
11. Security and risk transfer
11.1. If Forensic Experts is obliged on the basis of the Agreement to provide a form of information security, such security shall comply with the specifications pertaining to security that have been agreed in writing between the Parties. Forensic Experts does not guarantee that the information security is effective in all circumstances. If the Agreement does not include a clearly described security method, the security shall comply with a level that is not unreasonable in view of the state-of-the-art, the sensitivity of the data and the costs related to the implementation of the security.
11.2. Access or identification codes and certificates issued to the Client by or on behalf of Forensic Experts are confidential and shall be treated as such by the Client, and shall only be disclosed to authorised members of staff from the Client’s own organisation. Forensic Experts has the right to change access or identification codes and certificates that have been issued.
11.3. The Client shall secure its systems and infrastructure in an adequate manner and have antivirus software in operation at all times.
11.4. The risk of loss, theft, embezzlement or damage to property, data (including: user names, codes and passwords), documents, software or data files that are created, delivered or used within the context of the performance of the Agreement, passes to the Client at the moment at which these come into the actual possession of the Client or an auxiliary person of the Client.
12. Intellectual property
12.1. Unless expressly agreed otherwise, all intellectual property rights to the software, websites, data files, equipment, training, test or examination materials or other materials such as analyses, designs, documentation, reports, offers, as well as materials in preparation thereof, developed or made available to the Client on the basis of these General Terms and Conditions or the Agreement, vest exclusively in Forensic Experts, its licensors or suppliers.
12.2. In case of a transfer of intellectual property, such an obligation can only be assumed in writing and expressly in the Agreement. If the Parties agree in the Agreement that an intellectual property right with respect to software, websites, data files or other materials developed specifically for the Client shall pass to the Client, such shall not prejudice Forensic Experts’s right or possibility to use and/or exploit for other purposes without limitation the components, general principles, ideas, designs, algorithms, documentation, works, programming languages, protocols, standards and the like, which form the basis for this development, either for its own benefit or for the benefit of third parties. Nor does the transfer of an intellectual property right prejudice Forensic Experts’s right to create developments for its own benefit or that of a third party that are similar to or derived from those that are or were created for the benefit of the Client.
12.3. Forensic Experts indemnifies the Client against any third-party claim on the basis of the allegation that the software, websites, data files, equipment or other materials developed by Forensic Experts itself infringe an intellectual property right of that third party, subject to the condition that the Client notifies Forensic Experts immediately in writing of the existence and content of the claim and leaves the handling of the case entirely to Forensic Experts, including the conclusion of any settlements. The Client shall grant Forensic Experts the necessary authorisations, information and cooperation to defend itself against these claims. This obligation to indemnify lapses if the infringement complained of is related (i) to materials made available by the Client to Forensic Experts for use, adaptation, processing or maintenance, or (ii) to changes to the software, website, data files, equipment or other materials, implemented by the Client or which the Client caused to be implemented without Forensic Experts’s written approval.
12.4. The Client guarantees that no third-party rights oppose making equipment, software, materials intended for websites, data files and/or other materials and/or designs available to Forensic Experts (or using, reproduction or processing by Forensic Experts).
12.5. The Client is not allowed to make available or rent out the software delivered by Forensic Experts to third parties or exploit it in any other way. The Client is obliged to agree to any End User Licence Agreement (or any document considered equivalent thereto) from Forensic Experts’s supplier indicated in the Agreement.
13. Dissolution and termination
13.1. Each Party only has the right to dissolve the Agreement in connection with a failure to comply with the Agreement if the other Party, always in all cases following a written notice of default that is as detailed as possible and that provides a reasonable term to remedy the failure, attributably fails to comply with essential obligations under the Agreement. Payment obligations on the part of the Client and obligations to cooperate and/or provide information on the part of the Client or third parties engaged by the Client always apply as essential obligations under the Agreement.
13.2. If Forensic Experts has already carried out activities in implementation of the Agreement at the moment of dissolution or termination, these activities and the related payment obligations shall not be subject to undoing; the Client owes payment in respect thereof in accordance with Forensic Experts’s regular (hourly) rate; unless the Client proves that Forensic Experts is in default as regards the essential part of those performances.
13.3. In the event an Agreement that by its nature and content does not end as a result of completion has been concluded for an indefinite period, each Party shall have the right to terminate the Agreement in writing in consultation and while stating the reasons. If no notice period has been agreed between the Parties, a reasonable term of at least three months must be observed when giving notice of termination. Forensic Experts shall never be obliged to pay any compensation in connection with notice of termination.
13.4. Each of the Parties has the right to terminate the Agreement in whole or in part without notice of default with immediate effect if the other party is granted a provisional or final suspension of payment, if bankruptcy is applied for with respect to the other Party, if the business of the other Party is liquidated or discontinued. Forensic Experts also has the right to terminate the Agreement in whole or in part without notice of default with immediate effect if decisive control over the Client’s business changes directly or indirectly. Forensic Experts is not obliged in connection with the termination as referred to in this paragraph to perform any refund of moneys already received or to pay compensation. If the Client has been declared bankrupt, the Client’s right to use the software, websites, and the like, and the Client’s right to access and/or use the Forensic Experts services shall end at that time, without such requiring an act of termination on the part of Forensic Experts.
14.1. The Client shall provide Forensic Experts at Forensic Experts’s request with a compliance statement regarding the licence use. The possible costs of the compliance statement are for the Client’s account.
14.2. The Client shall render the cooperation in audits performed by Forensic Experts or its suppliers requested within reason in order to verify compliance with software contracts on the part of the Client.
15.1. Forensic Experts’s liability towards the Client is limited to compensation of direct losses up to at most the amount of the price stipulated for that Agreement (excluding VAT). If the Agreement is mainly a continuing performance contract with a term exceeding one year, the price stipulated for that Agreement is set at the total of the fees (excluding VAT) stipulated for one year. Forensic Experts’s overall liability shall never exceed €50,000.
15.2. Forensic Experts’s overall liability for losses resulting from death, physical injury or in connection with material damage caused to property never exceeds €250,000.
15.3. Forensic Experts’s liability for indirect losses, consequential losses, lost profit, missed savings, reduced goodwill, loss resulting from business interruption, losses resulting from claims from purchasers of the Client, losses related to the use of third-party items, materials or software prescribed by the Client to Forensic Experts and losses related to engaging suppliers prescribed by the other party, is excluded. Forensic Experts’s liability related to corruption, destruction or loss of data or documents is excluded as well.
15.4. The exclusions and limitations referred to in this article lapse if and to the extent the loss is the result of intent or deliberate recklessness.
15.5. Unless performance has become permanently impossible, liability on the part of the Parties in connection with an attributable failure to comply with an Agreement only arises if the other party gives the defaulting Party written notice of default immediately, providing a reasonable term for remedying the failure, and the defaulting Party continues to fail attributably to comply with its obligations also after that term. The notice of default must include a description of the failure that is as complete and as detailed as possible.
15.6. The Client notifies Forensic Experts of an alleged right to compensation as soon as possible after it arises. Any possible claim for compensation lapses 24 months after it arises, unless the Client institutes a legal action on time.
15.7. The Client indemnifies Forensic Experts against all claims from third parties in connection with product liability as a result of a defect in a product or system that was delivered by the Client to a third party and that partly consisted of equipment, software or other materials delivered by Forensic Experts, unless and to the extent the Client proves that the loss was caused by that equipment, software or other materials.
16. Force majeure
16.1. Neither of the Parties is obliged to comply with any obligation, including any statutory and/or agreed guarantee commitment, if it is prevented from doing so as a result of force majeure. Force majeure on the part of Forensic Experts includes among other things: (i) complicating factors on the part of the Client that prove to complicate compliance; (ii) force majeure or insolvency at Forensic Experts’s suppliers, (iii) failure to comply properly with obligations on the part of suppliers prescribed by the Client to Forensic Experts, (iv) defectiveness of third-party items of property, equipment, software or materials whose use has been prescribed by the Client to Forensic Experts, (v) government measures, (vi) power failures, (vii) disruptions in the internet, data networks or telecommunications facilities, (viii) war and (ix) general transport problems.
16.2. In the event a situation of force majeure lasts for more than sixty calendar days, each of the Parties shall have the right to dissolve the Agreement in writing. If this is the case, the matters already performed under the Agreement shall be settled on a proportionate basis without the Parties owing each other anything otherwise.
17. Reservation and retention of title
17.1. All goods delivered to the Client remain the property of Forensic Experts until all amounts owed by the Client to Forensic Experts on the basis of the Agreement have been paid to Forensic Experts in full. A Client that acts as reseller shall have the right to sell and supply on all goods that are subject to Forensic Experts’s retention of title to the extent such is customary within the context of the normal conduct of its business.
17.2. The consequences under property law of the retention of title concerning a good intended for export are governed by the law of the destination State if that law includes more favourable provisions for Forensic Experts.
17.3. In relevant cases, rights are granted or transferred to the Client subject to the condition that the Client has paid all amounts owed under the Agreement. Forensic Experts has the right to retain data, documents, software and/or data files received or realised within the context of the Agreement, despite an existing obligation to surrender or transfer until the Client has paid all amounts owed to Forensic Experts.
18. Final provisions
18.1. In case of differences or inconsistencies between these General Terms and Conditions and the Agreement, the provisions of the Agreement shall always prevail. The Agreement should be interpreted as much as possible in accordance with these General Terms and Conditions.
18.2. Amendments to an Agreement that has already been concluded are agreed in writing. A request for amendment, adjustment and/or supplement may only be refused by the other Party on reasonable grounds.
18.3. In the event any provision of these General Terms and Conditions or Agreement is void or declared void, the other provisions remain in full force. If this is the case, Forensic Experts and the Client shall consult for the purpose of agreeing new provisions to replace the provisions that are void or have been declared void.
18.4. A Party has the right to transfer its rights or obligations arising from the Agreement with the prior, written approval of the relevant other party. This approval may only be withheld on reasonable grounds.
18.5. The Agreements between Forensic Experts and the Client are governed by Swedish law. Applicability of the Vienna Sales Convention 1980 is excluded.
18.6. Disputes that arise in connection with an Agreement concluded between the Parties and/or in connection with Agreements that are the result thereof are settled by means of arbitration in accordance with the Arbitration Regulations of the Foundation for the Settlement of Automation Disputes, which has its registered office in The Hague.
18.7. Each Party has the right to initiate ICT Mediation proceedings in accordance with the ICT Mediation Regulations of the Foundation for the Settlement of Automation Disputes in connection with a dispute. The other party is obliged to participate actively in ICT Mediation that has been initiated, which obligation includes in any event attending at least one joint meeting between mediators and the Parties, in order to give this extrajudicial form of dispute settlement a chance. Each of the Parties is free to terminate the ICT Mediation proceedings at any time following a joint, first meeting between the mediators and the Parties.
18.8. The provisions of this article do not prevent a Party that considers this necessary from applying for relief in (arbitral) preliminary relief proceedings or taking precautionary measures. In the event a dispute comes under the jurisdiction of the Subdistrict Court, each of the Parties has the right to submit the case to the Court that is legally competent as a Subdistrict Court. In derogation from the previous paragraphs, Forensic Experts has the right to summon the Client before the District Court in the event invoices are not paid without a substantiated defence.