General terms and conditions
Van Donk Internettools B.V. (VDI) is registered with theDutch Chamber of Commerce under number 14103049.
Article 1 Definitions
1. In these general terms and conditions the following terms are used with the meaning below, unless otherwise expressly indicated.
Service provider: Van Donk Internettools B.V. (VDI), registered with the Dutch Chamber of Commerce under number 14103049;
client: the opposite party to the service provider;
contract: the work to be decided by mutual agreement between client and service provider that is to be done by the service provider and the terms and conditions under which this is to happen;
licenser: Van Donk Internettools B.V. (VDI), registered with the Dutch Chamber of Commerce under number 14103049;
internet tool: software product to be used over the internet by means of a licence obtained through the licenser;
licensee: the (legal) person who has taken out a licence for the use of an internet tool of the licenser;
licence users: the (legal) persons who gain access to an internet tool of the licenser through the licensee.
Article 2 General
1. The general terms and conditions apply to all offers, quotations, activities, contracts, agreements and licences between service provider/licenser and client/licensee and their legal successors respectively. Standard terms and conditions of the client or licensee only apply where they have been accepted by the service provider/licenser, with written confirmation.
2. The present terms and conditions also apply to all contracts with the service provider, for the performance of which third parties have to be involved. If one or more of the provisions in these general terms and conditions is invalid or nullified, the other provisions of these general terms and conditions shall remain in full force.
3. Service provider/licenser and client/licensee shall then consult to agree new provisions for the replacement of the invalid or nullified provisions, the purpose and the effect of the original provisions being taken into account if and as far as possible.
Article 3 Quotations
1 Quotations by the service provider are based on the information provided by the client. The client guarantees that it has provided all the essential information for the planning, performance and completion of the contract to the best of its knowledge.
2. The quotations made by the service provider are without obligation and are valid for 30 days, unless otherwise stated. The service provider is only bound by the quotations if their acceptance by the client is confirmed in writing within 30 days, unless otherwise stated.
3. The prices in the said quotations are exclusive of VAT and other government levies, and any expenses to be incurred for the purposes of the contract, including shipping charges and administrative expenses, unless otherwise stated.
4. If the acceptance (in minor respects) differs from the offer contained in the quotation, the service provider is not bound by it. The contract does not then come about in accordance with this differing acceptance, unless the service provider states otherwise.
5. A composite quotation does not oblige the service provider to fulfil part of the contract for a corresponding part of the price quoted.
6. Quotations are not automatically valid for future contracts.
Article 4 Provision of information and cooperation
The client shall provide the service provider with all the documents, information and contacts required for proper fulfilment of the contract in good time. The client shall bear all liability for the overdue or incomplete supply of the information, contacts and documents concerned or other items required for proper performance of the contract.
Article 5 Performance of the contract and the involvement of third parties
1. The service provider shall carry out the work for the purposes of the contract to the best of its knowledge, competence and ability.
2. In so far as proper performance of the contract so requires, the service provider has the right to have (parts of) the work done by third parties. The service provider shall do this in consultation with the client. The service provider agrees to make every effort to achieve the agreed obligations and quality.
3. The service provider does not accept any liability for the work done by third parties in so far as they have themselves concluded an agreement with the client.
4. The service provider is not liable for damage, of whatever kind, because the service provider has worked on the basis of incorrect and/or incomplete data provided by the client, unless this incorrectness or incompleteness should have been known to the service provider.
5. If it has been agreed that the contract will be performed in phases, the service provider can suspend the performance of those parts belonging to a subsequent phase until the client has approved the results of the preceding phase in writing.
6. If work is done by the service provider or third parties engaged by the service provider for the purposes of the contract at the client’s location or a location designated by the client, the client shall provide the facilities reasonably desired by those employees free of charge.
Article 6 Amendment of the contract, additional work
1. The client accepts that the contract timetable may be affected if the parties decide between times to change approach, way of working or extent of the contract and the work arising from this.
2. If changes in the contract performance arise between times through the agency of the client, the service provider shall make the necessary adjustments in consultation with the client. If this leads to additional work, this shall be charged to the client as an additional contract. The service provider is entitled to charge the client the additional costs for amendment of the contract.
3. Notwithstanding paragraph 1, the service provider shall not be able to charge any additional costs if the amendment of or addition to the contract is the consequence of circumstances that can be attributed to the service provider.
Article 7 Contract term; period within which the contract is to be performed
1. The contract between the service provider and a client is concluded for an indefinite period of time, unless otherwise arising from the nature of the contract or the parties expressly agree otherwise in writing.
2. If a date is agreed within the term of the contract for the completion of given work, then this is never a firm date. Therefore, if the period within which the contract is to be performed is exceeded, the client must give the service provider notice of default in writing.
Article 8 Contract rates
1. If the parties have not otherwise agreed in writing, the service provider’s rate is determined on the basis of an hourly rate.
2. Included in the service provider’s rate are the costs of secretarial support and telephone charges. With regard to the compensation for travel time 50% of the hourly rate is charged for each hour travelled. Travel and accommodation expenses shall be invoiced in accordance with agreements in the quotation. For all quotations only the time actually spent shall be charged and in the event of impending exceeding by more than 10% of the quoted amount, invoicing shall take place following consultation with the client.
3. Amounts are exclusive of VAT.
4. If the service provider agrees an hourly rate with the client, the service provider is nonetheless entitled to increase this rate.
5. The service provider has the right – without prior written notice – to increase the rate agreed in the quotation from 1 January of each calendar year by a maximum of the percentage inflation in the preceding year as provided by the CBS.
6. The service provider is entitled to increase the prices in the case of price rises outside inflation. The client is entitled to dissolve the contract if the increase each year exceeds 10%. The client is not entitled to dissolve the contract if the power to increase the rate arises from a power under the law.
7. The service provider shall inform the client of its intention to increase the rate under paragraph 6 in writing. The service provider shall also state the extent of and the date on which the increase will take effect.
8. If the client does not wish to accept the increase in the rate notified by the service provider, the client is entitled to cancel the contract in writing within two weeks of the said notification, article 13(3) being taken into account, or to cancel the contract before the date on which the rate change would take effect as given in the notification by the service provider.
Article 9 Contract payment terms
1. Payment must be made within two weeks of the invoice date, unless otherwise agreed by the client and the service provider. Objections to the amount of the invoices do not suspend the obligation to pay.
2. After the due date the client is in default and the service provider has the right to charge 1.25 % interest per month. The interest on the amount due and payable shall be calculated from the moment that the client is in default until the moment of settlement of the amount in full, part of the month being regarded as a whole month. The costs of a reminder, warning and demand for payment on account of the default of the client, which are for the client’s account, shall be €100 each time. These costs relate to the covering of the administrative consequences for the service provider.
3. If the payment is outstanding for more than one month after the invoice date, the service provider can suspend the performance of the contract until payment has been made.
4. In the event of liquidation, bankruptcy, attachment or court protection from creditors of the client, the claims of the service provider on the client shall be immediately due and payable.
5. The service provider has the right to deduct the payments made by the client in the first place from the costs, then from the outstanding interest and finally from the principal and the current interest. The service provider can, without thereby defaulting, refuse an offer to pay if the client assigns a different order for the allocation. The service provider can refuse repayment of the principal in full if the outstanding and current interest and the costs are not also paid at the same time.
6. In the event of non-fulfilment of its obligations by the client, all the collection costs incurred, both judicial and extrajudicial, shall be for the client’s account.
7. Under Dutch’s tax legislation the service provider shall apply a VAT percentage of 21%. The service provider shall validate the VAT number given by means of the ‘system for the exchange of VAT information (VIES) declaration of validity of VAT number’. The service provider is not liable for any inaccuracies arising from incompleteness of VIES, the non-availability of VIES or the non-availability of the provider concerned or any other circumstance beyond the control of the service provider.
Article 10 Closing of contract
The contract is financially closed if the settlement statement has been approved by the client. The client must advise on this within a period of 30 days from invoice date. If the client fails to respond within this period, the settlement statement shall be regarded as approved.
Article 11 Retention of title
1. All items supplied by the service provider, possibly including designs, sketches, drawings, films, software, (electronic) files, etc, remain the property of the service provider unless otherwise agreed in writing. The client does however acquire the right of use of the items that have come about through the contract concluded with the service provider.
2. The client is not entitled to pledge the items falling under the retention of title nor to encumber them in any other way.
3. If third parties seize the items supplied under retention of title or wish to establish or enforce rights to them, the client is obliged to notify the service provider accordingly by return or as soon as may reasonably be expected.
4. The client agrees to insure the items supplied under retention of title and to keep them insured against fire, explosion and water damage and against theft and to allow the service provider to inspect the policy of this insurance on demand.
5. Items supplied by the service provider that fall under the retention of title under the provisions laid down in paragraph 1 of this article may not therefore be resold, may never be used as a means of payment nor may in any other way be provided or transferred to third parties without the prior written permission of the service provider.
6. Where the service provider wishes to exercise its proprietary rights indicated in this article, the client hereby gives unconditional and irrevocable permission to the service provider or third parties to be designated by it to enter all those places where the service provider’s property is located and to take back these items.
Article 12 Investigation, objections and complaints
1. Complaints about the work done must be reported to the service provider by the client in writing within two weeks of invoice date, but not later than within three weeks of completion of the work in question. The notice of default must contain the most detailed possible description of the failing, so that the service provider is able to respond appropriately.
2. If a complaint is justified, the service provider shall then do the work as agreed, unless this has already demonstrably become pointless for the client. The latter must be notified by the client in writing.
3. If the performance of the agreed work is no longer possible or appropriate, the service provider shall only be liable within the limits of article 22.
Article 13 Termination of contract
1. Either party can terminate the agreement unilaterally at any time.
2. Early termination must be confirmed with reasons and in writing.
3. In the event of early termination by the client, the service provider is entitled to compensation in the sense that the client shall be obliged to pay the service provider the price applying for the whole work.
4. If the transfer of the work involves additional costs for the service provider, they shall be charged to the client.
Article 14 Suspension and dissolution of contract
1. The service provider is entitled to suspend the fulfilment of the obligations or to dissolve the contract if:
- the client fails to fulfil the obligations under the contract or fails to fulfil them in full;
- following the conclusion of the contract circumstances coming to the notice of the service provider give good grounds for fearing that the client will not fulfil its obligations. In the event that there are good grounds for fearing that the client will only fulfil partially or not properly, the suspension is only allowed in so far as the failing justifies it;
- on the conclusion of the contract the client has been asked to provide security for the fulfilment of its obligations under the contract and this security is not forthcoming or is inadequate.
2. The service provider is also entitled to dissolve the contract if circumstances occur that are of such nature that fulfilment of the contract becomes impossible or by standards of reasonableness and fairness can no longer be required or if circumstances otherwise occur that are of such nature that unchanged maintenance of the contract may not reasonably be expected.
3. If the contract is dissolved, the claims of the service provider on the client become immediately due and payable. If the service provider suspends the fulfilment of its obligations, it retains its claims under the law and contract.
4. The service provider always retains the right to claim compensation.
Article 15 Return of items provided
1. If the service provider has provided items to the client in the performance of the contract, the client is obliged to return the items supplied on its written request within 14 days, in their original condition, free from defects and in full. If the client fails to fulfil this obligation, all the costs resulting from this are for its account.
2. If the client, for whatever reason, after a warning to this effect, remains in default of the obligation referred to in paragraph 1, the service provider has the right to recover the damage and costs resulting from this, including the costs of replacement, from the client.
Article 16 Information safety of web sites and internet tools
1. Since the licenser is aware that organisation-confidential information may be processed with its internet tools, it ensures appropriate protection of its web site(s) and internet tools from tapping and unauthorised alteration of data by encrypting the sensitive data in the database and using an HTTPS network.
2. The security of information also depends on the way in which (legal) persons handle the information, licensee and licence user themselves being a link in this chain. Licensee and licence user must therefore also handle the access code(s) appropriately and only give them to for example (legal) persons who are authorised to work in or to view the internet tool. The service provider is not liable in so far as it did not know nor should have known that damage would occur with the product supplied or the service provided by the service provider whether or not due to outside influences.
Article 17 Responsibility for web sites and internet tools
1. Users of the web site(s), licensees and licence users of the internet tools are themselves responsible for their selection and use.
2. The information from the web site(s) and its internet tools may not be reproduced and/or reverse engineered and/or taken over and/or transferred in any way whatever, without the prior written permission of the licenser.
3. The content of the web site(s) and internet tools is subject to copyright, also as referred to in section 15 of the Copyright Act, and Dutch law applies.
Article 18 Licences
1. The licensee of an internet tool concludes a licence for a period of 12 months and with it, following payment in full of the invoice, acquires access to the internet tool.
2. The said licence fees on the licenser’s web sites are exclusive of VAT.
3. The annual licence is automatically renewed for one year, but can easily be terminated using the “Terminate licence” button. The notice to terminate must have taken place not later than one month before the expiry of the annual term.
4. The licenser has the right – without prior written notice – to increase the cost of the licence for access to the internet tool from 1 January of each calendar year by a maximum of the percentage inflation in the preceding year as provided by the CBS.
5. The invoice linked to automatic renewal is despatched two months before the licence due date and must be paid within four weeks. Automatic renewal gives entitlement to a 10% discount on the price originally paid if payment is made on time.
6. In the event of non-payment of the automatic renewal invoice, access to the internet tool will be suspended for all licence users granted by the licensee.
Article 19 Licence users with the same domain name in email address
1. With the standard licence the licensee can grant access to the internet tool to a maximum of five as yet undecided email addresses with exactly the same domain name, the licence users.
2. If the licensee wants to grant access to the internet tool to a maximum of ten as yet undecided email addresses with exactly the same domain name, the licence users, then a surcharge of 50% is applied to the standard price of the internet tool.
3. If the licensee wants to grant access to the internet tool to a maximum of 20 as yet undecided email addresses with exactly the same domain name, the licence users, then a surcharge of 100% is applied to the standard price of the internet tool.
4. If the licensee wants to grant access to the internet tool to a maximum of 100 as yet undecided email addresses with exactly the same domain name, the licence users, then a surcharge of 200% is applied to the standard price of the internet tool.
5. If the licensee wants to grant access to the internet tool to a maximum of 500 as yet undecided email addresses with exactly the same domain name, the licence users, then a surcharge of 300% is applied to the standard price of the internet tool.
Article 20 Licence users with different domain name in email address
1. If the licensee wishes to grant access to others with a different domain name in the email address from the licensee’s own email address, this is also possible and for a maximum of 50 different email addresses a discount of 10% is given on the standard price of the internet tool per email address.
2. If the licensee wishes to grant access to others with a different domain name in the email address from the licensee’s own email address, this is also possible and for between 50 and 100 different email addresses a discount of 20% is given on the standard price of the internet tool per email address.
3. If the licensee wishes to grant access to others with a different domain name in the email address from the licensee’s own email address, this is also possible and for between 100 and 500 different email addresses a discount of 30% is given on the standard price of the internet tool per email address.
4. If the licensee wishes to grant access to others with a different domain name in the email address from the licensee’s own email address, this is also possible and for more than 500 different email addresses a discount of 40% is given on the standard price of the internet tool per email address.
5. The uploading of email addresses can be done by the licensee itself later all at once or one address at a time.
6. This method of licensing also gives automatic access to five email addresses to be decided by the licence user with the same domain name.
Article 21 Liability for contracts
1. For each contract accepted by the service provider it has an obligation to perform to the best of its ability. The service provider can never be held liable for results not achieved. The service provider is only liable for failings in the performance of the contract that are the consequence of negligence and incompetence in the provision of advice and the performance of contracts in so far as the service provider knew or should have known that damage would result from it.
2. If the service provider is liable for direct damage, then this liability is limited to a maximum of the invoice amount. Liability is at all times limited to a maximum of the amount of the payment to be made by the service provider’s insurer as the occasion arises.
3. Notwithstanding the provisions laid down in paragraph 2 of this article, in the case of a contract with a term exceeding six months, the liability is further limited to the part of the fee owed over the last six months.
4. Under no circumstances can a claim be made for compensation of damage due to loss of income of the client (however arising) or for indirect damage and consequential damage.
5. The client can invoke a failing in the performance of the contract if this has been made known by the client in writing within three months of completion of the contract.
Article 22 Liability for use of web site and internet tools
1. Van Donk Internettools B.V. (VDI) has set up and put together its web sites and products with due care and has taken the information used for them from sources deemed reliable. Van Donk Internettools B.V. (VDI) cannot however guarantee their total accuracy. The information provided is for information purposes and may be amended at any time, without prior notice. The licenser does not accept any liability for the use and the content of its web site and/or internet tools and no rights may be derived from them.
2. By taking out a licensing contract the licensee, on behalf also of all the licence users provided by the licensee, fully indemnifies the licenser against any failings in the internet tool.
3. The use of the (risk) analysis tools provides no guarantee that the organisation cannot be affected by any risk. By taking out a licensing contract the licensee, on behalf also of all the licence users provided by the licensee, fully indemnifies the licenser against any negative consequences and any risks affecting the organisation of the licensee or licence user, however great or however small, in the course of or following the use of the internet tools.
4. Van Donk Internettools B.V. (VDI) makes every effort to ensure that its web site(s) and products are available 24 hours per day. Van Donk Internettools B.V. (VDI) is however entitled wholly or partially to restrict or suspend access to its web site(s) and products, for example when faults, maintenance or security incidents occur. The licenser cannot guarantee the error-free and uninterrupted functioning of its web sites and/or products and is not liable for it.
5. The licenser is not liable for the content and correctness of web sites to which reference is made or that refer to the web sites of the licenser, including those of its internet tools.
6. Should the licenser nonetheless be held liable by a judicial decision, this liability shall at all times be limited to no more than the amount of the payment to be advanced by the insurer of the service provider where appropriate.
7. Under no circumstances can a claim be made for compensation of damage due to loss of income of the licensee and/or licence user (however arising) or for indirect damage and consequential damage.
Article 23 Mail disclaimer
1. The information sent with an email message from the service provider/licenser, including any attachments, is confidential and intended for the addressee alone. If a non-addressee receives this message, they are asked to inform the sender immediately and to destroy the message and any attachments.
2. Use of the information received by unauthorised persons, publication or reproduction is prohibited and may lead to liability.
3. The service provider/licenser is not liable in the case of incorrect transmission of the email message and/or in the event of its untimely receipt.
Article 24 Indemnifications
1. The client indemnifies the service provider against claims of third parties with regard to rights of intellectual property on materials or data used in the performance of the contract provided by the client.
2. If the client provides the service provider with information carriers, electronic files or software, etc, it guarantees that the information carriers, electronic files or software are free from viruses and defects.
Article 25 Acceptance and passing of risk
The risk of loss or damage of the items that are the subject of the contract passes to the client at the moment at which they are legally and/or actually supplied to the client and are therefore transferred into the power of the client or of a third party to be designated by the client.
Article 26 Force majeure
1. The parties are not obliged to fulfil any obligation if they are prevented from so doing as a consequence of a circumstance that is not attributable to negligence and is not for their account under the law, a legal act or in generally accepted practice.
2. In addition to its meaning in law and jurisprudence, the term force majeure in these general terms and conditions shall mean all external causes, anticipated or not anticipated, over which the service provider/licenser cannot exert any influence, but because of which the service provider/licenser is unable to fulfil its obligations, including industrial action in the business of the service provider/licenser, illness and/or unfitness for work.
3. The service provider/licenser also has the right to invoke force majeure if the circumstance preventing (further) fulfilment commences after the service provider/licenser should have fulfilled its obligations.
4. The parties can suspend the obligations under the contract for the time that the force majeure continues. If this time lasts more than two months, either of the parties is entitled to dissolve the contract, without any obligation to compensate damage to the other party.
5. In so far as at the time of the commencement of force majeure the service provider has already fulfilled some of its obligations under the contract or will fulfil them, and independent value accrues to the portion fulfilled or to be fulfilled, the service provider is entitled to invoice the portion already fulfilled or to be fulfilled separately. The client is obliged to pay this invoice as if it were a separate contract.
Article 27 Confidentiality
1. The parties are obliged to maintain the confidentiality of all the confidential information that they have acquired from each other or another source for the purposes of their contract. Information counts as confidential if it has been communicated as such by the other party or if it arises from the nature of the information.
2. If, under a legal provision or a judicial decision, the service provider/licenser is obliged also to provide confidential information to third parties designated by the law or the competent court, and the service provider/licenser cannot invoke a legal right of non-disclosure in the matter or one recognised or permitted by the competent court, then the service provider/licenser is not obliged to compensation or indemnification and the other party is not entitled to dissolve the contract on account of any damage arising from this.
Article 28 Intellectual property and copyright
1. Notwithstanding the provisions laid down elsewhere in these general terms and conditions, the service provider retains the rights and powers accruing to the service provider under the Copyright Act.
2. Items such as software, (electronic) files, drawings, sketches and designs, models, methodologies, instruments, etc, that are developed and/or used by the service provider for the performance of the contract or are incorporated into its web sites and/or internet tools are and remain the property of the service provider. Publication or other forms of disclosure thereof is only possible with the prior written permission of the service provider.
3. All the documents provided by the service provider, such as reports, advice, contracts, designs, sketches, drawings, software, etc, for the benefit of the client are to be used by client-granted licence users and are to be duplicated by client-granted licence users for their own use in their own organisation. None of the documents provided by the service provider may be published by the client or be brought to the notice of third parties without the prior permission of the service provider, unless otherwise arising from the nature of the documents provided.
4. The service provider retains the right to use the increased knowledge through the performance of the work for other purposes, in so far as no confidential information is brought to the notice of third parties in the process.
5. Where there is reference to client in paragraphs 1 to 4 licensee must also be read. Where there is reference to service provider in paragraphs 1 to 4 licenser must also be read.
Article 29 Miscellaneous
During the contract and up to two years following termination of a contract the client/licensee is not permitted to offer paid work to professionals who have been involved in the performance on behalf of or from the service provider/licenser (whether or not on an employment basis). A breach of this rule shall lead to an immediately due and payable penalty of €100,000, in words: one hundred thousand euros, without the intervention of a court.
Article 30 Applicable law
Every contract/agreement between the service provider/licenser and the client/licensee is subject to Dutch law, even if the client/licensee is resident or based abroad.
Article 31 Amendments of general terms and conditions
The service provider has the right to amend these general terms and conditions at any time. The version most recently placed on the service provider’s web site or the version that applied at the time of the conclusion of the contract or licence applies in each case.