GENERAL TERMS AND CONDITIONS RED ROCKET ONLINE
Article 1 - Definitions
Red Rocket Online, located in Hoorn, Chamber of Commerce number 66811023, is referred to as the service provider in these terms and conditions.
The individual, legal entity, or organization with whom the service provider enters agreements is referred to as the client and is deemed not to be a consumer in these terms and conditions.
Parties refer to the service provider and client together.
The agreement refers to the agreement for services or other agreement between parties, including all assignments, delivery of goods, agreements, and other commitments, regardless of title, nature, or cause.
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 has relevant information for the assignment but did not disclose it to the service provider at the time of drafting offers or entering 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 reserves the right to refuse orders or assignments without giving reasons.
Deviations from these conditions can only occur if expressly and in writing confirmed by the service provider. Purchasing conditions, regulations, and all stipulations of the client are rejected or have no effect unless these conditions are explicitly accepted by the service provider in writing.
The agreement always contains obligations for the service provider to make an effort, never obligations to achieve a result, even if specific dates or terms of service are at stake.
Article 3 - Payment
Invoices must be paid within 14 days of the invoice date by transferring the amount due in the currency stated on the invoice to the bank account number provided by the service provider, unless parties have agreed otherwise in writing. The client is not entitled to invoke 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 reminder being required. From that moment, the service provider (regardless of its other legal obligations) is entitled to suspend obligations until the client has met their payment obligations. The client owes statutory commercial interest from the due date until the date of full payment, or the maximum amount allowed under applicable mandatory law.
Payments made by the client will always first cover all due interest and costs, and then the oldest outstanding invoices.
If the client remains in default, the outstanding amount becomes immediately payable, and the service provider is entitled to proceed with collection. When the client is in default, they owe external collection costs and other claims to the service provider in addition to the principal sum. The actual costs incurred concerning collection are the responsibility of the client.
In case of liquidation, bankruptcy, seizure, or suspension of payment of the client, the claims of the service provider on the client become immediately due and the service provider is entitled to require that all services are paid in advance before the service provider can be bound to related obligations by the client.
If the client refuses to cooperate in the execution of the assignment by the service provider, or if complaints or objections are submitted on behalf of the client, or if the service provider suspends services for any reason, the (financial) obligations of the client towards the service provider remain unaffected. The foregoing also applies if the client does not make use of provided or available services under a contract for any reason.
Article 4 - Offers and quotations
Each offer by the service provider is valid for 1 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 cannot derive any rights from the (expired) offer.
Delivery times in quotes are always indicative, and the mere exceeding thereof does not entitle the client to dissolution or compensation, but only results in parties discussing new delivery times and seeking a suitable solution that respects both parties' interests.
Offers and quotations do not automatically apply to repeat orders. Parties must explicitly and in writing agree to this. The mentioned price components or rates in an offer only apply in conjunction and under the conditions in which they are offered.
Regarding exchanged communications and made orders, deliveries, and payments, the systems and administration of the service provider are deemed to contain a correct representation, unless the client provides written, convincing proof to the contrary.
Article 5 - Prices
The prices and rates in offers and quotations by the service provider are exclusive of VAT and any levies or other additional costs, such as administrative, installation, assembly, travel, transport, or shipping costs, unless explicitly agreed otherwise, and will be 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 the service provider could not foresee at the time of the offer or the conclusion of the agreement, entitle the service provider to (proportionately) correct these in so far as they relate to the agreed obligations and/or services.
With regard to the service, parties can agree on a fixed price at the conclusion of the agreement. The fixed price applies only to the explicitly specified parts in the agreement and does not apply to unmentioned services, parts, or resources, or 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 associated costs to the client, who will be obliged to pay them.
Unless otherwise agreed, the service provider invoices the client after calculation based on the actual number of working hours at the agreed rates/prices. In the absence of explicit agreements on rates, the most recent rates and prices applied by the service provider for the relevant service or delivery apply.
The service provider reserves the right to always set (additional) payment conditions in advance with each offer, quotation, or agreement, or to require a bank guarantee, or an advance payment or payment in installments, etc., in view of both already performed and still to be performed services or deliveries.
Article 6 - Price indexation
The agreed prices and hourly wages at the time of the agreement are based on the price level at that time. The rates are automatically indexed annually on January 1st. The client explicitly agrees to these adjustments if they (at most) keep pace with the CBS index (Business and ICT services; revenue development, index 2015=100). For price increases above this mentioned price index figure, the client may cancel the agreement starting from the next renewal by giving notice via email to the service provider within two weeks of the announcement of the price increase.
The service provider is also entitled to alter its prices and rates. Changed prices and rates apply from the moment they are made known to the client, preferably via email or the usual communication method for parties. Adjusted prices, rates, and hourly wages are communicated to the client as soon as possible. The client is deemed to have agreed if no objection is made within 14 days after notice.
Price increases in accordance with the provisions in this article 6 are not considered material or unreasonably burdensome.
Article 7 - Information provision by the client
The client provides all information that is relevant for the execution of the assignment to the service provider and guarantees the accuracy and completeness of that data. The client is required to provide all data and documents that the service provider deems necessary for the correct execution of the assignment, in a timely manner and in the desired form and manner. Likewise, the client is obligated to immediately report any change or development that may affect the service or obligations of the service provider, and new or modified data directly to the service provider. When information is unavailable, or it is foreseeable that information is incorrect, outdated, or incomplete, the client will (upon provision) clearly report this in writing.
If the client does not, not on time, or not properly makes the data and documents requested or needed by the service provider available, and as a result, the execution of the assignment is delayed, the resulting extra costs will be borne by the client, and the service provider is entitled to send an adjusted schedule and new delivery terms and dates, due to the incurred and expected delay, which replace the original agreed upon planning, delivery terms, and dates, without the client being able to derive any claims for compensation, damages, or otherwise due to this delay. Furthermore, the client indemnifies the service provider for any damage in any form arising from not fulfilling the requirements set in the first paragraph of this article.
Article 8 - Withdrawal of assignment
The client is free to terminate the assignment with the service provider at any time, taking into account a reasonable notice period for the service provider, from the time of termination. Termination cannot be retroactive. If a specific term has been agreed upon for an assignment, this is adhered to, and no extension takes place. If no term has been agreed upon, a notice period of three months is assumed, starting from the time of termination.
When the client withdraws, terminates, or ends the assignment, the client is obligated to pay all the worked hours and incurred and committed costs of 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 workmanship.
The service provider has the right to have work carried out by third parties.
Execution takes place in mutual consultation and after written agreement and payment of any agreed upon advance.
It is the responsibility of the client to create all conditions so that the service provider can start the assignment on time. This includes conditions provided by the service provider with the offer or agreement, permits, presence, and availability of relevant persons or resources on behalf of the client.
Article 10 - Contract duration of assignment and deadlines
The agreement between the client and the service provider is entered into for an indefinite period, unless the nature of the agreement dictates otherwise or parties have explicitly agreed otherwise in writing. In that case, the duration stated in the agreement applies.
If parties have agreed on a deadline for the completion of certain work within the term of the agreement, this is not a firm deadline. All terms and obligations of the service provider, such as schedules, dates, times, are deemed to be best-effort obligations, with the service provider fully committed to delivering, provided this is commercially reasonable and possible given the relevant circumstances.
The mere exceeding of a deadline does not constitute default by the service provider. In the event of exceeding a deadline, or defective or absent delivery due to an attributable error of the service provider where the client does not accept a delivery, or failure to meet another obligation of the service provider, the client must always notify the service provider in writing (by email) and as detailed as possible, putting the service provider in default, and offer the service provider a reasonable chance to fulfill the obligation. Based on the mentioned notice of default, parties will consult and jointly decide on how to rectify the defect (e.g., by repair and delivery on a new date), allowing the service provider to set conditions which the client can only refuse if they are evidently unreasonable. Reasonable and acceptable conditions include providing sufficient time and availability of resources for the associated work, as well as the requested and necessary cooperation from the client. If the service provider fails to deliver within this agreed new period, while the client fully complies with their obligations and agreed conditions, the service provider will be in default from that moment.
Article 11 – After the end of the agreement
When an agreement ends, both parties commit to conducting its settlement in a proper manner. Upon the end of an agreement, parties consult and request the (receiving) party holding data, access, or works of another party to consult on their fate according to the providing or entitled party and in light of potential (legal) obligations. The same applies to finalizing the service, (re)migration of processes, or work covered by the agreement.
Parties agree on reasonable cooperation in formulating transfer agreements and ensuring that the involved/end-users/customers do not experience unnecessary hindrance from the migration. Parties will not hinder transfer for subjective reasons and past incidents, but instead focus on what is necessary to conclude the agreement. Performances and related obligations may only be undone if and to the extent that the client provides convincing evidence that the service provider has substantially failed or has not performed them. Other amounts and work performed or paid before the end are accepted by parties and do not constitute grounds for undoing, but are immediately due in so far as they have not been invoiced or fulfilled. Work started but not yet completed will only be invoiced and reimbursed for the completed part, as well as costs incurred for preparation and future due costs, such as commitments to third parties in the context of the terminated agreement.
Parties agree that the conclusion of the agreement requires each a reasonable degree of effort and investment, which they do not hold against each other in principle. This includes that the service provider will transfer the client's data (or delete it at the client's choice) in the file format and status as processed, within a reasonable time to the client or a designated third party. The client is free to make special or further arrangements with the service provider, for example, regarding the format or method of administration, timeframe, and delivery method, or other conditions, provided that the reasonable interests of the service provider are considered, including compensation for activities related thereto based on previously agreed rates and performed on an effort basis, 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 proper execution of the assignment requires modifying or supplementing the work to be performed, parties will timely and in mutual consultation adjust the agreement accordingly.
If parties agree to amend or supplement the agreement, the time of completion of the execution may be affected. The service provider will inform the client of this as soon as possible.
If the amendment or addition to the agreement has financial and/or qualitative consequences, the service provider will inform the client as soon as possible in writing.
If parties have agreed on a fixed price, the service provider will indicate to what extent the amendment or addition of the agreement affects the agreed remuneration(s).
Article 13 - Force majeure
In addition to the provisions in article 6:75 of the Civil Code, a failure by the service provider to fulfill any obligation towards the client cannot be attributed to the service provider in the event of an independent circumstance outside the service provider's control, which prevents the fulfillment of its obligations to the client in whole or in part, or makes the fulfillment of its obligations reasonably not expected from the service provider. Such circumstances include failures of suppliers or other third parties, power outages, computer viruses, failures of public and private networks, strikes, government measures, poor weather conditions, and work interruptions.
If a situation as mentioned above occurs, resulting in the service provider being unable to fulfill its obligations to the client, those obligations are suspended as long as the service provider cannot fulfill them. If the situation referred to in the previous sentence lasts 30 calendar days, 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 becomes immediately payable.
The service provider is not obligated to compensate any damage in the event as described in the second paragraph of this article, even if the service provider benefits from the force majeure situation.
Article 14 - Transfer of rights and usage rights
Client rights of agreements 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, leasing, sublicensing, selling, disposing, or pledging, after prior written consent from the service provider. This provision is considered a stipulation with property law effect as referred to in article 3:83 paragraph 2 of the Civil Code.
If the agreed services or deliveries to the client include the use of software, licenses, and/or the associated service targeting a specific situation, person, or application, only the signing legal entity of the client may use them for the explicit use permitted by the service provider. In the absence of explicit agreements, the permitted use only includes use for personal/internal purposes in accordance with the provided documentation (of the rights holder on the software or resources) and taking into account instructions and tips from the service provider, not including making it available to third parties or other legal entities unless prior written explicit permission from the service provider, including hosting, timesharing, or outsourcing. A legal entity also includes another group company, affiliated legal entity, or franchisee. Unless otherwise agreed, third parties and these persons cannot claim discounts or rights of the client and accept these terms and conditions at the first request of the service provider and enter into an agreement for the intended service.
The client and all users of the service are obligated (a) not to disrupt or attempt to disrupt the proper functioning of the service and the environments of others; (b) not create, place, send, process, or distribute any viruses, harmful, prohibited, or infringing files in the service; (c) not access technical environments of the service, nor to technical environments of the service provider or other accounts than intentionally made available to the client by the service provider within the context of the service; (d) not make changes to the automation environment of the service provider or the automation environments and settings made available to the client that would make the service and/or data contained therein unavailable, damaged, or disclosed to unauthorized persons; (e) not infringe or may infringe any rights or result in violation of laws.
The client and its users shall 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 will appoint a person in their organization responsible for this and provide 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 correctness and completeness of the results of the delivered services nor for checking them. It is the sole responsibility of the client to verify all results and processing when used. The service provider does not guarantee that the service, software applications, or automatically generated information and processing are error-free, up-to-date, uninterrupted, or meet the (normal) use intended by the client.
If defects in the service's results are a direct consequence of explicit choices by the service provider, its implementation actions, procedures, or operating actions for which the service provider is expressly held responsible by the agreement, then the service provider will adjust the service to its best ability to remedy these unwanted defects, provided the client makes the unwanted defects known to the service provider in writing and in detail as soon as possible, but no later than within one week after acceptance of the service, or one week after the unwanted result occurs.
If defects are not attributable to the service provider and/or the defects result from errors or shortcomings of the client, such as providing incorrect or incomplete information, the service provider will charge the costs of a possible repetition at its usual rates to the client. If repair of attributable defects by the service provider is technically or reasonably impossible, the service provider will credit the amounts owed by the client for the relevant service without being liable to the client further or otherwise. The client has no other rights due to defects in the service than those described in this warranty scheme.
The client ensures that services and solutions of the service provider are always implemented and used responsibly and carefully, including its own preliminary investigation into the suitability of what is requested and/or delivered, applicable regulations for the client’s situation, and circumstances affecting the legitimacy and ensures responsible use by users and persons whom the client provides access to the service or resulting deliveries. The client takes adequate technical and organizational measures concerning the intended service to prevent and limit misuse, infringement of rights, and access by unauthorized persons, ensuring the security and lawfulness of any personal data processing through the service.
The consequences and risks of improper use, use that deviates from the documentation or instructions of the service provider, or errors caused by users or others than the service provider are entirely and solely the responsibility of the client.
Article 16 - Insurance
The service provider has a business liability and professional indemnity insurance.
During the service, the client is obligated to adequately insure and maintain insurance for all actions related to the execution of concluded agreements, including (personal) data processed, whether or not by the service provider, against professional errors, cybersecurity risks, or business liability, including liabilities, fines, and damage or injury caused to/by third parties.
The client provides access to the policy front page, applicable conditions, and coverage amount of these insurances upon request.
Article 17 – Liability of the service provider
The service provider is not liable for damage resulting from agreements concluded between the client and the service provider unless the service provider has intentionally caused the damage or by gross negligence.
In the event that the service provider owes the client compensation, the damage does not exceed the total fees paid by the client to the service provider for the involved service during the year in which the damage occurs.
Any liability for damage, whether or not resulting from or related to the execution of an agreement, is always limited to the amount paid out in the respective case by the closed insurance(s), whereby a series of related events is considered one event. This amount is increased by the policy's service provider deductible and reduced by the amount paid out for the damage or what should have been paid out by the client's insurance.
The liability limitation also applies if the service provider is held liable for damage directly or indirectly resulting from the malfunction of third parties engaged by the service provider in the execution of the assignment, damage related to the use of service recommended matters, materials, or third-party software.
The service provider’s liability for indirect damage, such as but not limited to lost profits, missed savings, reduced goodwill, damage due to business interruption, damage resulting from claims by visitors, employees, or customers of the client, distortion distribution or loss of (personal) data, damage related to the involvement of suppliers prescribed by the client to the service provider, consequential damage, regardless of the nature of the act (breach of contract, wrongful act, or otherwise) is excluded.
The client can only assert claims for defects in or the operation of third-party products or services against those third parties under the terms and restrictions under which they provide/avail them. The service provider is therefore not liable for products and services that the client directly procures or utilizes from third parties in the service, even if the service provider has advised, used, or set them for the client.
Each right to compensation for damage caused by the service provider lapses in any case 12 months after the event from which the liability directly or indirectly arises, or the client is aware or should have reasonably become aware of, considering the provisions of this article (17).
Article 18 - Liability of the client
In case an assignment is provided 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 provided directly or indirectly by an individual on behalf of a legal entity, this individual may also be considered a private client. This requires that the individual can be regarded as the (co-)policymaker of the legal entity. In the event of non-payment by the legal entity, the individual is personally liable for payment of the invoice, regardless of whether it is made in the name of a legal entity or in the name of the client as an individual or both.
Article 19 - Indemnity
The client indemnifies the service provider against all claims by third parties related to the goods, services, and actions supplied by the client, including defects therein.
Article 20 - Obligation to complain
The client is obliged to report complaints about the work performed to the service provider as soon as possible, but in any case within a reasonable term of fourteen days after delivery/execution, in writing. The complaint contains the most detailed possible description of the deficiency, allowing the service provider to adequately respond to it.
Any right of the client against the service provider concerning the claim that the matter/service does not comply with the agreement lapses if: a. the term for notification stated in the previous paragraph has not been observed; b. the client does not provide/insufficiently provides cooperation within a reasonable term regarding an investigation into the validity of the complaints; c. the client has used the goods or advice incorrectly, imprudently, or abnormally; d. the client has made changes after giving the assignment and/or acceptance of the delivery/performance in what has been realized by the service provider.
Article 21 – Retention of title and right of suspension
The services, performances, and products made, prepared, and delivered by the client remain the property of the service provider until the client has accepted and fully paid for them. Until then, the service provider can invoke its retention of title and reclaim the performances, resources, or access to services. From the mere invocation and exercise of retention of title or the right of suspension by the service provider, the client cannot derive any claims, rights, or compensation.
If the agreed advance payments are not (fully) or not timely paid, the service provider has the right to suspend work until the agreed part is paid. The delay in delivery or failure to meet (fatal) deadlines resulting from this case cannot be held against the service provider by the client, nor can the (indirect) consequences of this constitute an attributable shortcoming of the service provider.
In the event of liquidation, insolvency, or suspension of payment of the client, or if there is seizure at the client, the obligations of the client become immediately due to the service provider. In the event of such seizure or if the client's suspension of payment is granted or the client is declared bankrupt, the client must immediately inform the seizing bailiff, administrator, or curator of the (intellectual) ownership right that the service provider has on the matters, services, and/or property rights.
Article 22 - Intellectual property
Unless parties have expressly agreed otherwise in writing, the service provider retains all intellectual and industrial property rights (including copyright, patent rights, trademark rights, design, and modeling rights, etc.) on all designs, drawings, writings, information, offers, images, flowcharts, models, source codes, business rules, log files generated by the service, metadata and technical information, statistics and analytical data on the use and functioning of the service, technical and functional documentation, and data carriers with data or works provided or made by or on behalf of the service provider for, during, or after the service.
To the extent that the client or individuals make, collect, store information or (personal) data by any means processing it through the service, they remain the rightful owner of that information and (personal) data. The service provider receives an irrevocable, non-exclusive, non-paid and royalty-free permission to use the data worldwide without limitation (or in the case of personal data to process) for the duration of the respective agreement and/or service to provide the service, including but not limited to use for business operations and legitimate interests such as administration, invoicing, as well as providing technical (corrective, preventive, and innovative) maintenance and service to the client and handling requests from involved persons and users.
If contrary to paragraph 1, the service provider is willing to commit to transferring an intellectual or industrial property right, such a commitment can only be entered into in writing and explicitly, and delivery thereof occurs only after and to the extent that the client has met all (payment) obligations related to the right and service. If parties explicitly and in writing agree that intellectual or industrial property rights regarding 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 ability to exploit the parts, general principles, ideas, designs, documentation, works, programming languages, and the like underlying that development for other purposes without restriction, whether for itself or for third parties. Nor does a transfer of intellectual or industrial property rights affect the right of the service provider to undertake developments for itself or others similar to those being carried out on behalf of the client.
The rights mentioned in paragraph 1 may not be copied, shown to third parties, made available, distributed, or used in any other way without the written consent of the service provider. Neither may the client remove designations (marks, names, source references, etc.) of the service provider or third parties without prior permission from the service provider.
The client guarantees that no third party rights oppose the intended use by him of the services, performances, or delivered intellectual rights of the service provider, for instructions given concerning communication (visual material, text, music, domain names, logos, designs, etc.), and that the content of databases and (personal) data he provides to the service provider is legitimate considering acquisition, the purpose of use, processing, installation or incorporation thereof (e.g., in a website). The client will indemnify the service provider against any action based on the assertion that such provision, processing, installation, or inclusion infringes any rights of third parties referred to in this article.
Article 23 - Confidentiality
Each party keeps the information it receives from the other party (in any form) and all other information concerning the other party that it knows or can reasonably suspect to be confidential or private, along with information from which they can expect its dissemination to damage the other party, secret and takes appropriate measures to ensure its personnel keeps the mentioned information secret.
The confidentiality obligation referred to in the first paragraph of this article does not apply to information:
that was already public at the time the information was received by the recipient or has become public afterward without a violation by the receiving party of a confidentiality obligation resting on it
that the receiving party can prove was already in its possession at the time of provision by the other party
received from a third party, provided this third party was entitled to disclose this information to the receiving party
disclosed by the receiving party under a legal obligation
The confidentiality obligation described in this article applies during the service and for a period of two years after its termination.
Article 24 – Non-solicitation of personnel and non-competition
The client does not employ service provider’s employees or engaged persons (or from companies that the service provider has used for this agreement and have been involved in the execution of the agreement), nor does it allow them to work for it in any other way, either directly or indirectly. This prohibition applies during the term of the agreement and up to one year after its termination. There is one exception to this prohibition: parties can, in good business consultation, make other agreements as stipulated by the service provider.
Other than stated in the previous paragraph, the service provider is free to approach and hire individuals and third parties through the service for its own organization.
The client acknowledges that the service and related concepts/embraces are of great value, contains trade secrets and confidential information from the service provider, and will refrain from competition in any way with the service provider's services. During the service and up to three years after the end agreement between the parties, the client may not, without the service provider's written consent, negatively influence the service provider's market position and/or damage the service, nor circumvent or hinder commitments between parties in the following ways:
by decompiling, reverse-engineering, or replicating the used automation and related service environments of the service provider unless permitted by mandatory law, in which case the client will provide to the service provider reasonable detailed information about these (planned) activities and the actual and future application upon request and respect the reasonable conditions set by the service provider;
by approaching suppliers, sub-processors, representatives of the service provider without prior consent of the service provider to gain insight into competition-sensitive agreements on services or enter into commitments, for example, to directly or indirectly procure services and products used in the service from these parties or to negotiate a price reduction with the service provider;
by developing the same or similar services as the service provider either for its own use, or to make them available (non-)commercially to third parties whether or not customers or potential customers of the service provider; or
to third parties or competitors, disclosing business secrets and/or confidential information of the service provider and/or the delivered service in any way. Third parties in this provision do not include authorities and government bodies, insofar as the client is obliged to provide insight or share based on a court order or a legal obligation applicable to the client.
The service provider can monitor the use of the service by the client and the rights and automation environments made available, including but not limited to verifying whether agreed / specified use for determining the due fee equals the actual use (of environments). Considering reasonable notice, the service provider can conduct an inspection during regular office hours, with the costs of the auditor being covered by the service provider, unless fraud occurs. If the inspection shows that the amount paid is insufficient, for example, because use was made without the service provider's consent, or use was wrongly not reported, the client will pay the difference between the amount already paid and the amount due to the service provider, including interest for the period of use where the fee was not paid. If it turns out that the detected discrepancy exceeds five percent of the total agreed fee, or more than five percent of use was not reported, or there are intentional errors in the administration, or artifices to circumvent payment or make it appear else, it constitutes fraud, whereby the client, contrary to the foregoing, is also obligated to compensate 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), personnel acquisition or non-competition (article 24) or contract provisions, the client incurs an immediately due penalty of € 25,000 for each violation and an additional amount of € 1,000 for each day that the violation continues, with a maximum of € 250,000. This applies regardless of whether the violation can be attributed to the client. No prior notice of default or judicial proceeding is required for this penalty to be incurred.
Incurring 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 conditions
The service provider is entitled to amend or supplement these general conditions. The amendments take effect 14 days after notification to the client via email.
The service provider will discuss substantial changes in advance with the client as much as possible. If the client disagrees with changes to these conditions, the client is entitled to terminate at the first extension or next term, after the current (extended) term expires, and parties then take into account a paid period for the transfer of two months per year that the agreement has lasted unless parties agree otherwise in consultation.
Legal invalidity or nullification of part of the general conditions does not result in legal invalidity or nullification of all parts of these general conditions but only means the relevant stipulation(s) will be replaced by the service provider with a legitimate provision that approximates the original stipulation as closely as possible.
Article 27 - Applicable law and competent court
Only Dutch law applies to every agreement between parties.
The Dutch court in the district where the service provider is established/has practice/office holds is exclusively competent to take cognizance of any disputes between parties, unless the law mandates otherwise.