General Terms & Conditions as at 1 April 2011
Article 1: Definitions
Client: The natural or legal person with whom ProPlanet B.V. enters into a contract.
Contractor: ProPlanet B.V.
Party/Parties: The Party or Parties to the concluded contract.
Article 2: Application
The General Terms & Conditions apply to all negotiations, tenders and contracts in terms of which ProPlanet B.V. supplies or might supply goods and services of whatever nature, even if such goods and services are not described in greater detail in these conditions.
All of our tenders, contracts for sale and/or supplies of our goods, services, work and opinions are governed exclusively by these General Terms & Conditions, subject to any other compulsory provisions of the law. Any deviations must be agreed with us explicitly and in writing.
Unless specifically accepted by us in writing, any general conditions used by the client and/or third parties will not apply.
Should any provision of the General Terms & Conditions be invalid or be annulled, the remaining provisions will remain in full force and effect and the void or annulled provision in these General Terms & Conditions will be replaced by a valid provision, observing as far as possible the aim and scope of the invalid or annulled provision.
In the event of any conflict with the provisions in the contract, General Terms & Conditions or appendices, the following order of priority will apply:
1. The Contract
2. The appendix/appendices
3. The General Terms & Conditions
Article 3: Conclusion of the contract
The contract is concluded at the moment when the Client sends ProPlanet B.V. an order confirmation. The confirmation is deemed to reflect the Contract accurately and completely.
All quotations issued by ProPlanet B.V. are without obligation unless otherwise stated.
The Contract is entered into for an unspecified period unless it is implicit from the nature, content or scope of the assignment that it has been entered into for a specified period.
The invoice will also be deemed to be the assignment for work for which (by its nature) no quotation or order confirmation is issued.
The text of the order confirmation/invoice is binding as regards the nature and extent of the obligations or ProPlanet B.V. If the Client does not agree to the terms of the order confirmation/invoice, the Client must notify ProPlanet B.V. accordingly, in writing, within eight (8) working days after receipt of the order confirmation/invoice.
Article 4: Prices
A tender or price quotation is not binding on ProPlanet B.V. and operates only as an invitation to place an order. ProPlanet B.V is entitled to decline orders and suchlike without giving any reasons.
All prices and rates are exclusive of VAT and any other taxes imposed by the government. The rates are expressed in euros.
Any interim amendment of the statutory taxes and/or changes or indexation of the level of wages and costs may be passed on as a charge by ProPlanet B.V. to the Client. ‘Indexation of the level of wages or costs’ is taken to mean an adjustment in accordance with the most recently published price index for Collective Labour Agreement wages for commercial services, as published by Statistics Netherlands.
ProPlanet B.V. is entitled to increase the rates it uses. ProPlanet B.V. will notify the Client of any rate increases at least 1 month in advance of them taking effect. If prices are increased, except for price increases in accordance with Article 4.2, above, the Client is entitled to cancel the contract in question within 7 days after notification from ProPlanet B.V. of the date on which the price or rate increase is due to come into force.
Typing errors and omissions are excepted from prices. No liability is accepted for the consequences of typing errors.
If it appears that the information provided by the Client was inaccurate in terms of the request or contract, ProPlanet B.V. will be entitled to adjust the prices for this or to cancel the contract with immediate effect.
Quotations issued by ProPlanet B.V. are valid for the period indicated therein. If no period is indicated, the quotation is valid for 14 days after the date on which the quotation is issued.
Article 5: Terms of payment
Payment must be made by the Client to ProPlanet B.V. in accordance with the terms of payment noted on the invoice. In the absence of any such conditions, payment must be made within 14 days after the date of the invoice. Payment must be made without any retention or set-off and without any right for the Client to block payment by means of self-imposed attachment or otherwise. ProPlanet B.V. reserves the right to demand payment in advance.
In the event of late payment, the Client will be in default in the event that a single instalment is unpaid. From that date onwards, and with no requirement for any notice of default, the Client will be due an immediately payable penalty in respect of interest for the delay, of 1.5% per month of the balance due, with any part of a month counting as a whole month.
In the absence of any specific payment conditions, the Client will settle the invoice within 30 days after the invoice date. The Client is not entitled to apply any discount or set-off.
If payment is late then, in addition to the amount due and the interest incurred thereon, the Client will also be obliged to settle in full any judicial or extra-judicial collection costs, including fees for lawyers, bailiffs and collection bureaus. The extra-judicial collection costs amount to a minimum of 15% of the sum due by the Client to ProPlanet B.V.
The claim for payment is due immediately in the event that the Client is declared bankrupt, applies for a moratorium on payments or has a general attachment imposed on his / its assets, if the Client dies or, being a legal person, enters into a liquidation or is dissolved.
ProPlanet B.V. is entitled to retain all data, documents and other items in its possession until all sums due to ProPlanet B.V. have been settled by the Client.
Article 6: Confidentiality
The Parties undertake to each other to observe confidentiality in relation to information pertaining to the other Party. Each Party will take reasonable precautionary steps to ensure that this obligation is fulfilled as completely as possible. The Parties hereby also impose this obligation on their employees and any third parties they may hire, along with employees of such third parties, in relation to the implementation of the contract between the Parties.
The Client will not disclose the contents of the reports, opinions or other comments, written or verbal, made by ProPlanet B.V. if they have not been prepared with a view to providing the information they contain to third parties, unless the Client has received written permission from ProPlanet B.V. to do so. An exception applies here, however, if ProPlanet B.V. is acting on its own behalf in any administrative, civil, or criminal proceedings in which such documentation might be of importance.
The Client is not permitted, without written consent from ProPlanet B.V., to pass the access and identification codes issued by ProPlanet B.V. to any third parties. The Client will observe confidentiality in relation to such access and identification codes and disclose them only to authorised personnel. The Supplier is never liable for loss or costs arising from abuse or misuse of access or identification codes, unless the misuse occurs as a direct result of acts or omissions on the part of ProPlanet B.V.
If the Client culpably fails to fulfil the terms of this Article, it will forfeit an immediately payable penalty of €50,000.00 per event, with no requirement for judicial intervention, and without prejudice to all other rights, including the right to demand performance of the contract and/or compensation of losses sustained.
The obligation of confidentiality will continue for a period of at least two (2) years after the termination of the Contract or for such longer period as may be specified by law.
Article 7: Intellectual and industrial property rights
All intellectual and industrial property rights to all software developed by virtue of the Contract, such as analyses, documentation, reports, coaching material, quotations, and the relevant preparatory materials will remain exclusively with ProPlanet B.V. or its licensees. The Client will only obtain the user rights and authorisations explicitly awarded to him/it in terms of these General Terms & Conditions or otherwise, and otherwise will not duplicate or reproduce copies of such software or other materials.
The Client is not permitted to amend, delete or render unrecognisable any indication of ProPlanet B.V.’s intellectual or industrial property rights.
ProPlanet B.V. is permitted to adopt and maintain technical measures to protect the software or materials. The Client warrants that there are no third party rights that would hinder the provision of access to ProPlanet B.V. for equipment, software, websites, data files, information intended for websites, music, logos, photos, film material, domain names and suchlike or other materials for the purpose of use and processing or for undertaking (pre-) installation work or configuration work by ProPlanet B.V. If ProPlanet B.V. has undertaken any work on designs, drawings or other instructions made available by or on behalf of the Client, the Client warrants that this does not amount to an infringement of any third-party intellectual property rights. The Client will indemnify ProPlanet B.V. against any action or claim based on an allegation that the provision of such access, use or processing amounts to an infringement of any third-party rights.
Article 8: User right
Without prejudice to the provisions in Article 7, ProPlanet B.V. hereby grants the Client the non-exclusive right to use the software developed or provided by virtue of this contract, such as analyses, documentation, reports, coaching material, quotations as well as the preparatory material therefore. The Client will strictly observe any restrictions on use agreed between the Parties. The user right is not transferable.
The Client is not permitted to sell, hire, sub-licence, alienate or grant restricted rights over or in any way make available the software and the recording media on which it is recorded to third parties, even if the third party in question is only using the software for the Client, unless otherwise agreed in writing.
The Client is not permitted to regress the software, fully or partially, to its source code ("reverse engineering"), except in cases where this is explicitly permitted by law.
Article 9: Retention of title
All items, such as data carriers and manuals, supplied by ProPlanet B.V. to the Client by virtue of a Contract will remain the property of ProPlanet B.V. until all amounts due by the Client for the items supplied or to be supplied or the work done or to be done by virtue of the Contract have been fully paid to ProPlanet B.V., along with the amounts specified in Articles 5.1 and 5.2.
If any attachment is imposed on items supplied by ProPlanet B.V. to the Client by virtue of a Contract, the Client must notify ProPlanet B.V. of this immediately. In the event of any such attachment and in the event that the Client is declared bankrupt, the Client must immediately notify the court bailiff or administrator or trustee of the property rights of ProPlanet B.V.
In the event that the Client fails to fulfil any obligation under the Contract to ProPlanet B.V., then ProPlanet B.V. will be entitled, without issuing any notice of default, to recover any items already delivered, and in any such case the Contract will be dissolved, without judicial intervention, without prejudice to ProPlanet B.V.’s rights to claim compensation, loss of profit and interest.
Article 10: Cooperation by the Client
The Client appreciates that maintaining software in an operational condition is a continual process, which goes hand in hand with an investment of time, money and energy by all of the Parties involved. This is one reason why the Client must cooperate as fully as possible in implementing the Contract concluded with ProPlanet B.V. The Client will regularly and promptly provide ProPlanet B.V. with useful and necessary information and will warrant the accuracy of such information.
The Client is responsible for the accurate use and application of the software of ProPlanet B.V. and of the services provided by ProPlanet B.V. for introduction into the Client’s organisation of the requisite procedures, as well as for the security of information, which includes the regular backup of data files, at least at the times indicated by the software. The Client will also install or arrange for the installation of updates, upgrades and suchlike issued by ProPlanet B.V. to the Client, in good time and in the correct manner. The user is not permitted to amend files manually, add supplementary files to the software or, except in cases indicated by the software, to adapt files in any other way.
If it has been agreed that the Client will provide materials or data on data carriers, these will fulfil the specifications necessary for the implementation of the work.
If the Client’s information required for performance of the Contract is not provided to ProPlanet B.V., or not provided in time or as arranged,
or if the Client fails in some other way to fulfil its obligations to ProPlanet B.V., this may result in suspension of the fulfilment by ProPlanet B.V. of its obligations and the Client may also be charged extra costs.
In cases where employees of ProPlanet B.V. undertake work at the offices of the Client, the Client will ensure that these employees can do their work without disturbance. The Client will provide such facilities as may reasonably be required by those employees, free of charge. The Client will ensure that these rooms where these employees have to do the work and/or where the products that have been supplied are located meet the requirements imposed by ProPlanet B.V. in relation to matters such as temperature, humidity and electrical supply.
Article 11: Suspension of services and retention of title
ProPlanet B.V. reserves the right to suspend the agreed services and/or to restrict their use if:
the Client is in default in relation to any one of its obligations towards ProPlanet B.V. in relation to these services;
through its acts and/or omissions, the Client creates an immediate danger to the operation of ProPlanet B.V.’s system or any third-party systems;
there can be a reasonable suspicion that providing information to ProPlanet B.V. or allowing ProPlanet B.V. to process such information and/or software would be unlawful;
The obligation to make regular due payments continues during the period of suspension unless the Client is not to blame for the reasons behind the suspension.
The provision of services will be resumed once the Client has resumed fulfilment of its obligations within such time as may be specified by ProPlanet B.V. and has paid any relevant amount for re-commissioning.
Expiry of the time limit specified in paragraph 2 of this Article will be regarded as sufficient reason for cancellation of the Contract with immediate effect.
Article 12: Delivery dates
All (delivery) dates specified by ProPlanet B.V. are established to the best of its ability on the basis of information in its hands prior to entering into the Contract, and will be observed as far as possible. If there is a threat that any date will be exceeded, ProPlanet B.V. and the Client will enter into consultation as quickly as possible. If the date is missed by an extensive period, this may be regarded as grounds for dissolution of the Contract. Failure to meet any delivery date can never result in any right on the part of the Client to claim compensation. ProPlanet B.V. is always entitled to deliver items in batches.
Article 13: Taking over staff
The Client is not permitted to employ any employees of ProPlanet B.V., and to arrange for such individuals to work for it in any other way, directly or indirectly, without prior written permission from ProPlanet B.V., for as long as the relationship between the Client and ProPlanet B.V. continues and for a further period of one year thereafter. ‘Employees of ProPlanet B.V.’ in this context are understood to be individuals employed by ProPlanet B.V. or any business affiliated to ProPlanet B.V., or who were employed by ProPlanet B.V. or any business affiliated to ProPlanet B.V. within the previous six months.
Article 14: Termination
The Contract may only be terminated, unless the parties agree otherwise, by notice of dissolution, and only if the other party culpably continues to fail to fulfil any essential obligations under the Contract, having been given proper written notice of default. Notice of dissolution
must be sent by registered post; there is no need for judicial intervention.
If, on the date of dissolution, the Client has already received any products from performance of the Contract, the Client may only partially dissolve the Contract in relation to the part that has not yet been performed by ProPlanet B.V.
Any amounts invoiced by ProPlanet B.V. prior to dissolution of the contract, in connection with performance or supplies in implementation of the Contract, will remain due in full and will become immediately payable on the date of dissolution.
Notwithstanding the provisions in Article 14.1, ProPlanet B.V. is entitled to terminate the Contract, fully or partially, with immediate effect and without judicial intervention, by means of written notification to the Client, if the Client is declared bankrupt, if the Client is awarded a (provisional or otherwise) moratorium on payments, if the Client is for any other reason unable to fulfil its payment obligation or if the Client's business is liquidated or terminated. ProPlanet B.V. will never be obliged to pay any compensation as a result of such dissolution.
Article 15: Liability/risk
Except for loss intentionally caused by or attributable to ProPlanet B.V., ProPlanet B.V. is only liable for loss in so far as described in the following paragraphs.
The liability of ProPlanet B.V. on account of culpable failure to fulfil the Contract will only arise if the Client issues an immediate and proper written notice of default to ProPlanet B.V., including a reasonable time limit for rectifying the failure, and if ProPlanet B.V. continues to be culpably in breach of its obligations after that time limit has passed. The notice of default must contain as detailed as possible a description of the failure, so that ProPlanet B.V. is afforded an adequate opportunity to respond.
The total liability of ProPlanet B.V., of whatever nature, is confined to the payment of immediate loss up to an amount equivalent to 50% of the amounts invoiced or yet to be invoiced in terms of the Contract, excluding VAT. If and insofar as the Contract in question results in periodical payments, ProPlanet B.V. will never be due more than 50% of the amounts it has invoiced during the six months prior to its default. The amounts specified in this paragraph of this Article will be reduced by any credits granted by ProPlanet B.V. Under no circumstances will the total compensation for immediate loss exceed the payment made by ProPlanet B.V.'s liability insurer in appropriate cases.
‘Immediate loss’ here means:
the demonstrable, reasonable costs that the Client must incur to ensure that the performance by ProPlanet B.V. corresponds with the Contract. Such losses will not, however, be paid if the Contract is dissolved or if the Client is to blame for the loss;
loss to software and equipment, which includes: material damage as well as defective operation or non-operation;
material damage to other property belonging to the other Party and/or third parties;
demonstrable, reasonable costs incurred to establish the cause and quantum of loss, in so far as this exercise relates to the immediate loss as defined in these conditions;
demonstrable, reasonable costs incurred to prevent or restrict loss, to the extent that the Client demonstrated these costs have resulted in a restriction of immediate loss as defined in these conditions.
ProPlanet B.V.’s total liability for loss through death or physical injury will never exceed the amount awarded by ProPlanet B.V.’s liability insurer in appropriate cases.
ProPlanet B.V.’s liability for indirect loss, including consequential loss, lost profits, lost savings, loss of data and loss resulting from
commercial stagnation and under-utilisation, is excluded under all circumstances.
The Client indemnifies ProPlanet B.V. against liability for third-party claims arising from or associated with the (implementation of the) Contract with the Client, unless the Client is in a position to enforce such claims directly against ProPlanet B.V., subject to the provisions contained in this Article, if the Client had suffered such loss in person.
All rights to compensation will in any event expire insofar as the Client has failed to take appropriate measures after the loss occurred to limit the loss or prevent any further or different loss, and insofar as the Client fails to inform ProPlanet B.V. of all relevant information as quickly as is reasonably possible.
The risk of loss, theft, embezzlement or damage to property, products, software, documents or data (codes, passwords etc) that are the subject of this Contract is transferred to the Client at the point when these are actually placed within the physical control of the Client or one of its support staff.
The Client indemnifies ProPlanet B.V. and the employees of ProPlanet B.V. against all third-party claims, specifically against claims by third parties for product-liability as a result of a defect in a product or system supplied by the Client to a third party, which included software, equipment, websites, data files or other materials supplied by ProPlanet B.V., unless and to the extent that the Client proves that the loss was caused by that/those software, equipment, websites, data files or other materials.
Article 16: Guarantee
ProPlanet B.V. guarantees that any information relating to its products is provided with care, but ProPlanet B.V. cannot guarantee that such products will not contain (minor) deviations.
Article 17: Inspection and complaints
Any complaints must be intimated to ProPlanet B.V. by the Client within two weeks after supply or after the performance of the work. Complaints do not suspend the obligation to make payment. All liability arising from defects is limited in terms of the relevant provisions in Article 14.
The Client is obliged to cease using the product in question after making a complaint, in order to avoid any further complications for ProPlanet B.V. The Client will cooperate in every way possible in any investigation of the complaint, in the absence of which ProPlanet B.V. will be under no obligation to deal with the complaint. The Client is not at liberty to return products to ProPlanet B.V. before ProPlanet B.V. has agreed that it may do so.
Article 18: Force majeure
Performance of the Contract will be suspended or the Contract will be terminated in cases of force majeure if the force majeure situation extends beyond 90 days, without any obligation to pay compensation. In this context, "force majeure" includes in any event: disruptions or failures of internet or telecommunications infrastructure; electrical supply failures; domestic unrest, mobilisation, war; transportation obstructions; strike, lockout, commercial disruptions, stagnation in supplies; fire, flood; restrictions on imports or exports, and if it proves unreasonable to demand that ProPlanet B.V. should fulfil the Contract because ProPlanet B.V. is prevented from delivering by its own suppliers, for whatever reason.
Article 19: Telecommunication
If ProPlanet B.V. uses telecommunications facilities during the maintenance of equipment, including basic support or other services,
the Parties will each be responsible for the correct choice and timely availability of such facilities.
ProPlanet B.V. is never liable for reduction or loss of data or results of processing while collating data using telecommunication facilities.
Article 20: Amendment of General Terms & Conditions
ProPlanet B.V. reserves the right to amend and supplement these General Terms & Conditions.
Amendments will also apply in relation to Contracts already concluded, subject to a lead-in period of thirty (30) days after intimation of the amendment on the website of ProPlanet B.V. or after our electronic notification. Amendments of minor significance may be effected at any time.
If the Client is unwilling to accept an amendment to these General Terms & Conditions, it will be entitled, until the date on which the new conditions come into effect, to terminate the Contract with effect from that date.
Article 21: Netherlands Data Protection Act
The Parties are obliged to lend each other every co-operation required to afford the other party the opportunity to comply with its obligations under the Netherlands Data Protection Act. This includes an understanding that the Client will inform ProPlanet B.V. promptly and properly as to whether any processing in the context of a Contract is covered by the Data Protection Act, and whether such processing has been reported to the Personal Data Protection Board or to the Client’s data protection officer. The Client will pay for any costs incurred and/or work done by ProPlanet B.V. in connection with the obligations specified in this Article
The Client will ensure that the responsible officer in terms of the Data Protection Act will fulfil all obligations under that Act. The Client indemnifies ProPlanet B.V. against all third-party claims that may be filed against ProPlanet B.V. in terms of the Data Protection Act.
Article 22: Applicable law and disputes
The Contract between ProPlanet B.V. and the Client is governed by the law of the Netherlands.
All disputes arising between ProPlanet B.V. and the Client in relation to a Contract concluded by ProPlanet B.V. with the Client or any consequential contracts will be determined by the competent Court whose jurisdictional area includes the registered office of ProPlanet B.V.