General terms and conditions

General terms and conditions of SDS Medical B.V.

1. 1 Service and Agreement
1.1 These general terms and conditions apply to all services provided by SDS Medical BV (‘SDS’) and to any contract or agreement for the supply of software and/or services between SDS and the Client (‘Agreement’). Deviations from these general terms and conditions are valid only when agreed upon in writing.
1.2 All services and representations made by SDS are non-committal unless specifically agreed otherwise in writing.
1.3 The Client guarantees the correctness and completeness of its requests, its specifications of the performance and other information provided to SDS and on which the offer made by SDS is based.
1.4 Any purchase- or other agreements of the Client and any terms and conditions of third parties (such as trade organisations) are not applicable to this Agreement.
1.5 If any provision of this Agreement is found by any Court or administrative body of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of such provision will not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties agree to attempt to substitute for any invalid and unenforceable provision a valid and enforceable provision, which achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid and unenforceable provision.

2. Price and Terms of payment
2.1 All prices shall be exclusive of turnover tax (VAT) and (other) levies imposed by the government. Prices are applicable to the supplied and agreed software and/or services. In the event more or other software is requested and delivered the price charged shall be based upon the valid price at that time.
2.2 Unless otherwise agreed in the Agreement, SDS reserves the right to increase prices and rates. SDS shall notify the Client at least ninety (90) days in advance of the increase in the prices and rates.
2.3 Invoices shall be paid within thirty (30) days from the date of the invoice.
2.4 Any delay in effecting any payment by the due date shall entitle SDS to receive payment of interest based on the market rate for each day of delay. In addition, all expenses incurred by SDS, including but not limited to, reasonable legal fees, court costs and collection agency fees, caused by delayed or non-payment by the Client shall be for the account of the Client and payable upon demand. In the event of delayed or non-payment SDS reserves the right, without prejudice to any other rights SDS may have in such an event, to suspend performance of its respective obligations under this Agreement with immediate effect.
2.5 In the event the Client disputes an invoice sent by SDS, she shall, within 7 days after receiving the invoice, inform SDS in writing together with supporting documentation that she disputes the amount due to SDS. The Client is entitled to suspend payment of that part of the invoice that is in dispute. Parties shall as soon as possible enter into discussions in respect of the disputed part of the invoice. In the event the objection has been justified the invoice shall be adjusted and shall be payable within thirty (30) days after receipt of the corrected invoice. In the event the objection was unjustified the Client shall pay the disputed invoice without delay plus any interest for each day of delay and all possible legal fees, courts costs caused by the delayed payment.

3. Confidentiality
3.1 For the purposes of the Agreement “Information” shall mean, though not be limited to documents, facts, data, materials etc. whether tangible or otherwise.
3.2 Both parties hereby agree to use all reasonable endeavours to maintain strict confidentiality and to ensure its personnel, officers and agents maintain strict confidentiality without limitation on all Information concerning or received from the other party and not to use, copy, reproduce or summarise in any shape or form whatsoever or allow a third party to use, copy, reproduce or summarise in any shape or form whatsoever any such Information given except for the purpose of performing its obligations under the Agreement save for Information which is:
A) T
rivial or obvious
B)
 Already in its possession other than as a result of a breach of this Condition 3
C)
 In the public domain other than as a result of a breach of this Condition 3
Such Information shall not, without the prior written consent of either party, be divulged in any shape manner or form to any person or entity outside the organisation of the receiving party. The receiving party further warrants that any Information divulged within its organisation shall only be divulged to persons with a need to know it for the purpose of performing obligations under the Agreement and that such Information shall be limited to a need to know basis. Furthermore, the receiving party shall ensure that such persons who have a need to know are fully aware that such Information is confidential and are aware of the existence of such confidentiality requirements and fully and clearly understand the implications of any breach of such. Both parties shall take all steps as shall from time to time be necessary to ensure compliance with this Condition 3. Each of the parties shall promptly on demand return all such tangible Information (and copies of such whether authorised or not) to the other party. These confidentiality obligations shall survive indefinitely following termination of the Agreement.
3.3 Each party shall not use and shall ensure that its personnel do not use the other’s name for any publicity or promotional purposes without first obtaining the written consent of that party.

4. Without prejudice to property
4.1 All goods/ products provided/supplied to the Client remain property of SDS until full payment has been received for executed business and/or executed activities and all other payments in default have been paid by the Client.
4.2 A non-exclusive, non-transferable license to use the products for the term of the Agreement shall be granted only after full payment has been received by SDS.

5. Employees
5.1 Both parties undertake to one another, during the currency of this Agreement and for the period of 12 months following the completion of the provision of the services, that it will not directly or indirectly for itself or for the benefit of any person induce or endeavour to induce any officer or employee of the other party, involved in the execution of the Agreement, to leave his employment.

6. Passing of the Risk
6.1 The risk of loss or damage to the software and data, which are subject to this Agreement passes to the Client the moment the goods of it is transferred to the Client or a person appointed by the Client.

7. Intellectual Property
7.1 In the event the work agreed under the Agreement results in the coming into being of software or other business for which of copy right and/or other intellectual and technical property rights is applied for and granted, these rights shall vest the exclusively in SDS, unless agreed otherwise in writing, and the Client shall have a non-exclusive, non-transferable licence to use the products for the term of the Agreement.
7.2 All Intellectual and Technical Property Rights in the available software, databases, equipment or other materials such as analyses, design, documentation, reports, quotations and any preparatory materials shall vest in SDS or her licence holder or suppliers. Any and all Intellectual Property Rights created, developed or arising directly or indirectly out of the performance of the Services including without limit those created as a result of any amendment or upgrade to the Software or subsisting in any materials provided by SDS in the performance of the Services shall vest in SDS Medical BV and remain at all times her property. SDS grants to the Client a non-exclusive, non-transferable license to use the products for the term of the Agreement. The Client may, to the extent allowed by local law, not copy or decompile nor reverse engineer, or disassemble the software, databases and other materials.
7.3 The Client shall not change or remove any indication as to copyright, brands, trade name or other intellectual or industrial rights from the software, databases, equipment and materials nor any indication as to the confidentiality of information or data, especially the software.
7.4 The Client shall not remove or evade the security of software, databases or equipment. In the event the Client is not able to make a reserve copy of the software because of the security measures, SDS shall, at the request of the Client, make a reserve copy for the Client. The Client has the right to one (1) copy of the software and databases. The reserve copy shall be an identical copy and shall have the same labels and indications mentioned in art. 7.3 as the original software.
7.5 SDS shall indemnify Client from any action, based on the thesis that the developed software, databases, equipment or materials of SDS breach the Dutch Law of intellectual and technical property right under the condition that the Client informs SDS immediately in writing about the existence and content of the legal action and the settlement of the case, amongst others a possible settlement, completely leaves to SDS. The Client is obliged to grant SDS the necessary powers of attorney, the reasonable necessary information and cooperation in order to enable SDS, if necessary in the name of the Client, to defend herself against these actions. This indemnification shall lapse under the following circumstances:
- If and so far the breach is related to changes made to the software, databases or materials by the Client or by third parties by order of the Client; or
- With the use of software not supplied by SDS; or
- If the equipment, software and/or materials are used in a different manner for which it was developed or was intended.
7.6 In the event it is legally irrevocably determined that the developed software, databases, equipment and or materials breach the intellectual and technical property rights of a third party or in the event SDS is of the opinion that there is a reasonable chance that such a breach occurs, SDS shall take back the supplied goods whilst crediting the acquisition costs minus a reasonable reimbursement for use or, if SDS so wishes, SDS shall take care that the Client can continue to use uninterrupted the supplied or functional equivalent of other software, databases, equipment or materials. Any other or further liability or indemnity obligation of SDS because of the breaching of intellectual and technical property rights of third parties if excluded. Included here is the liability and indemnity obligations of SDS for breaches
- Connected with adaptations of the equipment, software and/or materials supplied by others than SDS; or
- Connected with the usage of software not supplied by SDS; or
- Connected with different usage of the equipment, software and/ or material for which it was developed or intended.
7.7 In the event the Client makes available to SDS under the Agreement, equipment, software, databases or materials for the usage, processing, management or maintenance by SDS the Client shall guarantee that he is allowed to make it available and that SDS, by using, processing, managing or maintaining shall not breach third party rights. The Client shall indemnify SDS and shall reimburse all costs and damages in connection with any claim of by a third part based on the thesis that the making available, usage or processing is a breach of third party rights.

8. Cooperation by the Client
8.1 For the satisfactory execution of the Agreement the Client shall at all times cooperate with SDS and shall provide SDS with useful, necessary data, materials and information. At the request of SDS Client shall, within the agreed term and if no term has been agreed within seven (7) days, express his opinion in respect of any matter, which is connected to the progress of the agreed work to be carried out under the Agreement that SDS had put before the Clients for its approval or decision. In the event that the Client does not fulfil its obligations, the undertakings given by SDS with regard to the expected length of time and costs will lose all validity and SDS shall, without prejudice to any other rights, be entitled to charge the Client at the customary rate for any costs and expenses incurred as a result of that failure. If the Client fails to respond in good time to an evaluation sent by SDS as to her performance, the Client shall be assumed to have accepted the performance and has SDS fulfilled all her obligations.
8.2 Unless agreed otherwise in writing, the Client is responsible within its organisation for use and application of the equipment, software, databases, materials or services supplied by SDS and for the control- and security procedures and an adequate system management.
8.3 In the event it has been agreed that the Client shall make available the software, databases, materials or data (data on information carriers) these shall comply with the specifications as prescribed by SDS.
8.4 In the event employees of SDS perform services at the place of use/ work place of the Client, she shall make available to SDS and its employees without charge such facilities as SDS may reasonable require to perform its obligations under the Agreement such as adequate work space and telecommunication facilities.
8.5 The Client shall take all reasonable precautions to protect the health of SDS’s employees whilst on the site and will indemnify and hold harmless against any loss of damage which SDS or patients may suffer as the result of a breach by the Client of this clause 8.5.
8.6 In the event the Client has made available to SDS software and/or data, which do not need to be processed or worked on anymore the Client shall inform SDS in writing that it:
A) should be destroyed; or
B) should be made available to the Client; or
C) should be saved by SDS.
Unless agreed otherwise in writing, SDS may charge the Client at reasonable rates for the destruction, the availability, safe keeping of software or data which are no longer necessary for the execution of this Agreement. The charge will be included any costs made to keep the data and keep available the software and the computer systems according to the wishes of the Client. In the event there is no agreement in writing to the above or the Client is in default of the costs mentioned in clause 8.7, SDS is entitled to destroy software or data after the expiry date of the Agreement or prior that date if it is equitable considering the circumstances.

9. Terms of delivery
9.1 All terms of delivery have been laid down by SDS to its best knowledge and based on the information known at the time of the entering into the Agreement. Terms of delivery will be taken into account but are not binding. SDS is not in default by exceeding a sole delivery term.
9.2 Without prejudice to the above, during the currency of the Agreement, SDS shall not be liable for the exceeding of a delivery term if this is the result of circumstances beyond her power.
9.3 In the case of an imminent exceeding of a delivery term the parties shall consult one another as soon as possible to arrange a new delivery term.

10. Delivery, installation and acceptation
10.1 SDS shall provide software products and/or service as much as possible conform the written specifications. Unless it has been agreed that SDS shall do the installation, the Client is responsible for the installation of the software products and/or results of services. SDS is not liable for any damage suffered by the Client which is the result of the incorrect installation by the Client.
10.2 In the event the parties have agreed an ‘acceptance test’ (test), the trial period for the test is ten (10) days after delivery of the products or, if it has been agreed in writing that SDS does the installation, ten(10) days after the installation has been finalised. During the trial period it is prohibited to use the software products and/or results of services for productive or operational purposes. SDS reserves the right to ask the Client to keep her informed in writing about the test results.
10.3 Software products and/or results of services shall be considered as accepted by both parties under the following circumstances:
A) In the event the parties have not agreed on an acceptance test; or
B) In the event the parties have agreed on an acceptance test one day after the test period; or
C) Iin the event SDS has received a test report before the end of the test period, as meant in subsection 5 of clause 10, and the errors stated in the report have been solved. The above is subject to imperfections that according to subsection 6 of clause 10 will not impede acceptation.
Contrary to subsection a, b and c of clause 10.3, the software products and/or results of services, which have been used before the moment of definite acceptance shall be considered accepted from the moment of usage.
10.4 When during the execution of the acceptance test the software- products and/or results have errors that hinder the progress of the test, SDS shall be informed of this error in writing. The test shall be interrupted until the software products or result have been adjusted and the impediment has been removed after which the ten (10) day test period will start anew.
10.5 When during the execution of the acceptance test the software- products and/or results have errors, Client should inform SDS at the latest of this error on the last day of the test period through a test report in writing. SDS will use all reasonable endeavours to solve the errors within a reasonable time period and is SDS entitled to make provisional solutions, such as alternate programroutings or adding problemsolving restrictions in the software-product and /or results of services
10.6 Once the error has been solved the ten (10) day test period will start a new.
10.7 Acceptance of the software product and/or result shall only be withheld for reasons that are connected to specific agreed requirements and not for trivial and/or other errors that do not reasonably prevent the operational and productive usage of the software products and/or results
10.8 As soon as the Client has accepted the software products and/or results of services SDS has no liability in respect of the availability of the software and/or results of services and, if this has been agreed, in respect of the installation of the software and/or services.
10.9 In the event there is no invoicing scheme included in the Agreement, Client will be charged for the making available of the software products and/or results of services which shall be paid at delivery of the goods as agreed. In case it is agreed that SDS does the installation of the software product the Client shall pay when the installation is finalised.

11. Termination
11.1 This Agreement shall stay in force until the agreed work has been finalised or when the term as specified in the Agreement has expired. In the event the Agreement is for an indefinite term, unless it is agreed otherwise, the Agreement may be terminated by SDS upon giving not less than 30 days notice in writing.
11.2 The Agreement may be terminated immediately by either party if the other party commits any material breach of any term of this Agreement and which (in the case of a breach capable of being remedied) has not been remedied within a reasonable time.
11.3 Part of the Agreement or the whole Agreement may be terminated immediately by either party in writing without judicial intervention under the following circumstances:
- If the other party has been given (temporary) suspension of payment (‘surseance van betaling’);
- In the event insolvency has been requested for the other party and this request has not been withdrawn within 7 days;
- The other party goes into liquidation except for the purposes of amalgamation or reconstruction in such a manner that the company resulting there from agrees to be bound by or assumes the obligations imposed on that other party under this Agreement.

12. Consequences of Termination
12.1 Any termination of these conditions under clause 11 will be without prejudice to any rights and remedies a Party is entitled to under this Agreement or at Law and will not affect any accrued rights and liabilities of either Party. On termination of the Agreement the Client shall immediately pay SDS any and all amounts (whether or not then due) owing under the Agreement for services delivered by SDS. In the event the Client is in default and SDS has reason to believe that the money due will not be paid, SDS is entitled to postpone her obligations and to request security for the payments due to her under the agreement.
12.2 Both Parties shall return the information carriers to one another with the confidential information and the reserve product copies provided by SDS. Further both parties shall delete copies of the confidential information on their own information carriers within 30 days of termination of the Agreement.

13. Limitation of liability of SDS Medical BV
13.1 The liability of SDS for failure in performance under the Agreement which is not intentional nor due to gross negligence, shall be limited to direct damages to a maximum amount of the in the Agreement agreed price (excl. VAT). In case the Agreement has a duration of more than one (1) year, the price is set as the total of the compensation for one (1) year.
13.2 Under no circumstance will the direct damages exceed E50,000 (Euro). Direct damages shall include only:
A) Reasonable expenses which the Client would have to incur to make the performance of SDS conform to the Agreement; this alternative damage shall not be compensated, however, if the Agreement if rescinded by or at the suit of the Client.
B) Reasonable expenses which the Client has incurred to keep the old system operational because SDS did not provide delivery on a firm delivery date which was binding for it, minus any savings resulting from the delay of delivery.
C) reasonable expenses incurred to determine the cause and scope of the damage, insofar as the determination relates to direct damage within the meaning of the Agreement.
D) Reasonable expenses incurred to prevent or mitigate damage, insofar the Client demonstrates that these expenses resulted in mitigation of direct damage within the meaning of these Terms and Conditions.
13.3 The total liability of SDS for death and injury or material damage shall not exceed Euro 500.000 per event. A number of events will be regarded as giving rise only to one (1) claim under this Agreement.
13.4 SDS shall not be liable for indirect or consequential damages, such as: loss of profits, loss of savings, loss because of company stagnation, loss because of claims of Clients of the Client such as patients and damage and loss because of loss of data.
13.5 For any claim for direct damages to exist, any legal action should be instituted by the Client within 18 months after the occurrence of the damage or within 18 months after the Client should reasonably be aware of the occurrence of the damage. The Client is not entitled to postpone or to settle any payment unless the liability of SDS to the Client is irrevocable determined.
13.6 Any other liability of SDS that her liability towards the Client or towards individual members of that group, as set out in this clause 13 is explicitly excluded. The Client will indemnify SDS from and against such claims.
13.7 SDS shall not exclude liability for damages caused by intent or wilful misconduct by SDS.
13.8 SDS shall not be liable to the Client for loss arising from or in connection with any representations, agreements, statement and undertakings made prior to the date of execution of this Agreement other than those representations, agreements, statements and undertakings confirmed by a duly authorised representative of SDS in writing or expressly incorporated or referred to in this Agreement.

14. Force Majeur
14.1 If and to the extent that either party is hindered or prevented by any circumstances not within its reasonable ability to control such party shall not be liable for failure to perform the obligations under the Agreement.
14.2 In the event the period of force majeure lasts longer than 60 days either party is entitled to terminate the Agreement, notwithstanding any amount standing to the credit of SDS for past services under this Agreement.

15. Warranties
15.1 Under this Agreement a ‘defect’ means that the software- products or –services do not comply with the functional specification as agreed in writing between the parties. However the Client should be able to prove the defect or reproduce the defect in the case of software products or results. Any ‘defect’ should be reported to SDS without delay.
15.2 SDS shall correct any ‘defects’ to the software products or –services at a location of her choice. SDS is entitled to make provisional repairs and or alternate programroutings or adding problemsolving restrictions in the software-product and /or results of services. After the expiry of the warranty period SDS is not adhered to correct any possible defects, unless there is a maintenance agreement

16. Security, Privacy and terms for safekeeping
16.1 SDS shall, as the data processor and the responsible person comply with the Data Protection Law (‘Wet Bescherming Persoonsgegevens’)
16.2 SDS shall take care that technical and organisational measurements are in place to protect personal data against loss or any kind of unlawful processing.
16.3 The Client guarantees that all legal requirements in respects of the processing of personal data under the Data Protection Law are complied with and that all the prescribed applications have been made and all the requested approvals for the processing of the personal data have been received. The Client shall at the request of SDS provide SDS without delay in writing with the applicable information.
16.4 SDS is not liable to the Client in respect of any action brought by third parties if she is wrongly accused of breaching the Data Protection Law.
16.5 SDS is not liable to the Client for any action brought by third parties such as Government organisations for breaching the law concerning the terms for safekeeping of data.

17. Amendments in the Agreement
17.1 Amendments to this Agreement shall only be made in writing by those persons authorised by either party/both parties.

18. Export
18.1 Client shall comply with the relevant export regulations in case she exports equipment, parts or software. Client shall indemnify SDS for all claims from thirds parties in relation to breaches attributable to Client of the relevant export regulations.

19. Applicable Law
19.1 This Agreement shall be exclusively governed by the laws of the Netherlands.
19.2 In the event of any dispute regarding (the execution of) this Agreement, the parties will try to reach an amicable solution. If this cannot be reached, the dispute shall be solely determined by the competent Court in the Netherlands.

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