TERMS AND CONDITIONS

GENERAL TERMS AND CONDITIONS APNT B.V. - B2B

Last updated 19.06.2024

Module A - General

Article 1 - Definitions

Article 2 - General Provisions

1. Deviations from, and additions to these general terms and conditions shall only apply if agreed upon in Writing by Parties.
2. The applicability of the (general) terms and conditions of Customer are expressly rejected.
3. If, and to the extent that Supplier makes Products or Services of third parties available to Customer or provides access thereto, the (license or sales) terms and conditions of such third parties shall apply to the relationship between Supplier and Customer in respect of such Products and/or Services, notwithstanding the provisions deviating therefrom contained in these general terms and conditions. This because of these conditions being made available by such third party upon delivery and/or installation of the Products and/or Services and have to be agreed upon or not by Customer, before they can be put into use.
4. If, and insofar as the aforementioned terms and conditions of third parties in the relationship between Parties turn out not to apply or are declared inapplicable for some reason, the general terms and conditions of Supplier shall apply in full force and effect.
5. If any provision of these general terms and conditions is null and void or annulled, the other provisions of these general terms and conditions shall remain in full force and effect. In that case Parties will enter into consultation with the aim of agreeing on new provisions with as much the same scope as possible to replace the void or nullified provisions.
6. Without prejudice to the provisions of paragraph 3 of this article, in the event of a contradiction between agreements between Parties, that which is stipulated in these general terms and conditions shall apply, unless Parties have expressly deviated from them in Writing with reference to these general terms and conditions.
7. The general terms and conditions have originally been drawn up in the Dutch language. If any discrepancy arises between the interpretation of a provision in the Dutch version and a translated version, the interpretation of the Dutch version shall always prevail.
8. If the Agreement is a continuing performance agreement, the Supplier reserves the right to amend or supplement these general terms and conditions and all Modules. Amendments shall also apply – without contrary notice by Customer - to already concluded continuing performance agreements subject to a period of 30 days after publication of the amended terms and conditions on the Supplier's website or by electronic transmission thereof to Customer.
9. Pursuant to the provisions of the previous paragraph, if the Customer does not wish to accept an amendment to these general terms and conditions, Customers can make her objections known during the period mentioned in the previous paragraph so that an agreement can be reached by mutual consultation on the provision in question. Failure to reach an agreement shall not affect the validity of the Agreement.

Article 3 - Quotation

1. A Quotation prepared by Supplier is without obligation and only valid for 30 days after dating, after which the Quotation will expire unless otherwise indicated in the Quotation in Writing.
2. Customer should preferably accept the Quotation in Writing, but if Customer agrees to the Quotation in a manner other than in Writing or gives that impression, then the Quotation may be deemed accepted by Supplier.

Article 4 - Price, Indexing and payment terms.

1. All prices are exclusive of sales tax (VAT) and other product or service-specific levies that may be imposed by the government. All prices communicated by Supplier are in euros and Customer shall pay in euros, unless otherwise agreed in Writing. The payment term of an invoice is 30 days from the date of the invoice for work performed, unless otherwise agreed upon by Parties. For Software and/or hardware ordered, invoicing takes place at the time of transfer of the Products to the third party responsible for Supplier's logistics and courier services.
2. Supplier shall invoice Customer for the amount due by Customer. If the Services take place in different phases, Supplier is entitled to invoice per phase completed and/or delivered, monthly or on the basis of hours worked (this at Supplier's discretion).
3. If Customer fails to pay in full in a timely manner, she shall be in default by operation of law from 30 days after the payment deadline, without notice of default being required by Supplier. If an amount due is not paid within the payment term by Customer, extrajudicial collection costs based on the BIK and a contractual interest of 2% per month shall be payable on the outstanding amount without further notice of default being required by Supplier.
4. All prices stated in Supplier's Quotation are subject to typing and calculation errors.
5. If a price in a Quotation is based on data provided by the Customer and such data turns out to be incorrect, Supplier shall be entitled to adjust the prices to those reasonably corresponding to the correct data, even after the Agreement has already been concluded.
6. Customer cannot derive any rights or expectations from a preliminary calculation or budget issued by Supplier, unless Parties have agreed otherwise in Writing. A budget made known by Customer shall only count as a (fixed) price agreed between Parties if this has been expressly agreed in Writing.
7. If according to the Agreement Customer consists of several natural persons and/or legal entities, each of these (legal) persons shall be jointly and severally liable to Supplier for compliance with the Agreement.
8. All prices are based on the contractual exchange rate, where EUR 1 is equal to the USD exchange rate on the date of conclusion of the Agreement. If, on the date of actual payment, the USD exchange rate quoted by De Nederlandsche Bank differs 10% or more from the contractual exchange rate, the prices in USD will be adjusted up or down to realize the same amount in EUR as if the contractual exchange rate had been used.
9. With regard to the performances under the Agreement by Supplier and the amounts owed by Customer in return, the information from Supplier's administration shall constitute full evidence, without prejudice to the right of Supplier to provide evidence to the contrary.
10. If Customer has a periodic payment obligation, Supplier may, in Writing and in accordance with the index or other measure included in the Agreement, adjust the applicable prices and rates at the time stated in the Agreement. If the Agreement does not expressly provide the possibility of adjusting the prices or rates, Supplier may adjust or index the applicable prices and rates in Writing with due observance of a period of at least three months. If, in the latter case, Customer does not want to agree with the adjustment, Customer shall be entitled, within thirty days after notification of the adjustment, to terminate the Agreement in Writing with effect from the date on which the new prices and/or rates would take effect.
11. In the event of bankruptcy or suspension of payment by Customer, or an application to that effect, Supplier has the right to terminate or suspend performance of the Agreement or any part thereof not yet performed without notice of default or judicial intervention, and without giving Customer any right to compensation.

Article 5 - Term of the Agreement.

1. If and to the extent that an Agreement is a continuing performance agreement, the Agreement shall be entered into for a minimum term of twelve months, unless another term or indefinite term is expressly agreed upon in the Agreement.
2. The fixed-term Agreement cannot be terminated prematurely. The term of the fixed-term Agreement is tacitly renewed each time for the originally agreed term, unless Customer or Supplier terminates the Agreement in accordance with the following paragraph.
3. Notice of termination of an Agreement for a definite term must be given with due observance of a prior notice period of 3 months calculated from the end date of the definite term. Termination of the Agreement by Customer or Supplier must be effected in Writing.
4. Notice of termination of an Agreement for an indefinite period must be given with due observance of a notice period of 3 months, with the Agreement ending 3 months from the first calendar month following the date on which notice of termination is received by Supplier. Notice of termination of the Agreement by either Customer or Supplier must be given in Writing.

Article 6 - Confidentiality.

Article 7 - Security.

Article 8 - Risk of transition.

1. The risk of loss, theft, embezzlement or damage to Products, data (including: user names, codes and passwords), documents, Software or data files manufactured, delivered or used in the performance of the Agreement shall pass to Customer at the time they are placed under effective control of Customer or an assistant of Customer.
2. The risk of modifications or repairs to the Software, scripts or programming made by Customer herself shall be at the expense and risk of Customer.

Article 9 - Intellectual Property.

1. All intellectual property rights to the Software developed pursuant to the Agreement or software, websites, data files, databases, hardware, training, testing and examination materials or other materials such as analyses, designs, documentation, reports, offers, as well as preparatory materials thereof, developed pursuant to the Agreement or made available to Customer, belong exclusively to Supplier, her licensors or her suppliers. Customer shall only acquire the rights of use expressly granted by these general terms and conditions, the Agreement and by mandatory law. Any right of use granted to Customer is non-exclusive, non-transferable, non-pledgeable and non-sublicensable.
2. If Supplier is willing to transfer a right of intellectual property, such undertaking may only be made expressly in Writing. If Parties agree in Writing that a right of intellectual property with respect to Software, websites, data files, hardware, know-how or other works or materials developed specifically for Customer, this shall not affect Supplier's right or ability to use and/or exploit the parts, designs, algorithms, documentation, works, protocols, standards and the like underlying that development for other purposes, either for herself or for third parties, without any restriction. Supplier also has the right to use and/or exploit the general principles, ideas and programming languages used for the creation, or underlying the development, of any work for other purposes without any restriction, either for herself or for third parties. Neither does the transfer of an intellectual property right affect Supplier's right to make developments for herself or a third party that are similar to or derived from those made or to be made for Customer.
3. Customer will not remove or change (or have removed) any indication(s) concerning the confidential nature or concerning copyrights, brands, trade names or any other right of intellectual property from the Software, websites, data files, hardware or materials.
4. Customer warrants that no rights of third parties oppose the provision to Supplier of hardware, Software, material intended for websites, data files and/or other materials, designs, and/or other works for the purpose of use, maintenance, adaptation, installation or integration, including having the appropriate licenses. Customer shall indemnify Supplier against any claim by a third party based on the fact that such provision, use, maintenance, adaptation, installation or integration infringes any right of that third party.
5. Supplier shall have the right to use image, logo or name of Customer in her external communications.
6. In the event of violation of the preceding paragraphs, Customer shall pay Supplier an immediately payable penalty of € 5.000 (in words: five thousand euros) per infringing act and € 25.000 (twenty-five thousand euros) per intentional infringing act, without prejudice to Supplier's right to be compensated for her loss as a result of the infringement or to take other legal measures in order to have the infringement terminated and/or to recover the loss. After the expiry of one working day after Supplier has notified Customer of an infringement, Customer shall also owe a penalty of €5.000 (in words: five thousand euros) per day that the infringement continues.

Article 10 - Performance of Services.

1. Supplier shall use her best efforts to perform the Services with the greatest possible care, in accordance with the arrangements and procedures laid down in Writing with Customer. All Supplier's Services shall be performed on the basis of an effort obligation to perform to the best of her ability, unless and to the extent that Supplier has expressly promised a result in the Agreement in Writing and the result in question has been described with sufficient definiteness in the Agreement.
2. Customer is obliged to enable timely and correct performance of the Services by Supplier. In particular, Customer shall ensure that all data, which Supplier indicates are necessary or which Customer should reasonably understand are necessary for the performance of the Services, are provided to Supplier in a timely manner. The necessary commitment of Customer must be provided with sufficient quality and timeliness. This applies both to support to be provided by contact persons and to the planned deployment of project staff within the project work to be performed.
3. If Customer fails to do the above, Supplier shall be entitled to charge additional fees. Any delay of the Services caused by Customer shall be reported through the Project Management System or, if no Project Management System has been deployed for the Services, by email or, in the absence of functioning email correspondence, by any other Written means. Should this situation arise, Supplier shall inform Customer of any additional costs to be charged.

4. If the Agreement includes that one particular person will perform the Services, Supplier shall always be entitled to replace such person by one or more persons with the same and/or similar qualifications.

 

Article 11 - Information and other cooperation obligations.

1. Parties acknowledge that the success of an assignment granted to Supplier depends on proper and timely mutual cooperation. Customer shall always provide all reasonable cooperation in a timely manner.
2. Customer warrants the accuracy and completeness of the data, information, designs and Specifications provided by or on behalf of her to Supplier. If the data, information, designs or Specifications provided by Customer contain inaccuracies known to Supplier, Supplier shall inquire about them with Customer.
3. In order to ensure continuity, Customer shall appoint a contact person or several contact persons to serve as such for the duration of Supplier's work. Customer's contacts will have the necessary experience, specific subject matter knowledge and understanding of Customer's desired objectives.
4. Customer shall bear the risk of selecting the Products and/or Services to be provided by Supplier. Customer shall always take the utmost care to ensure that the performance requirements are correct and complete. Dimensions and data stated in drawings, images, catalogs, websites, quotations, advertising material, standardization sheets, etc. shall not be binding on Supplier, unless expressly stated otherwise by Supplier.
5. If Customer uses personnel and/or auxiliary persons in the performance of the Agreement, such personnel and auxiliary persons shall have the necessary knowledge and experience. In the event that employees of Supplier perform work at Customer's location, Customer shall provide the necessary facilities, such as a working space with computer and network facilities, in good time and free of charge. Supplier shall not be liable for any damage or costs due to transmission errors, breakdowns or non-availability of these facilities, unless Customer proves that such damage or costs are the result of intent or deliberate recklessness on the part of Supplier's management.
6. Customer is responsible for the management, including control of the settings, the use of the Products provided and/or Services performed by Supplier and the way the results of the Products and Services are deployed. Customer is also responsible for instruction to, and use by, users.
7. Customer shall take care of the necessary hardware, infrastructure and supporting Software and install, set up, parameterize and tune the (auxiliary) Software required on her own hardware and, if necessary, adjust and keep up-to-date the hardware used, other (auxiliary) Software and user environment and achieve the interoperability desired by Customer.

 

Article 12 - Terms

1. Supplier shall make reasonable efforts to observe as much as possible the (delivery) periods and/or (completion) dates stated by her or agreed between Parties, whether or not they are final terms. Interim (delivery) dates stated by Supplier or agreed between Parties shall always be target dates, shall not be binding on the Supplier and shall always be of an indicative nature.
2. If the exceeding of any deadline is imminent, Parties will consult with each other to discuss the consequences of this exceeding for further planning.
3. In all cases - therefore also if Parties have agreed on a final (delivery) term or (completion) date - Supplier shall not be in default for exceeding the term until Customer has given it notice of default in Writing, whereby Customer gives Supplier a reasonable term to remedy this deficiency (in respect of what has been agreed) and this reasonable term has expired. The notice of default must contain a complete and detailed description of the default, so that Supplier is given the opportunity to respond adequately.
4. If it has been agreed that the performance of the agreed work will take place in phases, Supplier shall be entitled to postpone the commencement of the work belonging to a phase until Supplier has approved in Writing the results of the preceding phase.
5. Supplier shall not be bound by any deadline (for completion or otherwise) or (delivery) date if Parties have agreed a change in the content or scope of the Agreement (additional work, change in Specifications, etc.) or a change in the approach to the performance of the Agreement, or if Customer fails to perform her obligations under the Agreement or fails to do so on time or in full. The fact that (the demand for) additional work arises during the performance of the Agreement shall never constitute grounds for cancellation or dissolution of the Agreement by Customer.

Artikel 13 - Termination and Dissolution of the Agreement.

 

1. Each of the Parties shall only be entitled to dissolve the Agreement on account of an attributable failure in the performance of the Agreement if the other Party, in all cases after a notice of default in Writing is given which is as detailed as possible and in which a reasonable term is given to remedy the default, fails attributably in the performance of essential obligations under the Agreement. Customer's payment obligations and all obligations to cooperate and/or provide information by Customer or a third party engaged by Customer shall in all cases be deemed to be essential obligations under the Agreement.
2. If at the time of dissolution Customer has already received performance of (part of) the Agreement, such performance and the related payment obligations shall not be subject to cancellation, unless Customer proves that Supplier is in default with respect to the essential part of such performance. Amounts which Supplier has invoiced before the dissolution in connection with what it has already duly performed or delivered in performance of the Agreement shall, with due observance of the provisions of the preceding sentence, continue to be owed in full and shall become immediately payable at the time of dissolution.
3. If an Agreement, which by its nature and content does not end by completion, has been entered into for an indefinite period, it may be terminated in Writing by either Party after proper consultation and stating reasons. If no notice period has been agreed between the Parties, a reasonable notice period must be observed in terminating the Agreement. Supplier shall never be liable for any compensation on account of termination.
4. Customer is not entitled to prematurely terminate an Agreement that has been entered into for a definite period, or an Agreement that ends by completion.
5. Each of the Parties may terminate the Agreement in Writing with immediate effect in whole or in part without notice of default if the other Party is granted a suspension on payment - provisional or otherwise - if bankruptcy is applied for in respect of the other Party, if the other Party's enterprise is dissolved or terminated other than for the purpose of reconstruction or amalgamation of enterprises. Supplier may also terminate (part of) the Agreement with immediate effect, without notice of default, if the decisive control over Customer's company changes, directly or indirectly. On account of the termination referred to in this paragraph, Supplier shall never be obliged to refund any amounts already received or to pay for the damages. In the event that Customer is irrevocably declared bankrupt, Customer's right to use the Software, websites and the like that have been made available, as well as Customer's right to access and/or use Supplier's Services, shall terminate without any notice of termination being required on the part of the Supplier.

 

Article 14 - Liability Supplier.

1. Supplier's total liability for attributable failures in the performance of the Agreement or on any other legal basis, expressly including any failure in the performance of a warranty or indemnification obligation agreed with Supplier, shall be limited to compensation for the types of damage and amounts as detailed in this article.
2. In the event Supplier should be liable to pay any compensation to Customer, any liability of Supplier shall in any event be limited to the amount paid in the relevant case under Supplier's applicable liability insurance but limited to a maximum of the amount of the price stipulated for that Agreement (excluding VAT) capped at 12 months.
3. Indirect damage, consequential damage, loss of profit, lost savings, reduced goodwill, damage as a result of business interruption, damage as a result of claims from customers of Customer, damage related to the use of goods, materials or Software prescribed by Customer to Supplier and damage related to the use of suppliers prescribed by Customer to the Supplier is excluded from Supplier’s liability. Also excluded is any liability of Supplier related to mutilation, destruction or loss of data or documents.
4. The exclusions and limitations of Supplier's liability described in this article are without prejudice to the other exclusions and limitations of Supplier's liability described in these general terms and conditions.
5. The exclusions and limitations referred to in this article shall lapse if, and insofar as the damage is the result of intentional or willful recklessness on the part of Supplier.
6. Unless performance by Supplier is permanently impossible, Supplier's liability for attributable failure in the performance of an Agreement shall arise only if Customer immediately gives the Supplier notice of default in Writing, whereby a reasonable period for remedy of the failure is given, and Supplier continues to fail imputably in the performance of its obligations even after that period. The notice of default must contain as complete and detailed a description of the failure as possible, so that Supplier is given the opportunity to respond adequately.
7. A condition for the creation of any right to compensation shall always be that Customer reports the loss in Writing to Supplier as soon as possible after it arises. Any claim for compensation against the shall lapse by the mere expiry of 30 days after the damage arose, unless Customer has instituted a legal action for compensation of the damage before the expiry of that period.
8. Customer shall indemnify Supplier against all third party claims for product liability arising from a defect in a product or system supplied by Customer to a third party that consisted in part of hardware, Software, or other materials supplied by Supplier, unless and to the extent Customer proves that the damage was caused by such hardware, Software, or other materials supplied by Supplier.

Article 15 - Force Majeure.

1. Neither Party shall be obliged to perform any obligation, including any statutory and/or agreed warranty obligation, if prevented from doing so as a result of force majeure. Force majeure on the part of Supplier shall include:
   (i) force majeure of suppliers of Supplier;
   (ii) failure to properly fulfill obligations of suppliers prescribed to Supplier by Customer;
   (iii) defectiveness of goods, hardware, Software or materials of third parties, the use of which has been prescribed to Supplier by Customer;
   (iv) government measures; (v) electricity failure;
   (vi) failure of internet, data network or telecommunication facilities; (
   (vii) (cyber) crime, (cyber) vandalism, war or terrorism;
   (viii) epidemics and pandemics;
   (ix) general transportation problems.
2. If a situation of force majeure lasts longer than sixty days, either Party shall be entitled to dissolve the Agreement in Writing. What has already been performed under the Agreement shall in that case be settled proportionately, without Parties owing each other anything else.

Article 16 - Additional work.

1. If Supplier has performed additional work beyond the content or scope of the Agreement at Customer's request or with Customer's prior consent, such work or performance shall be compensated by Customer on the basis of subsequent calculation according to the agreed rates and, in the absence thereof, according to Supplier's usual rates. Supplier shall not be obliged to comply with such a request for additional Products and/or Services and may require that a separate Agreement in Writing is be concluded for that purpose.
2. Customer realizes that additional work (may) result in the shifting of (delivery) periods and (completion) dates. New (delivery) terms and (completion) dates indicated by Supplier shall replace the earlier ones.
3. To the extent that a fixed price or rate has been agreed upon for the Agreement, Customer is aware that additional Products and/or Services requested are not included and will be billed on an actual-cost basis unless Customer requests a new Quotation prior to the performance.

Article 17 - Governing law and forum choice.

1. The Agreements between Parties shall be governed by Dutch law. Applicability of the Vienna Sales Convention 1980 is excluded.
2. All disputes concerning the Agreements and everything related to them shall be settled by the competent court of the District Court of Amsterdam.
3. The provisions of paragraph 2 shall not affect the Parties' recourse to the courts only after they have made every effort to settle the dispute by mutual agreement.

Module B - Standard Clauses For Processing.

Article 18 - General.

1. The signing of the Agreement simultaneously establishes a processor agreement between Customer (the controller) and Supplier (the processor) on the one hand. The processor agreement is entered into for the duration as stipulated in the Agreement and ends when the Agreement ends.
2. Supplier shall process personal data on behalf of Customer in accordance with Customer's Written instructions agreed with Supplier.
3. Customer is the data controller within the meaning of the AVG, has control over the processing of personal data and has determined the purposes and means of processing personal data.
4. Supplier is a processor within the meaning of the AVG and therefore has no control over the purpose and means of processing the personal data and therefore does not make decisions regarding, among other things, the use of the personal data.
5. Supplier complies with the applicable laws and regulations regarding the processing of personal data, including in any case the AVG, as well as with what is laid down in this Module 'Standard Clauses for Processing' and in the Agreement. It is up to Customer to assess, on the basis of this information, whether Supplier offers sufficient guarantees with respect to the application of appropriate technical and organizational measures, so that the processing meets the requirements of the AVG and the protection of the rights of data subjects are sufficiently guaranteed.
6. Customer warrants to Supplier that she acts in accordance with the AVG, that it adequately secures its systems and infrastructure at all times and that the content, use and/or processing of the personal data are not unlawful and do not infringe any rights of a third party.
7. Supplier may process personal data in countries within the European Union. Customer additionally authorizes Supplier to process personal data outside the European Union, provided that the legal safeguards pursuant to the AVG are met.
8. Customer shall not be entitled to recover from Supplier any administrative fine imposed on her by the supervisor on any legal basis whatsoever. By 'supervisor' is meant a supervisory authority as referred to in the AVG.

Article 19 - Security

1. Supplier shall take the technical and organizational security measures, as described in the Agreement. In taking the technical and organizational security measures, Supplier has taken into account the state of the art, the implementation costs of the security measures, the nature, scope and context of the processing operations, the nature of her Products and/or Services, the processing risks and the risks to the rights and freedoms of data subjects that vary in terms of likelihood and severity, which Supplier could expect given her intended use of her Products and/or Services.
2. Unless explicitly stated otherwise in the Agreement, the Supplier's Product or Service is not designed to process special categories of personal data or data relating to criminal convictions or criminal offenses.
3. Supplier shall endeavor to ensure that the security measures to be taken by her are appropriate for Supplier's intended use of the Product and/or Service.
4. The security measures described provide, at Customer’s discretion, and taking into account the factors mentioned in paragraph 1 of this article, a level of security appropriate to the risk of processing the personal data used or provided by her.
5. Supplier may make changes to the security measures in place if, at her discretion, this is necessary to continue to provide an appropriate level of security. Supplier will record significant changes and will notify Customer of such changes where relevant.
6. Customer may request Supplier to implement further security measures. Supplier is not obliged to implement changes in its security measures upon such request. Supplier may charge Customer for the costs related to the changes made at Customer's request. Only after the modified security measures desired by Customer have been agreed in Writing by Parties will Supplier be obliged to actually implement these security measures.

 

Article 21 - Confidentiality.

1. All personal data that Supplier receives from Customer and/or collects herself in the context of the Agreement is subject to a duty of confidentiality.
2. Supplier shall ensure that the persons processing personal data under her responsibility have a duty of confidentiality. Supplier shall take all measures necessary to ensure that this duty of confidentiality is fulfilled.
3. This duty of confidentiality does not apply insofar as Customer has given express permission to provide the information to third parties, if the provision of the information to third parties is logically necessary in view of the nature of the assignment given and the performance of the Agreement.
4. Supplier is entitled to provide the personal data to third parties if and to the extent that provision is necessary pursuant to a court order, a statutory regulation, on the basis of an authorized order issued by a government agency.

Artikel 22 - Obligations upon termination.

1. Supplier shall, in the event of termination of the Agreement, delete all personal data in its possession and received from Customer within the recorded period in such a way that it can no longer be used and is no longer accessible (render inaccessible), or, if agreed, return it to Customer in a machine-readable format.
2. Supplier may charge Customer for any costs she incurs in connection with the provisions of the preceding paragraph. Further agreements about this may be laid down in the Agreement.
3. The provisions of paragraph 1 of this article shall not apply if a legal regulation prevents Supplier from deleting or returning all or part of the personal data. In such a case, Supplier shall continue to process the personal data only to the extent necessary pursuant to her legal obligations. The provisions of paragraph 1 of this article also do not apply if Supplier is a data controller within the meaning of the AVG with respect to the personal data.

Artikel 23 - Data subjects' rights, Data Protection Impact Assessment (DPIA) and audit rights

1. Where possible, Supplier shall cooperate with reasonable requests from Customer related to data subjects' rights asserted with Customer by data subjects. If Supplier is approached directly by a data subject, she will refer them to Customer whenever possible.
2. If Customer is required to do so under the AVG, Supplier shall cooperate in a Data Protection Impact Assessment (DPIA) or subsequent prior consultation upon a reasonable request to that effect.
3. Supplier shall at Customer's request make available all information reasonably necessary to demonstrate compliance with the Agreement with respect to the processing of personal data, for example, by means of a valid Data Pro Certificate or certificate at least equivalent thereto, an audit report (Third Party Memorandum) prepared by an independent expert on behalf of Supplier, or by means of other information to be provided by her. If Customer nevertheless has reason to believe that the processing of personal data is not in accordance with the Agreement, she may have an audit carried out by an independent, certified, external expert, who is demonstrably experienced in the type of processing carried out on the basis of the Agreement, at Customer's expense. Supplier shall have the right to refuse an expert if, at Supplier’s discretion, the expert affects her competitive position. The audit shall be limited to verifying compliance with the agreements regarding the processing of personal data as laid down in the Agreement. The expert shall have an obligation of confidentiality in respect of what he finds and shall only report to Customer that which constitutes a shortcoming in the performance of Supplier's obligations under the Agreement. The expert shall provide a copy of his report to Supplier. Supplier may refuse an expert, audit or instruction from the expert if, at Supplier’s discretion, it violates the AVG or other legislation or constitutes an impermissible breach of the security measures it has taken.
4. Parties will enter into consultations as soon as possible regarding the findings in the report. Parties shall comply with the proposed improvement measures laid down in the report to the extent that they can reasonably be expected to do so. Supplier shall implement the proposed improvement measures insofar as they are appropriate - at her discretion - taking into account the processing risks associated with her Product or Service, the state of the art, the implementation costs, the market in which it operates and the intended use of the Product or Service.
5. Supplier shall have the right to charge Customer for any costs incurred in connection with the provisions of this article.

Article 24 - Liability.

1. Supplier's liability for damages resulting from an attributable failure to perform the processing obligations, arising from tort or otherwise, shall be limited to the compensation of direct damages, up to a maximum of the actual amount paid by Customer to Supplier in the preceding twelve (12) months.
2. Direct damages shall mean exclusively all damages consisting of:
   - damage directly inflicted on tangible property ("property damage");
   - reasonable and demonstrable costs to compel Supplier to properly fulfill her processing obligations (again);
   - reasonable costs to determine the cause and extent of the damage insofar as pertaining to the direct damage as referred to herein; and
   - reasonable and demonstrable costs incurred by Customer to prevent or limit the direct damage referred to in this article.
3. Supplier's liability to compensate indirect damages is excluded. Indirect damage means all damage that is not direct damage and in any case is, but not limited to, consequential damage, loss of profit, missed savings, reduced goodwill, damage due to business stagnation, damage due to the failure to determine marketing purposes, damage related to the use of data or data files prescribed by Customer, or loss, mutilation or destruction of data or data files.
4. The exclusions and limitations referred to in this article shall lapse if and insofar as the damage is the result of intentional or willful recklessness on behalf of Supplier.
5. Unless performance of Supplier is permanently impossible, Supplier's liability for attributable failure in the performance of her processing obligations shall arise only if Customer gives Supplier notice of default in Writing forthwith, whereby a reasonable time for remedy of the default is given, and Supplier continues to fail imputably in the performance of her obligations even after that time. The notice of default must contain a complete and detailed description of the failure, so that Supplier is given the opportunity to respond adequately.
6. Any claim for damages by Customer against Supplier that is not specified and explicitly reported shall expire by the mere lapse of twelve (12) months after the claim arises.
7. Supplier shall not be liable for damages resulting from Customer's failure to comply with the AVG, or other laws or regulations. Customer shall also indemnify Supplier for claims of third parties based on such damages. The indemnification applies not only to the damage suffered by third parties (material but also immaterial), but also to the costs incurred by Supplier in the legal proceedings, such as, for example, court fees and attorney's fees, and any fines imposed on Supplier.

Article 25 - Subprocessors.

1. Customer authorizes Supplier to use third parties (sub-processors) when processing personal data in compliance with applicable laws and regulations.
2. Supplier shall in any case ensure that these third parties undertake in Writing at least the same duties as agreed between Customer and Supplier.
3. At the Customer's first request, the shall inform Customer as soon as possible of the third parties she has engaged.

Article 26 - Rights of use and users restrictions

1. Supplier shall make the Software available to Customer for use during the term of the Agreement on the basis of a user license. The right to use the Software is non-exclusive, non-transferable, non-pledgeable and non-sublicensable.
2. Supplier's obligation to make the Software available and Customer's right of use extend exclusively to the so-called object code of the Software. Customer's right of use does not extend to the source code of the Software. Unless otherwise stipulated in Writing, the source code of the Software and the technical documentation created during the development of the Software will not be made available to the Customer, even if Customer is willing to pay a financial compensation for this.
3. Customer shall always strictly comply with the agreed restrictions, of whatever nature or content, on the right to use the Software.
4. If Parties have agreed that the Software may only be used in combination with certain hardware, in the event of any hardware failure, Customer is entitled to use the Software in combination with other hardware with the same qualifications for the duration of the failure.
5. Supplier may require Customer to put the Software to use only after Customer has obtained one or more codes required for use from Supplier, Supplier’s supplier or the producer of the Software.
6. Customer may only use the Software in, and for the benefit of her own company or organization and only to the extent necessary for the intended use. Customer shall not use the Software for the benefit of third parties.
7. Customer is never permitted to sell, lease, alienate or grant limited rights to the Software, the associated codes for use and the carriers on which the Software is or will be recorded, or to make the Software available to a third party in any way, for any purpose or under any title whatsoever. Nor shall Customer give a third party access to the Software - whether remotely (online) or otherwise - or place the Software with a third party for hosting, even if the third party in question uses the Software exclusively for the Customer’s benefit.
8. If requested by Supplier, Customer shall cooperate immediately with an investigation to be conducted by or on behalf of Supplier regarding compliance with the agreed restrictions on use. Customer shall grant access to her premises and systems upon Supplier's first request. Supplier shall keep confidential all confidential business information obtained from or at Supplier in the course of an investigation, insofar as such information does not relate to the use of the Software herself.

Article 27 - Delivery and Installation.

1. Supplier shall, at Supplier’s discretion, deliver the Software on the agreed format data carrier or, in the absence of agreements to that effect, on a format data carrier to be determined by Supplier or make the Software available to Customer online for delivery. Any agreed user documentation shall be provided in paper or digital form in a language determined by Supplier, at Supplier's discretion.
2. Supplier shall only install the Software at Customer's premises if such has been agreed. In the absence of such agreements, Customer shall install, set up, parameterize and tune the Software and, if necessary, adjust the hardware and user environment used.

Article 28 - Acceptance.

1. Where in these general terms and conditions reference is made to 'errors', this shall be understood to mean a substantial failure of the Software to meet the functional or technical Specifications of the Software as expressly stated in Writing by Supplier and, in the event that the Software is fully or partly custom-made software, the functional or technical Specifications as expressly agreed in Writing. An error only exists if Customer can prove it and it is reproducible. Customer is obliged to report errors without delay. Supplier has no obligation whatsoever with respect to other imperfections in or to the Software other than with respect to errors within the meaning of these general terms and conditions.
2. The test period with respect to the Acceptance Test of Software is seven days after delivery or, if installation to be performed by Supplier has been agreed In Writing, seven days after completion of installation. During the test period Customer is not entitled to use the Software for productive or operational purposes. Customer shall carry out the agreed Acceptance Test with qualified personnel and with sufficient scope and depth.
3. Customer is obliged to test whether the delivered Software complies with the functional or technical Specifications expressly made known in Writing by Supplier and, if and insofar as the Software is fully or partly custom-made software, with the functional or technical Specifications expressly agreed in Writing.
4. If data is used in testing on behalf of Supplier, Customer shall ensure that the use of such data is permitted for this purpose.
5. The Software shall be deemed accepted between the Parties:
   (a) on the first day after the test period, or;
   (b) if Supplier receives a test report referred to in paragraph 6 of this article before the end of the test period: at the time that the errors mentioned in that test report have been remedied, without prejudice to the presence of errors which do not prevent acceptance under paragraph 7 of this article, or;
   (c) if Customer makes any use of the Software for productive or operational purposes.
6. If during the performance of the agreed Acceptance Test it appears that the Software contains errors, Customer shall report the test results In Writing, clearly, in detail and comprehensibly to Supplier no later than on the last day of the test period. Supplier shall make her best efforts to remedy these errors within a reasonable time, whereby Supplier is entitled to apply temporary solutions, program bypasses or problem-avoiding restrictions.
7. Customer may not withhold acceptance of the Software for reasons unrelated to the Specifications expressly agreed between the Parties in Writing and, furthermore, not because of the existence of minor errors, being errors that do not reasonably prevent the operational or productive use of the Software, without prejudice to the Supplier's obligation to remedy these minor errors under the warranty provisions of the 'Warranty' article of this Module. Acceptance may further not be withheld because of aspects of the Software that can only be subjectively assessed, such as aesthetic aspects of user interfaces.
8. If the Software is delivered and tested in stages and/or parts, the non-acceptance of a particular stage and/or part does not affect the acceptance of an earlier stage and/or another part.
9. Acceptance of the Software in one of the ways referred to in this article shall result in the Supplier being discharged from her obligations regarding the provision and delivery of the Software and, if installation of the Software by Supplier has also been agreed, from her obligations regarding the installation.
10. Acceptance of the Software does not affect Customer's rights under paragraph 7 of this article regarding minor errors and the "Warranty" article of this Module.

 

 

Article 29 - Availability.

1. Supplier shall make the Software available to Customer within a reasonable time after entering into the Agreement.
2. Immediately after termination of the Agreement, Customer shall return all copies of the Software in her possession to Supplier. If it has been agreed that Customer shall destroy the copies concerned at the end of the Agreement, Customer shall forthwith notify Supplier In Writing. Supplier shall not be obliged at or after the termination of the Agreement to provide assistance in view of any data conversion desired by Customer.

Article 30 - User Fee.

1. The fee to be paid for the right of use by Customer is due at the agreed times, or in the absence of an agreed time:

   (a) if Parties have not agreed that Supplier will provide installation of the Software: - upon delivery of the Software;

   - or in the case of periodically payable user fees upon delivery of the Software and thereafter at the commencement of each new user fee period;

   (b) if Parties have agreed that Supplier will take care of installation of the Software: - upon completion of that installation;

   - or in the case of periodically payable user fees upon completion of such installation and thereafter at the commencement of each new user fee period.

Article 31 - Changes to Software.

1. Subject to mandatory statutory exceptions, Customer shall not be entitled to modify the Software in whole or in part without Supplier's prior Written consent. Supplier is entitled to refuse her permission or to attach conditions to this permission. Customer shall bear the full risk of all modifications made by or on behalf of Customer by third parties - whether or not with Supplier's permission.

   
   
   

 

Article 32 - Warranty.

1. With respect to Software originating from a third party, the guarantee may be invoked against such third party in accordance with her conditions as referred to in Article 2.3. In the case of Software improved, controlled or programmed by Supplier, Supplier shall make every effort to remedy errors within the meaning of Article 28.1 within a reasonable period of time if such errors are reported to Supplier in Writing, described in detail, within a period of three months after acceptance.
2. Supplier may charge the costs of repair according to her usual rates if there are any usage errors or improper use by Customer or other causes not attributable to Supplier. The obligation to repair lapses if Customer makes or causes to be made any changes or modifications to the Software, scripts, or programming without Supplier's Written permission.
3. Repair of errors shall take place at a location and in a manner to be determined by Supplier. Supplier is entitled to implement temporary solutions or program bypasses or problem-avoiding restrictions in the Software.
4. Supplier shall never be obliged to restore mutilated or lost data.
5. Supplier shall have no obligation of any kind or content with respect to defects reported after the expiration of the warranty period referred to in paragraph 1.

 

Module D - Design & Engineering

Article 33 - Specifications and Development Products and Services.

1. Development of Products and/or Services shall always take place on the basis of an assignment agreement. If specifications or a design of the Products and/or Services to be developed have not already been provided to Supplier prior to, or at the time of entering into the Agreement, Parties shall in proper consultation specify in Writing which Products and/or Services are to be developed and in what manner the development shall take place.
2. Supplier shall develop/design the Products and/or Services with due care, all this with due observance of the expressly agreed specifications or design of and - where applicable - with due observance of the project organization, methods, techniques and/or procedures agreed with Customer In Writing. Before commencing the design and development work, Supplier may require Customer to agree in Writing to the specifications or design of the Product and/or Service.
3. In the absence of specific agreements in this regard, Supplier shall commence the design and development work within a reasonable period to be determined by Supplier after entering into the Agreement.

Artikel 34 - Agile Development of Products.

1. If Parties use an iterative development mode, Parties accept:
   (i)  That at the outset, the work will not be performed on the basis of complete or elaborate specifications; and
   (ii)  That specifications, which may or may not have been agreed upon at the outset of the work, can be adjusted during the execution of the Agreement by mutual agreement with due regard to the project approach belonging to the development method in question.
2. Parties can form one or more teams, consisting of delegates from both Customer and Supplier, prior to the commencement of the Agreement. The team shall ensure that the lines of communication remain short and direct and that regular consultation takes place. Parties shall provide for the deployment of capacity agreed upon by each of them of team members in the roles and with the knowledge, experience and decision-making authority required for the execution of the Agreement. Parties accept that for the success of the project the agreed capacity is required as a minimum. Parties endeavor to keep once deployed key personnel available as much as reasonably possible until the end of the project, unless circumstances beyond the control of the party concerned arise. During the execution of the Agreement, Parties will jointly make decisions in good consultation regarding the specifications that will apply to the next phase of the project and/or to the next sub-development. Customer accepts the risk that the Products do not meet all necessary specifications. Customer shall ensure permanent, active input and cooperation from relevant end-users, supported by the organization of Customer, including with regard to testing and with regard to (further) decision-making. Customer shall ensure the promptness of the progress decisions to be taken by her during the execution of the Agreement. In the absence of timely and clear progress decisions on the part of Customer in accordance with the project approach belonging to the development method in question, Supplier shall be entitled - but not obliged - to take the decisions she deems appropriate.
3. If Parties agree on one or more test moments, testing will only be based on objective, measurable and pre-agreed criteria (such as conformance to development standards). Errors or other imperfections will only be fixed if the responsible team decides to do so and will be executed within a next iteration. If an additional iteration is proven necessary for this purpose, the costs for this shall be borne by Customer. After the final development phase, Supplier is not obliged to perform remedial activities with respect to errors or other imperfections, unless expressly agreed otherwise in Writing.

 

Article 35 - Delivery and acceptance in iterative development Products.

1. Supplier shall deliver the Products and/or Services to Customer in a form it shall determine or make them available to Customer online for delivery, unless these are digital Products and/or Services Supplier shall host for the benefit of Customer.
2. In case of an iterative development method, Customer accepts the Products in the state they are in at the time of the end of the last development phase. Non-acceptance of the Products in a certain phase and/or part does not affect the acceptance of an earlier phase and/or another part.
3. Acceptance of the Products and/or Services shall result in Supplier being discharged from her obligations regarding the provision and delivery of the Products and, if installation of the Products by Supplier has also been agreed, from her obligations regarding installation.
   
   
   

Artikel 36 - Right of use.

1. Supplier shall make available to Customer the Products and/or Services developed on Customer's instructions and any user documentation developed with them for use.
2. In the event that the Products concern Software, or Services concerning scrips, control or programming of the Software, the source code of the Software and the technical documentation created during the development of the Software will only be made available to Customer if this has been agreed in Writing between Parties.
3. Supplier is not obliged to make available the auxiliary software and program or data libraries required for the use and/or maintenance of the Products and/or Services.

Article 37 - Compensation

1. All amounts pertaining to the design and development of Software, as well as scripts, control or programming applicable thereto, shall be paid in advance each calendar month unless agreed otherwise in Writing. Supplier shall send an invoice for this on a monthly basis.
2. Included in the price for the development work is also the fee for the right to use the Software during the term of the Agreement.
3. The fee for the development of the Software does not include a fee for Customer’s required auxiliary software and program and data libraries, any installation services and any modification and/or maintenance of the Software. Neither does the fee include the provision of support to her users.
4.  

Article 38 - Recovery

1. The Acceptance Test is always at the Customer's own expense and risk. Supplier does not warrant that the Software it has developed, controls, scripts or programming of the Software will work properly in conjunction with all types or new versions of web browsers and any other Software. Supplier also does not warrant that the Software will work properly in conjunction with all types of hardware.
2. Supplier may charge the costs of repair according to her usual rates if there are user errors or improper use by Customer or other causes not attributable to Supplier. The obligation to repair lapses if Customer makes changes or has changes made to the Software without the Supplier's Written permission.
3. Repair of errors shall take place at a location and in a manner to be determined by Supplier. Supplier is entitled to implement temporary solutions or program bypasses or problem-avoiding restrictions in the Software.
4. Supplier shall never be obliged to restore mutilated or lost data.

 

 

Module E - Advisering & Consultancy

Artikel 39 - Implementation of consulting and advisory services.

1. Supplier shall perform the consulting services entirely independently, at her own discretion and not under the supervision and direction of Customer.
2. Supplier is not bound to a lead-time of the assignment because the lead-time of an assignment in the field of consulting depends on various factors and circumstances, such as the quality of the data and information provided by Customer and the cooperation of Customer and relevant third parties.
3. Supplier's Services shall be performed exclusively on Supplier's usual business days and hours.
4. Customer’s use of a consultancy report issued by Supplier shall always be at Customer's risk. The burden of proof that (the manner of) consultancy services do not comply with what has been agreed in Writing or with what may be expected of a reasonably acting and competent Supplier shall rest entirely with Customer, without prejudice to Supplier's right to provide evidence to the contrary by all means.
5. Without Supplier's prior Written consent, Customer shall not be entitled to make any communication to a third party regarding Supplier's methods, methods and techniques and/or the contents of Supplier's advice or reports. Customer shall not provide or otherwise disclose Supplier's advice or reports to any third party.

Article 40 - Reports.

1. Supplier shall periodically inform Customer in the manner agreed in Writing about the performance of the Services. Customer shall inform Supplier In Writing in advance of any circumstances that are or may be of importance to Supplier, such as the method of reporting, the issues for which Customer requires attention, prioritization by Customer, availability of resources and personnel of Customer and any special or possibly unknown facts or circumstances for Supplier. Customer shall ensure the further dissemination and perusal of the information provided by Supplier within Customer's organization and assess such information partly on that basis and inform Supplier accordingly.

   
   
   
   

Article 41 - Compensation

Module F - Training

Article 42 - Registration and cancellation.

1. A training request is binding upon confirmation by Supplier, unless Supplier authorizes cancellation of the training in Writing.
2. Customer is responsible for the choice and suitability of the training for the participants. The lack of the required prior knowledge on the part of a participant does not affect the Customer's obligations under the Agreement. Customer is permitted to replace a participant for a training course with another participant upon prior consent of the Supplier.
3. The consequences of a cancellation of training shall be governed by the rules customary with Supplier. A cancellation must always be made In Writing and prior to the training or the relevant part thereof. Cancellation or non-appearance shall not affect Customer's payment obligations under the Agreement.

Artikel 43 - Implementation training

1. Customer accepts that Supplier determines the content and depth of the training.
2. Customer shall inform and monitor participants' compliance with the obligations pursuant to the Agreement and the (rules of conduct) prescribed by Supplier for participation in the training.
3. If Supplier makes use of her own equipment or Software in carrying out the training, Supplier does not warrant that such equipment or Software will be error-free or function without interruption. If Supplier conducts the training at Customer's location, Customer shall ensure the availability of proper classrooms and working equipment and Software. If Customer's facilities prove to be inadequate and the quality of the training cannot be guaranteed as a result, Supplier shall be entitled not to start, shorten or discontinue the training.
4. A separate fee is payable by Customer for the documentation, training materials or resources provided or produced for the training, unless otherwise agreed in Writing.

 

Artikel 44 - Price and payment.

1. Supplier shall require Customer to pay the fees due in respect of the training course prior to her commencement. Supplier may exclude participants from participation if Customer has failed to ensure timely payment, without prejudice to all other rights of Supplier.
2. If Supplier has conducted a preliminary investigation for the purpose of a training course, the costs associated with this may be charged separately.
3. Unless Supplier has expressly indicated that the training is VAT-exempt within the meaning of article 11 of the Dutch Turnover Tax Act 1968, Customer shall also owe VAT on top of the fee. After entering into the Agreement, Supplier shall be entitled to adjust her prices in the event of any change in the VAT regime for training established by or pursuant to law.

Module G - Hardware

Article 45 - Purchase and sale hardware.

1. Supplier shall sell the hardware and/or other items by nature and number as agreed in Writing.
2. Supplier does not warrant that the hardware and/or items are suitable for the actual and/or Supplier's intended use upon delivery, unless the Agreement clearly and without reservation specifies the uses.
3. Supplier's obligation to sell does not include assembly and installation materials, Software, paint and utility items, batteries, stamps, ink (cartridges), toner items, cables and accessories.
4. Supplier does not warrant that the assembly, installation and usage instructions accompanying the hardware and/or items are error-free and that the hardware and/or items possess the properties stated in these instructions.

 

 

Article 46 - Delivery

1. The hardware and/or goods sold by Supplier to Customer shall be delivered to an address specified by Customer. Supplier shall deliver the goods sold to Customer (or have them delivered) at a place to be designated by Customer if this has been agreed in Writing. In that case Supplier shall notify Customer, if possible in due time before delivery, of the time at which it or the carrier engaged by her intends to deliver the hardware and/or goods.
2. The costs of transportation and insurance are included, the costs of, hoisting and lifting, hiring of temporary facilities, etc. are not included in the purchase price and will be charged to Customer as appropriate.
3. If Customer requests Supplier to remove or destroy old materials (such as networks, cabinets, cable trays, packaging materials, hardware or data on hardware) or if Supplier is legally obliged to do so, Supplier may accept such request by means of a Written order at her usual rates. If and to the extent that Supplier is not permitted by law to demand payment of a fee (e.g., under the so-called "old-for-new regulation"), it shall, where appropriate, not demand such fee from Customer. Customer does not perform certified destruction of confidential data so Supplier bears the final responsibility therein and Supplier is not liable for any damages and breaches with respect to confidential data.
4. If Parties have agreed so in Writing, Supplier shall install, configure and/or connect the hardware and/or items (or have them installed). Any obligation to install and/or configure hardware by Supplier does not include performing data conversion and installing Software. Supplier is not responsible for obtaining any necessary permits.
5. Customer is required to inspect the hardware for defects upon delivery, to the extent reasonably possible at that time.

Article 47 - Test Setup.

1. Only if this has been agreed in Writing shall Supplier be obliged to place a test setup with regard to the hardware in which Customer is interested. Supplier may attach (financial) conditions to a trial installation. A trial set-up involves the temporary installation of hardware in a standard version, excluding accessories, in a room to be provided by the Customer, before Customer definitively decides whether or not to purchase the hardware in question. Customer is liable for use, damage, theft or loss of hardware that is part of a trial setup.

Artikel 48 - Environmental requirements (digital).

1. Customer shall provide a digital environment that meets the requirements specified by Supplier for the hardware and/or items, including temperature, humidity and technical environment requirements.
2. Customer shall ensure that work to be performed by third parties, such as construction work, is performed adequately and in a timely manner.

 

Artikel 49 - Warrenty.

1. Customer is obliged to ensure the proper installation of the hardware. Supplier shall make every effort to repair material and manufacturing faults in the hardware and/or other goods sold, as well as in parts supplied by Supplier under guarantee, within a reasonable period of time and free of charge if such faults have been reported to Supplier within a period of three months after delivery and described in detail. If, at Supplier’s reasonable discretion, repairment is not possible, repairment will take too long or if repairment involves disproportionately high costs, Supplier shall be entitled to replace the hardware and/or the goods free of charge with other similar, but not necessarily identical hardware and/or goods. Data conversion necessary as a result of repair or replacement is not covered by the warranty. All replaced parts shall become the property of Supplier.
2. The warranty obligation shall lapse if defects in the hardware, items or parts are wholly or partly the result of improper, careless or incompetent use, external causes such as fire or water damage, or if Customer makes or causes to be made changes in the hardware or in the parts supplied by Supplier under warranty without the Supplier's permission. Supplier shall not withhold such permission on unreasonable grounds.
3. Customer shall not be liable for loss of data resulting from the repair or replacement of hardware.
4. Any other or further reliance by Customer on non-conformity of the delivered hardware and/or items than the provisions of paragraph 1 is excluded.
5. Costs of work and repair outside the scope of this warranty will be charged by Supplier in accordance with her usual rates.
6. Supplier has no obligation under the Agreement with respect to errors and/or other defects reported after the expiration of the warranty period referred to in paragraph 1.

Module H - Secondment.

Article 50 - Secondment.

1. Supplier shall make the employee mentioned in the Agreement (hereinafter "Employee") available to Customer to perform work under Customer's direction and supervision. The results of the work shall be at Customer's risk. Unless otherwise agreed in Writing, the Employee shall be made available to Customer for forty hours per week (hereinafter: "Deployment") during Supplier's usual working days.
2. Customer may only use the employee made available for work other than that agreed upon, if Supplier has agreed to this in Writing.
3. Customer is only permitted to lend the assigned employee to a third party to work under the management and supervision of that third party if this has been expressly agreed in Writing.
4. Supplier shall make every effort to ensure that the employee made available remains available for work during the term of the Agreement during the agreed days, except in the event of illness or retirement of the employee. Even if the Agreement has been entered into with a view to performance by a specific person, Supplier is always entitled, after consultation with Customer, to replace this person by one or more persons with the same qualifications.
5. Customer shall be entitled to request replacement of the assigned employee:
   (i) if the employee made available demonstrably does not meet expressly agreed quality requirements and Customer notifies Supplier of this within three working days after the commencement of the work, giving reasons, or
   (ii) in the event of long-term illness or retirement of the posted employee. Supplier shall promptly give priority attention to the request. Supplier does not guarantee that replacement will always be possible. If replacement is not or not immediately possible, the Customer's claims to further performance of the Agreement as well as all claims of Customer on account of non-performance of the Agreement shall lapse. Customer's payment obligations regarding the work performed shall remain unaffected.

Article 51 - Term of secondment.

1. That what is stipulated in the article 'Duration of the Agreement' from Module A applies to the extent that if Parties have not agreed on the duration of secondment, the Agreement has a term for the specified duration laid down in that article and the rules for terminating the Agreement are also the same.

 

 

Article 52 - Principal's compliance with WAADI, Working hours Act and Occupational Health and Safety legislation.

1. Prior to, or upon commencement of the Deployment, Customer shall inform Supplier of any customary business closures and collectively required days off during the term of the Deployment, so that Supplier may notify Employee of such circumstance.
2. Customer warrants to Employee and Supplier that under the WAADI, she will apply the same, working hours, rest periods and working hours per day at the workplace to the extent Customer employs personnel such as Employee or similar personnel. Customer shall indemnify Supplier against claims of Employee in this respect.
3. Customer declares herself familiar with the fact that in the Working Conditions Act it is regarded as the employer towards the Employee. Customer is responsible towards the Employee and Supplier for compliance with the obligations arising from Article 7:658 of the Dutch Civil Code, the Working Conditions Act and related regulations in the area of safety and health in the workplace and good working conditions in general. Customer shall therefore actively inform the Employee of all health and safety risks and concerns specific to the Employee's workplace and location.
4. If the Employee suffers an industrial accident or occupational disease, Customer shall - to the extent required by law - immediately inform the competent authorities and ensure that a Written report is drawn up without delay. The report shall state the circumstances of the accident in such a way that it can be ascertained with a reasonable degree of certainty whether and to what extent the accident was caused by the fact that insufficient measures were taken to prevent the accident or occupational disease. Customer shall inform Supplier as soon as possible of the industrial accident or occupational disease and shall submit a copy of the report drawn up.

Artikel 53 - Overtime, overtime pay, travel and expenses.

1. Customer may request Employee to work overtime outside the agreed Deployment provided that Supplier is informed thereof in Writing by return of post. Every week Customer must inform Supplier in Writing of the number of overtime hours and on which days and times this overtime will be worked so that Supplier can process this in her invoicing and payroll administration towards the Employee.
2. Customer shall owe Supplier the agreed rate plus any agreed overtime bonus for the Employee's overtime hours assigned by Customer on normal working days and working hours if the same applies to its own employees in similar positions.
3. Customer shall owe the agreed rate plus any agreed irregularity allowance for overtime assigned by Customer on (holiday) days and at times outside normal working hours if the same applies to the Customer’s own employees in similar positions.
4. Expenses, travel time and travel costs of the Employee incurred in connection with the Deployment will not be charged separately to Customer unless the same applies to the Employee's own employees in similar positions.
5. If Customer pays other expenses and allowances to its own employees with the same position as the Employee, then due to the hirer's remuneration obligation in the ABU collective bargaining agreement, these allowances and expenses will also have to be paid to the Employee.

Artikel 54 - Management and supervision Principal.

1. Customer shall act with the same care with respect to the Employee in the exercise of management and supervision as it is bound to do with respect to her own employees.
2. During the Deployment, the Employee reports to Customer’s designated manager, project leader or contact person.

 

Article 55 - Suspension, force majeure, business closure and days off at Customer.

1. 1. Customer shall not be entitled to temporarily suspend all or part of the Employee's Deployment and payment of the agreed rate plus surcharges, unless she can make it plausible that there is force majeure in the sense of article 6:75 of the Dutch Civil Code, as a result of which the Employee cannot continue his or her work, whether or not at another location. In the absence of a legally valid invocation of the force majeure regulation, Customer shall therefore be bound to pay Supplier the agreed rate for the agreed duration of the Deployment in full.
   2. If an intention to establish a company closure and/or collectively required days off becomes known after entering into the Agreement, Customer shall pay the agreed rate for the time being unless otherwise agreed.
   3. In the case of an unofficial, non-compulsory day off, this day will not be deducted from Employee's vacation credit if the same does not apply to their own employees in similar positions.

 

 

Article 56 - Training.

1. If Employee attends trainings at the request of Customer, the training costs shall be borne by Customer. The time spent on the trainings shall also be paid by Customer, except if and to the extent that the Parties expressly agree otherwise in Writing.

Article 57 - Statement of hours, settlement and adjustment.

1. The periodic settlement agreed in the Agreement shall always be calculated at least on the agreed fixed number of hours per period times (x) the agreed rate and, in the case of a 0-hour contract, on the actual hours worked times the agreed rate pursuant to what is recorded in the timesheets that have been checked and signed off or otherwise approved by the Customer, in both cases possibly increased by the agreed surcharges and expense allowances, as well as VAT.
2. In the absence of the timely submission of the signed timesheet by Customer, within the agreed term in the Agreement, Supplier shall be entitled to invoice in accordance with the timesheet submitted to Supplier by the Employee.
3. Customer vouches for the signing authority of its personnel and accepts responsibility for signing the aforementioned timesheets and Supplier's billing based thereon .
4. In the event of a discrepancy between the timesheet submitted to Supplier by the Employee and the copy retained by Customer, the timesheet submitted by the Employee shall constitute full proof for purposes of settlement, subject to evidence to the contrary furnished by Customer.
5. Supplier shall be entitled to adjust the agreed rate during the term of the Agreement, if the wage costs increase as a result of (changes in) social and fiscal laws and regulations, or any other binding regulation, or as a result of (changes in) any applicable hirer's terms of employment, collective bargaining agreement or of the wages or terms of employment regulated therein or any wage increase and/or mandatory benefit provided therein. Supplier shall furthermore be entitled to make interim adjustments to the agreed rate in connection with an increase in the Employee's wage as of January 1 of any calendar year (whether or not due to price indexation).
6. Supplier shall announce any adjustment of the agreed rate to Customer as soon as possible and confirm it to Customer in Writing. If the agreed rate is set too low due to any cause attributable to the Customer, Supplier shall be entitled to raise the agreed rate to the correct level retroactively as well. Supplier may also charge to Customer for the amount which Customer has underpaid as well as costs incurred by Supplier as a result thereof.

Artikel 57 - Payment terms and billing.

1. Only payments made to Supplier or a third party designated in Writing by Supplier shall be released. Payment to the Employee shall be non-binding and can never constitute grounds for debt discharge or set-off.
2. Customer shall pay each invoice submitted by Supplier within 30 (thirty) days from the invoice date. If Customer exceeds this term, she shall as of then, without notice of default, be in default by operation of law and shall owe interest of 2% per month, whereby a part of a month shall be counted as a full month.
3. All costs of collection shall be borne entirely by Customer. The compensation for extrajudicial costs shall be fixed at 15% of the principal sum due including interest with a minimum of Euro 500 per claim. This compensation shall always be charged and payable by Customer without any further proof, as soon as legal assistance has been called in by Supplier or the claim has been handed over by Supplier for collection, respectively.
4. Customer is not allowed to suspend or set off payment on any grounds whatsoever unless agreed otherwise in Writing.
5. Complaints concerning an invoice must be submitted in Writing to Supplier within 8 calendar days after the day the invoice was sent. The burden of proof regarding timely submission of the complaint rests with Customer. After this period complaints will no longer be considered. The submission of a complaint does not affect the payment obligation.

Article 59 - Professional, corporate and lender liability Supplier taxes and premiums.

1. Supplier accepts no liability for the quality and results of the Deployment of Employee who worked under Customer's direction and supervision.
2. Any liability of Supplier to Customer arising from the Deployment shall be limited to the agreed Tariff during the duration of Deployment up to a maximum of 6 months. The maximum amount to be paid by Supplier shall in no case exceed the amount paid by her insurance.
3. Supplier's liability for indirect damages, including consequential damages, missed savings, lost profits and damages due to business interruption, is excluded in all cases.
4. Supplier has taken out market-compliant business and professional liability insurance for damages incurred by Customer due to the Employee's deployment including professional errors.
5. Supplier shall at all times remain liable for the payment of taxes and social security contributions in respect of Employee. If, and to the extent that Customer is held liable for the payment of taxes and (social) contributions, Supplier shall fully indemnify Customer in respect of the costs involved.
6. Customer shall be entitled to withhold contributions and taxes from the agreed rate/price if it can make it plausible that there is insufficient certainty or no longer certainty that Supplier meets the requirements to proceed to payment without withholding payroll taxes and employee insurance contributions.

Article 60 - Borrower's Liability Customer to Employee/Supplier.

1. Customer shall compensate the Employee - and indemnify Supplier against - all damages and costs suffered by the Employee in the course of performing his work for Customer, if and insofar as Customer is liable for such damages under the law and in particular Sections 7:658 of the Dutch Civil Code (working conditions), 7:611 of the Dutch Civil Code (good employment practice) or 6:108 of the Dutch Civil Code (claim for damages in case of death). Customer shall also compensate the Employee for any damage suffered by the Employee as a result of any property belonging to the Employee that was used in the context of the Deployment being damaged or destroyed.
2. Customer shall, to the extent possible, adequately insure herself against liability under the provisions of this Article.

Article 61 - Intellectual Property.

1. Supplier shall agree in the employment contracts with her Employee to the extent possible that all intellectual property rights arising from the work during the posting shall accrue to Customer so that Customer shall have a right of disposal with respect to the intellectual property arising during the Deployment.

Artikel 62 - Confidentiality, AVG compliance and corporate information.

1. The responsibility for the personal data of the persons employed by Customer that Supplier processes in the context of her own administration and invoicing surrounding the Deployment lies entirely with Supplier as the processing controller. Supplier determines the purposes and means with respect to such processing.
2. The responsibility for any personal data that Employee processes during the Deployment, on behalf of Customer, (which includes mere storage and possible access to personal data), lies entirely with Customer as the processing controller. After all, Customer determines the purposes and means with respect to such processing. Supplier therefore does not qualify as a processor because the Employee is not under her authority and supervision. As a result, there is no obligation between the Parties to enter into processor agreements as referred to in Article 28 AVG.
3. Customer is allowed to make confidentiality agreements with the Employee as well as submit to her internal privacy policy.
4. Supplier shall require her Employee in the employment contract to maintain the confidentiality of all confidential business information and personal data obtained by Employee from Customer in connection with the Deployment. As part of the AVG compliance, Customer is free to request Employee to sign a confidentiality agreement and request Employee to comply with the internal privacy policy. Supplier has placed a duty on Employee to cooperate with this request.
5. At the end of the Deployment, Supplier shall ensure that Employee shall return to Customer all documents and data carriers to which it has had access as part of the Deployment without retaining a copy thereof in any form (electronic or otherwise).