General Terms and Conditions
1. Client: the natural person or legal entity who/which has instructed JAN© to perform work or supply services or goods or for whom JAN© performs work or supplies services or goods on some other basis.
2. Contractor: JAN© Corporate Finance and all its group companies or any other affiliated company that has declared these terms and conditions applicable.
3. Work: all work and services to be performed or that have been performed or goods to be provided or that have been provided by the Contractor, pursuant to an agreement or otherwise.
4. Documents: all goods made available by the Client to the Contractor, including documents or data carriers, as well as all goods produced by the Contractor in the context of the performance of the Agreement, including written documents, electronic documents and files, or data carriers;
5. Agreement: any agreement between the Client and the Contractor for the performance of work by the Contractor for the Client, in accordance with the provisions of the order confirmation.
6. Software: software to be made available to the Client by or on behalf of the Contractor.
7. Or: and/or.
1. These General Terms and Conditions apply to all offers, quotations, assignments, legal relationships, all other communications of JAN© and agreements, by whatever name, under which the Contractor undertakes/will undertake to perform work for the Client, as well as to all work arising therefrom for the Contractor.
2. Deviations from and additions to these General Terms and Conditions are only valid if expressly agreed in writing in, for example, a written agreement or an order confirmation.
3. In the event that these General Terms and Conditions and the order confirmation contain conflicting conditions, the conditions contained in the order confirmation shall apply.
4. The applicability of any general terms and conditions of the Client is explicitly rejected by the Contractor.
5. All agreements, as far as relevant, are concluded with the Contractor with the exclusion of Book 7, articles 404 and 407, paragraph 2 of the Dutch Civil Code. By giving the Contractor an assignment, the Client waives the right to hold liable any (legal) persons employed by or affiliated with the Client. This also applies if it is the Client’s express or tacit intention that specific work be carried out by a specific person.
6. Not only the Contractor, but all other parties engaged in the performance of any assignment of the Client may rely on these General Terms and Conditions. The same applies to former employees including their heirs, if any.
C Commencement and duration of the Agreement
1. Every Agreement shall only be formed and commence at the time the order confirmation signed by the Client is returned to the Contractor or at the time the Contractor commences its activities. The Contractor is never obliged to deliver prior to receipt of a signed order confirmation.
2. The order confirmation is based on the information provided by the Client to the Contractor at that time. The Contractor has no obligation to investigate this information.
3. The parties shall be free to prove the formation of the Agreement by other means.
4. Every Agreement is entered into for an indefinite period, unless it arises from the content, nature or scope of the assignment given that it has been entered into for a defined period or with a view to specific activities.
5. The Contractor and the Client will consult about amendments to an Agreement if there are unforeseen circumstances which mean that according to standards of reasonableness and fairness, unaltered maintenance of the Agreement cannot be expected.
D Client’s details
1. The Client is required to provide the Contractor in good time and in the desired form and manner with all information and documents that in the opinion of the Contractor are required for the proper performance of the Agreement.
2. The Contractor is entitled to suspend performance of the Agreement until the Client has met the obligation referred to in the previous paragraph.
3. The Client is obliged to inform the Contractor immediately about facts and circumstances that may be important in relation to the performance of the Agreement.
4. The Client warrants the accuracy, completeness and reliability of the information and documents provided by or on behalf of it to the Contractor, even if such information and documents originate from third parties.
5. Additional charges and additional fees caused by non-provision, late provision or improper provision of the required information of documents are for the Client’s account.
6. If and insofar as the Client so requests, the documents will be returned to the Client, subject to the provisions of Q.
E Performance of the assignment
- The Contractor will determine the manner in which the Agreement will be performed, and by whom. Where possible, the Contractor will take account of timely and responsible instructions provided by the Client regarding the performance of the Agreement.
- The Contractor is entitled to adjust the method of performance during the performance of the Agreement if there is a situation in which unaltered maintenance cannot be expected, such as in the event of government measures taken during the term of the Agreement, for example during a pandemic. This will be at the Contractor’s discretion.
3. The Contractor will perform the work to the best of its ability and as a professional acting with due care. However, the Contractor cannot guarantee the achievement of any envisaged result.
4. The Contractor is entitled to have specific work carried out by a person or third party to be designated by the Contractor, without notification to and explicit consent from the Client, if the Contractor deems this desirable. The costs of this designated person or third party will be charged to the Client.
5. The Contractor shall perform the Agreement in accordance with the rules of conduct and professional rules that are applicable to the Contractor and that form part of the Agreement, and with what is required of the Contractor by law. A copy of the rules of conduct and professional rules applicable to the Contractor will be sent to the Client on request. The Client shall respect the obligations arising from these rules of conduct and professional rules and respect the obligations arising from the law for the Contractor or for those working for or on behalf of the Contractor.
6. If during the term of the Agreement work is carried out for the benefit of the Client which does not fall under the work to which the Agreement relates, this work will be deemed to have been carried out on the basis of separate agreements. The provisions of these General Terms and Conditions will also fully apply to these assignments.
7. Any periods set in the Agreement within which the work must be carried out are only approximate, and the expiry dates of these periods are not to be regarded as strict deadlines. Exceeding the expiry date of such period will therefore not constitute an attributable failure on the part of the Contractor and will consequently not constitute grounds for termination of the Agreement. Expiry dates of periods within which the work must be completed are only to be regarded as strict deadlines if this has explicitly and in so many words been agreed between the Client and the Contractor.
8. Except in the case of a strict deadline, the Contractor has only committed an attributable failure if it has been granted a reasonable period in writing (by registered letter) to fulfil the obligation in question. The reasonable period is at least thirty days. Only if statutory expiry periods require performance before the end of that period will the Client be entitled to use a shorter reasonable period.
9. Unless otherwise expressly stated in writing, the performance of the Agreement will not be specifically aimed at detecting fraud. If indications of fraud are found during the performance of the work, the Contractor will report this to the Client. When doing so, the Contractor is bound by the applicable laws and regulations and by the regulations and guidelines issued by the various professional organisations.
10. The Client shall always ensure that a copy of any information is provided. The Client shall always ensure a backup of all information it processes using the software of the Contractor. The Contractor will only be obliged to provide disaster recovery facilities or backups if expressly agreed.
11. The Contractor may make the performance of the Agreement and the manner of performance subject to the written permission of a third party that has stipulated certain conditions for the use of the software, data or other materials concerned.
F Special provisions relating to data processing using software
1. The provisions of this article apply in addition to the other provisions of these General Terms and Conditions. The provisions of this article relate to both the provision of software and the provision of services by the Contractor using specific software.
2. When performing the obligations, the Contractor will make use of the goods and services of third parties.
3. The Client shall ensure that its own systems and its means of telecommunication meet at least the minimum requirements for being able to use and access the software.
4. The Client shall ensure that the software is set up and used correctly.
5. The Client itself shall ensure adequate instructions for the legitimate users of the software.
6. Unless this has been agreed, an Agreement under which software is made available shall not include an assignment for data conversion by the Contractor.
7. Unless certain well-defined service levels have been agreed, the Contractor does not warrant the timeliness of its answers to questions from or on behalf of the Client in the context of helpdesk services or other user support if the Contractor provides such services or support. The Contractor does not warrant the correctness of such answers.
8. The Contractor is always entitled to interrupt the availability of the software because of necessary maintenance work on that software. The Contractor shall announce such interruptions as far as possible and try to take the Client’s interests into account when scheduling any maintenance work.
9. If it has been agreed that the software will at least be available for a specific part of the time, the period during which the software is not available due to scheduled maintenance will not be taken into account in determining that part of the time.
10. If the Agreement does not contain a provision regarding compensation for any damage arising from failure to meet the part of the time referred to in the previous paragraph, the damage to be compensated by the Contractor in that context will at most be equal to the percentage by which the software is less accessible in the course of a month than agreed, multiplied by the amount owed by the Client in that month for the provision of the software.
agreed, multiplied by the amount owed by the Client in that month for the provision of the software.
11. The Contractor is always entitled to modify the software and its systems on which it is made available. If these modifications lead to more than minor changes in the working method and systems of the Client, the Client will be entitled to terminate the Agreement prematurely without being liable for compensation. Adjusting the Client’s settings is in any case a minor modification.
12. The Contractor does not guarantee that the software will be error-free or function without interruptions, nor that it will be suitable for the purpose for which the Client wishes to use it. The Contractor does not guarantee that defects in the software will be remedied. Without prejudice to the previous paragraph, the Contractor will try to get the suppliers of the software to repair any errors as soon as possible. The Contractor is always entitled to implement temporary solutions or program workarounds or problem-avoiding restrictions proposed by these suppliers into the software.
13. Minor errors in the software that hinder but do not prevent the functionality will never lead to default on the part of the Contractor.
14. The Contractor does not guarantee that the software will be adjusted in time to relevant changes in legislation and regulations and will not be in default in the event of failure to make such modifications.
15. The Client is responsible for the use of the software. The Contractor is explicitly not responsible for checking the correctness and completeness of the results of the services and the data generated using the service and software. The Client itself shall regularly check the results of the services and the data generated by using the service and software.
16. If and insofar as necessary or desirable, in the event that defects in the results of the software are a direct consequence of products, software, data carriers, procedures or operating actions for which the Contractor is explicitly responsible under the Agreement, the Contractor will repeat the work performed by it in order to remedy these defects, provided that the Client notifies the Contractor of the defects in writing and in detail as soon as possible, but no later than within one week of obtaining the results. Only if the defects are attributable to the Contractor will the repetition be carried out free of charge. If defects cannot be attributed to the Contractor or if the defects are the result of errors or inadequacies on the part of the Client, such as the provision of incorrect or incomplete data or information, the Contractor will charge the Client the costs of any repetition in accordance with its usual rates. If, in the opinion of the Contractor, repairing the defects attributable to the Contractor is not technically or reasonably possible, the Contractor will credit the relevant amounts owed by the Client, without having any further or other liability to the Client. The Client will have no rights on account of defects other than those described in this guarantee scheme.
17. The Client shall treat any login codes provided to it as confidential and only make these available within its organisation to persons who work with the software. The Client shall strictly follow all safety instructions. The Client is liable for any use of the codes used by it, regardless of whether these codes were provided by the Contractor or generated by the Client itself.
18. If the Contractor is of the opinion that the Client’s use of the software conflicts with the law or self-regulation agreements or infringes the rights of third parties, the Contractor will be entitled to terminate the Client’s access to the software, either temporarily or permanently, in full or in part. In that case, the Client will not be entitled to any compensation, even if it is established in court that the use in question was lawful.
19. If the use of the software is limited to a number of users, the Client will not exceed that number.
20. The Client obtains the non-exclusive right to use the software exclusively within its own organisation for its own benefit in the manner specified in the Agreement. The Client shall not allow third parties access to the software. This restriction shall not apply to third parties who perform work on the instructions of the Client that falls within the scope of the user rights granted to the Client, provided that the Client ensures that this third party is familiar with and bound by the restrictions on the use and the confidentiality provisions contained in these General Terms and Conditions.
21. Unless expressly agreed in writing, the Contractor will never be obliged to provide the Client with a physical carrier with the software to be made available to the Client or the software to be used by the Contractor in the context of the Agreement.
22. In the event of an act outside the scope of the user rights granted to the Client, the Client shall pay the Contractor an amount equal to three times the annual fee for the use of the software, without prejudice to the Contractor’s other rights. These other rights include the right to claim the full damage suffered by the Contractor from the Client and the right to demand performance of the obligations from the Client. In addition, the Client shall pay
the full legal costs reasonably incurred by the Contractor, even if they exceed the legal costs which the Contractor could claim in any proceedings without this provision.
G Confidentiality and exclusivity
1. The Contractor is obliged to maintain confidentiality towards third parties that are not involved in the performance of the Agreement. This confidentiality concerns all information of a confidential nature that is made available by the Client to the Contractor and the results obtained by processing such information. This confidentiality will not apply insofar as statutory or professional rules, including but not limited to the reporting duty arising from the International Assistance (Levying of Taxes) Act and from the Money Laundering and Terrorist Financing (Prevention) Act (Wwft) and other national or international regulations with a similar scope impose an obligation on the Contractor to provide information or insofar as the Client has released the Contractor from the obligation to maintain confidentiality. Nor does this provision prevent confidential consultation between colleagues within the Contractor’s organisation, insofar as the Contractor deems this necessary for the careful performance of the Agreement or for due compliance with legal or professional obligations. Nor shall such confidentiality prevent the Contractor from using such information in proceedings to which it is a party. The duty of confidentiality shall not extend to information of a confidential nature which has become publicly known otherwise than through an error by the Contractor. Finally, the Contractor shall be entitled to include the fact that the Client is its client in its marketing communications, unless the Client has reasoned objections thereto.
2. The Contractor is entitled to use the numerical results obtained after processing for statistical or comparative purposes, provided that these results cannot be traced back to individual Clients.
3. The Contractor shall not be entitled to use the information made available to it by the Client for any purpose other than that for which it was obtained, except as provided in paragraph 2 and in the event that the Contractor acts on its own behalf in disciplinary, civil or criminal proceedings to which these documents may be relevant. If the Contractor is found to be a co-perpetrator of an offence or a crime, the Contractor will be entitled to disclose the Client’s documents to the tax inspector or the court, if disclosure is necessary in the context of conducting a defence by the Contractor.
4. Without the express prior written permission from the Contractor, the Client is not permitted to publish or otherwise provide third parties with the content of advice, opinions or other statements given or made by the Contractor, in writing or otherwise, except insofar as this arises directly from the Agreement, this is done with the aim of obtaining an expert opinion on the work in question of the Contractor, if the Client is subject to a legal or professional obligation to disclose such information, for instance under the International Assistance (Levying of Taxes) Act and the Money Laundering and Terrorist Financing (Prevention) Act, or if the Client is acting on its own behalf in disciplinary, civil or criminal proceedings.
5. The Client shall keep confidential information of the Contractor confidential. This information includes, but is not limited to, price agreements and other financial information about the Contractor and information about the operation and costs of the software and all other information about the Contractor the confidential nature of which is, or should have been, clear to the Client. Non-confidential information is information that is publicly known and accessible and has become so through no fault of the Client.
H Intellectual property
1. All intellectual property rights to the work or arisen during the performance of the work belong exclusively to the Contractor or its suppliers.
2. The provisions of the previous paragraph also apply if the Client pays a fee for the development or purchase of those goods by the Contractor. In that case, the Contractor will acquire the non-exclusive right to use the delivered items solely within its own organisation for its own benefit.
3. To the extent necessary, the Contractor may grant the Client a right of use for the intellectual property rights. This right of use always ends when the Agreement ends, unless agreed otherwise in writing. After the end of the right of use, the Client shall cease and not resume the use of the intellectual property rights. The Client shall return physically present items of intellectual property to the Contractor and remove any installed software, programs and the like
to which the right of use was attached from its systems.
4 The Contractor is entitled to take technical measures for the protection of its (intellectual property) rights or
those of its licensors. The Client is expressly prohibited from removing or evading these measures.
5. The Client is expressly prohibited from reproducing, publishing or exploiting such products, including but not limited to computer programs, system designs, working methods, recommendations, contracts or model contracts and other intellectual products of the Contractor, all in the broadest sense, with or without the involvement of third parties.
6. The Client is not permitted to provide such products or resources for such products to third parties, except for the purpose of obtaining an expert opinion on the work of the Contractor. In that case, the Client will impose its obligations under this article on the third parties engaged by it.
I Privacy when processing personal data
1. The Client warrants that all requirements for the lawful processing of the personal data provided by the Client to the Contractor or entered into the software have been met. The Contractor shall process the personal data provided by the Client in the context of the work in accordance with the obligations arising from the applicable privacy laws and regulations.
2. Insofar as the Contractor, in the context of its work for the Client, can be considered the controller or joint controller for the processing of personal data, it will only process the personal data that is necessary in the context of its work. This personal data is only accessible to the Contractor and the Client and will not be provided to third parties, unless the Contractor is obliged to do so pursuant to applicable privacy laws and regulations.
3. If the Client and the Contractor jointly determine the purpose of and means for the processing, they are to be regarded as joint processors under Article 26 GDPR. As the initial provider of personal data, the Client is the primary point of contact for data subjects. In its capacity as joint controller, the Client will therefore be primarily responsible for dealing with a data subject’s request made pursuant to Chapter III of the GDPR (‘data subject’s rights’). If the Contractor receives such a request, the Contractor will forward it to the Client and inform the data subject. The Client shall respond to the request immediately, but no later than within the applicable statutory time limits. If the cooperation of the Contractor is required for dealing with such a request, the Client will contact the Contractor. Otherwise, the Contractor will in principle not contact data subjects directly, except insofar as this arises from the assignment. The provisions of this paragraph 3 do not affect the fact that the data subject may exercise his or her rights under the GDPR against each of the joint controllers.
4. The full responsibility for the data processed by the Contractor or by the Client using the software rests with the Client. The Client warrants the Contractor that the data does not infringe any rights of third parties. The Client indemnifies the Contractor against any legal claim from third parties, on any ground whatsoever, in connection with the processing of this data or the performance of the Agreement.
5. The Contractor is permitted to provide client data to requesting parties to or with whom certain personal data must be provided or filed pursuant to the law. The Contractor is permitted to provide client details to other parties for keeping payroll records. In other cases, this is possible if it has been explicitly agreed with the Client.
6. The Contractor will take adequate technical and organisational measures to secure personal data against loss or against any form of unlawful processing, including unnecessary collection or further processing. Taking into account the state of the art, the extent, context and processing purposes and the costs of execution, these measures shall guarantee an appropriate level of security in view of the risks involved in the processing and the nature of the data to be protected.
7. The Client shall give the Contractor the opportunity to implement and maintain an appropriate security level. Insofar as the Client is provided with a means of authentication for access to, for example, a portal and the content present thereon, the Client will be obliged to handle such means of authentication with due care. The Contractor shall never be responsible for damage or costs arising from any use or misuse of the means of authentication, except insofar as such misuse is the result of intent or gross negligence on the part of the Contractor.
J Force majeure
1. If the Contractor is unable to fulfil its obligations under the Agreement, including any guarantee obligation agreed between the parties, or is unable to do so properly or in time, due to force majeure, these obligations will be suspended until the Contractor will be able to fulfil them in the agreed manner.
2. Force majeure includes: (i) force majeure affecting the Contractor’s suppliers, (ii) failure to properly perform obligations by suppliers prescribed by the Client to the Contractor, (iii) defectiveness of goods, equipment, software or materials from third parties the use of which has been prescribed by the Client to the Contractor, (iv) government measures, (v) power failure, (vi) disruption of the internet, computer network or telecommunications facilities, (vii) war, (viii) work occupation, (ix) strike, (x) general transport problems, (xi) the unavailability of one or more members of staff, (xiii) pandemic or (xiii) other disruptions in the normal conduct of business within its company.
3. In the event that the situation referred to in the first paragraph lasts for a period of more than ninety days, the Client will be entitled to terminate the Agreement in writing, in whole or in part and with immediate effect. In that case, everything the Contractor has already performed under the Agreement shall be compensated proportionately.
K Fees and expenses
1. The Contractor shall be entitled to suspend performance of its work before commencement of the work and in the interim until the Client has made an advance payment for the work, to be reasonably determined by the Contractor, or has provided security for this. An advance payment made by the Client shall, in principle, be set off against the final invoice.
2. The Contractor’s fee is not dependent on the outcome of work performed, unless stipulated otherwise.
3. The Contractor’s fee may consist of a predetermined amount per Agreement and/or may be calculated on the basis of rates per unit of time worked by the Contractor, and shall be payable as and when the Contractor performs work for the Client.
4. If an amount fixed per agreement has been agreed, the Contractor will be entitled to charge a rate per unit of time worked in addition, if and insofar as the work exceeds the work provided for in the Agreement, which amount will then be owed by the Client as well.
5. If after the formation of the Agreement wages and/or prices change, the Contractor will be entitled to adjust the agreed rate accordingly, unless the Client and the Contractor have made other agreements in this respect. If adjustments entail an increase of more than 5% per year, the Client will be entitled to terminate the Agreement prematurely during a period of fourteen days after receipt of the notification of the price increase, with due observance of a notice period of two weeks. The Contractor shall be entitled to cancel the termination and to continue the Agreement at the old rates if the Contractor notifies the Client thereof during the notice period referred to in the previous sentence.
6. The Contractor’s fee, if necessary increased by disbursements and invoices from third parties engaged, including any turnover tax payable, will be charged to the Client on a monthly, quarterly or annual basis, or after completion of the work.
7. If the Contractor is required to comply with an order from a government body or with any statutory provision, the Client will pay the Contractor’s fees and expenses relating thereto, even if this is not specified in the Agreement.
8. The Client shall compensate the Contractor for any costs incurred by the Contractor in the performance of an Agreement.
9. The hours recorded in the Contractor’s time recording system shall constitute conclusive proof of the hours worked by the Contractor for the Client until evidence to the contrary is provided by the Client.
1. The Client shall pay the invoice amount in euros within the agreed period, but in no case later than 30 days after the invoice date, at the office of the Contractor or by means of payment into a bank account to be designated by the Contractor, without any right to discount, set-off or suspension.
2. If the Client has not paid within the period referred to in paragraph 1, or has not paid within the further agreed period, the Client will be in default by operation of law and the Contractor will be entitled, without any further demand or notice of default being required, to charge the Client the statutory (commercial) interest as referred to in Book 6, article 119a of the Dutch Civil Code over the invoiced amount from the due date until the date on which payment is made in full, all this without prejudice to the Contractor’s further rights.
3. All costs incurred as a result of judicial or extrajudicial collection of the claim shall be borne by the Client, also insofar as these costs exceed the court order for costs. The extrajudicial costs are set at a minimum of 15% of the amount to be claimed, with a minimum of € 250.
4. The Contractor shall be entitled to have the payments made by the Client serve first to reduce the costs as referred to in paragraph 3, then the interest that has fallen due, and finally to
reduce the costs as referred to in paragraph 3, then the interest that has fallen due, and finally to
reduce the longest outstanding principal amounts and the current interest.
5. If the Contractor believes that the Client’s financial situation or payment practices justify it, the Contractor will be entitled to require that the Client provides security or additional security immediately, in a form to be determined by the Contractor. If the Client fails to provide the required security, the Contractor will be entitled, without prejudice to its other rights, to suspend further performance of the Agreement immediately, and all amounts owed by the Client to the Contractor for whatever reason will become immediately due and payable.
6. In the event of liquidation, bankruptcy, suspension of payments of the Client, or any other insolvency procedure with regard to the Client, including application of the Court Approval of a Private Composition (Prevention of Insolvency) Act (WHOA), the Contractor’s claims against the Client will become immediately due and payable.
7. In the case of an assignment that is given jointly, the Clients, insofar as the work was performed for the joint Clients, will be jointly and severally liable for payment of the invoice amount.
1. Complaints regarding the work performed or the invoice amount shall be communicated to the Contractor in writing within 30 days after the date of dispatch of the documents or information that is the subject of the Client’s complaint or within 30 days after discovery of the defect if the Client demonstrates that it could not reasonably have discovered the defect earlier.
2. Complaints as referred to in the first paragraph will not suspend the Client’s payment obligation, except insofar as the Contractor has indicated that it considers the complaint to be justified.
3. In the case of a justified complaint, the Contractor has the option of either adjusting the fee charged, correcting or performing the rejected work again without charge, or not or no longer performing the assignment, in whole or in part, in return for a refund in proportion to the fee already paid by the Client.
4. If the complaint is not submitted in time, all rights of the Client in connection with the complaint will lapse.
N Liability and indemnity
1. The Contractor shall only be liable to the Client for damage that is the direct result of an attributable failure or an interconnected series of attributable failures in the performance of the Agreement or an unlawful act committed in respect of the Client. This liability shall be limited to the amount paid out in the case in question according to the liability insurer of the Contractor, increased by any excess to be borne by the Contractor under the insurance policy. If there is no cover for the work in question or if the liability insurer does not pay out for any other reason, the liability for all the Contractor’s failures under an Agreement and the entire unlawful act together will be limited to the amount of the fee charged for the performance of that Agreement. If the Agreement is a continuing performance contract with a term of more than one year, the amount referred to above will be set at three times the amount of the fee charged to the Client in the twelve months preceding the occurrence of the damage, insofar as this does not relate to costs passed on. In the event that an Agreement relates to the services referred to under F, that amount shall be set at no more than the amount charged to the Client per year. Under no circumstance will the total compensation for damage pursuant to this article exceed € 300,000 per client per year, with a series of related events being regarded as a single event, unless the parties – in view of the scope of the assignment or the risks involved – see reasons for deviating from this maximum when entering into the Agreement. Any limitation of liability will solely not apply in the event of intent or gross negligence on the part of persons belonging to the Contractor’s management circle.
2. The Contractor is not liable for:
- damage suffered by the Client or third parties that is the result of the provision of incorrect or incomplete data or information by the Client to the Contractor, or is otherwise the result of acts or omissions on the part of the Client;
- mutilation, destruction or loss of information;
- damage arising at the Client or third parties that is the result of an act or omission by auxiliary persons engaged by the Contractor (not including employees of the Contractor), even if these persons are employed by an organisation affiliated with the Contractor;
- trading loss or indirect or consequential damage arisen at the Client or third parties, including but not limited to damage caused by business interruption in the normal course of affairs in the company of the
- Client. The Contractor is thus not liable for, for example, lost orders, lower profits, lower sales, lower value of the goodwill of the company, futile advertising efforts, etc.
3. The Contractor shall at all times be entitled, if and insofar as possible, to remedy or limit the damage suffered by the Client by rectifying or improving the work.
4. The Contractor shall not be liable for any damage to or loss of documents during transport or dispatch by post, irrespective of whether the transport or dispatch takes place by or on behalf of the Client, the Contractor or third parties.
5. During the performance of the assignment, the Client and Contractor may communicate with each other by electronic means. The Client and the Contractor are not liable towards each other for damage that may be suffered by either or both of them as a result of the use of electronic means of communication, including but not limited to damage due to non-delivery or delayed delivery of an electronic communication by third parties or by software/equipment used for the dispatch, reception or processing of electronic communication, transfer of computer viruses, failure of or defective operation of the telecommunications network or other means necessary for electronic communication, except insofar as the damage was caused by intent or gross negligence. Both the Client and the Contractor will do or omit to do everything that may reasonably be expected of either of them in order to prevent the aforementioned risks from occurring.
6. Without prejudice to Article M, a claim for compensation of damage shall be submitted to the Contractor within twelve months after the Client has discovered or could reasonably have discovered the damage, failing which the right to compensation of damage will lapse.
7. The Client indemnifies the Contractor against any and all claims by third parties, including shareholders, directors, supervisory directors and staff of the Client, as well as affiliated legal entities and companies and others involved in the Client’s organisation, that are directly or indirectly related to the performance of the Agreement. The Client indemnifies the Contractor in particular against claims by third parties for damage caused as a result of the provision of incorrect or incomplete information by the Client to the Contractor, unless the Client demonstrates that the damage is not related to imputable acts or omissions on its part or is caused by intent or gross negligence on the part of the Contractor. The above shall not apply to assignments for an audit of the annual accounts as referred to in Book 2, article 393 of the Dutch Civil Code.
8. The Client indemnifies the Contractor against any and all possible claims by third parties, in the event that the Contractor is forced by law or by professional rules to give back the assignment or is forced to cooperate with government agencies that are entitled to receive information, solicited or unsolicited, that the Contractor has received from the Client or third parties in the performance of the assignment.
9. All limitations of the Contractor’s liability included in this article apply in full to the person or persons who actually perform the work for the Client. Actual performers may also invoke these provisions against the Client.
O Expiry date
- Unless stipulated otherwise in these General Terms and Conditions, rights of claim and other rights of the Client, on whatever basis, against the Contractor with regard to the performance of work by the Contractor, will in any event expire after one year from the time the Client became aware or could reasonably have been aware of the existence of such rights and entitlements. This period does not apply to the option of submitting a complaint to the complaint handling body or bodies designated for this purpose or the Disputes Board (Raad voor Geschillen).
1. The Client and the Contractor may terminate the Agreement with immediate effect at any time by giving notice of termination. If the Agreement ends before the assignment is completed, the provisions under K, second paragraph will apply.
2. If software is made available on a continuous basis, the Client may only terminate this Agreement in writing with effect from the end of the agreed or extended term with due observance of a notice period of three months. If the Client does not give notice of termination or does not give notice of termination in time, the Agreement will automatically be extended by a period equal to the first period. The Contractor can always terminate the contract prematurely without being liable for compensation.
3. Notice of termination shall be given to the other party in writing.
4. If and insofar as the Contractor terminates the Agreement by giving notice, the Contractor will be obliged to inform the Client of the reasons for termination and to do everything that the circumstances demand in the Client’s interest.
Q Right of suspension
- The Contractor shall be entitled to suspend the performance of all its obligations, including the provision of documents or other items to the Client or third parties, until all due and payable claims against the Client have been settled in full. The Contractor may only refuse the obligation to provide documents after carefully weighing up the interests involved.
R Nullities reparation clause
1. If any provision of an Agreement (including these General Terms and Conditions) should be wholly or partially null and void or invalid or unenforceable as a result of any statutory regulation, court decision or otherwise, this will not affect the validity of all other provisions.
2. If any provision of an Agreement (including these General Terms and Conditions) should not be valid for a reason referred to in the previous paragraph, but would be valid if it had a more limited scope or purport, this provision shall – initially – automatically apply with the most far-reaching or most extensive more limited scope or purport with or within which it is valid.
3. Without prejudice to the provisions of paragraph 2, if so desired, the parties may enter into consultations with each other to agree on new provisions to replace the null and void or annulled provisions. When doing so, the objective and purport of the null and void or annulled provisions will be approached as closely as possible.
S Applicable law and choice of forum
1. Dutch law applies to all engagements between the Client and the Contractor.
2. All disputes relating to agreements between the Client and the Contractor to which these General Terms and Conditions apply shall be settled by the competent court in the district of Amsterdam.
3. Contrary to the provisions of paragraph 2, the Client and the Contractor may opt for an alternative method of dispute resolution.
1. If the Contractor carries out work at the Client’s location, the Client will provide a suitable workplace which meets the statutory occupational health and safety standards and other applicable regulations relating to working conditions. The Client shall ensure that in that case, the Contractor is provided with office space and other facilities which the Contractor deems necessary or useful for the performance of the Agreement and which meet all statutory and other requirements. With regard to facilities or computer facilities made available, the Client is obliged to ensure continuity by means of adequate backup, security and virus control procedures. When using the Client’s facilities, the Contractor shall apply virus control procedures.
2. The Client shall not engage any employees of the Contractor involved in the performance of the work or approach them for taking up employment, temporary or permanently, directly or indirectly, with the Client, or for carrying out work, directly or indirectly, for the Client, as an employee or otherwise, during the term of the Agreement or any extension thereof and for 12 months thereafter.
3. The records, electronic or otherwise, of the Contractor will be conclusive evidence for its statements, without prejudice to any evidence to the contrary.