In addition to the definitions used in our General Terms and Conditions, which apply to all our products and services, this SLA uses the following definitions:
- Actual Availability: the actual level of availability of the Services.
- Services: the Services to be provided by Horeko B.V. to the Client.
- Fault: the failure to substantially meet the functional specifications expressly agreed in writing between the Parties. A Fault only exists if the Client can prove it and the Fault can be reproduced by Horeko B.V.
- User: anyone who uses the Software of Horeko B.V.
- Required Availability: the level of availability of the Services as intended by Horeko B.V.
- Repair Time: the period of time between (i), the time at which Horeko B.V. has discovered a Fault or the Client has made a report of a Fault and Horeko B.V. has confirmed this, and (ii), the time at which the Fault has been resolved, (the Fault in) the Services has been repaired, or a Workaround has been created, as determined by Horeko B.V.
- Horeko B.V.: Horeko B.V., established at Spaceshuttle 60 in Amersfoort, the Netherlands, with Chamber of Commerce number 55430171, also the user of this SLA.
- Licence: the licence agreement to perform the Services between the parties from which this SLA arises.
- Maintenance: the carrying out of repairs, taking precautions and regularly monitoring the Services, including planned Maintenance.
- Support: providing oral (by telephone) and written advice and/or other Support activities with regard to the use and operation of the Services.
- Client: a legal person, acting in the course of a profession or business, which enters into the Agreement for the performance of Services with Horeko B.V.
- Response Time: the period of time between (i), the time at which the Client made a report of a Fault, and (ii), the time at which Horeko B.V. sent a response to the Client upon receipt of the report, as determined by Horeko B.V.
- SLA: Service Level Agreement, this agreement.
- Software: the Software developed by Horeko B.V., which is used by the User.
- Business Day: from 8:30 a.m. to 5:30 p.m. on Mondays to Fridays, with the exception of recognised public holidays in the Netherlands.
- Changes: a structural Change in the Services that is requested by the Client and recorded by Horeko B.V.
- Workaround: an action that can circumvent a Fault, either temporarily or permanently.
ARTICLE 1. CONTACT DETAILS HOREKO B.V.
In the context of this SLA, the following contact details of Horeko B.V. are important:
- E-mail: [email protected]
- Telephone NL: +31 (88) 7119711
- Telephone BE: +32 (0)3 303 72 60
ARTICLE 2. NATURE OF THE AGREEMENT
- This document constitutes the SLA for the Services provided by Horeko B.V. The objective of this SLA is to record the level of the provision of Services. This is achieved by defining key characteristics, setting performance benchmarks and determining the consequences of failing to achieve these benchmarks.
- The General Terms and Conditions of Horeko B.V. and the Processing Agreement between the parties apply to this SLA. In the event of a conflict between provisions, the ranking order mentioned in the General Terms and Conditions shall apply.
ARTICLE 3. TERM AND NOTICE OF TERMINATION
The SLA commences at the time of the first delivery of the Services and is entered into for the same period of time as the Licence under which the Services are provided. The SLA shall terminate automatically on the end date of the Agreement. Notice of termination of the Agreement shall also apply as a notice of termination of this SLA.
ARTICLE 4. SERVICES
- This SLA only provides for the following standard support activities of Horeko B.V.:
- the repair of Faults;
- the performance of (periodic) Maintenance;
- the implementation of Changes;
- the monitoring of the Required Availability; and
- the provision of Support.
- In addition to these standard Support activities, Horeko B.V. may perform other activities on behalf of the Client. These activities may be charged separately. Horeko B.V. will always provide the Client with a statement of costs in advance.
ARTICLE 5. PRIORITY LEVELS AND HANDLING OF FAULTS
- Faults are reported by the Client to Horeko B.V. using the contact details mentioned in Article 1. Proper handling cannot be guaranteed if Faults are reported to Horeko B.V. in any other way, such as via other telephone numbers or e-mail addresses.
- Both the Client and employees who are demonstrably employed by the Client may contact Horeko B.V.
- When reporting a Fault, the following information must be passed on to Horeko B.V.:
- name of the organisation of the Client;
- name of the contact person for this Fault at the Client;
- current contact details ((mobile) telephone number, e-mail address) of that contact person;
- description of the Fault, which is as accurate as possible;
- description of the steps already taken by the Client; and
- impact of the Fault that is specific to the circumstances of the Client.
- The Faults, provided they are suitable for further handling by Horeko B.V., are classified into the following priority levels:
Level Description Explanation 1 High The Services are not available at all. 2 Average Partially interrupted / reduced availability of the Services. 3 Low Problems that have limited consequences for the Client. The Services are available but not fully functional.
- The priority level shall be reasonably determined by the supporting employee of Horeko B.V. who will handle the Fault reported by the Client.
- Outside of Business Days, contact can be made via the contact details mentioned in paragraph 1 if, in the opinion of the Client, there is a Fault as described under priority level 1 or priority level 2. If, in the opinion of Horeko B.V., this does not appear to be the case and Horeko B.V. considers that the emergency number is being misused, Horeko B.V. is entitled to charge for the hours worked.
- The following diagram sets out the best-efforts obligation of Horeko B.V. when dealing with Faults, per priority level:
- Contrary to this diagram, Horeko B.V. is entitled to defer the resolution of Faults with priority level 3 to subsequent versions of the Software. Horeko B.V. will take the consequences for the Client into account as much as possible, but it is not obliged to do so.
- The supporting employee of Horeko B.V. will inform the contact person at the Client who reported the specific Fault, by e-mail or telephone within the Response Time, about:
- The priority level of the Fault; and
- If this is already known, the cause and the resolution of the Fault.
- In order to provide feedback to the Client, Horeko B.V. must be in possession of valid contact details of the Client. The Client is responsible for providing correct and up-to-date contact details. If the contact details known to Horeko B.V. are incorrect due to an act or omission of the Client, or if the failure of Horeko B.V. to provide timely feedback on the Fault is the result of circumstances that cannot be attributed to Horeko B.V., then the time of the attempt by Horeko B.V. to provide feedback to the Client will be considered as the time of feedback.
- The Client agrees to assist with repairs of the Fault to the best of its ability. If this assistance is not provided by the Client, the Repair Time will only commence when the Client provides the necessary assistance.
- Horeko B.V. applies an escalation procedure when a Fault cannot be resolved within a certain period of time (Repair Time). During this procedure, Horeko B.V. shall use all reasonably available means (including engaging external technical engineers if it deems this necessary) to speed up the resolution of the Fault. During the escalation procedure, specific agreements may also be made with Client about the resolution of the Fault. During the escalation procedure, Horeko B.V. will update the Client about the progress of the resolution of the Fault every Business Day.
ARTICLE 6. AVAILABILITY
- Horeko B.V. shall make every effort to ensure that the Services are available 24 hours a day and 7 days a week for 99.8% of time throughout the entire year, which is considered to be the Required Availability.
- Available means that the Services can be accessed and used by the Client. This does not include breakdowns in the connection and/or equipment that are beyond the control of Horeko B.V., including breakdowns in the connection and/or equipment of the Client itself.
- The Actual Availability is calculated monthly by Horeko B.V. as follows:
“DB” = Percentage of Actual Availability;
“GB” = Required Availability in minutes;
“G” = Number of minutes a Fault exists.
- Non-availability caused by force majeure, as described in Article 13 of the SLA, or due to Maintenance or the hardware and/or equipment supplied by Horeko B.V., over which Horeko B.V. has no influence, is not considered as a Fault and in no way affects the calculation of Actual Availability.
- Horeko B.V. will take a sample of relevant data every five minutes for the purpose of determining whether the guarantees promised in this article are observed. An average will be calculated on the basis of these samples. Unless the Client provides evidence to the contrary, this average determines whether the stipulated benchmarks have been exceeded.
- At the request of the Client about alleged non-availability and after receipt of a report about the non-availability of a Service, Horeko B.V. will respond in accordance with the Response Time as mentioned in Article 5.
ARTICLE 7. MAINTENANCE
Horeko B.V. may carry out Maintenance of the Services from time to time at its own discretion. Horeko B.V. will try to ensure that such periods of inactivity occur outside Business Days as much as possible. Horeko B.V. will make every effort to inform the Client at least two Business Days in advance of such Maintenance, but it is not obliged to do so under any circumstances. Maintenance will not affect the guarantees in Articles 5 and 6.
ARTICLE 8. CHANGES
- The Client may make a Change request by contacting Horeko B.V. using the contact details mentioned in Article 1 of this SLA. Horeko B.V. will endeavour to process the request as soon as possible, but provides no guarantee in this respect.
- Horeko B.V. may also, at its own initiative, recommend a Change to the Client, if such Change can resolve a structural Fault. However, Horeko B.V. is not obliged to make such a recommendation and may implement this Change without the consent of the Client if it deems this necessary. The Client also has no influence on the Change in question.
- Horeko B.V. will make a recommendation to the Client together with every request for a Change regarding the content, planning and costs of the Change.
- Horeko B.V. will make every effort to realise Change requests, but until agreement has been reached on the content, planning and costs of the Change, Horeko B.V. may at all times decide not to proceed with the Change, in whole or in part, if it deems the effort to be disproportionate.
- Horeko B.V. will inform the Client immediately if a Change request will not be realised.
ARTICLE 9. BACK-UP
- Horeko B.V. backs up the Services daily (at 3:00 a.m.). This back-up is only accessible to Horeko B.V. The Client may request Horeko B.V. to make the back-up available, but Horeko B.V. may refuse such requests at any time.
- Horeko B.V. will store each back-up for a period of 30 days, after which it is automatically destroyed. Back-ups are encrypted and stored on data servers of the hosting partner of Horeko B.V. and therefore not at the location(s) of Horeko B.V. itself.
- Horeko B.V. is entitled to charge reasonable costs to the Client for providing or restoring a back-up. Horeko B.V. shall always inform the Client of the costs in advance.
- Horeko B.V. shall never be liable for the loss of data as a result of the failure of the Services and/or the back-up (software). The Client remains personally responsible for the storage of the data stored via the Services at all times.
- The Client is responsible for safeguarding the data stored via the Services. Horeko B.V. is never liable for the loss of data in any way whatsoever, unless otherwise agreed in writing.
ARTICLE 10. SUPPORT BY HOREKO B.V.
- Horeko B.V. shall provide Support for the Services in the form of telephone support, making a link with software of third parties and other activities which Horeko B.V. considers to be supportive and which can be carried out quickly and easily. Horeko B.V. is entitled to charge costs for the activities in question. Horeko B.V. will always send an offer to the Client prior to the activities.
- Horeko B.V. is entitled to refuse to provide Support to non-certified users.
- Horeko B.V. will always inform the Client in writing of the costs of the Support prior to the activities.
ARTICLE 11. PENALTY CLAUSE
- If Horeko B.V. does not comply with its response obligations, in accordance with the Response Time or the Repair Time referred to in Article 5, Horeko B.V. shall pay a penalty for each hour during which no response or repair takes place, which is equal to one thirtieth of the monthly amount due for the Services in question.
- If Horeko B.V. fails to comply with one or more of the guarantee provisions of Article 6, Horeko B.V. shall pay a penalty for each day (or part thereof) that a guarantee provision is not complied with, which is equal to one thirtieth of the monthly amount due for the Services in question.
- This penalty amount will replace any compensation for damage that the Client may claim for the non-performance.
- If the Client discovers that compensation for damage is due, Horeko B.V. will be notified of this in writing within 14 days and this compensation will be credited on the next invoice.
- If the Client is of the opinion that compensation for damage is due and Horeko B.V. does not pay this compensation, the Client must submit a written request to this effect and, if requested, submit the evidence.
- The compensation to be paid each month shall never exceed the total monthly amount.
ARTICLE 12. LIABILITY
- The Client acknowledges that the Services may be dependent on an internet connection or other form of telecommunication connection. The Client and/or the User is responsible for the required internet connection or telecommunication connection and its operation.
- Horeko B.V. is entitled to involve third parties in the performance of the Agreement.
- Horeko B.V. is not liable for any damage resulting from the temporary malfunctioning of the Services, as a result of carrying out the repair of Faults, Maintenance or updates.
- Horeko B.V. is not liable for damage of any nature whatsoever arising from the fact that Horeko B.V. has relied on incorrect and/or incomplete information provided by or on behalf of the Client.
- The Client is responsible for ensuring that the Services, as provided by Horeko B.V., are installed on equipment with an operating system that meets the minimum system requirements.
- Horeko B.V. is not liable for damage of any kind caused by:
- Incorrect installation of the Software by the Client and/or the User.
- Changes to the Software made by the Client, the User or third parties, without the prior written permission of Horeko B.V.
- User Faults or Faults due to careless or incompetent use.
- Horeko B.V. is not liable for indirect damage, including stagnation in the regular course of business in the companies of the Client, loss of profit, missed savings and consequential damage, including that resulting from the improper functioning of the Services.
- Horeko B.V. is always entitled to undo or limit the damage of the Client, if and insofar as possible.
- The liability of Horeko B.V. shall never exceed the subscription amount for the preceding six months or, alternatively, the amount covered by the liability insurance of Horeko B.V.
- These limitations of liability do not apply if the damage is due to deliberate intent or gross negligence on the part of Horeko B.V.
ARTICLE 13. FORCE MAJEURE
- In the event of force majeure, Horeko B.V. shall suspend performance of its obligations under the SLA, in whole or in part, for the duration of the force majeure, without Horeko B.V. being liable to pay any compensation for damage in this respect. An event of force majeure will be reported to the Client in writing.
- Force majeure arises in the event that Horeko B.V. is prevented from fulfilling its obligations under the SLA as a result of a circumstance for which it is not to blame. Horeko B.V. is also not liable under the law, legal act or generally accepted practice.
- In this SLA, Horeko B.V. considers that force majeure includes, but is not limited to: strikes, illness of personnel, late delivery by suppliers, defective or faulty telephone lines and internet connections, floods, fire, burglary, emergencies, infections of ICT systems by unknown computer viruses that cannot be identified by antivirus programs and firewalls, legal but not properly functioning software or hardware.
ARTICLE 14. ADJUSTMENT OF THIS SLA
- Horeko B.V. is entitled to adjust this SLA at any time.
- Horeko B.V. shall announce the adjustments or supplements in writing or via the Services at least 30 days before they come into effect to enable the Client to take note of them.
- If the Client does not wish to accept an amendment or supplement to the SLA, it may terminate the SLA until the date on which the amendment or supplement in question takes effect. Use of the Services after the effective date will constitute acceptance of the amended or supplemented SLA.
ARTICLE 15. FINAL PROVISIONS
- This SLA is governed exclusively by Dutch law. Disputes shall be submitted to the competent court in the district of Midden-Nederland.
- Deviations from this SLA shall only be valid if the parties agree to this in writing.
- If part of this SLA is null and void or voidable, the SLA shall otherwise remain in effect. The parties undertake to enter into reasonable consultations in order to agree on a replacement provision that reflects the substance of the void or voidable provision as much as possible.