General terms and conditions
GENERAL TERMS AND CONDITIONS
Date: January 1st, 2021
These terms and conditions apply to all quotations, agreements and services provided by Nimble Institute B.V., located at van Harenspad 48 (8442 CD) in Heerenveen and registered with the Chamber of Commerce under registration number 73378623 (hereafter: ‘Nimble Institute’). Deviation from these terms and conditions is possible only by means of written confirmation by Nimble Institute.
CHAPTER A. GENERAL
Article 1. Definitions
All capitalized terms used in the General Terms and Conditions, both in the singular and plural, are understood to have the meaning as described in this article.
1.1. Account: the online environment made available by Nimble Institute for the purpose of enabling the Client and/or End Users to access and use the Software.
1.2. Appendix: any appendix attached to the Agreement.
1.3. Agreement: the agreement concluded between the Client and Nimble Institute for the provision of the Services and/or Technologies, including these General Terms and Conditions including all appendices and all other written agreements between the Parties in relation to the provision of the Services.
1.4. Client: any legal person or natural person acting in the course of its profession or business that enters into, or has entered into, an Agreement with Nimble Institute.
1.5. Client Data: all data and materials provided by the Client and/or End Users to Nimble Institute or uploaded, processed or stored using the Software, as well as all data and materials Nimble Institute obtains access to in the performance of the Agreement.
1.6. Confidential Information: any information marked as confidential, or which should reasonably be regarded as confidential by the receiving Party. The contents of the Agreement should in any case be regarded to be of a confidential nature.
1.7. Effective Date: the date on which the Agreement takes effect, which is the last date of signature of the Agreement, or, if explicitly determined in the Agreement, the effective date in the Agreement.
1.8. Employee: any natural person who is or was employed or contracted by Nimble Institute during the term of the Agreement or 6 months before the Effective Date.
1.9. End User: any natural person that makes use of the Services.
1.10. General Terms and Conditions: these general terms and conditions.
1.11. Intellectual Property Rights: all intellectual property rights and related rights, including in any case but not limited to copyrights, database rights, rights do domain names, business names, tradename rights, trademark rights, know-how, trade secrets, patents, model rights and neighbouring rights.
1.12. Materials: all materials developed on behalf of, or provided to, the Client or third parties under the Agreement, such as Software, documentation, training materials, reports, concepts, images, texts and all other intellectual creations, as well as data carriers and media on which the materials are stored.
1.13. Office Hours: the time between 9:00 to 17:00 CE(S)T on Monday to Friday, excluding official Dutch holidays and days prior to which Nimble Institute has announced that it is closed.
1.14. Parties: Nimble Institute and the Client.
1.15. Services: the services provided to the Client under the Agreement, which may include, inter alia, the provision, maintenance or development of Software, consultancy services and trainings.
1.16. Software: any software developed by order of or provided to the Client under the Agreement, including software of third parties provided by Nimble Institute under the Agreement.
1.17. Sprint: a pre-determined amount of time wherein Nimble Institute will develop a part of the Software as decided or agreed upon at the start of the sprint.
1.18. Technologies: software, web applications, third party services (like licensed and unlicensed PAAS, SAAS, web services and so on) made available to the client as requested and defined in a Statement of Work.
Article 2. Applicability and interpretation
2.1. These General Terms and Conditions apply to all quotations, statements of work, work orders, Agreements and Services provided by Nimble Institute.
2.2. The applicability of any procurement terms or any other terms and conditions of the Client are expressly excluded. Any deviations from or additions to the Agreement will only be valid if agreed upon in writing by the Parties.
2.3. If any provision within the Agreement is void or voidable or is or becomes fully or partially invalid for any other reason, the remaining provisions of the Agreement will nevertheless remain in full force and effect. The Parties shall replace the invalid provision with a provision that is valid and whose legal consequences coincide as closely as possible with those of the invalid provision, having due regard to the contents and purport of the Agreement.
2.4. Regarding the applicable documents, the following priority shall apply:
(a) additional arrangements and agreements concluded in writing between the Parties;
(b) approved quotations, Statements of Works or work orders;
(c) the Agreement;
(d) if applicable, a data processing agreement concluded between the Parties;
(e) these General Terms and Conditions.
Article 3. Conclusion of the Agreement
3.1. A quotation can be requested through an online or offline channel, by or on behalf of the Client using a method authorized by Nimble Institute. If Nimble Institute determines that it is able to provide the requested Services and/or Technologies, Nimble Institute will provide the Client with a quotation specifying the scope, price and additional terms of the Service and/or Technologies. Unless indicated otherwise, quotations are valid for one (1) month.
3.2. The Agreement is deemed to have come into effect on the date and time when Nimble Institute has sent written confirmation to the Client that Nimble Institute has duly received the Client’s written acceptance of the quotation.
3.3. The applicability of article 227b paragraph 1 and article 227c of Book 6 of the Dutch Civil Code is excluded.
Article 4. Services and/or Technologies provision
4.1. Nimble Institute shall endeavour to provide the Services and/or Software with due care. The Services are provided on the basis of an obligation to use reasonable endeavours, unless otherwise agreed between the Parties. Any delivery dates, deadlines or other periods stated by Nimble Institute are indicative and are not to be considered as strict deadlines.
4.2. The Client will follow all reasonable instructions from Nimble Institute and will provide all reasonably needed assistance to make it possible for Nimble Institute to deliver the Services and/or Technologies.
4.3. Nimble Institute can, if expressly agreed upon in writing, maintain, amend or add properties or functionalities of the Services and/or Technologies that are customized uniquely for the Client.
4.4. The Client represents and warrants the accuracy and completeness of all information supplied by it or on its behalf to Nimble Institute.
4.5. For the provision of the Services and/or Technologies, Nimble Institute may work with and/or engage various third-party suppliers. If any third-party terms and conditions are applicable to (parts of) the Services and/or Technologies, Nimble Institute can on request provide the Client with these terms and conditions.
4.6. If the Client requests supplementary work or services falling outside the scope of the Agreement, i.e. requests contract extras, the Parties will consult on this and Nimble Institute can (but is not obligated to) prepare a quotation. Nimble Institute will not carry out the additional services until the Client has accepted the quotation. Nimble Institute has the right to refuse a request for supplementary work.
4.7. Nimble Institute will have the right to engage third parties in the performance of the Agreement. Costs related to the engagement of third parties shall be borne by Nimble Institute, unless the Parties explicitly agreed otherwise.
4.8. Nimble Institute will make every effort to ensure that all advice, information, data, and reports provided within the framework of the Agreement are complete and accurate, but does not give any guarantees in this respect and does not accept any liability for the Client's use of these.
4.9. Provided advice, information, data and reports are only intended for the Client's own use, unless agreed otherwise.
Article 5. Payment conditions
5.1. As compensation for the Services, the Client is obliged to pay the agreed upon price as stated in the Agreement. Any amounts due may be invoiced monthly in advance. The Client shall pay the invoiced amounts within 30 days after the invoice date without any set-off. Recurring costs will be invoiced on a monthly basis, unless explicitly stated otherwise in the Agreement.
5.2. The Client agrees to electronic invoicing. Complaints and disputes about an invoice shall not entitle the Client to suspend payment.
5.3. Based on the information and preferences shared by Client and the agreed upon rates, the Parties may determine a budget. If so, this will be included in the Agreement. This budget will be pre-paid by the Client. Only after Nimble Institute has received the payment, Nimble Institute will spend hours on the basis of its professional insight on activities. The aforementioned activities (amongst other activities) may consist of discussions and agreements with the Client, as well as the performance of (preliminary) research and/or development work. Spent hours will be deducted from Client’s budget. When no more hours or costs can be deducted from the budget, Nimble Institute will stop its activities and request an additional budget.
5.4. When an invoice is not paid within the aforementioned 30-day payment term, the Client will immediately be in default, without any prior warning or notice of default being required. When in default, in addition to the amounts and the interest due, the Client shall be obliged to reimburse all extrajudicial and judicial costs, including the costs of lawyers, legal advisors, bailiffs and collection agencies.
5.5. When Client is in default, Nimble Institute is entitled to limit or block access to the Software and/or to suspend its Services until all outstanding amounts have been paid in full. Nimble Institute is not liable for any damage resulting therefrom.
5.6. Any amounts due to Nimble Institute are payable immediately if Client applies for suspension of payments, the Client files for bankruptcy or is declared bankrupt, or the business of the Client is dissolved or terminated.
5.7. Once a year, Nimble Institute is entitled to change the agreed upon prices because of inflation, increase in costs or other market circumstances. Nimble Institute will inform the Client of a price increase at least 30 days in advance. In the event of a price increase of more than 5%, the Client is entitled to terminate the Agreement in writing on or before the date that the price increase takes effect, taking into account a notice period of 7 days.
5.8. If Nimble Institute has reasonable doubts that the Client will be able to comply with its (future) payment obligations towards Nimble Institute, Nimble Institute has the right to demand additional financial security from the Client. If the Client is not able to provide financial security to the satisfaction of Nimble Institute, then Nimble Institute is entitled to suspend and/or terminate the Agreement.
5.9. All amounts communicated by Nimble Institute are in euros and exclusive of VAT and other applicable taxes, unless explicitly indicated otherwise.
Article 6. Intellectual Property Rights
6.1. All Intellectual Property Rights regarding the Software and/or Materials developed or made available by Nimble Institute in connection with the Agreement are vested exclusively in Nimble Institute or its suppliers. Nothing in this Agreement is intended to transfer any Intellectual Property Rights.
6.2. Nimble Institute is entitled to include third party software and/or open-source software in the Software. Nimble Institute represents that to the best of its knowledge the Software adheres to any license requirements of such third-party software and/or open-source software. Unless otherwise agreed upon, Nimble Institute is not obliged to provide the Client with the source code of any Software.
6.3. Client hereby grants Nimble Institute a non-exclusive license to use Client’s Intellectual Property Rights to fulfil its obligations under the Agreement.
6.4. The Client will indemnify Nimble Institute against, and hold Nimble Institute harmless from, all claims from third parties for (alleged) infringement of any Intellectual Property Rights or other rights of third parties in use of materials provided by Client to Nimble Institute.
6.5. The Client solely acquires the non-exclusive and non-transferrable rights of use of the Services and/or Technologies arising under the Agreement or those assigned explicitly in writing. The Client will not reproduce of or publish the Software and/or Materials for any purpose and in any manner that would exceed the rights explicitly granted to the Client. It is not permitted to:
a. make copies or use the Software and/or Materials in any manner that falls outside the scope of the Agreement;
b. sublicense and distribute or otherwise make available the Software and/or Materials to third parties without prior written consent of Nimble Institute;
c. modify the Software and/or Materials in any way, or remove or modify any designations regarding the Intellectual Property Rights of Nimble Institute or its licensors; and
d. reverse engineer, decompile or otherwise attempt to derive the source code from the Software, except to the extent permitted by mandatory law.
6.6. Nimble Institute shall have the right to implement technical measures in order to protect the Software and Materials against unlawful or unauthorized use. If such measures are implemented by Nimble Institute, the Client is not allowed to circumvent or remove such measures.
Article 7. Confidentiality
7.1. Each Party shall protect Confidential Information provided by the other Party by a reasonable degree of care against unauthorized disclosure for the term of the Agreement and a period of three (3) years thereafter.
7.2. Confidential Information shall only be provided to employees of the Parties on a need-to-know basis. Confidential Information will not be disclosed to third parties without prior written consent of the disclosing Party.
7.3. Confidential Information may be disclosed in response to a valid court or other governmental order, provided that (if permitted by such order) the disclosing Party is notified as soon as possible after receipt of the order and given an opportunity to seek legal redress against such disclosure.
Information which would otherwise be Confidential Information shall not be deemed confidential if the receiving Party proves by written records that the information:
a. is lawfully obtained by the receiving Party from sources available to the general public such as newspapers, patent databases or informative websites;
b. is lawfully obtained by the receiving Party from a third party, provided that the third party does not breach any confidentiality obligation towards the disclosing Party;
c. was already in the possession of the receiving Party prior to the date on which it was issued by the disclosing Party; or
d. was developed by the receiving Party independently and without the use of any information of the disclosing Party.
Upon the first request of the disclosing Party as well as directly after termination of the Agreement, the receiving Party shall destroy or delete all Confidential Information in its possession and report that this has been carried out.
Article 8. Non-solicitation
8.1. During the term of the Agreement and one year thereafter, the Client and Affiliated Companies shall not make an offer to employ or hire Employees, or have Employees perform activities in any other way (for example on the basis of a contract to perform services), directly or indirectly, without prior written consent of Nimble Institute.
8.2. If the Client in any way fails to comply with the foregoing provision, the Client will forfeit an immediately due and payable penalty of twenty five thousand euro (€ 25.000,-) per violation and one thousand euro (€ 1.000,) for each day the violation persists, without any further act or formality being required.
8.3. The foregoing shall be without prejudice to any other rights of Nimble Institute, including the right to claim performance or compensation for the damage caused by the violation, insofar as such exceeds the penalty forfeited.
Article 9. Liability
9.1. The liability of Nimble Institute for damages incurred by the Client on any ground whatsoever is limited to a sum equal to the payments the Client is obliged to make under the Agreement over a period of three (3) months (excluding VAT) prior to the event where the damages occurred, regardless of the number of events. Under no circumstances will the total compensation to be paid by Nimble Institute exceed a sum of fifty thousand euro (€ 50.000,-) per year.
9.2. The liability of Nimble Institute for indirect loss and consequential loss, such as: loss of earnings, lost savings and damage due to business stagnation, loss or destruction of data, is explicitly excluded.
9.3. Any liability limitations shall not apply if and insofar the damage is the result of wilful misconduct or deliberate recklessness by the management of Nimble Institute.
9.4. For there to be any right to compensation, the Client must report damages to Nimble Institute in writing as soon as possible, at least within two weeks, after the damage occurred, to be able to claim any compensation.
9.5. Liability on the part of Nimble Institute for an attributable failure to comply with the Agreement only arises if the Client gives Nimble Institute proper notice of default in writing and without delay, while providing Nimble Institute a reasonable term to remedy the failure, and Nimble Institute remains in default as regards compliance with its obligations after that term as well.
9.6. Nimble Institute is not liable for any damage caused by faults in products or services of the Client. The Client shall indemnify and hold Nimble Institute harmless from and against all claims by third parties as a result of a fault in a product or services of the Client in which the Services, Software and/or Materials of Nimble Institute have been integrated, unless and in so far the Client is able to demonstrate that the damage was caused by the Services, Software and/or Materials of Nimble Institute.
9.7. Nimble is in no way responsible or liable for the security measures of Client. The Client remains responsible for its own security standards and practices at all times.
9.8. Nimble Institute explicitly disclaims all liability in the event any loss of confidentiality, integrity, or availability of the Client’s systems and/or data would occur as a result of a shortcoming in the Client’s security standards and practices, or any other factor outside of Nimble Institute’s reasonable control.
Article 10. Force majeure
10.1. Nimble Institute will be entitled to invoke force majeure if the performance of the Agreement is, in whole or in part, temporarily or indefinitely, prevented or impeded by circumstances beyond its reasonable control. In case of force majeure, Nimble Institute is not obliged to comply with its obligations towards the Client.
10.2. Nimble Institute shall in any case be entitled to invoke force majeure in the case of failures in the internet or telecommunications infrastructure, (distributed) denial of service or other network attacks, breach of contract by the suppliers or third parties on which Nimble Institute is depended for the performance of the Agreement, riots, insurrections, pandemics, domestic unrest, labour disputes, war, accidents, actions of government, fire, floods or import- and export restrictions.
10.3. In the event that a situation of force majeure continues for more than 3 months, both Parties shall be entitled to terminate the (part of the) Agreement affected by the force majeure. Neither of the Parties shall be responsible for any damages in the event of force majeure.
Article 11. Duration, amendments and termination
11.1. The term of the Agreement is included in the Agreement. If there is no term included, the Agreement will run for an indefinite period of time. The Agreement can only be terminated by providing written notice of termination to the other Party. Taking into account a notice period of 3 months.
11.2. The Agreement may only be amended with mutual consent of the Parties. Amendments to the Agreement shall be laid down in a written document signed by authorized representatives of both Parties which will be attached to the Agreement as soon as possible after signing.
11.3. The Parties will provide full cooperation to each other in amending and adapting the present Agreement it to any (new) applicable laws and regulations.
11.4. Unless otherwise provided for in the Agreement, the Agreement or any part thereof may not be terminated in the interim.
11.5. Nimble Institute preserves the right to suspend its Services or terminate the Agreement with immediate effect by providing a written notice to the Client in the event that the Client applies for suspension of payments, the Client files for bankruptcy or is declared bankrupt, or the business of the Client is dissolved or terminated.
11.6. If Nimble Institute suspends its Services, it retains its rights and entitlements under applicable law and the Agreement. If the Agreement is terminated, all claims of Nimble Institute become immediately due and payable.
11.7. The Client may not invoke Section 6:271 of the Dutch Civil Code.
Article 12. Changes to the Agreement
12.1. As an exception to the provisions of article 11 of these terms and conditions, Nimble Institute has the right to unilaterally amend or supplement these terms and conditions, also with regard to existing Agreements. Contractual changes with regard to Agreements already concluded apply with due observance of a notice period of 30 days after publication of the change via the Account, e-mail or Nimble Institute’s website.
12.2. If the intended change(s) has a significant negative impact on the position of the Client, the Client may terminate the Agreement, provided that notification of termination has been received by Nimble Institute at least one week before the date on which the change(s) takes effect.
12.3. Changes of minor importance, changes based on the law and changes to the benefit of the Client can be implemented at any time without the possibility for the Client to terminate the Agreement and prior notice of the change to the Client.
Article 13. Other provisions
13.1. The Agreement is governed by the laws of The Netherlands.
13.2. In case of a dispute between the Parties as a result of the Agreement, the Parties shall use reasonable endeavours to reach an amicable solution in consultation, or otherwise by means of mediation, before the Parties may submit the dispute to the court.
13.3. Any disputes that cannot be resolved amicably or by means of mediation shall be submitted to the competent Dutch court in the principal place of business of Nimble Institute.
13.4. Nimble Institute will be authorized to transfer its rights and obligations under the Agreement to a third party that acquires the business operations to which the Agreement is subject.
13.5. Logs and communication received or stored by Nimble Institute shall be deemed to be the authentic version, unless the Client is able to prove otherwise.
13.6. Nimble Institute is allowed to use Client’s name, logo, the general agreement description and a brief overview of the content of related statements of work as a reference, unless agreed otherwise in writing.
13.7. Written communication in the Agreement also includes communication by e-mail provided that the identity of the sender and the integrity of the content is sufficiently established.
13.8. The Parties will at all times inform each other immediately of any relevant changes in name, postal address, email address, telephone number and, if required for the performance of the Agreement, bank account details.
CHAPTER B. SOFTWARE
Article 14. Configuration and implementation
14.1. Only if this is explicitly agreed upon in the Agreement, Nimble Institute will be responsible for the implementation and/or configuration of the Software.
14.2. After completion, Nimble Institute will make available the Software for the Client. The Client shall evaluate within 5 days whether or not the implementation and/or configuration has been carried out correctly and either accept or reject the activities carried out by Nimble Institute. Rejection of the Software shall be sufficiently substantiated and notified via the (ticketing) system provided by Nimble Institute for this purpose. If the Client does not reject the implementation and/or configuration within the aforementioned period of 5 days, the implementation and/or configuration shall be deemed to have been accepted.
14.3. The Client is not entitled to use the Software prior to acceptance of the implementation and/or configuration of the Software, unless insofar this is necessary for evaluation purposes. If the Client makes use of the Software for operational purposes, the implementation and/or configuration shall be deemed to have been accepted.
14.4. If the implementation and/or configuration is wholly or partly rejected by the Client, Nimble Institute shall endeavour to repair any shortcomings as soon as possible, or explain why there is no ground for rejection. The Client shall subsequently re-evaluate the implementation and/or configuration in accordance with article 14.2.
14.5. If the Client rejects the implementation and/or configuration again, Nimble Institute may charge additional costs for any further revisions. Furthermore, both Parties are then entitled to terminate the (part of the) Agreement regarding the implementation and/or configuration of the Software. In case of such termination, the Client is only obliged to reimburse the costs made by Nimble Institute for the activities that have already been carried out. However, the Client shall not (or no longer) be entitled to use (or keep using) the Software after termination. In consultation with Nimble Institute, the Client will return or destroy the Software already received.
Article 15. Use of Software
15.1. The Client represents and warrants the Software will not be used in violation of applicable law, the Agreement or any third-party rights (such as Intellectual Property Rights). The Client shall indemnify and hold Nimble Institute harmless from and against all claims and damages related to the aforementioned representations and warranties.
15.2. It is not permitted to use the Software in a manner that causes nuisance or hindrance for third parties and/or other clients of Nimble Institute. This includes (among other things) use of personal scripts or programs for up- or downloading large amounts of data or excessively often accessing the Software.
15.3. If Nimble Institute observes or is notified by a third party of any (suspected) unlawful or unauthorized use of the Software, Nimble Institute shall have the right to take all reasonable measures to stop the (suspected) unlawful or unauthorized use. Nimble Institute is not liable for any damage resulting therefrom.
15.4. If, in the professional opinion of Nimble Institute, the continued functioning of the computer systems or network of Nimble Institute is actually or under threat of being damaged or jeopardized, Nimble Institute may take all steps it deems reasonably necessary to end or avert such damage or jeopardy.
15.5. The Client is fully responsible for the acts and omissions of End Users when using the Software. The Client indemnifies Nimble Institute against claims by its End Users in connection with any damage arising from non-compliance with the Agreement by End Users.
15.6. Unless the Agreement contains specific guarantees or the Parties have explicitly agreed otherwise, the Software will be made available on an “as-is” basis.
15.7. Nimble Institute does not warrant that the Software will operate uninterrupted and error free, that the Software will identify or filter out all known spam, viruses or other programming routines that might cause the Client damage, or that the Software will operate with all combinations of hardware and software selected and used by the Client.
Article 16. Accounts
16.1. To be able to access and use certain Software, an Account may be required. Accounts are for individual use only and may not be shared by multiple End Users.
16.2. Accounts are protected by means of a username and password and sometimes 2-factor authentication. The Client is responsible for keeping its own username and password secret and also for its End Users to keep their username and password secret. Nimble Institute may assume that actions undertaken from the Account of the Client and/or its End Users are authorized and supervised by the Client. The Client shall be fully liable for any actions undertaken from its Account.
16.3. If login credentials are accidentally disclosed or otherwise become known to a third party, the Client shall immediately inform Nimble Institute and take all measures to prevent misuse of the Account.
Article 17. Client Data
17.1. Any Client Data remains the property of the Client and/or End Users. Nimble Institute only obtains a non-exclusive and non-transferable right to use such Client Data insofar this is reasonably required for the performance of the Agreement.
17.2. After termination or expiration of the Agreement, Nimble Institute will have the right to remove or delete all Client Data, without being obliged to provide a copy of the Client Data. The Client is responsible for making back-ups and/or storing Client Data on another location before termination or expiration of the Agreement.
Article 18. Resource usage
18.1. Use of the Software may be subject to specific usage limitations (for example with regards to the maximum number of End Users, network capacity and/or storage space). If this is the case, the usage limitations will be specified in the Agreement.
18.2. If the Agreement does not contain specific usage limitations the use of network capacity and storage space shall be subject to a “fair use” regime. Fair use shall mean normal use of the that does not significantly exceed normal usage patterns. The Client will be considered to exceed normal usage patterns if the Client averagely uses more than twice the amount of network capacity or storage space used by other clients of Nimble Institute under comparable circumstances.
18.3. If the Client exceeds the applicable usage limitations, Nimble Institute is not liable if the Software becomes inaccessible or does not function properly. Furthermore, Nimble Institute will be entitled to charge the Client for its additional usage against the customary rates of Nimble Institute or to limit or block access to the relevant Services.
Article 19. Availability, support and Maintenance
19.1. For Software hosted by Nimble Institute, Nimble Institute shall endeavour to keep the Software available 24/7, excluding time reserved for maintenance, but Nimble Institute does not give any guarantees regarding the Service.
19.2. Unless the Agreement contains specific guarantees or explicitly agreed upon otherwise between the Parties, the Software will be made available on an “as-is” basis. Nimble Institute does not warrant that the Software will operate uninterrupted and error free.
19.3. Nimble Institute will offer the Client basic support through its helpdesk on a best effort basis. The Client may contact the Nimble Institute’s helpdesk if it has any questions regarding the Software. The helpdesk can be contacted by e-mail email@example.com and support will be provided during Office Hours, or as otherwise determined in an applicable SLA (if any). Nimble Institute will endeavour to answer the Client’s questions within a reasonable period, to the best of its ability. Nimble may charge reasonable costs for basic support through its helpdesk, support reports are available on request. Premium support including service level agreements is available upon request.
19.4. Nimble Institute cannot guarantee that errors will not occur or that they will be resolved. Nimble Institute will, however, endeavour to rectify any errors in the Software as quickly as possible. If any Software is delivered by a third-party supplier Nimble Institute will use best efforts to urge the supplier to resolve the errors as soon as possible, but Nimble Institute is never liable for this.
19.5. Nimble Institute will endeavour to provide regular updates to the Software. Nimble Institute may (temporarily) suspend the operation of the Software fully or partially and/or restrict the use of the Software if it considers this to be necessary, for instance for maintenance. If Nimble Institute considers this is necessary or planned maintenance is scheduled, it will notify the Client accordingly, in advance. If an emergency requires the Software to be suspended immediately or its use to be restricted, Nimble Institute will notify the Client of this as soon as is reasonably possible.
19.6. Nimble Institute may make changes in the (functionalities of the) Software. Any major changes or limitations will be notified timely in advance, if possible.
CHAPTER C. DEVELOPMENT
Article 20. Values, principles and methodology
20.1. Development of Software by Nimble Institute on behalf of the Client, will be performed in accordance with the so-called agile development method unless otherwise agreed upon. Essentially, Parties will jointly endeavor to realize Software intended by the Client in parts based on certain procedures and changing requirements. This is in contrast to programming based on a predetermined list of specifications.
20.2. Before Nimble Institute will perform development work on behalf of the Client, the Parties will agree in writing:
the hourly rate Nimble Institute is entitled to charge Client; and/or
the amount Nimble Institute is entitled to charge Client per Sprint.
20.3. If the Parties agree upon an hourly rate (as described in Section 20.2.a) the Parties will make an estimate of needed hours to complete the work per Sprint and it turns out that the amount of work that Nimble Institute has to will be considerably more, Nimble Institute has the right to delay the completion of the Sprint, add additional hours to the Sprint, and/or complete parts of the agreed upon work in the next scheduled Sprint.
20.4. In the event the circumstances as described in 20.3 apply and no additional sprint is agreed upon, then Nimble Institute has the right to increase the agreed amount by up to 50% and charge the Client accordingly.
20.5. Where reasonably possible, the Parties will adopt the principles of Continuous Delivery. This means that (when Parties have agreed that Nimble Institute will also provide updates and/or upgrades to the Software) Parties endeavor to build, integrate, test and/or deploy new versions of the Software in accordance with a pre-determined process or schedule. Within this process, Parties prefer more smaller incremental updates and upgrades of the Software over bigger and less frequent updates and upgrades. The goal of working in accordance with the Continuous Delivery method is reducing unavailability of the Software and the risk of incidents.
20.6. Parties agree to focus the development of Software on the simplest possible functional version of the intended Software, also called a "Minimum Viable Product" or "MVP". Parties endeavor to further develop the MVP with the wishes of the Client as a guideline. Parties acknowledge that the chance of delay or extra costs is increased if Parties do not focus on a MVP.
20.7. The Client shall enable Nimble Institute to develop software on the basis of the aforementioned MVP concept. Therefore, Nimble Institute may - at its own discretion - set priorities for the various wishes of the Client. Should it appear, during the development of an application, that certain wishes of the Client are too complicated for the MVP, Nimble Institute will inform the Client. In good consultation, it will be decided to delete or simplify certain wishes.
Article 21. Roles and responsibilities
21.1. The Client will appoint a product owner and will make sure Nimble Institute always has the latest contact information of the appointed product owner. The product owner is the first point of contact for Nimble Institute regarding the development work and the product owner makes sure that Nimble Institute has received the latest relevant information of the Client.
21.2. Nimble Institute will appoint a project lead and will compose a development team.
21.3. Nimble Institute endeavors that each member of the development team is a qualified professional who has the requisite skills, expertise and experience (i) to develop the Software and (ii) to work in accordance with the aforementioned agile development method. The Client is entitled to object to certain members of the development team. Such objection must be made in writing and must be supported by reasonable grounds for objection. Should the Client object, then the Parties shall in good faith discuss how to proceed. Furthermore, Nimble Institute shall endeavor to replace the concerning member of the development team when other developers with similar skills are available.
Article 22. Process
22.1. Meetings (i.e. for Sprint planning) will be planned in good consultation between the project lead and the product owner.
22.2. Sprints will be planned in good consultation between the project lead and the product owner. If Parties have already agreed upon certain specifics regarding Sprints, then Parties will lay down such specifics in writing.
22.3. The Client must provide Nimble Institute with all required information and materials in a timely manner.
22.4. Nimble Institute is entitled to delay, suspend, reduce, or shorten a Sprint when the Client has not provided Nimble Institute with the required information in a timely manner.
22.5. Sprint review meetings will be planned in good consultation between the project lead and the product owner.
22.6. The product owner will determine in good faith whether the work developed during a Sprint (hereinafter: ‘increment’) meets the agreed upon results after the increment has been tested by Nimble Institute.
Article 23. Governance
23.1. The contact persons determined in the Agreement endeavor to meet periodically to evaluate the development and cooperation between Nimble Institute and the Client.
23.2. If either Party, any development team member, the product owner or the project lead becomes aware of any impediment that may have a negative impact on the development team and/or its output, the relevant person will report this to the main contact of Client and Nimble Institute. Parties will discuss such report as soon as reasonably possible in order to agree on remedial actions if necessary.
23.3. Unless otherwise agreed upon, Parties will agree upon a governance board and will meet at management level twice a year to discuss the cooperation between the Parties and the Agreement.
Article 24. Additional costs
24.1. Sprints and other work by Nimble Institute is carried out during Office Hours. If Nimble Institute performs Sprints or other work outside of Office Hours on the instructions of the Client, then Nimble Institute is entitled to charge such overtime as follows:
if Nimble Institute works overtime on a weekday (Mon – Fri) or on Saturday, the Client is obliged to pay Nimble Institute 150% of the agreed upon hourly rate for the overtime hours;
if Nimble Institute works overtime on a Sunday, Dutch national holiday or a day that Nimble Institute has indicated to be closed, then the Client is obliged to pay Nimble Institute 200% of the agreed upon hourly rate for the overtime hours.
24.2. If Nimble Institute, on request of the Client, agrees to perform work on a location outside of its main offices, then Client is obliged to reimburse Nimble Institute for all related additional costs. These costs may include: travel expenses, (travel) insurance costs, costs of accommodation and costs for food and drinks.
Article 25. Acceptance
25.1. After a Sprint, Nimble Institute will decide if the increment or part thereof is suitable for testing, acceptance and/or use. If so, Nimble Institute will make the increment (or part thereof) available to the Client. Where relevant and available, Nimble Institute will provide the Client with related documentation, such as version information or release notes.
25.2. Client may perform an acceptance test against the agreed upon definition of done recorded in writing, unless other acceptance criteria have been agreed upon. On request, Nimble Institute shall reasonably assist the Client in performing an acceptance test. Parties will agree beforehand what costs may be charged by Nimble Institute for such assistance.
25.3. The acceptance test must be performed within 5 business days after Nimble Institute has notified the Client that the increment is made available to Client. Any and all feedback or error reports in relation to the increment must be received by Nimble Institute in a detailed written notice on the sixth (6th) business day after Nimble Institute has notified the Client that the increment is made available. In the event that Nimble Institute does not receive any detailed written feedback or error reports on the sixth (6th) business day, then the increment will be deemed accepted by Client. After acceptance by the Client, Nimble Institute is no longer responsible or liable for any errors or bugs, unless Parties have agreed otherwise.
25.4. Should the Client provide Nimble Institute with detailed written feedback or error reports, then Nimble Institute will endeavor to remedy the situation within a reasonable time by performing modifications to the increment in accordance with the agreed upon definition of done or other acceptance criteria. On first request of Nimble Institute, the Parties will discuss Client’s written feedback or error reports in good faith as soon as reasonably possible. If in the opinion of Nimble Institute, (a part of) the feedback or error report of the Client is not justified or relevant, Nimble Institute may reasonably reject the feedback or error reported, or, if the feedback consists of a new request, include this request in a new sprint.
25.5. When, in the opinion of Nimble Institute, the modified increment is in accordance with the acceptance criteria, then Nimble Institute will make the modified increment available to the Client. The process in paragraph 25.2. and 25.3. will then be repeated.