TERMS AND CONDITIONS
GENERAL
In the general terms and conditions, the following definitions shall apply:
- Client: the party issuing the order.
- Working days: all days with the exception of Saturdays, Sundays, January 1, EasterMonday, Ascension Day, WhitMonday, ChristmasDay andBoxing Day, the days proclaimed or to be proclaimed by the Government as national holidays and the day, on which the birthday of H.M. the King is officially celebrated.
- Days: all calendar days
- Assignment or Agreement: the assignment agreement pursuant to which the Contractor undertakes to perform work for the Client against payment of fees and costs. The provisions of Sections 7:404 and 7:407 (2) of the Dutch Civil Code do not apply.
1. OFFERTES
All quotations, where the contrary is not expressly stated, shall be deemed to be non-binding offers which may also be revoked by Contractor after acceptance within 6 working days.
2. FORMATION OF THE AGREEMENT
2.1 The Agreement is formed by these General Terms and Conditions together with the order confirmation or the offer signed for approval, as the case may be, and comes into effect as soon as the order confirmation or the offer signed for approval, as the case may be, has been received back by the Contractor. As long as this is not received in return, Octrooibureau Novopatent reserves the right to deploy its (personnel) capacity elsewhere. The order confirmation is based on the information provided by Principal to Contractor at the time. The order confirmation or the offer signed for approval is deemed to represent the Agreement accurately and completely.
2.2 The Agreement replaces, and supersedes, all previous proposals, correspondence, agreements or other communications, whether written or oral.
2.3 The Agreement is entered into for an indefinite period, unless it follows from the content, nature or tenor of the Order granted that it was entered into for a definite period.
3. COOPERATION BY THE CLIENT
3.1 The Client shall ensure that all information and documents which the Contractor believes it needs for the correct and timely execution of the Assignment are made available to the Contractor in good time and in the form and manner desired by the Contractor. If the Principal fails to provide such information required for the Contractor to commence and perform the Work on time, as a result of which the Contractor is unable to commence its Work, the Contractor shall be entitled to charge the Principal the hours reserved by it for the performance of the Work at the prevailing hourly rate.
3.2 The Client must ensure that the Contractor is informed without delay of facts and circumstances that may be relevant in connection with the correct execution of the assignment.
3.3 Unless the nature of the Assignment dictates otherwise, the Client is responsible for the accuracy, completeness and reliability of the information and documents made available to the Contractor, even if they originate through or from third parties.
3.4 In the event that the performance of the Assignment takes place at the Client's offices, the Client must ensure that the Contractor is provided with office space and other facilities which, in the opinion of the Contractor, are necessary or useful for the performance of the Agreement and which meet all (legal) requirements to be imposed on them. This shall include the use of computer, telephone and fax facilities. With respect to (computer) facilities made available, Principal is obliged to ensure continuity by means of, among other things, adequate back-up, security and virus control procedures.
3.5 Unless the nature of the Assignment dictates otherwise, the Client shall deploy or have deployed the personnel deemed necessary by the Contractor to enable the Contractor to perform the Work. If specific personnel are required, this will be agreed upon and laid down in the confirmation of the Assignment. The Client shall ensure that its personnel have the appropriate skills and experience to perform the work.
3.6 The additional costs and additional fees resulting from the delay in the execution of the Assignment caused by the failure to make the requested data, documents, facilities and/or personnel available, on time or properly, shall be borne by the Client.
3.7 Client shall refrain from approaching directly, without the intervention of Contractor, employees of Contractor or third parties engaged by Contractor for the performance of the work assigned to Contractor, if Contractor has not first agreed to this.
4. EXECUTION OF THE ASSIGNMENT
4.1 All work performed by the Contractor shall be carried out to the best of its knowledge and ability in accordance with the requirements of good workmanship. With regard to the intended work, there is an obligation of effort on the part of the Contractor, unless explicitly stipulated otherwise. The Contractor shall make every effort to achieve the best possible result, but does not undertake to achieve any specific result. All communications by the Contractor about the possible results are indicative. Client cannot derive any rights from these communications.
4.2 The Contractor shall determine the manner in which and by which employee(s) the Assignment is to be carried out, but in doing so shall as far as possible observe the requirements made known by the Client. If the order confirmation/signed for approval mentions (an) employee(s) by name, the Contractor shall endeavour to ensure that the employee(s) in question remains available to perform the Work throughout the term of the Assignment. Notwithstanding the foregoing, the Contractor shall be entitled to replace such employee(s) after consultation with the Client.
4.3 In principle, the Contractor may only perform and charge the Client for more work than that for which the Order was issued if the Client has given its prior consent. If the Contractor is required to perform additional work by virtue of its (statutory) duty of care, it shall be entitled to charge the Client for such additional work, even if the Client has not given its explicit prior consent for the performance of the additional work.
4.4 If the Client wishes to involve third parties in the performance of the Order, it shall only do so after having reached agreement thereon with the Contractor. Since involving a third party directly or indirectly in the performance of the Order may significantly affect the ability of the Contractor to properly perform the Order. The provisions of the previous sentence shall apply mutatis mutandis to the Contractor.
4.5 The Contractor shall maintain a (digital) work file in connection with the Assignment containing copies of relevant documents, which shall be the property of the Contractor.
5. SECRETARY
5.1 Unless any statutory provision, regulation or other (professional) rule obliges it to do so, the Contractor/the employee(s) deployed by the Contractor is/are obliged to maintain confidentiality vis-à-vis third parties with regard to confidential information obtained from the Client. The Client may grant an exemption in this respect.
5.2 Except with the written consent of the Client, the Contractor is not entitled to use the confidential information made available to it by the Client for any purpose other than that for which this information was obtained. An exception shall, however, be made in the event that Contractor is a party to, or at least acts in, civil or criminal proceedings in which this information may be of importance.
5.3 Unless there is any provision of law, regulation or other rule requiring Principal to disclose or Contractor has given prior written permission to do so, Principal shall not disclose to third parties the contents of reports, advice or other expressions of Contractor, written or otherwise.
5.4 Contractor and Client shall impose their obligations under this Article on third parties to be engaged by them.
5.5 If deemed not in conflict with the provisions of Articles 5.1 and 5.2, the Contractor shall be entitled to mention in outline the work performed to (potential) clients of the Contractor and only as an indication of the experience of the Contractor.
6. PERSONAL DATA/PROCESSING AGREEMENT
6.1 The provisions of this paragraph apply as a processor agreement within the meaning of the General Data Protection Regulation (AVG) and apply to the Agreement if and insofar as Provider can be considered a processor within the meaning of the AVG vis-à-vis Principal. This is particularly the case if the Client has provided the Contractor with Personal Data for the purpose of executing the Agreement. If the Parties conclude a separate processor agreement, it shall prevail over this paragraph.
6.2 The following terms have the meaning defined in Article 4 AVG: Personal Data, Processor (being Contractor), Controller (being Client), Data Subject(s), Processing, Third Party, Recipient, Consent of the Data Subject, Data Breach (hereinafter: Data Breach). Duty to Report: the obligation to report a Data Breach as referred to in Art. 33 AVG.
6.3 Provider processes Personal Data only on the basis of written instructions from Principal under the conditions and for the purpose stated in the offer, Agreement and/or General Terms and Conditions of Provider. The Client has been adequately informed in advance about any processing involved.
6.4 The Contractor shall not transfer Personal Data to a third country or an international organization, unless the Contractor is obliged to carry out such processing by virtue of a provision of Union or Member State law. The Contractor shall notify the Client of that statutory provision prior to the processing, unless that legislation prohibits it for important reasons of public interest.
6.5 The Contractor is entitled to engage a sub-Processor in the processing, provided that the provisions of Article 28 paragraphs 2 and 4 AVG are followed.
6.6 For Processing for purposes not notified to the Contractor by the Client, Processing by third parties and/or for other purposes, the Contractor is expressly not responsible and/or liable.
6.7 The Contractor warrants that all persons authorized to process personal data have made a written commitment of confidentiality to it.
6.8 The Client guarantees that the purposes of Processing will at all times fit within the AVG and that a lawful basis exists for the Processing.
6.9 The Client warrants that the content, use and instruction to process Personal Data referred to in the Agreement is not unlawful and does not infringe any right of Third Parties and the Client indemnifies the Contractor against all liability to Third Parties in this regard.
6.10 The Contractor shall, in return for reimbursement of the Contractor's reasonable costs, assist the Client, if possible, in enforcing the obligations under Articles 35 (data protection impact assessment) and 36 (prior consultation with supervisory authority) AVG.
6.11 The Client may monitor the Contractor's compliance with safeguards pursuant to the AVG by means of audits to be conducted at the Client's expense by an independent expert to be appointed by the Client.
6.12 Contractor shall retain Personal Data provided by Client for the performance of the Agreement for a period not exceeding 36 months after the end of the Agreement, including for the purpose of follow-up orders to be issued by Client, after which the Personal Data shall be destroyed by Contractor.
6.13 Security measures
The Contractor has - taking into account the state of the art, implementation costs, as well as the nature, scope, context and purposes of processing and the risks to the rights and freedoms of individuals, which vary in their likelihood and severity - taken appropriate technical and organizational measures to secure Personal Data against loss or against any form of unlawful processing, including the measures required by corresponding Article 32 AVG, if appropriate. In any case, measures have been taken regarding the authorization of employees, awareness, an update protocol of patches, SSL/TSL certificate, pseudonymization of data between components outside the server, password verification for access to Personal Data, physical security with a limited number of key holders and intrusion protection. Client certifies that the measures taken are appropriate under the circumstances.
6.14 The Contractor does not warrant that security measures are effective under all circumstances.
6.15 Data breaches
Upon discovery of a Data Breach, the Contractor will notify the Client of this without unreasonable delay, and in principle within 72 hours - not counting the time falling on weekends and public holidays - after discovery, communicating the information referred to in Art. 33 (3) AVG, namely - in brief: a. the nature of the Data Breach, b. the details of the Data Protection Officer if the Contractor has appointed one, c. the probable consequences of the Data Breach and d. the measures taken and to be taken to address the Data Breach.
6.16 Contractor is never obliged to report a Data Breach to Data Subject(s) and/or the supervisory authorities. This is the sole responsibility of the Principal.
6.17 Rights of data subjects
The Contractor shall, to the extent possible and against reimbursement of the Contractor's reasonable costs, provide assistance to the Client in fulfilling its duty to requests for exercising the rights of Data Subjects as mentioned in Chapter III AVG. If the Contractor receives a request for the correction, supplementation, amendment or blocking of personal data, as referred to in Article 16 AVG, the Contractor will forward the request to the Client with simultaneous notification thereof to Data Subject(s) and the Client will process the request - if necessary in consultation with the Contractor.
6.18 The Client shall indemnify the Contractor against all claims by third parties, including the Data Subject for invasion of privacy.
6.19 Secrecy and confidentiality
All Personal Data processed by the Contractor from the Client is subject to a duty of confidentiality towards Third Parties, except with the prior express written consent of the Client. If providing the information to Third Parties is logically necessary given the nature of the Agreement or if there is a legal obligation to provide the information to a Third Party, another in accordance with the AVG.
7. INTELLECTUAL PROPERTY
7.1 The Contractor reserves all intellectual property rights in respect of works, being products, or at least products of the mind which it uses or has used and/or develops and/or has developed in the context of the execution of the Assignment, and in respect of which it holds or can enforce copyrights or other intellectual property rights.
7.2 The Client is explicitly forbidden to reproduce, disclose or exploit those products, including computer programs, system designs, working methods, advice, (model) contracts and other intellectual products of the Contractor, all in the broadest sense of the word, with or without the involvement of third parties.
Reproduction and/or publication and/or exploitation shall be permitted only after obtaining the Contractor's written permission. The Client has the right to reproduce the written documents for use within its own organization, to the extent appropriate to the purpose of the Assignment. In the event of early termination of the Engagement, the foregoing shall apply mutatis mutandis.
8. HONORARY
8.1 If after the conclusion of the Agreement, but before the Assignment has been fully executed, changes occur in rate-determining factors such as, for example, wages and/or prices, the Contractor is entitled to adjust the previously agreed rate accordingly.
8.2 The Contractor's fee is exclusive of expenses incurred by the Contractor and exclusive of invoices from third parties engaged by the Contractor.
8.3 All rates are exclusive of sales tax and other government levies.
9. PAYMENT
9.1 Payment by Client must be made, without deduction, discount or set-off, within 15 days of the invoice date. Payment must be made in the currency indicated on the invoice, by transfer to a bank account designated by Contractor. Objections to the amount of invoices submitted do not suspend Principal's payment obligation.
9.2 If the period referred to under 9.1 is exceeded, the Client shall be in default by operation of law after having been reminded by the Contractor at least once to pay within a reasonable period. In that case, Client shall owe statutory (commercial) interest on the amount due from the date on which the amount due becomes due and payable until the time of payment. In addition, after Principal is in default, all costs of collection, both judicial and extrajudicial, shall be borne by Principal. If the Contractor has to take collection measures after the due date, the Principal shall owe extrajudicial costs - in accordance with "Rapport Voorwerk II".
9.3 If, in the opinion of the Contractor, the Client's financial position and/or payment record gives cause to do so, the Contractor will be entitled to require the Client to immediately furnish (additional) security in a form to be determined by the Contractor and/or make an advance payment. If the Client fails to furnish the required security, the Contractor shall be entitled, without prejudice to its other rights, to immediately suspend the further fulfilment of the Engagement and all amounts owed by the Client to the Contractor for whatever reason shall become immediately due and payable.
9.4 In the event of a jointly awarded Assignment, Clients are jointly and severally liable for payment of the full invoice amount to the extent that the work was performed on behalf of the joint Clients.
10. RECLAMES
10.1 Complaints relating to the work performed and/or the invoice amount must, on penalty of forfeiture of rights, be made known to Contractor in writing within 5 working days of the date of dispatch of the documents or information about which the Client is complaining, or within 5 working days of the discovery of that to which the complaint relates, if the Client proves that it could not reasonably have discovered the defect earlier.
10.2 Complaints as referred to in the first paragraph do not suspend the Client's payment obligation. Client shall in no case be entitled on the basis of a complaint regarding a certain service to postpone or refuse payment for other services provided by Contractor to which the complaint does not relate.
10.3 In the event of a justified complaint, the Client shall have the choice between adjusting the fee charged for the rejected work, improving or redoing the rejected work free of charge, or not (or no longer) performing the Assignment in whole or in part against a proportional refund of the fee already paid by the Client.
11. DELIVERY TIME
11.1 If the Client owes an advance payment or has to provide information and/or materials required for the performance, the period within which the work must be completed will not commence until payment has been received in full by the Contractor or the information and/or materials have/have been made available to it in full, respectively.
11.2 Because the duration of the Assignment may be affected by a variety of factors, such as the quality of the information provided by the Client and the cooperation provided, the deadlines by which the work must be completed are only to be considered as deadlines if expressly agreed in writing.
11.3 Unless it has been established that performance is permanently impossible, the Agreement may not be dissolved by the Client on account of failure to meet a deadline, unless the Contractor also fails to perform the Agreement, or fails to perform it in full, within a reasonable period notified to it in writing after expiry of the agreed delivery period. Dissolution is then permitted in accordance with Article 265 Book 6 of the Dutch Civil Code.
12. NOTICE
12.1 The Client and the Contractor may terminate the Agreement at any time (prematurely) by registered letter with due observance of a reasonable notice period, unless reasonableness and fairness dictate against termination or termination on such notice.
12.2 The Agreement may be terminated (prematurely) by either party by registered letter without observance of a notice period in the event that the other party systematically fails to pay its debts to the other or if a receiver, administrator or liquidator is appointed, the other party undergoes debt restructuring or ceases its operations for any other reason or if the other party considers the occurrence of any of the above circumstances to be reasonably plausible in the case of one party or if a situation has arisen which justifies immediate termination in the interest of the terminating party.
12.3 If the Client has effected (premature) termination, the Contractor will be entitled to reasonable compensation, which will in any case consist of compensation for all the hours worked by the Contractor, plus compensation for the loss of capacity utilization incurred on its side and to be made plausible, which will be passed on at the same (agreed) hourly rate, as well as for additional costs which it must reasonably incur as a result of the premature termination of the Agreement (such as, inter alia, costs relating to subcontracting). Where a fixed price has been agreed for the work, the Contractor will in principle owe that fixed price to the Contractor in the event of premature termination unless the termination is based on facts and circumstances attributable to the Contractor.
If Contractor has effected (premature) termination, Client shall be entitled to assistance from Contractor in transferring work to third parties, unless such termination is based on facts and circumstances attributable to Client. In all cases of (premature) termination, Octrooibureau Novopatent retains the right to payment of the invoices for work carried out by it up to that time, whereby the provisional results of the work carried out up to that time will be made available to the Client subject to reservation. To the extent that the transfer of the work involves additional costs for the Contractor, these will be charged to the Client.
12.4 Upon termination of the Agreement, each party shall promptly deliver to the other party all goods, items and documents in its possession that are owned by the other party.
13. LIABILITY
13.1 The Contractor shall perform its work to the best of its ability, exercising the care that may be expected of the Contractor. If an error is made because the Client has provided the Contractor with inaccurate or incomplete information, the Contractor shall not be liable for any resulting loss. If the Client proves that it has suffered loss as a result of an error on the part of the Engaged Firm which would have been avoided if he had exercised the due care, the Engaged Firm shall be liable for that loss up to a maximum of the fee invoiced for the Engagement in question over a maximum period of 2 months.
13.2 The Client shall indemnify the Contractor against third-party claims for damage caused by the fact that the Client provided the Contractor with incorrect or incomplete information, unless the Client proves that the damage is not related to culpable acts or omissions attributable to it or caused by intent or equivalent gross negligence on the part of the Contractor and unless any mandatory (inter)national laws or regulations do not permit such a provision.
13.3 The limitation of liability laid down in paragraph 1 of this article is also stipulated for the benefit of the third parties engaged by Contractor for the execution of the Order.
13.4 The Contractor shall not be liable for damage or destruction of records during transportation or during shipment by mail, regardless of whether the transportation or shipment is made by or on behalf of the Client, the Contractor or third parties.
14. CONTRACT TAKEOVER
14.1 The Client is not permitted to transfer (any obligation under) the Agreement to third parties, unless the Contractor gives its express consent. The Contracted Party will be entitled to attach conditions to this permission. The Client undertakes in any case to impose all the relevant (payment) obligations from the Agreement on the third party in these general terms and conditions. The Client shall at all times remain liable alongside this third party for the obligations under the Agreement and the General Terms and Conditions, unless the parties explicitly agree otherwise.
14.2 In the event of contract takeover, the Client shall indemnify the Contractor against all third-party claims that may arise as a result of the Client's non-performance or incorrect performance of any obligation under the Agreement and/or these General Terms and Conditions, unless any mandatory (inter)national laws or regulations do not permit such a provision.
15. INTERNET USE
During the performance of the Order, the Client and the Contractor will be able to communicate with each other by means of e-mail at the request of either of them. Both the Contractor and the Client recognize that the use of e-mail involves risks such as - but not limited to - distortion, delay and virus.
The Principal and the Contractor hereby establish that they will not be liable to each other for any damage that may arise to one or both of them as a result of the use of e-mail. Both Principal and Contractor shall do or refrain from doing everything that can reasonably be expected of each of them to prevent the occurrence of the aforementioned risks. In case of doubt as to the correctness of the e-mail received by Principal or Contractor, the content of the e-mail sent by the sender shall be decisive.
16. ACQUISITION OF PERSONNEL
The Client, or parties affiliated with the Client, shall not, during the term of the Agreement as well as for one year after its termination, in any way, except after agreement has been reached with the Contractor, allow employees of the Contractor or of companies engaged by the Contractor for the execution of this Agreement who are (have been) involved in the execution of the Agreement, or otherwise, directly or indirectly, to work for them.
17. DEADLINE
In so far as the Agreement does not provide otherwise, rights of action and other powers of the Principal on whatever account vis-à-vis the Contractor will lapse in any case after the expiry of one year from the moment when a fact occurs on the basis of which the Principal can exercise these rights and/or powers vis-à-vis the Contractor.
18. ADVERTISEMENT
The provisions of this Agreement expressly or impliedly intended to survive termination of this Agreement shall thereafter remain in force and continue to bind both parties.
19. APPLICABLE LAW AND CHOICE OF FORUM
19.1 All Agreements between Client and Contractor are governed by Dutch law.
19.2 In all disputes arising from this contract, the court of the Contractor's domicile shall have jurisdiction, unless another court has mandatory jurisdiction under the law.