General Terms and Conditions

1 - Definitions

1.1 Customer: The Counter Party that enters into an Agreement with the private limited liability company CyberTwice B.V., with its registered office at Flemingstraat 50, 1704 SL, Heerhugowaard, The Netherlands, herein referred to as CyberTwice, or which is negotiating in such a matter, as well as the Counter Party which requests an offer from CyberTwice or which has an offer sent by CyberTwice.

1.2 Agreement: The binding Agreement between CyberTwice and the Customer, in whichever form, together with the amendment(s) and addition(s) to it and every (further) order which is placed on the grounds of this Agreement.

2 - Applicability

2.1 These General Terms and Conditions apply to all Offers by CyberTwice, as also to all Agreements to be entered into by CyberTwice and its activities including the supply of software and services, with the exclusion of the General Terms and Conditions of the Customer.

2.2 Formation of an Agreement, as defined in Article 4 of these General Terms and Conditions, implies that these General Terms and Conditions have been accepted by the Customer.

2.3 Derogations from these General Terms and Conditions must have been expressly agreed upon in writing. Derogations will then apply only to the offers concerned and Agreements to which they apply.

2.4 The rescission and/or nullity of any stipulation of these General Terms and Conditions do not affect the other stipulations. The conflicting, legally invalid, stipulation will be considered to have been replaced by a stipulation in which the intentions and purpose of the original stipulation are done justice.

3 - Offers and Tenders

3.1 All offers made by CyberTwice are subject to contract and non-binding unless expressly stated otherwise in writing or where a fixed acceptance period is specified. In cases where an offer is accepted by the Customer, CyberTwice reserves the right to withdraw such offer within five (5) business days of receipt of acceptance. Notwithstanding the foregoing, a binding agreement is deemed to be in place upon issuance of an Order Confirmation by CyberTwice, following receipt of the Customer's Purchase Order, which shall typically occur within forty-eight (48) hours.

3.2 Offers and Tenders made orally cannot be binding, unless they later have been confirmed in writing by CyberTwice , albeit by means of an invoice.

Article 4: Agreements

4.1 An Agreement will solely come about by written confirmation and Order Confirmation by CyberTwice or if CyberTwice has explicitly begun to perform in accordance with the Agreement.

4.2 Should a number of persons or legal entities form the Customer, they will all be jointly and severally liable for the fulfilling of the Agreement. Should the Agreement have been entered into by a third party on behalf of the Customer, said third party will warrant the Customer having accepted these General Terms and Conditions, failing which the third party is bound to these General Terms and Conditions as if it were the Customer itself.

4.3 CyberTwice is entitled to engage third parties in the execution of the Agreement.
Except with express permission in writing from CyberTwice, the Customer is forbidden to assign rights or duties under the Agreement to third parties.

4.4 The Customer is responsible for ensuring the accuracy, completeness, and relevance of all information provided to CyberTwice in connection with the Agreement. This includes, but is not limited to, technical specifications, system requirements, and functional or business-related assumptions. If any such information is found to be incorrect, incomplete, or misleading, this may result in delays, limitations, or the inability of CyberTwice to perform the Services as agreed.

In such cases, CyberTwice reserves the right to suspend or terminate the Agreement, in whole or in part, without any obligation to refund amounts already paid. CyberTwice will inform the Customer of such issues and, where feasible, propose to continue the execution of the Agreement under revised conditions, which may include a modified pricing model. Any additional costs incurred as a result of correcting the inaccurate or incomplete information shall be borne by the Customer.

This provision does not limit CyberTwice’s right to seek compensation for damages resulting from its reliance on inaccurate or misleading Customer information.

Article 5: Contents, Amendment and Annulment of the Agreement

5.1 The Customer bears the risk of misunderstandings as to the contents and execution of the Agreement if these arise from CyberTwice not receiving, not receiving in a timely or in an incomplete fashion of specifications or other communications made orally or by a person appointed thereto by the Customer or if they have been covered by any technical means such as telephone, telefax and suchlike means of transmission.

5.2 The Customer cannot derive any rights from advice and information it obtained from CyberTwice if it bears no direct relation to the Agreement.

5.3 Any amendments, additions, or other modifications to the Agreement proposed by the Customer shall only take effect if explicitly accepted in writing by CyberTwice. CyberTwice reserves the right to reject any such proposal at its sole discretion. If CyberTwice accepts a proposed amendment, it may attach conditions to this acceptance, including but not limited to the payment of additional fees and the adjustment of delivery timelines or service levels.

In the event that an accepted amendment leads to increased costs, delays, or third-party liabilities, the Customer shall remain fully responsible for these consequences unless otherwise agreed in writing.

5.6 If, during the term of the Agreement, CyberTwice deems it necessary—due to technical, legal, commercial, or operational considerations—to modify or supplement the Services in order to ensure proper performance, it shall notify the Customer in writing in advance. Such modifications may include, but are not limited to, adjustments arising from regulatory changes, product improvements, or innovations.

Unless otherwise agreed, CyberTwice shall provide the Customer with a reasonable notice period before such changes take effect. During this period, the Customer may raise objections or propose mitigating arrangements. CyberTwice will make reasonable efforts to consider such input, but retains the right to implement the change if deemed essential.

CyberTwice shall not be liable for any damages resulting from such changes, provided that they have been properly communicated and do not materially deviate from the agreed core functionality of the Services. If a change has a significant adverse impact on the Customer’s use of the Services, the Customer may request to terminate the Agreement without penalty, effective from the date the change takes effect.

Article 6: Prices and Price Changes

6.1 All prices stated by CyberTwice exclusive of Value Added Tax, local sales taxes and import duties, and other governmental levies and increases, unless expressly stated otherwise in writing

6.2 The price CyberTwice has stated for the performances to be executed by it, is exclusively valid for the performances in accordance with the specifications agreed upon.

6.4 CyberTwice is furthermore entitled to raise the prices and tariffs agreed upon, amongst others in case of interim price increases and/or surcharges on prices of software and services, costs of materials, semi-finished software solutions or services necessary for the execution of the Agreement, wages or social contributions, decrease in value of the currencies agreed upon and all other government measures having the effect of increasing prices as a result of which the cost price increases. Should this occasion arise, the Customer will be informed 90 days in advance. New pricing becomes effective upon the first subscription period renewal following 90 days after announcement of a price increase.

Article 7: Payment

7.1 Amounts owed in the framework of the Agreement will be charged by means of an invoice. Payment must occur in Euros within the term of payment named in the Agreement, being the strict deadline. If no term of payment was included in the Agreement, payment is to take place within 30 days after the invoice date, being the strict deadline. The payment method is: Electronic funds transfer (EFT) / Wire Transfer.

7.2 The Customer may suspend payment only for that part of an invoice that is subject to a bona fide dispute, which must be notified to CyberTwice in writing with supporting evidence within 10 days of invoice receipt.

7.3 At CyberTwice first request, the Customer is obliged to provide security for the amounts to be paid to CyberTwice under the Agreement. The security provided will have to be such that the claim and all interest and costs possibly accruing to it will be properly covered and that CyberTwice will be able to recover from it without difficulty. Security which may have become insufficient at a later stage will have to be supplemented to a sufficient security at CyberTwice first request. Furthermore, at CyberTwice first request, the Customer is held to pay an advance for the payment of the amounts payable to CyberTwice under the Agreement, especially for costs of purchase, development, production and data transfer connections to the execution of the Agreement (this in the widest sense of the word). In case of non-observance the Customer will be in default without CyberTwicehaving to send a notice of default in writing. CyberTwice will then, without prejudice to its rights under the law, be authorized, amongst others to postpone the execution of the Agreement until the Customer has remedied this omission.

7.4 Independently of the way they are named, payments will first be considered to meet the interest and costs incurred, and then to meet the oldest, unpaid invoice.

7.5 In case the strict deadline for payment is exceeded, the Customer will be in default by operation of law and will then owe a contractual interest rate of 1,5 % per month (cumulative) over the amount owed, each month started counting as a month, without prejudice to the other rights CyberTwice may exercise towards the Customer for non-payment or late payment.

7.6 When a matter of default occurs, as described in paragraph 6 of this Article, CyberTwice is entitled and authorized to immediately postpone and suspend the execution of the Agreement, until the Customer has fully met his outstanding financial obligations.

If CyberTwice is obliged to engage third parties to collect its claim, all further costs entailed will fall to the Customer, both judicial and extra-judicial, the latter being fixed at 15% of the amount to be claimed with a minimum of € 500 (five hundred euros), this besides its further claims to compensation for damages.

Article 8: Provisioning Times

8.1 All delivery and provisioning times provided by CyberTwice shall be considered indicative unless expressly designated as binding in the Agreement.

8.2 Provisioning timelines commence only after all commercial and technical terms have been agreed upon, all required information and access credentials have been provided by the Customer, initial payments (if applicable) have been received, and all other preconditions for execution have been fulfilled.

8.3 If a binding provisioning date has been explicitly agreed upon in writing and CyberTwice fails to meet this deadline without a justified reason, CyberTwice shall be given a reasonable period to remedy the delay following written notice from the Customer. Only if CyberTwice fails to cure the delay within that period shall it be considered in default.

8.4 In the event of a delay exceeding 14 calendar days without justified cause, the Customer may request a remedy in the form of service credits or other reasonable compensation, as specified in the Agreement or a separate Service Level Agreement (SLA), if applicable.

Article 9: Execution of the Agreement

9.1 CyberTwice is not held to deliver software and services in installments, however, CyberTwice does have the right to execute the Agreement in installments. In case of provisioning in installments, each provisioning is to be considered to be a separate transaction.

9.2 In the execution of the Agreement, the Customer is furthermore held by CyberTwice to do everything that is reasonably necessary or desirable to enable a timely provisioning by CyberTwice.

9.3 If the Customer fails to fulfill its obligations under the Agreement, CyberTwice shall be entitled to suspend its performance of the Agreement or, after having given written notice of default and granting a reasonable period to cure the breach, to terminate the Agreement in whole or in part. If the Customer remains in breach after the expiry of the cure period, CyberTwice may dissolve or annul the Agreement with immediate effect.

In cases where performance by the Customer is permanently impossible, or if the breach is of such a serious nature that immediate termination is justified, CyberTwice may proceed without prior notice.

CyberTwice shall not be liable for any damages resulting from such suspension or termination. The Customer shall, however, be liable for all resulting damages and losses suffered by CyberTwice, including those arising from claims by third parties, and shall indemnify CyberTwice accordingly.

Article 10: Transport, Storage and Risk

10.1 Unless expressly stated otherwise in writing, provisioning of the software and services to be provided by CyberTwice will occur according the last issued service-level agreement (SLA) based on Ex Works, at which moment the risk passes to the Customer.

10.2 CyberTwice will not be charged with storing the software and services to be provided, unless it has expressly been agreed upon otherwise in writing. If for any reason whatever cloud storage or hosting takes place, for instance if the Customer does not or cannot take provisioning of the software and services to be provided by CyberTwice, this will at all times take place at the risk and expense of the Customer. CyberTwice will then always be entitled to avail themselves of their powers as set out in section 6:90 of the Dutch Civil Code.

Article 11: Access Rights and Licensing and Right of Pledge

11.1 In the event of a material breach of the Agreement by the Customer, including but not limited to non-payment or unauthorized use of the Services, CyberTwice shall be entitled to deactivate or revoke access to the software and services provided, either in whole or in part, without prior judicial intervention.

If the Customer fails to comply with a written request to cease such use or return any associated materials within a reasonable period, CyberTwice may impose a penalty of €1,000 per day, up to a maximum of €10,000, until the Customer complies. The imposition of this penalty does not affect CyberTwice’s right to seek full compensation for any actual damages suffered.

This article shall not be interpreted as granting CyberTwice the right to physically enter the Customer’s premises.

11.2 The software and services provided by CyberTwice may solely be processed or resold to a third party by the Customer in the framework of normal business operations.

11.3 The Customer is not permitted to exercise any rights on software and services, such as pledging or encumbering with any rights, on which Access Rights and Licensing rests pursuant to this Article. The Customer is furthermore obliged to inform CyberTwice immediately if third parties wish to exercise rights on software and services on which Access Rights and Licensing rests pursuant to this Article.

11.4 If the software or services provided by CyberTwice are technically integrated or embedded by the Customer into its own software in such a way that CyberTwice’s licensing or access rights can no longer be separately exercised, and the Customer is in material breach of its obligations under the Agreement, CyberTwice may request the Customer to either (i) remove such integration, or (ii) grant CyberTwice a security interest or pledge in the newly developed software to secure any outstanding claims.

If the Customer fails to respond within a reasonable time, a contractual penalty of €500 per day may apply, up to a maximum of €10,000. This provision does not affect CyberTwice’s right to pursue full damages in accordance with applicable law.

This clause shall only apply in situations where CyberTwice’s software is inseparably merged and the Customer fails to meet its payment or contractual obligations despite prior written notice.

Article 12: Complaints

12.1 CyberTwice will exert itself to do everything that is reasonable necessary to ensure that the performance to be provided by it, including in particular the provisioning of software and services, meet the requirements which can reasonably be set.

12.2 Immediately after execution of the Agreement, the Customer is obliged to inspect the performance and software and services provided by CyberTwice thoroughly for faults and defects, and to inform CyberTwice, either in writing or by e-mail, forthwith, but within 5 days at the very latest, if these are present.

12.3 Should the Customer not have indicated the faults and defects, which could have been noted, or could have been noted upon thorough inspection, to CyberTwice within 5 days after the time of execution and provisioning, the Customer will be considered to agree with the state in which the aforementioned performance was provided and the right of complaint will lapse.

12.4 In case of faults and defects, ascertained by the Customer it is held to enter these on the bill of carriage and furthermore specify the faults and defects it has ascertained accurately, while presenting relevant proof, including, in any case the presentation of sound photographic evidence.

12.5 CyberTwice must immediately be given the opportunity to check the faults and defects the Customer has ascertained. Should, in the opinion of CyberTwice, the faults and defects ascertained by the Customer be correct, CyberTwice will have the choice of either awarding reasonable damages, with due observance of the stipulations of Article 13, or, in consultation with the Customer, seeing to an adequate solution such as rectifying the faults and defects. In this case, the Customer will never be able to claim any reliance or additional damages.

12.6 The performance provided by CyberTwice will in any case be judged as sound if the Customer has started using the provided good or a part of, has started working with or using it, has provided it to third parties, or has had third parties use it, has had it worked with or used or provided by or to third parties, unless the Customer complied with what has been set out in this Article.

12.7 Should, according to criteria of reasonableness and fairness, the term of 2 days, meant in the second and third Paragraph of this Article, be considered as unacceptably short, even for a careful and alert Customer, this term will be extended, at the latest, to the first moment at which either the investigation or informing CyberTwice will be in reason possible for the Customer.

12.8 The Customer is not entitled to terminate the Agreement or to fail to meet with his obligations completely or partially, or to stay or postpone them if CyberTwice is in default or remiss in the correct performance of its obligations under the Agreement, unless it is a matter of gross negligence or serious fault.

Article 13: Liability and Damages

13.1 CyberTwice does not accept any liability whatever, for damages suffered by the Customer, unless they are the result of an attributable failure or a wrongful act of CyberTwice. In this case, CyberTwice is only liable insofar this liability is covered by CyberTwice insurance and up to the amount of the payment by the insurer.

13.2 If CyberTwice insurer does not cover the damages, CyberTwice liability is limited to 12 months of paid service fees. This does not apply to damages resulting from gross negligence, willful misconduct, or breach of confidentiality obligations.

13.3 Furthermore, CyberTwice is not liable in case of force majeure, as described in Article 14 of these General Terms and Conditions.

13.4 The restrictions stipulated in this Article do not apply if the damage is the result of intent or gross negligence by CyberTwice.

13.5 The Customer indemnifies CyberTwice for all liability towards third parties because of product liability as a consequence of a defect in a product provided to a third party by the Customer and which in part consisted of software solutions and/or materials provided by CyberTwice.

Article 14: Force majeure

14.1 Force majeure refers to any circumstance beyond CyberTwice’s reasonable control - whether or not foreseeable at the time the Agreement was entered into - that makes it permanently or temporarily impossible or commercially unreasonable for CyberTwice to fulfill its obligations under the Agreement. In such cases, CyberTwice shall be released from the affected obligations for the duration of the force majeure event, without liability for damages.

14.2 Force majeure expressly excludes minor or foreseeable technical disruptions, such as temporary internet outages or scheduled maintenance. If the unavailability of the Services due to force majeure exceeds forty-eight (48) consecutive hours, the Customer will be entitled to request service credits in accordance with the applicable SLA.

14.3 In the event that a force majeure situation continues for more than thirty (30) calendar days, each party shall have the right to terminate the Agreement in writing, without judicial intervention and without liability for damages. Any outstanding obligations that are not affected by the force majeure shall remain enforceable.

Article 15: Rescission and Termination

15.1 Should the Customer be remiss in meeting his obligations pursuant to the Agreement, or should circumstances as set out in Paragraph 2 of this Article take place, CyberTwice has the right to terminate the Agreement immediately prematurely, without further Notice of Default being required. In this case the Customer will not be entitled to any compensation whatsoever, and the Customer will be obliged to pay CyberTwice all damages, interest and costs resulting from the premature rescission or termination.

15.2 Amongst others, CyberTwice is entitled to premature rescission of the Agreement if the Customer fails to pay in a timely fashion or to meet obligations under the Agreement (including these General Terms and Conditions), or if one of the following circumstances occurs or threatens to occur:

a pre-judgement attachment or execution is levied on one or more of the Customer's assets;

a petition for account termination due to insolvency is filed for the Customer;

the Customer is declared bankrupt;

the Customer is granted a moratorium on payments, whether temporary or not, or such a moratorium is applied for by the Customer;

the Customer dies or is placed under guardianship;

the Customer's business is discontinued and/or dissolved and/or wound up and/or transferred to a third party;

CyberTwice is declared bankrupt;

the Customer performs or omits acts, whereby the good reputation of CyberTwice or of third parties, amongst which other customers is brought into serious disrepute.

the Customer no longer complies with rules or regulations laid down by, or pursuant to the law;

the Customer reports arrears in payment.

15.3 Should CyberTwice already have provided a performance for the execution of the Agreement at the moment of dissolving, this performance and the related payment obligation will not be revoked.

Article 16: Intellectual Property Rights

16.1 Where software is customized specifically for the Customer, the Customer will receive a non-exclusive, non-transferable right to use the custom components within its organization, unless otherwise agreed in writing.

16.2 The Customer will not alter, remove or change the intellectual property rights, numbers or other identification symbols that are used on or in connection with CyberTwice software solutions. Unless agreed otherwise in writing the Customer is not allowed to use the intellectual property rights of CyberTwice. In any case, the Customer will not use the intellectual property rights of CyberTwice in a way that could in any way be damaging to their distinctiveness, reputation, validity or the goodwill of CyberTwice, or to the company or trade name of CyberTwice (in particular relating to the trademark or trade name CyberTwice). The Customer will never use or register any brand/trademark or trade name that resembles any brand/trademark or trade name of CyberTwice which could cause confusion (including indirect confusion) or mislead (in particular relating to the brand or trade name CyberTwice).

16.3 The Customer will immediately notify CyberTwice in writing of all infringements or possible infringements of the intellectual property rights of CyberTwice that come to its attention. Whether or not legal steps will be taken with regard to such infringements is at CyberTwice discretion.

16.4 In case of breach of this Article, the Customer will forfeit (for each breach) an immediately payable fine of € 10,000 (in words: ten thousand euros), together with an immediately payable fine of € 1,000 (in words: one thousand euros), for every day or part of a day that it continues to be in breach, without prejudice to his obligation to pay CyberTwice complete compensation in this matter, should it amount to more than the amounts of the fines given.

Article 17: Promotional materials

17.1 Promotional materials which have been given by CyberTwice to the Customer, including – but not limited to – displays, stands, brochures, samples, demonstration models, temporary software licenses etc., can only be used in relation to the (re)sales and promotion of CyberTwice software solutions. Said promotional materials are property of CyberTwice. In the event that the Customer does not purchase CyberTwice software solutions and will turn to a competing trademark/brand or competing (re)seller, CyberTwice is entitled to claim said promotional materials from the Customer. The Customer will thus be obliged to return all said promotional materials to CyberTwice. Additionally, CyberTwice is entitled to claim said promotional materials in the event that the Customer is declared bankrupt or granted a suspension of payment, whether or not provisional, or when the Customer has otherwise wholly or partly lost the right or power to dispose of its assets, all irrespective of whether the situation is irrevocable, or if the Act on Debt Consolidation for Natural Persons (de Wet schuldsanering natuurlijke personen) is declared applicable to the Customer. In all the aforementioned cases, the Customer  is obliged to return all said promotional materials to CyberTwice.

Article 18: Confidentiality

18.1 The Customer undertakes to do everything to prevent confidential information from and about CyberTwice being brought to the attention of or provided into the hands of third parties. All this does not apply if there is a legal obligation of disclosure and/or if the Customer shows that certain information is already in the public domain, by means other than by a breach of this confidentiality.

18.2 The Customer will see to it that an obligation of confidentiality, equal to that set out in paragraph 1, will be imposed on his employees or third parties brought in by him who have access to the information meant in paragraph 1.

18.3 In case of breach of this Article, the Customer will forfeit (for each breach) an immediately payable fine of € 10,000 (in words: ten thousand euros), together with an immediately payable fine of € 1,000 (in words: one thousand euros), for every day or part of a day that it continues to be in breach, without prejudice to his obligation to pay CyberTwice complete compensation in this matter, should it amount to more than the amounts of the fines given.

Article 19: Applicable Law and Competent Court

19.1 Agreement and further Agreements deriving from them, to which these General Terms and Conditions apply, are solely governed by Dutch Law.

19.2 All disputes, arising from the Agreements, to which these General Terms and Conditions apply, or from other Agreements deriving from them, including their execution, shall be settled exclusively by the component court of Noord-Holland, location Alkmaar (the Netherlands). The Dutch court Noord-Holland, location Alkmaar shall therefore have jurisdiction in all possible conflicts.

Article 20: Amendment and Explanation of the General Terms and Conditions

20.1 CyberTwice reserves the right to amend or supplement these General Terms and Conditions. Any such amendments shall apply to existing Agreements unless the Customer notifies CyberTwice in writing, within the applicable notice period, that it does not agree to the changes. In such a case, the Customer may terminate the Agreement as of the effective date of the amendments.

20.2 Amendments shall take effect no earlier than twenty-one (21) calendar days after notification to the Customer, unless a longer period is announced. If the amendment involves a material change that significantly affects the Customer's rights or obligations, CyberTwice shall explicitly indicate this in the notification.

20.3 Continued use of the Services after the effective date of the amended terms will constitute acceptance of the changes.