GENERAL TERMS AND CONDITIONS RED ROCKET ONLINE
Article 1 - Definitions
Red Rocket Online, located in Hoorn, registered with the Chamber of Commerce under number 66811023, is referred to in these general terms and conditions as the service provider.
The person, legal entity, or organization with whom the service provider enters into agreements is referred to in these general terms and conditions as the client and is deemed not to be a consumer.
The parties are the service provider and the client together.
The agreement refers to the agreement for services or other types of agreements between the parties, such as all assignments, delivery of goods, agreements, and other obligations, regardless of title, nature, or circumstances.
Article 2 - Applicability of general terms and conditions
These conditions apply to all quotations, offers, activities, agreements, and deliveries of services or goods by or on behalf of the service provider, which are non-binding and based on information provided by the client. If the client possesses information relevant to the assignment but has not reported it to the service provider at the time of preparing quotations or entering into an agreement, the service provider is entitled to adjust the agreed prices and fees based on this information, for example, by invoicing at an equal rate. A quotation or offer should be considered an invitation to place an order. The service provider is free to refuse orders or assignments without stating reasons.
Deviations from these conditions are only valid if expressly confirmed in writing by the service provider. Purchase conditions, regulations, and all provisions of the client are rejected or have no effect unless these conditions are expressly accepted in writing by the service provider.
The agreement always contains obligations of effort for the service provider, never obligations of result, even if specific dates or terms of service are involved.
Article 3 - Payment
Invoices must be paid within 14 days of the invoice date by transferring the amount due in the currency indicated on the invoice to the bank account number specified by the service provider, unless the parties have made different written agreements. The client is not entitled to a right of suspension or set-off.
If the client fails to pay an invoice within the agreed term, they are in default by operation of law, without any notice of default being required. From that moment, the service provider (regardless of its other legal obligations) is entitled to suspend its obligations until the client has fulfilled its payment obligations. From the due date until the day of full payment, the client owes the service provider the statutory commercial interest, or the maximum permitted amount under applicable mandatory legislation.
Payments made by the client always serve to settle, in the first place, all interest and costs due and subsequently the payable invoices that have been outstanding the longest.
If the client remains in default, the outstanding amount is immediately due and payable, and the service provider is entitled to proceed with collection. When the client is in default, they owe the principal sum and extrajudicial collection costs and other claims to the service provider. The actual costs related to collection are borne by the client.
In the event of liquidation, bankruptcy, seizure, or suspension of payment of the client, the claims of the service provider on the client are immediately due and payable, and the service provider is from that moment entitled to demand that all work be paid in advance before the service provider can be held to obligations related to the client.
If the client refuses to cooperate in the execution of the assignment by the service provider, or if complaints or claims are made by or on behalf of the client, or if the service provider suspends its work for any reason, this does not affect the (financial) obligations of the client towards the service provider. The foregoing also applies if the client for any reason does not use the services provided or made available under an agreement.
Article 4 - Offers and quotations
Every offer from the service provider is valid for one month, unless the offer specifies a different acceptance period. If the offer is not accepted within that specified period, the service provider is free to confirm the acceptance, but the client can no longer derive rights from the (expired) offer.
Delivery times in quotations are always indicative, and exceeding them does not entitle the client to dissolution or compensation, but only results in the parties entering into discussions to determine new delivery terms and seek a suitable solution that addresses the interests of both parties.
Offers and quotations do not automatically apply to repeat orders. The parties must expressly agree on this in writing. The stated price components or rates in an offer only apply in conjunction and under the conditions under which they are offered.
Regarding exchanged communication and orders, deliveries, and payments made, the systems and administration of the service provider are deemed to contain a correct representation, subject to written convincing evidence to the contrary by the client.
Article 5 - Prices
The prices and rates mentioned in the offers and quotations of the service provider are exclusive of VAT and exclusive of any levies or other additional costs, such as administrative, installation, assembly, travel, transport, or shipping costs, unless expressly agreed otherwise, and are invoiced including the aforementioned.
The prices and rates are based on the known cost prices, rates, and circumstances at that time. Increases thereof, and changes in circumstances that could not be foreseen by the service provider at the time of the offer or the conclusion of the agreement, give the service provider the right to correct these (proportionally) insofar as they are related to the agreed obligations and/or services.
With regard to the service, the parties can agree on a fixed price when concluding the agreement. The fixed price only applies to the parts explicitly specified in the agreement and does not apply to unmentioned services, components, or resources, nor to work or costs arising from accepted changes, expansions, or extensions of the assignment; in each of the aforementioned circumstances, the service provider will be entitled to charge the client for the associated costs, which the client will be obliged to pay.
Unless otherwise agreed, the service provider invoices the client based on post-calculation based on the number of actual working hours against the agreed rates/prices. In the absence of explicit agreements on rates, the most recent rates and prices used by the service provider for the relevant service or delivery apply.
The service provider reserves the right to always set (extra) payment conditions in advance with each offer, quotation, or agreement, or to demand the provision of security in the form of a bank guarantee, or to require an advance payment, installment payment by the client, in connection with both already performed and yet to be performed services or deliveries.
Article 6 - Price indexing
The prices and hourly wages agreed upon at the conclusion of the agreement are based on the price level applicable at that time. The rates are automatically indexed annually on January 1st. The client expressly agrees to these adjustments if they (at most) keep pace with the CBS index figures (Business and ICT services; turnover development, index 2015=100). In the event of price increases above this stated price index figure, the client may terminate the agreement with effect from the next renewal by notifying the service provider via email within two weeks of the announcement of the price increase.
The service provider is also entitled to change its prices and rates. Changed prices and rates apply from the moment they are communicated to the client, preferably by email or through the usual communication method for the parties. Adjusted prices, rates, and hourly wages are communicated to the client as soon as possible. The client is deemed to have agreed if they do not object within 14 days of the notification.
Price increases in accordance with the provisions of this article 6 are not considered material or unreasonably burdensome.
Article 7 - Information provided by the client
The client provides all information relevant to the execution of the assignment to the service provider and guarantees the accuracy and completeness of that data. The client is obliged to make all data and documents available to the service provider in a timely manner and in the desired form and manner, which the service provider deems necessary for the proper execution of the assignment. Similarly, the client is obliged to immediately report any change or development that may affect the service provider's services or obligations, and new or changed data to the service provider. When information is not available, or it is foreseeable that information is incorrect, outdated, or incomplete, the client must report this (upon provision) in writing and clearly.
If the client does not, not timely, or does not properly provide the data and documents required or necessary by the service provider and the execution of the assignment is delayed as a result, the resulting additional costs will be borne by the client, and the service provider is entitled to send an adjusted schedule and new (delivery) deadlines and dates as a result of the resulting and expected delay, which will replace the original agreed schedule, (delivery) terms and dates, without the client being able to derive claims from this delay for compensation, damage, or otherwise. Furthermore, the client indemnifies the service provider for any damage in any form resulting from non-compliance with the provisions of the first paragraph of this article.
Article 8 - Withdrawal of assignment
The client is free to terminate the assignment to the service provider at any time, subject to a reasonable notice period for the service provider, from the moment of termination. Termination cannot be retroactive. If a specific term is agreed upon for an assignment, it will be adhered to, and there will be no extension. If no term has been agreed upon, a notice period of three months will be calculated from the moment of termination.
When the client withdraws, terminates, or ends the assignment, the client is obliged to pay all hours worked and costs incurred and incurred by the service provider up to that point, without prejudice to the other rights of the service provider, including claims against the client that arise as a result.
Article 9 - Execution of the agreement
The service provider executes the agreement to the best of its knowledge and ability and in accordance with the requirements of good craftsmanship.
The service provider has the right to have work performed by third parties.
The execution takes place in mutual consultation and after written approval and payment of any agreed advance.
It is the responsibility of the client to create all conditions so that the service provider can start the assignment on time. This may include conditions provided by the service provider with the offer or agreement, permits, and the presence and availability of relevant persons or resources on behalf of the client.
Article 10 - Duration of assignment and terms
The agreement between the client and the service provider is entered into for an indefinite period unless the nature of the agreement implies otherwise or the parties have expressly agreed otherwise in writing. In that case, the duration stated in the agreement applies.
If the parties have agreed on a term for completing specific work within the term of the agreement, this is never a fatal term. All terms and obligations of the service provider, such as schedules, dates, and times, are deemed to be obligations of effort, with the service provider fully committed to achieving delivery, provided that this is commercially reasonable and possible given the relevant circumstances.
The mere exceeding of a term does not result in the service provider being in default. In the event of exceeding a term, or deficient or missing delivery due to an attributable error by the service provider, where the client does not accept a delivery, or a failure to fulfill another obligation by the service provider, the client must always give the service provider written notice of default (by email) and provide the service provider with a reasonable opportunity to comply. Based on the aforementioned notice of default, the parties enter into discussions and make agreements on how the defect can be remedied (for example, by repair and delivery on a new date), where the service provider can impose conditions that the client can only refuse if they are manifestly unreasonable. Reasonable and acceptable conditions include providing sufficient time and the presence of resources for the associated work, as well as the requested and necessary cooperation of the client. If the service provider fails to deliver within the newly agreed term while the client fully complies with its obligations and agreed conditions, the service provider is in default from that moment.
Article 11 – After the end of the agreement
When an agreement ends, both parties commit to carrying out its settlement in a proper manner. Upon termination of an agreement, the parties consult, and the (receiving) party holding data, access, or works of another party consults on what should be done with these according to the issuing/entitled party and in light of possible (legal) obligations. The same applies to completing the service, (re)migration of processes, or work to which the agreement relates.
When making arrangements for the transfer, the parties ensure they provide each other with reasonable cooperation and strive to ensure that the parties involved/end users/customers do not experience unnecessary inconvenience from the migration. Also, the parties will not obstruct each other solely for subjective reasons and past events but focus only on what is necessary to ensure the agreement's termination. Performances and related obligations can only be undone if and to the extent that the client convincingly proves that the service provider is substantially in default or has not performed them. Other amounts and work performed or paid for before the end are accepted by the parties and do not form a basis for undoing, but are immediately due if they have not yet been invoiced or paid. Work that has been started but not yet completed will only be invoiced and reimbursed for the work performed, as well as the preparatory costs and future expenses, such as obligations to third parties in connection with the terminated agreement.
The parties agree that the termination of the agreement requires a reasonable degree of effort and investment from each party, which they do not initially charge to each other. This includes that the service provider transfers (or deletes at the client's option) the client's data in the file format and status in which it is processed, within a reasonable period, to the client or a designated third party. The client is free to make special or further agreements with the service provider, for example, regarding the format or method of administration, the term and method of delivery, or other conditions, provided that the reasonable interests of the service provider are taken into account, including reimbursement for the associated work based on previously agreed rates and performed on a best-effort basis, and taking into account the circumstances of the situation, including, but not limited to, personal data, the agreed purposes, and retention periods.
Article 12 - Amendment of the agreement
If during the execution of the agreement it appears that it is necessary to change or supplement the work to be performed for the proper execution of the assignment, the parties will timely and mutually adjust the agreement accordingly.
If the parties agree to amend or supplement the agreement, the time of completion of the execution may be affected. The service provider will notify the client of this as soon as possible.
If the amendment or supplement to the agreement has financial and/or qualitative consequences, the service provider will inform the client about this as soon as possible in writing.
If the parties have agreed on a fixed price, the service provider will indicate the extent to which the amendment or supplement to the agreement results in an overrun of the agreed fee(s).
Article 13 - Force majeure
In addition to the provisions of Article 6:75 of the Dutch Civil Code, a failure by the service provider in the performance of any obligation towards the client cannot be attributed to the service provider if it results from a circumstance beyond the service provider's control, which prevents or reasonably impedes the fulfillment of its obligations towards the client. Such circumstances include failures by suppliers or other third parties, power outages, computer viruses, failures of public and private networks, strikes, government measures, bad weather conditions, and work interruptions.
If a situation as referred to above occurs, as a result of which the service provider cannot fulfill its obligations towards the client, these obligations will be suspended as long as the service provider cannot fulfill its obligations. If the situation referred to in the previous sentence has lasted for 30 calendar days, the parties have the right to dissolve the agreement in writing, in whole or in part. Upon dissolution due to force majeure, all work delivered and prepared by the service provider up to that point becomes immediately due.
The service provider is not obliged to compensate for any damage in the event referred to in the second paragraph of this article, even if the service provider enjoys any benefit as a result of the force majeure situation.
Article 14 - Transfer of rights and usage rights
Rights of the client under agreements concluded with the service provider are personal/limited to the signing legal entity. These rights can only be transferred to third parties under general or special title, including, but not limited to, through a merger and change of control, renting out, sublicensing, selling, alienating, or pledging, after prior written consent from the service provider. This provision serves as a clause with real property effect as referred to in Article 3:83, paragraph 2, of the Dutch Civil Code.
If the agreed services or delivered goods to the client include the use of software, licenses, and/or the related service aimed at a specific situation, person, or application, only the legal entity of the client signing may use them for the use explicitly permitted by the service provider. In the absence of explicit agreements, the permitted use includes only use for personal/internal purposes in accordance with the provided documentation (of the right holder of the software or resources) and observing the instructions and tips of the service provider, which use does not include making available to third parties or other legal entities without prior written explicit permission from the service provider, including hosting, timesharing, or outsourcing. The term legal entity also includes another group company, affiliated legal entity, or franchisee. Unless otherwise agreed, third parties and the aforementioned persons cannot claim discounts or rights of the client and accept these terms and conditions upon first request of the service provider and enter into an agreement for the intended service.
The client and all users of the service are required to (a) not disrupt, or attempt to disrupt, the proper functioning of the service and the environments of others; (b) not create, place, send, process, or distribute viruses, harmful, prohibited, or infringing files in the service; (c) not gain access to technical environments of the service, nor to (technical) environments of the service provider or other accounts than those intentionally made available by the service provider to the client in connection with the service; (d) not make changes in the automation environment of the service provider or in the automation environments and settings made available to the client that make the service and/or data (personal data) contained therein unavailable, damaged, or disclosed to unauthorized persons; (e) not infringe or possibly infringe on rights or result in violations of laws in any way.
The client and its users will secure their access to the service and maintain adequate security measures to protect the service against unauthorized access, use, or copying by unauthorized third parties. The client appoints a person within its organization responsible for this and provides the current contact details of this administrator to the service provider upon request.
Article 15 - Warranty
Although the service provider makes all reasonable efforts to achieve optimal results, the service provider is not responsible for the accuracy and completeness of the results of the services provided, nor for their verification. It is the exclusive responsibility of the client to verify all results and processing when used. The service provider does not guarantee that services, software applications, or, for example, automatically generated information and processing are error-free, up-to-date, or uninterrupted or meet the intended (normal) use by the client.
If defects in the results of the service are a direct result of explicit choices of the service provider, its implementation actions, procedures, or operational actions for which the service provider is expressly responsible under the agreement, the service provider will adjust the service to rectify these unwanted defects to the best of its ability, provided the client reports the unwanted defects as soon as possible, but no later than one week after acceptance of the service, or one week after the unwanted result occurs, in writing and in detail to the service provider.
If defects are not attributable to the service provider and/or are the result of errors or shortcomings of the client, such as providing incorrect or incomplete information, the service provider will charge the costs of any repetition according to its usual rates to the client. If correction of defects attributable to the service provider is technically or reasonably impossible, the service provider will credit the amounts owed by the client for the respective service, without further or otherwise being liable to the client. The client has no other rights due to defects in the service than those described in this warranty scheme.
The client guarantees that services and solutions of the service provider are always implemented and used responsibly and carefully, including conducting its own (preliminary) research into the suitability of the requested and/or delivered items, relevant regulations for the client's situation, and circumstances affecting legitimacy, and is responsible for responsible use or deployment by users and persons to whom the client grants access to the service or resulting deliveries. The client takes sufficient technical and organizational measures concerning the intended service to prevent and limit abuse, infringement of rights, and access by unauthorized persons, ensuring the safety and legality of any (personal) data to be processed through the service.
Consequences and risks of improper use, use deviating from documentation or instructions from the service provider, or errors caused by users or others than the service provider are entirely and exclusively for the client's risk.
Article 16 - Insurance
The service provider has liability insurance and professional indemnity insurance.
The client is obliged to adequately insure and keep insured all actions related to the execution of concluded agreements, including (personal) data being processed, whether or not by the service provider, against, among others, professional errors, cybersecurity risks, or business liability, including liabilities, fines, and damage or injury caused to/with third parties.
The client provides insight into the policy cover page, applicable conditions, and coverage level of these insurances upon request.
Article 17 – Liability of the service provider
The service provider is not liable for damage arising from agreements concluded between the client and the service provider unless the service provider has caused the damage intentionally or with gross negligence.
In the event that the service provider is liable for compensation to the client, the damage will not exceed the total fees paid by the client to the service provider for the relevant service during the year in which the damage occurs.
Any liability for damage, whether or not arising from or related to the execution of an agreement, is always limited to the amount paid in the relevant case by the closed insurance(s), with a series of related events considered one event. This amount is increased by the deductible amount of the service provider according to the relevant policy and reduced by the amount for the damage paid out or what should have been paid out by the client's insurance.
The limitation of liability also applies if the service provider is held liable for damage resulting directly or indirectly from the failure of third parties engaged by the service provider during the execution of the assignment, damage related to the use of third-party items, materials, or software prescribed by the service provider.
Liability of the service provider for indirect damage, such as but not limited to lost profits, missed savings, reduced goodwill, damage due to business stagnation, damage resulting from claims by visitors, employees, or customers of the client, mutilation, dissemination or loss of (personal) data, damage related to the involvement of suppliers prescribed to the service provider by the client, consequential damage, regardless of the nature of the act (breach of contract, tort, or otherwise) is excluded.
The client can only make claims for defects in or the operation of products or services of third parties against those third parties under the conditions and limitations under which they supply/make them available for use. Therefore, the service provider is not liable for products and services that the client directly obtains or uses from third parties in the service, even if the service provider has advised, used, or set them up for the client.
Any right to compensation for damage caused by the service provider expires in any case 12 months after the event from which the liability directly or indirectly arises, or the client became aware of it or reasonably should have been, with due regard to the provisions of this article (17).
Article 18 - Liability of the client
In the event that an assignment is given by more than one person, each of them is jointly and severally liable for the amounts owed to the service provider under that assignment.
If an assignment is given, directly or indirectly, by a natural person on behalf of a legal entity, this natural person can also be a private client. This requires that this natural person can be considered the (co)policy maker of the legal entity. In case of non-payment by the legal entity, the natural person is therefore personally liable for the payment of the invoice, regardless of whether this is stated in the name of a legal entity or in the name of the client as a natural person or both at the request of the client.
Article 19 - Indemnification
The client indemnifies the service provider against all claims from third parties related to the goods, services, and actions delivered by the client, including deficiencies therein.
Article 20 - Obligation to complain
The client is obliged to report complaints about the work performed as soon as possible, but in any case within a reasonable period of fourteen days after delivery/execution, in writing to the service provider. The complaint contains as detailed a description of the shortcoming as possible so that the service provider can respond adequately.
Any right of the client against the service provider relating to the claim that the item/service does not comply with the agreement expires if: a. the term for notification set in the previous paragraph is not observed; b. the client does not provide sufficient cooperation within a reasonable time for an investigation into the validity of the complaints; c. the client has used the items or advice incorrectly, unprofessionally, or abnormally; d. the client has made changes after the order and/or acceptance of the delivery/performance in what the service provider has realized.
Article 21 – Retention of title and right of suspension
The services, performances, and products prepared and delivered by the client remain the property of the service provider until the client has accepted them and paid the full fee for them. Until then, the service provider can invoke its retention of title and reclaim the performances, resources, or access to services. By merely invoking and exercising retention of title or the right of suspension by the service provider, the client cannot derive claims, rights, or compensation.
If the agreed advance payments are not (fully) or not paid on time, the service provider has the right to suspend work until the agreed part has been paid. The delay in delivery or failure to meet (fatal) deadlines as a result of this cannot be held against the service provider by the client, nor can the (indirect) consequences thereof constitute an attributable failure of the service provider.
In the event of liquidation, insolvency, or suspension of payment by the client, or if a seizure is imposed on the client, the client's obligations towards the service provider become immediately due. In the event of such a seizure or if the client is granted a suspension of payment or declared bankrupt, the client must immediately inform the seizing bailiff, administrator, or trustee of the (intellectual) property right that the service provider has on the items, services, and/or property rights.
Article 22 - Intellectual property
Unless the parties have expressly agreed otherwise in writing, the service provider retains all intellectual and industrial property rights (including copyright, patent rights, trademark rights, design rights, etc.) to all designs, drawings, writings, information, quotations, images, flowcharts, models, source codes, business rules, log files generated by the service, metadata and technical information, statistical and analytical data on the use and operation of the service, technical and functional documentation, and information carriers with data or works that have been provided or made by or on behalf of the service provider before, during, or after the service.
To the extent that the client or the persons create, collect, store, or otherwise process information or (personal) data through the service, they remain the right holder of that information and (personal) data. The service provider is granted a worldwide irrevocable non-exclusive free and royalty-free permission to use the data (or, in the case of personal data, to process it) for the duration of the relevant agreement and/or service to provide the service, including but not limited to use for business operations and legitimate interests such as administration, billing, as well as providing technical (corrective, preventive, and innovative) maintenance and service to the client and handling requests from involved persons and users.
If, in deviation from paragraph 1, the service provider is willing to commit to the transfer of an intellectual or industrial property right, such a commitment can only be made in writing and expressly, and delivery will only occur after and to the extent that the client has fulfilled all (payment) obligations related to the right and service. If the parties agree in writing and expressly that intellectual or industrial property rights concerning specifically developed software, websites, databases, equipment, or other materials for the client will be transferred to the client, this does not affect the service provider's authority to apply and exploit the components, general principles, ideas, designs, documentation, works, programming languages, etc., underlying that development without any restriction for other purposes, either for itself or third parties. A transfer of intellectual or industrial property rights does not affect the right of the service provider to undertake developments for itself or third parties similar to those made or being made for the client.
The rights mentioned in paragraph 1 may not be copied, shown to third parties, made available, distributed, or otherwise used without written permission from the service provider. The client may also not remove designations (brands, names, source references, etc.) of the service provider or third parties without prior permission from the service provider.
The client guarantees that no rights of third parties oppose the intended use of the services, performances, or delivered intellectual rights of the service provider, for assigned instructions regarding communication (visual material, text, music, domain names, logos, designs, etc.), and that the content of databases and (personal) data provided to the service provider are legitimate considering acquisition, purpose of use, processing, installation, or incorporation thereof (e.g., in a website). The client indemnifies the service provider against any action based on the assertion that such provision, processing, installation, or incorporation infringes any right of third parties.
Article 23 - Confidentiality
Each party shall keep the information received from the other party (in any form) and all other information concerning the other party that they know or reasonably should know is confidential or should be expected to cause damage to the other party, secret and shall take appropriate measures to ensure that their staff also keeps the said information confidential.
The confidentiality obligation mentioned in the first paragraph of this article does not apply to information:
that was already public at the time the recipient received it or has since become public without a breach by the receiving party of a confidentiality obligation resting on them;
that the receiving party can prove was already in their possession at the time of provision by the other party;
that the receiving party has received from a third party who was entitled to provide this information to the receiving party;
that is disclosed by the receiving party under a legal obligation.
The confidentiality obligation described in this article applies for the duration of the service and a period of two years after its termination.
Article 24 – Non-employment of staff and non-competition
The client does not employ employees or engaged persons of the service provider (or companies that the service provider has used to perform this agreement and who have been involved in the performance of the agreement) in service. Nor does it have them work for it directly or indirectly in any other way. This prohibition applies during the term of the agreement and up to one year after its termination. There is one exception to this prohibition: the parties can make other agreements in good business consultation with each other.
Except as provided in the previous paragraph, the service provider is free to approach and hire persons and third parties through the service for its own organization.
The client acknowledges that the service and related concepts/elaborations are of great value, contain trade secrets, and confidential information of the service provider, and will refrain from competing in any way with the service provider's services. During the service and up to three years after the end of the last agreement between the parties, the client is not allowed to negatively influence the service provider's market position and/or harm the service without written permission from the service provider, or circumvent or hinder obligations between the parties in one of the following ways:
by decompiling, reverse engineering, or replicating the automation used and automation environments and related services of the service provider, unless this is permitted under mandatory law, in which case the client will provide the service provider with reasonably detailed information about these (intended) activities and the actual and future application at the service provider's request and honor the reasonable conditions set by the service provider;
by approaching (sub)suppliers, sub-processors, representatives of the service provider without prior permission from the service provider to inspect competition-sensitive agreements on service or to enter into obligations, for example, to obtain the services and products used in service (in)directly from these parties or to request a price reduction from the service provider;
by developing the same or similar services as the service provider, either for their own use or to make them (non-)commercially available to third parties, whether or not customers or potential customers of the service provider; or
sharing or disclosing trade secrets and/or confidential information of the service provider and/or the service provided in any way to competitors or third parties. Third parties in this provision do not include authorities and government agencies, provided that the client is required to provide or share insight based on a court order or a legal obligation applicable to the client.
The service provider may control the client's use of the service and the rights and automation environment(s) made available, including, but not limited to, verifying whether agreed/declared use for determining the fee owed equals the actual use (of environments). Subject to reasonable notice, the service provider may conduct an audit during regular business hours, with the auditor's costs borne by the service provider, unless there is fraud. If the audit reveals that insufficient payment has been made, for example, because unauthorized use was made without the service provider's permission or use was unjustly not reported, the client will pay the difference between the amount already paid and the amount owed to the service provider, including interest for the period of use for which the fee was not paid. If it is found that the detected difference exceeds five percent of the total agreed fee or more than five percent of the use is not reported, or that there are intentional errors in the administration, or artifices to circumvent or alter payment, then there is fraud, whereby the client, in deviation from the foregoing, is also obliged to reimburse the auditor's costs to the service provider.
Article 25 - Penalty clause
If the client violates obligations arising from these general terms and conditions regarding intellectual property (Article 22) or confidentiality (Article 23), non-employment of staff or non-competition (Article 24), or provisions of that nature of a contract, the client forfeits an immediately payable penalty of €25,000 for each violation and an additional amount of €1,000 for each day the violation continues, with a maximum of €250,000. This is regardless of whether the violation can be attributed to the client. No prior notice of default or legal proceedings is required for forfeiting this penalty.
The forfeiture of the penalty referred to in the first paragraph of this article does not affect the other rights of the service provider, including its right (instead of this penalty) to claim compensation for the full damage suffered.
Article 26 - Amendment of general terms and conditions
The service provider is entitled to amend or supplement these general terms and conditions. The changes take effect 14 days after notification to the client via email.
The service provider will, as much as possible, discuss major substantive changes with the client in advance. If the client disagrees with the changes to these terms and conditions, the client is entitled to terminate at the next renewal or next term after the current (extended) term expires, and the parties will then take into account a paid transfer period of two months per year that the agreement has lasted, unless the parties agree otherwise in consultation.
Nullity or annulment of a part of the general terms and conditions does not result in nullity or annulment of all parts of these general terms and conditions, but only that the relevant provision(s) will be replaced by the service provider with a legitimate provision that closely approximates the original provision.
Article 27 - Applicable law and competent court
Dutch law exclusively governs every agreement between the parties.
The Dutch court in the district where the service provider is established/practice is located/office is held is exclusively competent to hear any disputes between the parties, unless the law imperatively prescribes otherwise.