1. Definitions
1.1 Service Provider: Code Guardian B.V., having its registered office at Barbusselaan 209, 1102 TT, Amsterdam, registered with the Dutch Chamber of Commerce under number 99122898.
1.2 Client: the natural person or legal entity with whom the Service Provider enters into an agreement or to whom a quotation is issued.
1.3 Agreement: any arrangement between the Service Provider and the Client regarding the provision of services, products or work, including but not limited to Managed Application Security Services (MASS), penetration testing, advisory services and other related security activities.
1.4 Services: all performances delivered or to be delivered by the Service Provider to the Client, as specified in the Agreement or quotation.
1.5 Parties: the Service Provider and the Client jointly.
1.6 Business Days: Monday through Friday, excluding officially recognized public holidays in the Netherlands.
1.7 In Writing: communication by letter or electronic mail (email), provided the sender's identity can be sufficiently established.
2. Applicability
2.1 These General Terms and Conditions apply to all offers, quotations, agreements and legal relationships under which the Service Provider supplies services or products to the Client, unless expressly agreed otherwise in writing.
2.2 By entering into an agreement with the Service Provider, the Client accepts the applicability of these General Terms and Conditions.
2.3 The Client's general terms and conditions do not apply and are expressly rejected, unless agreed otherwise in writing.
2.4 If any provision of these General Terms and Conditions is null and void or is annulled, the remaining provisions shall remain fully in force. In that event, the Parties shall consult to agree a replacement provision that reflects the intent of the original provision as closely as possible.
3. Formation of the Agreement
3.1 All quotations, offers and proposals of the Service Provider are non-binding, unless explicitly stated otherwise. A quotation is valid for twenty-eight calendar days, unless stated otherwise.
3.2 An Agreement is concluded as soon as the Client accepts a quotation from the Service Provider in writing, or as soon as the Service Provider confirms in writing an assignment provided by the Client.
3.3 Oral commitments or arrangements are binding on the Service Provider only if confirmed in writing.
3.4 If the Client's acceptance deviates from the quotation, the Agreement is concluded only after the Service Provider has agreed to such deviation in writing.
3.5 The Service Provider reserves the right to refuse assignments without stating reasons.
4. Performance of the Services
4.1 The Service Provider shall use reasonable efforts to perform the Services carefully, professionally and in accordance with the arrangements made. This constitutes an obligation of effort, unless an obligation of result is expressly agreed in writing.
4.2 The Service Provider is entitled to engage third parties in performing the Services, provided this is done with due care. Engagement of third parties does not release the Service Provider from its obligations toward the Client.
4.3 If access to the Client's systems, networks or information is required for performance of the Services, the Client shall make such access available in a timely and complete manner.
4.4 The Client is responsible for the accuracy and completeness of all information provided by or on behalf of the Client to the Service Provider that is necessary for performance of the Agreement.
4.5 Unless agreed otherwise in writing, the Service Provider is entitled to perform activities in its own name and from its own location.
4.6 If, during performance of the Agreement, it appears necessary to change the agreed working method, approach or scope of work, the Parties shall consult accordingly. Additional work will be charged separately unless agreed otherwise in writing.
5. Client Obligations
5.1 The Client shall provide all cooperation reasonably required for proper performance of the Agreement by the Service Provider.
5.2 The Client shall ensure that all data, system access and other facilities indicated by the Service Provider as necessary are provided timely and in full.
5.3 If information required for performance of the Agreement is not provided, not provided in time, or not provided in accordance with agreed arrangements, the Service Provider has the right to suspend performance of the Agreement and/or charge additional costs resulting from the delay at the applicable rate.
5.4 The Client shall ensure compliance with all obligations attributable to it regarding information security, confidentiality and due care toward third parties when the Service Provider performs activities within or on the Client's systems.
5.5 The Client is responsible for implementing adequate backup measures and protecting its systems against malware or other risks, unless agreed otherwise in writing.
6. Deadlines and Delivery
6.1 Deadlines stated by the Service Provider for performing work or delivering results are indicative and do not qualify as strict deadlines unless agreed otherwise in writing.
6.2 If delivery or performance is delayed due to circumstances not attributable to the Service Provider, the deadline will automatically be extended by a period that is reasonable in view of the circumstances.
6.3 The Service Provider is entitled to suspend performance of the Agreement as long as the Client has not fulfilled its obligations, including timely payment of invoices or provision of necessary information.
6.4 If it has been agreed that the work will be performed in phases, the Service Provider may postpone commencement of a subsequent phase until the Client has approved the results of the preceding phase in writing.
7. Fees and Payment
7.1 All prices and rates used by the Service Provider are exclusive of VAT and other government levies, unless explicitly stated otherwise.
7.2 Invoicing takes place in accordance with the arrangements in the Agreement or quotation. In the absence thereof, the Service Provider invoices monthly in arrears based on work performed and costs incurred.
7.3 The payment term is 28 calendar days after invoice date, unless agreed otherwise in writing.
7.4 If the Client fails to pay on time, it is automatically in default without further notice of default being required. From that moment, the Client owes statutory commercial interest on the outstanding amount, as well as reasonable extrajudicial collection costs.
7.5 Objections to an invoice do not suspend the payment obligation. Any objections must be submitted in writing within ten calendar days after invoice date.
7.6 The Service Provider reserves the right to adjust its rates annually on 1 January based on the CBS business services index (services producer price index), unless agreed otherwise.
8. Liability and Indemnity
8.1 The Service Provider's liability for damages resulting from an attributable failure in the performance of the Agreement is limited to direct damages and to a maximum of the amount paid by the Client to the Service Provider in the three months preceding the damaging event.
8.2 The Service Provider is never liable for indirect damages, consequential damages, lost profit, lost savings, diminished goodwill, business interruption damages or loss of data.
8.3 The limitations of liability in this article do not apply in the event of intent or deliberate recklessness by the Service Provider or its executives.
8.4 The Client indemnifies the Service Provider against all third-party claims arising from or related to performance of the Agreement, unless there is intent or deliberate recklessness on the part of the Service Provider.
8.5 When performing vulnerability scans, penetration tests or other forms of technical analysis, the Service Provider is not liable for damages arising from the nature of such activities, provided they are performed within the previously agreed scope and with customary due care. The Client shall ensure that proper internal authorization for such activities has been obtained.
9. Secrecy and Confidentiality
9.1 The Parties undertake to keep confidential all confidential information obtained from each other in connection with the Agreement. Information is deemed confidential if designated as such or if this reasonably follows from its nature.
9.2 The Service Provider shall implement technical and organizational measures to adequately secure confidential information against loss, theft or unauthorized access.
9.3 The confidentiality obligation remains in force for three years after termination of the Agreement, unless a longer term applies by law or regulation.
9.4 The confidentiality obligation does not apply to information that: a. was already public at the time of disclosure; b. was already in the receiving party's possession before being obtained from the other party; c. was lawfully obtained from a third party without breach of a confidentiality obligation; d. must be disclosed pursuant to a legal obligation or court order.
10. Intellectual Property Rights
10.1 All intellectual property rights in materials developed or made available by the Service Provider in connection with the Agreement, including but not limited to scripts, reports, documentation, analysis methods and tools, vest exclusively in the Service Provider or its licensors.
10.2 The Client obtains only a non-exclusive, non-transferable and revocable right to use the results of the Services, solely for internal use and within the scope of the agreed purposes.
10.3 The Client is not permitted, without prior written consent of the Service Provider, to reproduce, publish or otherwise make available to third parties the materials referred to in paragraph 1.
10.4 If open source software or third-party components are used in performing the Agreement, the applicable license terms thereof prevail.
11. Term and Termination
11.1 Unless agreed otherwise, the Agreement is entered into for an indefinite period with a notice period of one calendar month, calculated from the end of the month in which notice is given in writing.
11.2 Agreements that by their nature or content are limited to a specific period or project duration end by operation of law upon expiry of that period or completion of the agreed work.
11.3 Either Party is entitled to terminate the Agreement in whole or in part with immediate effect if the other party fails to perform its obligations and, after written notice of default with a reasonable cure period, fails to remedy such failure.
11.4 The Service Provider is entitled to terminate or suspend the Agreement in whole or in part with immediate effect without notice of default if: a. the Client is declared bankrupt or applies for a suspension of payments; b. the Client is placed under guardianship or otherwise loses free disposal of its assets; c. the Client's business is liquidated or discontinued.
11.5 Upon termination of the Agreement for any reason, provisions that by their nature are intended to survive, including provisions on confidentiality, liability and intellectual property, shall remain in full force.
12. Force Majeure
12.1 The Service Provider is not obliged to fulfill any obligation toward the Client if prevented from doing so due to force majeure. Force majeure includes, among other things: failures in telecommunications infrastructure, internet outages, cyberattacks, government measures, strikes, staff illness, power outages, flooding, fire, war or terrorism.
12.2 In case of force majeure on the part of the Service Provider, its obligations are suspended for the duration of the force majeure situation. If this situation lasts longer than thirty calendar days, both Parties are entitled to terminate the Agreement in writing without any obligation to compensate damages or costs.
12.3 To the extent that at the moment force majeure occurs the Service Provider has already partially fulfilled its obligations under the Agreement, it is entitled to invoice that part separately, and the Client is obliged to pay that invoice as if it were a separate agreement.
13. Governing Law and Disputes
13.1 All legal relationships between the Service Provider and the Client are governed exclusively by Dutch law.
13.2 Disputes arising from or related to the Agreement or these General Terms and Conditions shall in the first instance be submitted to the competent court in the district where the Service Provider is established, unless mandatory law provides otherwise.
13.3 The Parties shall make efforts to resolve disputes amicably before seeking judicial recourse.
14. Amendments to the General Terms and Conditions
14.1 The Service Provider is entitled to amend these General Terms and Conditions. The amended terms enter into force at the moment they are published on the Service Provider's website, or at a later date indicated in the publication.
14.2 If an amendment is substantial and disadvantageous to the Client, the Client has the right to terminate the Agreement as of the date the new terms take effect, provided such termination is made in writing and within thirty calendar days after publication.
14.3 The Client is deemed to have accepted amendments to the General Terms and Conditions if it continues to use the Service Provider's Services after the effective date.