General Terms and Conditions
General Terms and Conditions PureDigital located in (2316 XC) Leiden at Schipholweg 103, registered in the trade register under number 76322432.
Article 1. Definitions
Supplier: PureDigital, hereinafter Supplier;
Customer: the other party with whom Supplier enters into an agreement;
Agreement: any agreement to supply goods or services from Supplier.
Article 2. General
These general terms and conditions apply to all offers, legal relationships, quotations and agreements under which Supplier provides goods and/or services of any kind to a Customer. Deviations and additions to these general terms and conditions are valid only if expressly agreed upon in writing.
All offers, proposals and other expressions of Supplier are without obligation, unless otherwise expressly stated by Supplier in writing. Customer vouches for the accuracy and completeness of the measurements, requirements, specifications of the performance and other data on which Supplier bases its offer by or on behalf of him to Supplier. 3. Applicability of purchasing or other terms and conditions of Client is expressly rejected.
If any provision of these general terms and conditions is null and void or destroyed, the remaining provisions of these general terms and conditions shall remain in full force and effect.
Article 3. Offer
Any written offer or quotation from Supplier shall be effective for the period stated therein. If the offer or quotation does not contain a validity period, then the offer is without obligation.
In the case of a non-binding offer or quotation, the Supplier has the right to revoke this offer or quotation at the latest within 2 working days of receiving the acceptance.
The Supplier cannot be held to its quotations or offers if the Customer can reasonably understand that the quotations or offers, or any part thereof, contain an obvious mistake or clerical error.
Where an offer or quotation relates to a product, the offer or quotation shall lapse if the product in question is no longer available in the meantime.
Offers are based on the data, information and/or requirements provided by Client.
Offers include project management, periodic reporting, standard tooling used and agency costs, these costs are factored into the offer and thereby do not result in additional costs to Customer unless project management, periodic reporting or tooling is explicitly named in Supplier’s offer.
Verbal undertakings, orders or other statements of any kind by employees of Supplier shall only be legally valid and binding if confirmed in writing by authorized representatives of Supplier.
Article 4. Formation and execution of agreement
The agreement is established by acceptance of the offer by the Client.
The Supplier is not bound until:
an assignment or order without a prior offer by the Client;
verbal agreements;
additions to or modifications of these general terms and conditions or agreement; after written confirmation thereof to the Customer or as soon as the Supplier – without objection from the Customer – has begun to carry out the assignment, work or arrangements.
Supplier has at all times an obligation of effort and not an obligation of result.
If it has been agreed that the services shall be provided in stages, Supplier shall be entitled to postpone the commencement of the services belonging to a stage until Customer has approved in writing the results of the preceding stage.
If Supplier, at Customer’s request or with Customer’s prior consent, has performed any work or other performance beyond the substance or scope of the agreed services, such work or performance shall be compensated by Customer in accordance with Supplier’s usual rates. Additional work also occurs if a system analysis, design or specifications are expanded or modified. The Supplier shall never be obliged to comply with such a request and it may require that a separate written agreement be made for that purpose.
Article 5. Price and payment
All prices are exclusive of sales tax (VAT) and other government levies.
The agreed price does not automatically apply to repeat orders, nor does it automatically apply proportionately in the case of a partial order.
Supplier has the right to adjust its price annually in accordance with the CBS price index.
Supplier shall at all times be entitled to require an advance payment from Customer. Supplier reserves the right to postpone or stop the work assigned to Supplier until the advance payment has been made.
If there is a periodic payment obligation of Customer, Supplier shall be entitled to adjust the applicable prices and rates in writing at least three months in advance. If Client does not wish to agree to such an adjustment, Client is entitled within thirty days of the notification to terminate the agreement by the date the adjustment would take effect.
The parties shall stipulate in the agreement the date or dates on which Supplier shall charge Customer for the agreed performance. Invoices shall be paid by Client in accordance with the payment terms stated on the invoice. In the absence of a specific arrangement, without prejudice to the provisions of Article 14.3, Client shall pay within thirty days of the invoice date. Client is not entitled to set off or suspend any payment.
The payment term is a due date. If an invoice has not been paid in full or no direct debit has been possible after the expiry of the payment period, the Customer shall immediately – without any demand or notice of default being required – owe the Supplier default interest in the amount of 2% per month, to be calculated cumulatively on the principal sum, from the date on which payment should have been made until the date of actual payment. Portions of a month are counted as full months for this purpose.
Client will then also owe the extrajudicial collection costs. The extrajudicial collection costs are at least 15% of the principal amount, with a minimum of € 150.
Payments go first to reduce the costs, then to reduce the interest due and finally to reduce the principal sum and current interest.
In case of liquidation, (an application for) bankruptcy, attachment or (provisional) suspension of payment of Customer, or if Customer knows that any of these situations will (probably) occur, Customer shall be obliged to inform Supplier immediately in writing. In such case, all Supplier’s claims against Customer shall be immediately due and payable and Supplier shall be entitled to terminate the Agreement with immediate effect, without being liable for any compensation or damages.
Any media budget or other marketing-related expenses spent by Supplier on behalf of Customer and in good faith shall be billed to Customer in full and within 30 days.
Each delivery, including the delivery of one or more components of a composite order, may be invoiced separately.
Article 6. Privacy and AVG
The Supplier operates according to the General Data Protection Regulation (hereinafter: the AVG) and collects personal data only insofar as it has a basis for processing such data.
Supplier shall make every effort to ensure sufficient organizational and technical security measures as referred to in the AVG.
Insofar as, despite the organizational and technical security measures taken, a security incident (data breach) as referred to in the AVG occurs, the Supplier shall notify the Processing Responsible Party under the AVG as soon as possible within the period agreed upon by the parties.
The Supplier shall also make every effort to minimize and, to the extent possible, undo any damage resulting from the data breach.
A data breach does not release the Customer from his obligations under the agreement with Supplier unless the Customer can demonstrate or make it plausible that there was gross fault or negligence on the part of Supplier.
Data breaches that have occurred at one of the third parties engaged by Supplier must be reported to Customer within 12 hours of discovery of the data breach. All relevant information regarding the data breach should be included.
Supplier shall retain personal data for no longer than is necessary for the performance of the assignment agreed between the parties, unless the Customer consents to a longer retention period or Supplier is required by legal provisions to a longer retention period.
Under the AVG, the Supplier’s Customer has the right to see their personal data, the right to change personal data, the right to be forgotten, the right to data portability and the right to information. The Customer may exercise these rights by sending an email to Supplier. Supplier will process your request within the statutory four-week period. For complex requests, this deadline may be extended once by four weeks.
If, despite the Supplier’s due care, a security incident or data leak nevertheless occurs at the Supplier, at a third party or (sub)processor engaged by the Supplier, the Supplier will only be liable if the data leak occurred as a result of the failure of its systems to be secure.
Article 7. Retention of title and lien
All items delivered to Customer shall remain Supplier’s property until all amounts due from Customer for the items delivered or to be delivered or work performed or to be performed under the Agreement, as well as all other amounts due from Customer for failure to pay, have been paid to Supplier in full.
If Customer forms a new item (in part) from items supplied by Supplier, Customer shall form that item only for Supplier and Customer shall hold the newly formed item for Supplier until Customer has paid all amounts due under the Agreement; Supplier shall in that case have all rights as the owner of the newly formed item until the time of full payment by Customer.
A Customer acting as a reseller shall be permitted to sell and resupply all items subject to Supplier’s retention of title, to the extent customary in the ordinary course of its business.
If third parties seize the goods delivered under retention of title, or wish to establish or assert rights thereon, Customer shall be obliged to inform Supplier thereof by return of post.
The Customer undertakes to insure and keep insured the goods delivered under retention of title against fire, explosion and water damage, as well as theft, and to make the insurance policy available for inspection on demand.
As the case may be, rights are always granted to the Client under the condition that the Client pays the fees agreed for them in full and on time.
Supplier may retain the goods, products, property rights, data, documents, data files and (interim) results of Supplier’s services received or generated under the Agreement, notwithstanding any existing obligation to surrender, until Customer has paid all amounts due to Supplier.
Article 8. Intellectual or industrial property rights
All intellectual and industrial property rights to the software, websites, data files, equipment or other materials developed or made available under the agreement such as analyses, designs, documentation, reports, offers, as well as preparatory materials thereof (hereinafter collectively referred to as “the materials”), shall be held exclusively by Supplier, its licensors or its suppliers, both during and after the agreement. Client only acquires the rights of use expressly granted by these terms and conditions and the law. Any other or further right of Client to reproduce the materials is excluded. A right of use granted to Client is non-exclusive and non-transferable to third parties.
If, in deviation from Article 8.1, the Supplier is prepared to undertake to transfer an intellectual or industrial property right, such an undertaking can always only be entered into expressly in writing. If the parties expressly agree in writing that rights of intellectual or industrial property in respect of software, websites, data files, equipment or other materials developed specifically for Customer shall pass to Customer, this shall not affect Supplier’s authority to apply and exploit the parts, general principles, ideas, designs, documentation, works, programming languages and the like underlying such development for other purposes, either for itself or for third parties, without any limitation. Nor does a transfer of intellectual or industrial property rights affect Supplier’s right to undertake developments for itself or third parties similar to those done or to be done for the benefit of Customer.
The Client is not allowed to remove or change any indication concerning the confidential nature or concerning copyrights, brands, trade names or other rights of intellectual or industrial property from the software, websites, data files, equipment or other materials.
Supplier is permitted to take technical measures to protect the software or with a view to agreed restrictions in the duration of the right to use the software. Client shall not be permitted to remove or circumvent any such technical measure. If security measures result in Customer being unable to make a back-up copy of software, Supplier shall provide Customer with a back-up copy on request.
Unless Supplier makes a backup copy of the software available to Customer, Customer may make one backup copy of the software, which may only be used for protection against involuntary loss of possession or damage. Installation of the backup copy only occurs after involuntary loss of possession or damage. A backup copy must have the same labels and copyright indications as present on the original copy (see Article 8.3).
Subject to the other provisions of these general terms and conditions, Client shall be entitled to correct errors in software made available to him if necessary for the use intended with the software. Where in these general terms and conditions reference is made to ‘errors’, this shall be understood to mean a substantial failure to meet the functional or technical specifications made known in writing by Supplier and, in the case of custom software and websites, the functional or technical specifications expressly agreed between the parties in writing. An error only exists if Client can prove it and if it is reproducible. Customer is obliged to report errors to Supplier without delay.
Supplier shall indemnify Customer against any legal claim by a third party based on the allegation that software, websites, data files, equipment or other materials developed by Supplier itself infringe any intellectual or industrial property right applicable in The Netherlands, on the condition that Customer forthwith informs Supplier in writing of the existence and substance of the legal claim and leaves the handling of the matter, including making any settlements, entirely to Supplier. To this end, Customer shall give Supplier the necessary powers of attorney, information and cooperation to defend itself, if necessary in Customer’s name, against such legal actions. This obligation to indemnify shall lapse if the alleged infringement is related: (i) with materials provided to Supplier by Customer for use, processing, treatment or incorporation, or (ii) with changes that Client has made to the materials or caused to be made by third parties.
If it is irrevocably established in law that the materials developed by Supplier itself infringe any intellectual or industrial property right belonging to a third party, or if in Supplier’s opinion there is a good chance of such infringement occurring, Supplier shall if possible see to it that Customer can continue to use the materials supplied, or functionally equivalent other materials, undisturbed, for instance by adapting the infringing parts or by acquiring a right of use for Customer’s benefit. If Supplier, in its sole judgment, cannot or cannot otherwise than in a manner unreasonably onerous (financially or otherwise) for it ensure that Customer can continue to use the delivered goods undisturbed, Supplier shall take back the delivered goods against crediting of the acquisition costs less a reasonable user fee. Supplier shall not make its choice in this regard except after consultation with Customer. Any other or further liability or indemnification obligation of Supplier due to infringement of intellectual or industrial property rights of a third party is completely excluded, including liability and indemnification obligations of Supplier for infringements caused by the use of the delivered materials: (i) In a form not modified by Supplier; (ii) in connection with items or software not supplied or provided by Supplier; (iii) in any manner other than that for which the materials were developed or intended.
Customer warrants that no rights of third parties oppose the provision to Supplier of equipment, software, material intended for websites (visual material, text, music, domain names, logos, etc.), data files, or other materials, including but not limited to design material, for the purpose of use, adaptation, installation or incorporation (e.g., in a website). Customer shall indemnify Supplier against any action based on the allegation that such making available, use, adaptation, installation or incorporation infringes any third party right.
Article 9. Client Obligations
Customer shall always timely provide Supplier with all data which Supplier indicates are necessary or which Customer should reasonably understand are necessary for proper performance of the Agreement. The Client will also always provide all necessary cooperation in this regard, including but not limited to providing access to its premises.
Customer shall bear the risk of the selection, use and application in its organization of the equipment, software, websites, data files and other products and materials and of the services to be provided by Supplier, and shall also be responsible for the control and security procedures and adequate system management.
If Customer does not make the data, equipment, software or employees necessary for the performance of the Agreement available to Supplier, or does not make them available in time or in accordance with the arrangements made, or if Customer fails to meet his obligations in any other reasonable manner, Supplier shall be entitled to suspend the performance of the Agreement in whole or in part, and shall be entitled to charge the costs incurred as a result in accordance with its usual rates, all this without prejudice to Supplier’s right to exercise any other legal right.
In case any employees of Supplier perform work at Customer’s location, Customer shall provide free of charge the facilities reasonably required by such employees, such as a workroom with computer and telecommunication facilities. The work space and facilities will comply with all applicable (legal) requirements and regulations regarding working conditions. Customer shall indemnify Supplier against claims of third parties, including employees of Supplier, who in connection with the execution of the Agreement suffer damage which is the result of acts or omissions of Customer or of unsafe situations in Customer’s organization. Customer shall make the house and security rules applicable within its organization known to Supplier’s employees to be deployed in a timely manner.
If telecommunication facilities, including the Internet, are used in the performance of the Agreement, Customer shall be responsible for the proper choice and timely and adequate availability thereof, except for those facilities under the direct use and management of Supplier. Supplier shall never be liable for damages or costs due to transmission errors, malfunctions or unavailability of these facilities unless Customer proves that such damages or costs are the result of willful misconduct or gross negligence on the part of Supplier or its executives. If telecommunication facilities are used in the performance of the Agreement, Supplier shall be entitled to assign access or identification codes to Customer. Supplier may change assigned access or identification codes. Client shall treat access codes confidentially and with care and shall disclose them only to authorized personnel. The Supplier shall never be liable for damages or costs resulting from misuse made of access or identification codes.
Each of the parties shall, during the term of the agreement as well as for one year after its termination, only with the prior written consent of the other party, employ, directly or indirectly, for compensation or free of charge, employees of the other party who are or have been involved in the performance of the agreement, or otherwise have work done. Where appropriate, Supplier shall not withhold the relevant consent if Customer has offered appropriate compensation. In no event shall such “adequate compensation” be less than four (4) gross monthly salaries of the affected employee, without prejudice to Supplier’s right to claim higher compensation where appropriate.
Article 10. Delivery times
All (delivery) dates stated or agreed upon by Supplier have been determined to the best of its knowledge based on the data known to Supplier at the time the agreement was entered into. Supplier shall make a proper effort to meet agreed (delivery) deadlines as much as possible. The mere exceeding of a stated or agreed (delivery) period shall not cause the Supplier to be in default. In all cases, therefore even if the parties have expressly agreed to a deadline in writing, Supplier shall not be in default for exceeding time until Customer has given it written notice of default.
The Supplier shall not be bound by deadlines (of delivery or otherwise) that can no longer be met due to circumstances beyond its control that occurred after entering into the agreement. Nor shall the Supplier be bound by any deadline or otherwise if the parties have agreed to a change in the content or scope of the agreement (additional work, change in specifications, etc.). If the exceeding of any deadline is imminent, the parties shall consult as soon as possible.
Article 11. Guarantees
The Supplier guarantees that the goods comply with the agreement, with the specifications stated in the offer, with the reasonable requirements of soundness and usability that may be made of these goods in accordance with the standards prevailing in the industry and the legal provisions existing on the date of the conclusion of the agreement.
Recourse to guarantees is only possible if the Client has fulfilled his payment obligation.
Recourse to guarantees shall be made by written and timely notification of a complaint within the time limits specified below in Article 14.
Supplier is not responsible for checking the accuracy and completeness of the results of computer service services provided by Supplier, which means the automatic processing of data using software and equipment operated by Supplier (hereinafter: the computer service). Client will self-check these results upon receipt. Supplier does not warrant that the computer service will be provided without error or interruption. If defects in the results of the computer service are a direct consequence of products, software, data carriers, procedures or operating acts for which Supplier is expressly responsible under the Agreement, Supplier shall repeat the computer service in order to correct such imperfections to the best of its ability, provided that Customer notifies Supplier in writing and in detail of the imperfections as soon as possible but not later than one week after receiving the results of the computer service. Only if defects in the computer service are attributable to Supplier will the repeat be performed free of charge. If defects are not attributable to Supplier and/or the defects are the result of Customer’s errors or imperfections, such as the provision of incorrect or incomplete information, Supplier shall charge Customer for the cost of any repetition in accordance with its usual rates. If repair of defects attributable to Supplier is technically or reasonably not possible, Supplier shall credit the amounts owed by Customer for the computer service in question, without further or other liability to Customer. Client shall have no rights for defects in the computer service other than those described in these warranty regulations.
Article 12. Termination of agreement
Each of the parties is entitled to dissolve the agreement only if the other party, in all cases after a proper and as detailed as possible written notice of default in which a reasonable period is given to remedy the failure, imputably fails to fulfill essential obligations under the agreement.
The agreement between Supplier and Customer is entered into for the duration as stated in the agreement. Except in the case of termination, the agreement shall thereafter always be extended consecutively for a period of equal duration. Termination of the contract must be done by letter or e-mail by the end of the (extended) term with two months’ notice, unless otherwise specified in the contract.
If a contract does not specify the duration for which it was entered into and the contract, by its nature and content, does not terminate by completion, and is therefore entered into for an indefinite period, it may be terminated by either party by written notice after proper consultation and stating reasons. If no express notice period is agreed upon between the parties, reasonable notice must be given.
Notwithstanding what the law has stipulated in this regard by means of regulatory law, Client may terminate a service agreement only in the cases regulated in these terms and conditions.
Either party may terminate the agreement in whole or in part in writing with immediate effect without notice of default in the case referred to in Article 5.9. The Supplier shall never be liable for any refund of monies already received or compensation due to such termination. In the event of Client’s bankruptcy, the right to use software made available to Client shall expire by operation of law.
If at the time of dissolution as referred to in Article 12.1 Customer has already received performance in execution of the Agreement, such performance and the related obligation to pay shall not be an object of undoing, unless Customer proves that Supplier is in default with respect to such performance. Amounts that the Supplier has invoiced before the dissolution in connection with what it has already duly performed or delivered in performance of the agreement shall, subject to the provisions of the previous sentence, continue to be owed in full and shall become immediately payable at the time of dissolution.
Article 13. Liability of Supplier
The Supplier’s total liability is limited to compensation for direct damage up to a maximum of the amount of the price stipulated for that agreement (excluding VAT). If the agreement is primarily a continuing performance agreement with a term of more than one year, the price stipulated for the agreement shall be set at the total of the fees (excluding VAT) stipulated for one year. In no case, however, shall the total compensation for direct damages exceed €500,000 (five hundred thousand Euros). Direct damages primarily, but not exclusively, include: (i) reasonable costs that Customer would have to incur to make Supplier’s performance conform to the Agreement, unless the Agreement is rescinded by or at Customer’s demand; (ii) reasonable costs incurred by Customer for necessarily keeping its legacy system or systems and related facilities operational longer due to Supplier’s failure to deliver by a delivery deadline binding on it, less any savings resulting from the delayed delivery; (iii) reasonable costs incurred in determining the cause and extent of the damage, insofar as the determination relates to direct damage within the meaning of these terms and conditions; (iv) reasonable costs incurred to prevent or limit damage, to the extent that Client demonstrates that these costs have resulted in limiting direct damage within the meaning of these terms and conditions.
The Supplier’s liability for damages due to death or bodily injury or due to material damage to property shall never exceed €1,000,000 (one million euros) in total.
Liability of Supplier for indirect loss, consequential loss, loss of profit, lost savings, diminished goodwill, loss due to business interruption, loss resulting from claims of Customer’s customers, mutilation or loss of data, any loss connected with the use of any goods, materials or software of third parties prescribed by Customer to Supplier, any loss connected with the engagement of suppliers prescribed by Customer to Supplier and all other forms of loss or damage other than those mentioned in Articles 13.1 and 13.2, on any account whatsoever, is excluded. Also, in no event does Supplier accept liability for the media budget or other marketing-related costs spent on Customer’s behalf and in good faith. Under no circumstances will the Supplier be obliged to refund all or part of the spent media budget. In particular, the Supplier is not liable for the situation in which the spent media budget or spent marketing-related costs do not have the intended effect or lead to negative publicity or image damage.
The limitations mentioned in the preceding paragraphs of this article shall lapse if and insofar as the damage is the result of (established) intentional or deliberate recklessness on the part of Supplier or its managerial subordinates.
Supplier’s liability for attributable failure in the performance of an agreement shall in all cases arise only if Customer immediately and properly gives Supplier notice of default in writing, setting a reasonable time to remedy the failure, and Supplier continues to fail imputably in the performance of its obligations even after such time. The notice of default must contain as complete and detailed a description of the failure as possible, so that Supplier is able to respond adequately.
A condition for the creation of any right to compensation shall always be that Customer reports the loss to Supplier in writing as soon as possible after it arises. Any claim for damages against Supplier shall expire by the mere lapse of 24 months after the claim arises.
Supplier is authorized to engage third parties in connection with the performance of its assignment. If Supplier engages a third party in the performance of an assignment, Supplier shall never be liable for any errors made by such third party. In the event any such third party wishes to limit his or her liability, Supplier shall have the authority to accept such limitation of liability also on behalf of Customer. These General Terms and Conditions constitute an irrevocable third-party clause for the benefit of Supplier’s employees and other auxiliary persons.
Customer shall indemnify Supplier against all claims of third parties for product liability resulting from a defect in a product or system supplied by Customer to a third party which consisted in part of equipment, software or other materials supplied by Supplier, except if and insofar as Customer proves that the damage was caused by such equipment, software or other materials.
The provisions of this article also apply for the benefit of all (legal) persons whose services the Supplier makes use of in the execution of the agreement.
Other than the guarantees or guaranteed results explicitly agreed upon or given by the Supplier, the Supplier accepts no liability whatsoever.
Client must take all measures necessary to prevent or limit the damage.
If Supplier must make its deliveries on the basis of documents provided by or on behalf of Customer, Supplier is not responsible for the content, accuracy and completeness of these documents.
Supplier shall not be liable and Customer may not invoke the applicable warranty if the damage occurred: (i) due to inexpert use, improper use or use of the product is contrary to its intended purpose; (ii) by use of the product is contrary to instructions, advice, directions for use, package inserts, etc. provided by or on behalf of Supplier or the manufacturer and/or importer; (iii) by improper preservation (storage) or improper/inadequate maintenance of the items; (iv) because repairs or other work or operations have been performed on the Product by or on behalf of the Customer, without the express prior consent of Supplier.
In cases as enumerated above, Customer shall be fully liable for all resulting damage and expressly indemnifies Supplier against all third party claims for compensation for such damage.
Article 14. Complaints and advertising
Client may complain in writing about visible defects, damages and discrepancies in quantities within 2 working days of receipt of non-perishable items. Complaints thereafter will not be considered.
In the absence of a timely complaint, the items shall be deemed to conform to the agreement.
Complaints regarding Supplier’s billing or hourly billing must be made in writing to Supplier within ten business days. In the absence of a timely complaint, the hourly statement shall be deemed approved.
If no explicit warranty period has been agreed upon, a period of six months after delivery shall apply. Supplier shall have a complaint procedure and shall handle the complaint in accordance with this complaint procedure.
If a complaint has not been reported to the Supplier within the time periods specified in the preceding paragraphs, no claim can be made under an agreed warranty.
Supplier must be given the opportunity to investigate the complaint. Customer shall provide all relevant information for this investigation immediately upon Supplier’s request.
In the event of a well-founded complaint, Supplier shall replace or repair the delivered items as soon as possible. Repayment of (part of) the purchase price is also possible instead of replacement or repair of the delivered items, at Supplier’s discretion.
Article 15. Force majeure
Neither party is bound to fulfill any obligation if prevented from doing so due to force majeure. Force majeure shall include force majeure of Supplier’s suppliers, failure of suppliers’ obligations prescribed by Customer to Supplier to perform properly, as well as defects in any goods, materials, software of third parties the use of which was prescribed to Supplier by Customer.
If a situation occurs as referred to in Article 15.1 as a result of which Supplier cannot fulfill its obligations to Customer, those obligations shall be suspended for as long as Supplier cannot fulfill its obligations. If the situation referred to in the previous sentence has lasted for more than ninety days, both parties have the right to rescind the agreement in writing in whole or in part. That which has already been performed pursuant to the agreement shall in that case be settled proportionately, without the parties otherwise owing each other anything.
Article 16. Posting
There shall be secondment within the meaning of these terms and conditions if Supplier makes an employee (hereinafter: the seconded employee) available to Customer in order to have such employee perform work under Customer’s supervision, management or direction.
Supplier shall make every effort to ensure that the seconded employee remains available for the duration of the agreement. However, Supplier shall always be entitled, after consultation with Customer, to replace such person by one or more other persons with the same qualifications.
Client is entitled to request replacement of the posted employee (i) if the seconded employee demonstrably fails to meet expressly agreed quality requirements and Customer notifies Supplier in writing within three working days after commencement of the work, 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 is always possible. If replacement is not possible or not immediately possible, Client’s claims for further performance of the agreement as well as all Client’s claims due to non-performance of the agreement shall expire. Client’s payment obligations regarding the work performed remain in place.
The Supplier shall be liable for the timely and complete remittance of the wage tax and social insurance (advance) contributions to be paid for the seconded employee in connection with the contract. Supplier shall indemnify Customer against all statutory claims of the tax authorities or social insurance agencies, respectively, in respect of taxes and social insurance contributions directly connected with Supplier’s making the Seconded Employee available (the so-called hirer’s liability), provided that Customer leaves the settlement of the claims in question entirely to Supplier, cooperates fully with it and furnishes it with all necessary information and, if Supplier so desires, powers of attorney to conduct legal proceedings.
Supplier accepts no liability for the selection of the employee or for the results of work performed under Customer’s supervision, management or direction.
Takeover of the seconded employee is only possible after consultation and agreement regarding the fee at which takeover takes place. The compensation shall be at least 4 monthly salaries.
Article 17. Amendment clause
Supplier is at all times entitled to unilaterally make changes or additions to the General Terms and Conditions. In such case, Supplier shall timely notify Customer of any changes by sending an email containing the amended General Terms and Conditions. The amended Terms and Conditions will then continue to apply unless any changes are objected to in writing by Client within thirty days of the date of the change.
If the Client is a natural person not acting in the exercise of a profession or business, and the amendment provides the Client with a performance that differs substantially from the original performance, the Client may rescind the agreement from the date the amended General Terms and Conditions take effect.
Article 18. Applicable law and disputes
The agreements between Supplier and Customer, as well as these General Terms and Conditions, shall be governed exclusively by Dutch law. Applicability of the Vienna Sales Convention 1980 (also known as “C.I.S.G.”) is excluded.
Disputes arising from the Supplier’s services shall be settled in the court in the district of the Supplier’s place of business, unless contrary to mandatory law.