Terms and Conditions
The client: the natural and/or legal person who enters into the agreement to which these terms and conditions apply. The Client is understood to mean both Consumers and Businesses.
The contractor: the entrepreneur who uses these terms and conditions, being Dapp B.V., with its registered office in Culemborg and which is registered with the Chamber of Commerce under number 30267655.
Company: The Client acting in the exercise of a business or profession.
Consumer: The Client not acting in the course of a business or profession.
Documents: all goods made available by the client to the contractor, including documents or data carriers, as well as all items manufactured by the contractor in the context of the execution of the assignment.
Project manager: anyone who carries out project management activities for the client on behalf of the contractor.
Service: all work, in whatever form, that the Contractor has performed for or for the benefit of the Client.
Interim manager: anyone who temporarily carries out work for the client on behalf of the contractor. In this context, temporary means that there is an end date.
Written communication. Where reference is made to "in writing" in these General Terms and Conditions, this also includes communication by e-mail (communication via the internet).
The General Terms and Conditions are provided by the contractor to the client during the quotation phase, but at the latest prior to the start of the assignment.
The General Terms and Conditions apply to all offers from the contractor and to all agreements resulting from this.
These General Terms and Conditions also apply to agreements with the contractor, for the execution in which third parties must be involved.
Special provisions that deviate from these General Terms and Conditions are only binding if they have been agreed in writing between the contracting parties. No rights can be derived from these deviating provisions with regard to later legal relationships or agreements.
The applicability of any purchase or other General Terms and Conditions of the client is expressly rejected.
If one or more provisions in these General Terms and Conditions are at any time wholly or partially annulled or destroyed by third parties, the remaining provisions of these General Terms and Conditions will remain fully applicable. In that case, the contractor and the client will enter into consultation in order to agree on new provisions to replace the void or voided provisions, taking into account as much as possible the purpose and intent of the original provisions.
If the contractor does not always require strict compliance with these General Terms and Conditions, this does not mean that the provisions thereof do not apply, or that the contractor loses to any extent the right to strict compliance with the provisions of these terms and conditions. desire.
The most recent version of the General Terms and Conditions applies to all work performed by the contractor. The Contractor has the right to re-establish the General Terms and Conditions. After the new General Terms and Conditions have been formulated, the contractor is obliged to submit them to the client. The client then has the option to reject it.
In the event of a conflict between the text of the client's quotation and the text in the General Terms and Conditions, the text of the General Terms and Conditions shall prevail, unless the contractor expressly agrees in writing to the change in the provision.
OFFER AND FORMATION OF THE ORDER
An assignment is established when the contractor sends a written confirmation of the assignment to the client.
All offers and/or quotations from the contractor are without obligation, unless a term for acceptance has been set in the offer and/or quotation. If a term for acceptance has been set in the offer and/or quotation, the offer and/or quotation will lapse when this term has expired.
- The Contractor cannot be held to its offers and/or quotations if the Client, in terms of reasonableness and fairness and generally accepted views, should have understood that the offer and/or quotation or a part thereof contains an obvious mistake or error.
- If the acceptance, whether or not on minor points, deviates from the offer included in the offer and/or quotation, the contractor is not bound by it. The Agreement will then not be concluded in accordance with this deviating acceptance, unless the contractor indicates otherwise.
- The assignment only includes the work described in the written offer/agreement, supplemented with all changes that have been agreed in writing afterwards.
- A composite quotation does not oblige the Contractor to perform part of the Assignment for a corresponding part of the stated price. Offers and/or quotations do not automatically apply to future orders or repeat orders.
The Contractor determines the manner in which the awarded assignment is carried out. For programme/project and interim work, the contractor selects the manager to be deployed, unless otherwise agreed in writing.
The Contractor will perform the services to be performed to the best of its knowledge and ability and in accordance with the requirements of good workmanship. The obligation entered into has the character of a best efforts obligation, because the achievement of the intended result cannot be guaranteed in every case. The assignment will be carried out within the (estimated) term stated in the offer in consultation with the client, unless this cannot reasonably be realized.
The contractor has the right to have certain activities performed by third parties, without notifying the client. This only and only in consultation with the Client. The application of articles 7:404, 7:407 paragraph 2 and 7:409 of the Dutch Civil Code is expressly excluded.
If a term has been agreed or specified for the performance of certain activities or for the delivery of certain items, this is never a strict deadline. If a term is exceeded, the client must therefore give the contractor written notice of default. The Contractor must be offered a reasonable term to still implement the agreement.
The Contractor will perform the agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship.
If work is performed by the contractor or third parties engaged by the contractor in the context of the assignment at the client's location or a location designated by the client, the client will provide the facilities reasonably desired by those employees free of charge.
The client undertakes to both the project manager and/or interim manager and to the contractor to set up and maintain the locations and resources with which the work is performed by its project manager and/or interim manager in such a way, as well as to make arrangements and provide instructions for the performance of the work in such a way that the project manager and/or interim manager is protected against danger to life, honor and property to the extent that can reasonably be demanded in connection with the nature of the work.
The Contractor is entitled to execute the agreement in different phases and to invoice the part thus executed separately.
If the agreement is executed in phases, the contractor may suspend the execution of those parts that belong to a following phase until the client has approved the results of the preceding phase in writing.
The Client guarantees that it has provided all essential information for the design and execution of the assignment to the best of its knowledge. It is important in this regard that the contractor must at all times be able to count on the correct commitment and involvement of the client's employees involved in the work of the contractor. The Client will ensure that all documents and data that the Contractor needs for the execution of the assignment in accordance with the agreed schedule are in good time. If the information required for the execution of the agreement has not been provided to the contractor in time, the contractor has the right to suspend the execution of the agreement and/or to charge the client for the additional costs resulting from the delay in accordance with the then usual rates. bring.
The execution period does not commence until after the client has made the data available to the contractor.
If during the execution of the agreement it appears that it is necessary for a proper execution to change or supplement it, the parties will proceed to adjust the agreement in good time and in mutual consultation. If the nature, scope or content of the agreement, whether or not at the request or direction of the client, of the competent authorities, etc., is changed and the agreement is changed in qualitative and/or quantitative terms as a result, this may have consequences. for what was originally agreed. As a result, the original agreed amount can also be increased or decreased. The Contractor will provide a price quote thereof as much as possible in advance. Furthermore, by changing the agreement, the originally stated term of execution can be changed. The client accepts the possibility of amending the agreement, including the change in price and term of execution. Changes in, additions to and/or extensions of the assignment are only binding after this has been agreed in writing between the parties.
The client accepts that the time schedule of the assignment can be influenced if the parties, in the interim, expand or change agreements, the approach, working method or scope of the assignment and the resulting activities.
- If the agreement is amended, including an addition, the contractor is entitled to implement it only after approval has been given by the person authorized within the contractor and the client has agreed to the price quoted for the execution and other conditions, including the time to be determined at which time they will be implemented. Not or not immediately executing the amended agreement does not constitute an attributable shortcoming on the part of the contractor and is not a ground for the Client to terminate or dissolve the agreement.
- Without being in default, the contractor may refuse a request to amend the agreement, if this could have qualitative and/or quantitative consequences, for example for the work to be performed in that context.
- If an interim change in the assignment or assignment performance occurs due to the fault of the Client, the Contractor will make the necessary adjustments if the quality of the service requires this. If adjustment leads to additional work, this will be confirmed to the Client as an additional order.
- If the contractor agrees a fixed fee or fixed price with the client, the contractor is nevertheless entitled at all times to increase this fee or price without the client being entitled to dissolve the agreement for that reason, if the increase in the price results from a power or obligation under the law or regulations or is caused by an increase in the price of wages, etc. or on other grounds that were not reasonably foreseeable when the agreement was entered into.
- If the Contractor enters into a fixed Fee and/or rate agreement when concluding the Agreement, then the Contractor is entitled to increase this Fee or rate, even if the Fee or rate was not originally given subject to change. If the Contractor intends to change the Fee, it will inform the Client as soon as possible.
If the price increase, other than as a result of an amendment to the agreement, takes place within three months after the conclusion of the agreement, then only the client who is entitled to invoke Title 5 Section 3 of Book 6 of the Dutch Civil Code is entitled to terminate the agreement by to dissolve a written statement, unless the contractor:
- is then still willing to perform the agreement on the basis of what was originally agreed;
- if the price increase results from a power or an obligation resting on the contractor under the law;
- if it has been stipulated that the delivery takes place more than three months after the conclusion of the agreement;
RENEWAL AND TERMINATION
The agreement will be terminated by operation of law after expiry of the agreed term, unless the parties have agreed otherwise in writing no later than one month (1) before the end of the contract period.
The extended agreement will be continued under the same conditions unless both parties have deviated from this in writing.
The parties are entitled to terminate the agreement early during the contract period with due observance of a notice period of one month (1). Termination must always be made in writing.
Without prejudice to the authority of the contractor to terminate the agreement if the parties are unable to reach agreement on the objectives and time schedule of the assignment, the contractor may only use the authority to terminate prematurely if as a result of facts and circumstances that are beyond the control of the contractor or that cannot be attributed to the contractor, completion of the assignment can no longer reasonably be required. The Contractor retains the right to payment of the invoices for the work performed up to that moment.
In the event that one of the parties becomes bankrupt, applies for a moratorium or ceases operations, the other party has the right to terminate the assignment without observing a notice period, all this subject to rights.
If the client does not, not properly or not timely comply with any obligation arising from the agreement concluded with the contractor, as well as in the event of bankruptcy, suspension of payment, declaring the Debt Restructuring Natural Persons Act (WSNP) applicable, or under If the client is placed in receivership or its business is closed down or liquidated, the contractor is entitled, without further notice of default, to dissolve the agreement in whole or in part, or to suspend the (further) execution of the agreement. In those cases, the Contractor is furthermore entitled to demand immediate payment of what is due to it. The Contractor may also dissolve the Agreement if, after the Agreement has been concluded, the Contractor has become aware of circumstances that give good grounds to fear that the Client will not fulfill its payment obligation or the Client is in arrears of more than two months.
This does not affect the other rights accruing to the contractor, including the right to compensation for the damage suffered as a result of the dissolution.
In the event of a dissolution as referred to in the first paragraph, the contractor is never obliged to pay any compensation to the client, unless the contractor is liable for direct damage caused by deliberate recklessness or intent on the part of the contractor.
In the event of a dissolution by mutual consent, the contractor also retains its right to compensation for the damage suffered as a result of this dissolution.
Dissolution will take place in writing and without judicial intervention. If the Agreement is dissolved, the Contractor's claims against the Client are immediately due and payable.
If, due to force majeure on the part of the contractor, an assignment cannot be performed on the planned dates, the client will be informed about this; new dates will then be determined in consultation. Shifting for this reason does not entitle you to cancellation or compensation.
RIGHTS OF SUSPENSION AND RIGHTS OF RETENTION
The contractor is authorized to suspend the fulfillment of all its obligations, including the delivery of documents or other items to the client or third parties, until all due and payable claims against the client have been paid in full.
The Contractor is authorized to suspend the fulfillment of the obligations if:
- After the Agreement has been concluded, the Contractor has become aware of circumstances that give good grounds to fear that the Client will not fulfill its obligations;
- When concluding the Agreement, the Client was requested to provide security for the fulfillment of its obligations under the Agreement and this security is not forthcoming or is insufficient;
- circumstances arise which are of such a nature that fulfillment of the Agreement is impossible or that unaltered maintenance of the Agreement cannot reasonably be expected of the Contractor.
If the payment of an invoice after the due date is not paid for more than eight (8) days, the contractor has the right to suspend any work still to be performed, without prejudice to the obligation of the client to pay the outstanding invoice or invoices with interest and any costs.
The Contractor will inform the Client of the suspension of the work and of the no longer accepting liability. Only when a reasonable payment arrangement has been made and the contractor has notified in writing that it has resumed its activities, normal liabilities will be revived. The contractor has the right of retention with regard to the client's documents present with it if the client fails to pay the contractor's invoices. Pieces produced by the contractor will never have to be handed over in the event of non-payment.
The Contractor reserves the right to claim compensation.
The contractor is liable for damage suffered by the client, which is the direct and exclusive result of a shortcoming attributable to the contractor, on the understanding that compensation is only eligible for damage against which the contractor is insured, or reasonably, should have been insured in view of the custom in the industry. The following restrictions must be observed:
- not eligible for compensation for loss of profits, loss of income and the like, regardless of the cause;
- the limitations of liability included in this article do not apply if the damage is due to intent or gross negligence on the part of the contractor or his managerial subordinates;
- the damage to be compensated by the contractor will be moderated if the price to be paid by the client is small in relation to the extent of the damage suffered by the client;
- if the contractor's insurer does not pay out for whatever reason, the contractor's liability will at all times be limited to a maximum of the contract price, at least to that part of the contract price to which the liability relates.
The execution of the Assignment is entirely at the risk and responsibility of the Client. The Contractor is only liable for direct damage caused by deliberate recklessness or intent on the part of the Contractor.
The Contractor is not liable for costs, damages and interests that may arise as a direct or indirect result of force majeure, as described in more detail in these General Terms and Conditions, acts or omissions of the client, its subordinates, or other persons or have been put to work because of her.
The Contractor is not liable for damage, of whatever nature, caused by the fact that the Contractor relied on incorrect and/or incomplete data and/or documents provided by or on behalf of the Client.
For all indirect damage, including trading loss and consequential damage as well as stagnation in the regular course of business in the client's company, in any way related to or caused by an error in the performance of the work by the contractor, the contractor is never liable. Advice is given to the best of our knowledge and ability, but with the exclusion of liability for incorrect or incomplete advice.
The Contractor is not liable for mutilation, destruction, theft or loss of data or documents.
If the contractor should be liable for any damage, the liability of the contractor is limited to the amount up to a maximum of once the amount stated in the invoice or to the amount to which the insurance taken out by the contractor is entitled, increased by its own risk that the contractor bears in accordance with the insurance.
The Client must report the damage for which the contractor can be held liable as soon as possible, but in any event within 10 days after the damage occurred, if reasonably possible, on pain of forfeiture of the any right to compensation for this damage.
Every claim against the contractor lapses by the mere lapse of one (1) year after the claim arose or could reasonably have been known.
INTELLECTUAL PROPERTY AND PRIVACY
The Contractor retains at all times all rights to plans, analyses, reports, documents, images, drawings, software and/or the related information and professional knowledge, even if costs have been charged for this or afterwards. improvements have been made, whether or not at the request of the client.
The items referred to in paragraph 11.1 may not be copied in whole or in part without the written permission of the contractor, other than for internal use at the client, nor shown to third parties, handed over or made known in any other way, nor by be used or made available to the client other than for the purpose for which they were provided by the contractor.
The client indemnifies the contractor against infringements of third-party intellectual property rights.
The data and information that the Client provides to the Contractor will be kept by the Contractor carefully and confidentially.
The Contractor may only use the Client's personal data in the context of fulfilling its obligation to deliver or handling a complaint.
The Contractor is not permitted to lend, rent, sell or in any other way make public the personal data of the Client.
If on the basis of a statutory provision or a court decision the contractor is obliged to provide confidential information to third parties, and the contractor cannot invoke a legal right of non-disclosure recognized or permitted by the competent court, then the contractor is not obliged to pay compensation or compensation. The Client is also not entitled to dissolve the Agreement on the basis of any damage that has arisen as a result.
The Client agrees that the Contractor will approach the Client for statistical research or customer satisfaction research. If the Client does not wish to be approached for research, the Client can make this known.
The Contractor reserves the right to use the other data of the Client in anonymised form for (statistical) research and database.
Subject to the obligations imposed on it by law to disclose certain data, the Contractor is obliged to maintain confidentiality vis-à-vis third parties who are not involved in the execution of the assignment. This confidentiality concerns all information of a confidential nature made available to it by the client and the results obtained by processing it.
The client will treat the reports, advice and methodologies issued by the contractor as confidential information, so that in this respect the client assumes obligations towards the contractor to the same effect as the contractor vis-à-vis the client.
PRICE AND PAYMENT
Unless otherwise agreed, the work of the contractor will be charged to the client on the basis of time spent and costs incurred.
Unless another payment arrangement has been agreed, the contractor will send an (advance) invoice once a month or every four weeks.
With regard to the Client in the capacity of Consumer, the Fee and/or rates are expressed in euros, including VAT and other government levies, unless indicated otherwise.
With regard to the Client in the capacity of Company, the Fee and/or rates are expressed in euros, excluding VAT and other government levies, unless indicated otherwise.
All rates are in Euros, exclusive of VAT, travel and accommodation costs and other government levies unless otherwise agreed.
Together with an accurate description of the assignment, the applicable rates are at all times set out in a written Agreement.
If a change in the assignment leads to costs to be incurred, this will be confirmed to the client as an additional assignment.
The Client is obliged to pay within thirty (30) days of the invoice date, unless otherwise agreed in writing in advance.
If the client has not paid within the term referred to in paragraph 13.8, or within the term agreed upon in more detail, he shall be in default by operation of law and the contractor shall, without further demand or notice of default, be entitled to charge the client 2% from the due date. to charge interest per month until the date of full payment, all this without prejudice to the further rights that the contractor has.
The Contractor reserves the right to adjust the rates annually on 1 January to the Consumer Price Index (CPI) of Statistics Netherlands. The intended price increase will be communicated to the client in writing no later than two months before the commencement date.
Declarations are provided with a specification, if desired by the client.
The invoices sent by the contractor are deemed to have been approved by the client by means of a. signed timesheet, if the client has not communicated within a specified period of thirty days that it does not agree with the amounts charged by the contractor.
The Contractor reserves the right, in the absence of timely payment, to suspend further work or to discontinue processing the assignment.
If the client is in default or in default in the (timely) fulfillment of its obligations, then all reasonable costs incurred in obtaining payment out of court will be borne by the client. The extrajudicial costs are calculated on the basis of what is customary in Dutch collection practice, currently the calculation method according to Rapport Voorwerk II. However, if the contractor has incurred higher costs for collection that were reasonably necessary, the costs actually incurred will be eligible for compensation. Any judicial and execution costs actually incurred will also be paid by the client.
With regard to the extrajudicial (collection) costs, the Contractor is entitled, insofar as the Client acts in its capacity as a Company, in derogation of Article 6:96 paragraph 5 of the Dutch Civil Code and the Decree on compensation for extrajudicial collection costs, to a compensation of 15% of the total outstanding principal sum with a minimum of ? 90 for every invoice that has not been paid in whole or in part.
With regard to the extrajudicial (collection) costs, the Contractor is entitled, insofar as the Client acts in the capacity of Consumer, to the statutory maximum permitted compensation as determined in the Decree on compensation for extrajudicial (collection) costs.
Insofar as the Client acts in the capacity of Consumer, the Contractor is only entitled to compensation for the extrajudicial (collection) costs after the Contractor has sent the Client a reminder after the default has occurred to pay the outstanding invoice or invoices within 14 days. days.
Force majeure is understood to mean, in addition to what is understood in this regard in the law and jurisprudence, all external causes, foreseen or unforeseen, over which the contractor has no influence, but as a result of which the contractor is unable to fulfill its obligations.
Both the Contractor and the Client may suspend the obligations under the Agreement in whole or in part during the period that the force majeure continues. If this period lasts longer than 2 months, both parties are entitled to dissolve the Agreement with immediate effect, by means of written notification, without judicial intervention, without the parties being able to claim any compensation.
If the force majeure situation is of a temporary nature, the contractor reserves the right to suspend the agreed performance for the duration of the force majeure situation. In the event of permanent force majeure, both parties are entitled to dissolve the Agreement extrajudicially.
If, at the time of the occurrence of force majeure, the Contractor has already partially fulfilled or will be able to fulfill its obligations under the Agreement, and the part fulfilled or to be fulfilled has independent value, the Contractor is entitled to fulfill or fulfill that which has already been fulfilled. will be invoiced separately. The Client is obliged to pay this invoice as if it were a separate Agreement.
If the client or the contractor foresees that he will fail to comply with force majeure, he will report this force majeure immediately and in writing to the other party.
The Client will at all times pay the fees owed for the services already provided, even in the event of a force majeure situation.
Complaints and complaints must be made in writing and as soon as possible. This within the duration of the project, but no later than 2 months after the conclusion of the assignment.
Claims and defenses based on the assertion that the contractor has failed in any way, become statute-barred 1 year after the conclusion of the assignment to which they relate.
WARRANTY AND LIMITATION OF LIMITATION
The client indemnifies the contractor against any claims from third parties who suffer damage in connection with the execution of the agreement and the cause of which is attributable to others than the contractor. If the contractor should be addressed by third parties for this reason, then the client is obliged to assist the contractor both in and out of court and to immediately do everything that may be expected of him in that case. If the client fails to take adequate measures, the contractor is entitled to do so itself without notice of default. All costs and damage on the part of the contractor and third parties arising as a result will be entirely at the expense and risk of the client.
Contrary to the statutory limitation periods, a limitation period of one year applies to all claims against the contractor and the third parties engaged by the contractor (if any).
CHANGE TERMS AND CONDITIONS, DISPUTES AND FINAL PROVISION
The Contractor has the right to unilaterally change these general terms and conditions.
Changes will also apply to agreements already concluded.
The Contractor will inform the Client of the changes by e-mail.
The changes to the general terms and conditions will take effect 30 days after the Client has been notified of the changes.
If the Client does not agree with the announced changes, the Client has the right to dissolve the agreement.
If one of the parties does not comply with any essential obligation under the agreement, the other party will offer the defaulting party the opportunity by registered letter to still fulfill its obligations within a reasonable period of time.
If the defaulting party still fails to fulfill its obligations within the specified period, its rights under this agreement will lapse and the other party is no longer obliged to fulfill any obligation resting on it.
If a dispute arises between the Client and DAPP as a result of or as a result of the agreement and/or assignment, the parties will try to resolve this dispute through amicable consultation. This also includes the option of submitting the dispute jointly to an independent expert for advice and mediation.
Disputes between the Contractor and the Client will only be submitted to the competent court in the District Court of Gelderland in Arnhem, unless the law prescribes otherwise.
All legal relationships to which the Contractor is a party are exclusively governed by Dutch law. This also applies if an commitment is wholly or partly performed abroad or if the Client is domiciled abroad.
4104 BE Culemborg