General Terms And Conditions Adver-Online B.V.
General Terms And Conditions HROffice
Article 1 General
- These terms and conditions apply to every tender, offer and agreement between Adver-Online B.V., hereinafter referred to as: The "Supplier", and a Client to which the Supplier has stated these terms and conditions to be applicable to, insofar as these terms and conditions have not been expressly derogated from in writing by parties.
- The applicability of any terms and condition or purchase, or any other terms and conditions of the Client is expressly rejected.
- If one or more provisions of these General Terms and Conditions become fully or partially invalid or are declared void at any stage, the remaining provisions of these General Terms and Conditions will remain fully applicable. The Supplier and the Client will in that case enter into consultation in order to agree to new provisions to replace the null and void or voided provisions, in the course of which the objective and effect of the original provisions will be taken into consideration as much as possible.
- If a situation arises between the parties that is not governed by these General Terms and Conditions, the situation must be assessed according to the spirit of these General Terms and Conditions.
- If the Supplier does not always require strict compliance with these General Terms and Conditions this will not mean that the provisions thereof are not applicable, or that the Supplier would to any extent lose the right to require strict compliance with the provisions of these General Terms and Conditions in other events.
- Parties agree that during the period of cooperation the mutual use of logos, product name and company name in media communications and publicity is permitted including social media, (personal) websites and printed matter, always provided that the nature and contents of the cooperation will not be communicated or announced, unless agreed otherwise and recorded contractually.
Article 2 Quotations and offers
- HROffice is a freemium service with a modular structure. The basic version can be used for two months fully free of charge. After this period costs will aply which will be included in an agreement. If no agreement is made, automatically all date will be removed after the trail period. Specific arrangements apply to purchased, paid for HROffice modules and are included in an agreement.
- All quotations and offers of the Supplier are without obligation, unless a period for acceptance has been set out in the offer. If no acceptance period is set out, no right can be derived in any manner whatsoever from the quotation or offer if the product to which the quotation or offer relates ceases to be available in the interim.
- The Supplier cannot be bound to quotations and offers if it is reasonably apparent to the Client that the quotations or offers, or a part thereof, contain an apparent mistake or clerical error.
- The prices stated in a quotation or offer are excluding VAT and other duties imposed by the government, any costs to be incurred in the context of the Agreement, including travel and accommodation, dispatch and administrative costs, unless stated otherwise.
- If the acceptance derogates from the proposal (whether or not on minor points) included in the quotation or offer, the Supplier will not be bound thereto. In that case the Agreement will not come into effect in accordance with this derogating acceptance, unless the Supplier states otherwise.
- A combined quotation does not oblige the Supplier to the execution of a part of the assignment at a corresponding part of the price stated. Offers or quotations will not apply automatically to future orders.
Article 3 Licence for the use of the service
- A non-exclusive non-transferable licence will be provided to the Client for making use of the offered service, from the commencement date of the duration in the area as stated in the order form, with due regard to payment of the payments by the Client.
- The service will be delivered in this Agreement and this will be exclusively used by the Organisations within the Area of Application as stated in the order form. The Client is not permitted to lease, lend, resell, transfer, licence, disseminate the service(s), or otherwise provide access to the solution and service(s); to provide services(s) related to ancillary services; or to provide access to, or permit the use of, the Solution or Services, by or on behalf of a third party, with the exception of the cases as permitted in this Agreement.
Article 4 Duration of contract; execution periods, risk transfer, performance and amendment of the Agreement; price increase
- The agreement between the Supplier and the Client is entered into for a fixed period as stated in the Agreement. The Agreement will be renewed tacitly following the expiry of the agreed period. The Client can terminate the Agreement per day after the expiry of the agreed period, with due regard to a notice of period of 1 month.
- If a period has been agreed or stated for the execution of specified work or for the delivery of specified matters this is never a final deadline. In case of exceeding a period the Client must therefore provide the Supplier notice of default in writing. The Supplier must be offered a reasonable period thereby so as to be able to provide performance of the Agreement at a later date.
- The Client is responsible for ensuring that all data, which the Supplier states is necessary, or which the Client reasonably ought to understand is necessary, for the performance of the Agreement, is provided in a timely manner to the Supplier. If the data necessary for the performance of the Agreement is not provided in time to the Supplier, the Supplier will be entitled to suspend the performance of the Agreement and/or to charge the Client for the extra costs ensuing from the delay in accordance with the rates usual at that time. The execution period does not commence until the Client has made the data available to the Supplier. The Supplier is not liable for damage, of whatsoever nature, caused by the Supplier proceeding from incorrect and/or incomplete data provided by the Client.
- If the Supplier agrees a fixed fee or a fixed price with the Client, the Supplier is nevertheless entitled at all times to increase this fee or this price without the Client in that event being entitled to terminate the Agreement for this reason, if the increase of the price ensues from an entitlement or obligation pursuant to legislation or regulations.
- The Supplier has the right, after the agreed initial duration of the Agreement and each year following therefrom, to increase the monthly rates during the use once per year with a maximum of 5% if the applicable Statistics Netherlands % rate is not available, or with the Statistics Netherlands index inflation % rate for the Collective Labour Agreement for commercial provision of service, applicable in that case and published by Statistics Netherlands.
- The Supplier is at all times free to unilaterally amend, suspend or terminate the use of the freemium version of HROffice. The Client cannot derive any rights from the use of the freemium version of HROffice.
Article 5 Suspension, dissolution and termination before the end of term of the Agreement
- This agreement can be terminated by the Supplier or the Client one month after the expiry of the duration of contract by means of notice in writing with due regard to a notice period of one month.
- The Supplier will be entitled to suspend the fulfilment of the obligations or to terminate the Agreement, if the Client does not, not fully, or not in an timely manner, fulfil the obligations under the Agreement, if after entering into the Agreement the Supplier becomes aware of circumstances giving good grounds to fear that the Client will not fulfil the obligations, if the Client has been requested when entering into the Agreement to provide security for the fulfilment of the Client's obligations under the Agreement and this security is not forthcoming or is insufficient, or if due to delay on the part of the Client it can no longer be expected of the Supplier that it will perform the Agreement under the Terms and Conditions originally agreed.
- Furthermore, the Supplier will be entitled to terminate the Agreement if circumstances occur, which are of such a nature that the performance of the Agreement is impossible, or if circumstances occur otherwise, which are of such a nature that the unaltered maintenance of the Agreement cannot reasonably be required from the Supplier.
- If the Supplier proceeds with suspension or termination, the Supplier will in no way whatsoever be obliged to compensation of damage and costs arisen through this in whatsoever manner.
- If the termination is attributable to the Client, the Supplier will be entitled to compensation of the damage, including the costs arising directly and indirectly from this.
- If the Client does not fulfil its obligations ensuing from the Agreement and this non-fulfilment justifies termination, the Supplier will be entitled to terminate the Agreement forthwith and with immediate effect without any obligation on its part to payment of any compensation or indemnification, while the Client, on the basis of breach of contract, will be obliged to compensation or indemnification.
- In the event of liquidation, or (application for) moratorium or bankruptcy, or attachment - if and insofar as the attachment is not withdrawn within three months – being levied against the Client, or debt rescheduling or any other circumstance as a result of which the Client cannot freely dispose of its assets, the Supplier will be free to terminate the Agreement forthwith and with immediate effect, or as the case may be, cancel the order or the Agreement, without any obligation on its part to payment of any compensation or indemnification. In that case the claims of the Supplier against the Client will be immediately due and payable.
- If the Company receives within 30 days after the termination or expiry of this Agreement a request in writing from the Client for the return of the data stored in the database of the Supplier, this data will be returned free of charge to the Client in the file format applicable in that case.
- If a request is submitted for the return of the data in another file format; or if this is more than 30 days after the termination or expiry of this Agreement, the Supplier retains the right to charge the costs of this extra service on the Basis of Time and Materials.
Article 6 Force majeure
- The Supplier is not obliged to fulfilment of any obligation towards the Client, if the Supplier is prevented therefrom as a result of a circumstance not attributable to fault, and for which the Supplier is not accountable for by law, a legal act, or according to generally accepted standards.
- Force majeure under these General Terms and Conditions means, in addition to that which is laid down by statute and case law, all external causes, foreseen or unforeseen, over which Supplier has no control, and as a result of which Supplier is unable to fulfil its obligations.
- Industrial actions in the company of the Supplier or of third parties are included therein. The Supplier also has the right to rely on force majeure if the circumstance which prevent the (further) performance of the Agreement, occurs after the Supplier should have fulfilled its obligation.
- During the period that force majeure continues the Supplier can suspend the obligations under the Agreement. If this period lasts longer than one month each of the parties will be entitled to terminate the Agreement, without any obligation to compensation of damage to the other party.
Article 7 Payment and collection charges
- Payment must take place within 14 days from the invoice date, in the manner to be stated by the Supplier and in the currency in which it is invoiced, unless otherwise stated by the Supplier in writing. The Supplier will send the first invoice in the next month following receipt of the signed agreement. The Supplier will be entitled to invoice periodically.
- If the Client remains in default of the timely payment of an invoice, the Client will be in default by operation of law. In that case the client will owe interest of 1% per month, unless the statutory interest is higher, in which case the statutory interest will be owed. The interest over the due and payable amount will be calculated from the time that the Client is in default until the time of payment in full of the amount owed.
- The Client is never entitled to setoff the money owed by the Client to the Supplier. Objections to the amount of an invoice will not suspend the obligation to pay. The Client who is not entitled to rely on Part 6.5.3 (Sections 231 up to and including 247, Book 6 of the Dutch Civil Code) is also not entitled to suspend the payment of an invoice for another reason.
- If the Client is in default or in omission of the (temporary) fulfilment of its obligations, all reasonable costs in acquiring payment without the intervention of the courts will be at the expense of the Client. The extrajudicial costs are calculated on the basis of that which is common to Dutch debt collection, currently the calculation method in accordance with the Voorwerk II Report. However, if the Supplier has incurred higher costs for collection than were reasonably necessary, the actual costs incurred will be reimbursable. Any judicial and enforcement costs incurred will also be recovered from the Client. The Client will also owe interest over the collection costs owed.
Article 8 Retention of title
- That which is delivered by the Supplier in the context of the Agreement always remains the property of the Supplier. The Client is only entitled to the use of the software.
- That which is delivered by the Supplier, which pursuant to subclause 1 is subject to retention of title, is not permitted to be sold on and is never permitted to be used as a means of payment. The Client is not entitled to pledge that which is subject to retention of title or to encumber this in any manner whatsoever.
- The Client must always do all that reasonably can be expected of the Client to secure the ownership rights of the Supplier.
Article 9 Guarantees, inspection and complaints
- The goods to be delivered by the Supplier fulfil the usual requirements and standards, which can reasonably be set thereto at the time of the delivery and for which they are intended during normal use in the Netherlands.
- The Supplier makes use of an external hosting party to offer the service. The Service Level Agreement of the Supplier applies to the use of the service of the Supplier.
- Even if the Client complains in a timely manner, this will not suspend its obligation to pay. The Client remains in that event also obliged to purchase and pay for the other goods ordered and that which it has provided on assignment to the Supplier.
Article 10 Liability
- If the Supplier were to be liable, this liability will be limited to that which is arranged in this provision.
- The Supplier will not be liable for damage, of whatsoever nature, arising from the Supplier having proceeded from incorrect and/or incomplete data provided by the Client.
- The Supplier will not be liable in any manner whatsoever for the data included in the service.
- The Supplier will be entitled to remove any incriminating or discriminating texts or forms of communication after they are noticed, if the Client refuses to remove them following a request from the Supplier to this end.
Article 11 Indemnity
- The Client indemnifies the Supplier against any claims by third parties, who in connection with the performance of the Agreement suffer damage the cause of which is attributable to parties other than the Supplier. If claims were to be made on that basis by third parties against the Supplier, the Client will be obliged, by law as well as otherwise, to assist the Supplier and to promptly do all that can be expected of the Client in that case. If the Client remains in default of taking adequate measures, the Supplier will be entitled to proceed itself with this, with notice of default. All costs and damage on the part of the Supplier and third parties arising from this will be fully at the expense and risk of the Client.
Article 12 Intellectual property
- The Supplier retains the rights and entitlements that accrue to the Supplier on the basis of the Copyright Act and other intellectual legislation and regulations. The Supplier has the right to also use the knowledge acquired on its part through the performance of an agreement for other purposes, insofar as hereby no strictly confidential information of the Client is disclosed to third parties.
- The Supplier will be entitled to use all data in the system in anonymous form for statistical purposes. This is also known as “big data”.
Article 13 Confidentiality and taking over of Personnel
- The Client and the Supplier will ensure that all of the data received from the other party that one knows or reasonably ought to know is of a confidential nature, will remain confidential. The party receiving this confidential data will only use this data for the purpose for which the data was provided. In any event, data is deemed to be confidential if it is indicated as being so by one of the parties.
- Each of the parties will, during the term of the Agreement as well as for one year after the termination thereof, only after prior permission in writing from the other party employ or otherwise directly or indirectly have work for them employees of the other party who are involved, or have been involved, in the performance of the Agreement.
Article 14 Privacy, data processing and protection
- If the Supplier directly collates Personal Data from parties involved (within the meaning of the Personal Data Protection Act; GDPR), it must ensure that no more Personal Data is processed than is necessary for the performance of the Agreement.
- The Supplier will, during the performance of the Agreement comply with the applicable legislation and regulations with regard to the protection of personal data, including but not limited to the Personal Data Protection Act, the Telecommunications Act and all other applicable (European) (privacy) regulations, including but not limited to the codes of conduct of the DDMA and the FEDMA.
- A processor's agreement can be concluded between parties for the performance of the Agreement. This processor's agreement will be the determining factor for the execution of the processing of the data and data processing as referred to in this article.
- With regard to the execution of its work, the Supplier refers to the Service Level Agreement applied by the Supplier, which forms an integral part of the Agreement and which can be requested from the Supplier.
Article 15 Applicable law and disputes
- The law of the Netherlands exclusively applies to all legal relationships to which the Supplier is party, as well as if an obligation is wholly or in part fulfilled abroad or if the party involved in the legal relationship has its residence abroad. The applicability of the Vienna Sales Convention (CISG) is excluded.
- The court in the place of business of the Supplier has exclusive jurisdiction to hear and determine disputes, unless mandatory legal provisions prescribe otherwise. The Supplier nevertheless has the right to submit the dispute to the competent court as determined by law.
- Parties will only apply to the court after they have earnestly endeavoured to resolve the dispute in mutual consultation.
Article 16 Location and amendment of the Terms and Conditions
- These Terms and Conditions are filed at the Amsterdam Chamber of Commerce.
- The version last filed, or the version as it applied at the time that the legal relationship with the Supplier came into effect, is always applicable.
- The Dutch text of these General Terms and Conditions will always be decisive for the interpretation thereof.