General Terms and Conditions: These terms and conditions of delivery of services by the Contractor to the Client (hereinafter also “Terms”);
Assignment: The assignment agreement, where the Contractor undertakes to perform certain activities towards the Client;
Client: The party with which an agreement for the performance of services is entered into by the Contractor;
Contractor: IT Security Institute B.V. with the trade name Digital Security Institute, registered with the Chamber of Commerce with the number 94944504;
Agreement: An agreement that obliges the Contractor to provide services to the Client. This can take the form of a signed offer or a cooperation agreement, among other things;
Party: One of the parties that signs the Agreement, namely Client or Contractor. Collectively referred to as “the Parties”;
Activities: all activities and transactions to be carried out by the Contractor on behalf of the Client for which the Order has been given and that have been accepted by the Contractor, as well as all activities and transactions resulting therefrom for the Contractor;
Personal Data: All information about an identified or identifiable natural person;
Confidential data: All information that is subject to some degree of confidentiality. Personal data falls under the category of confidential data at all times;
Assurance assignment: an Assurance assignment or Assurance engagement for services related to Assurance as defined in professional regulations;
Other assignment: an Assignment that does not fall under the definition of Assurance assignment.
Article 2 - Applicability
These general terms and conditions apply to all offers, offers, activities, orders, agreements and deliveries of services or products by or on behalf of the Contractor;
Deviations from and additions to these general terms and conditions only apply if they have been agreed in writing between the Parties;
In the event that there is a conflict between an Agreement and the General Terms and Conditions, the Agreement always prevails over the General Terms and Conditions;
These general terms and conditions also apply to any additional or follow-up orders;
Only these general terms and conditions apply to an Agreement. The Client's general terms and conditions do not apply. These general terms and conditions can only be deviated from if the Parties explicitly agree in writing.
Article 3 - Offers
Offers and quotes from the Contractor are non-binding, unless explicitly stated otherwise;
An offer or quote is valid for a maximum of 1 month, unless there is another period in the offer or quote;
If the Client does not accept an offer or quote within the applicable period, the offer or quote will expire.
Article 4 - Execution of the assignment
Contractor performs the Assignment to the best of its ability and in compliance with applicable laws and (Professional) regulations;
The Contractor determines the way in which an Agreement is executed and takes into account the wishes expressed by the Client as much as possible;
The Contractor considers all orders awarded to it as orders to the Contractor as an organization, even if the Parties have the prior intention of having a specific person execute an Agreement. Therefore, articles 7:404 and 7:407 paragraph 2 of the Dutch Civil Code do not apply;
Contractor may have the agreed service carried out in whole or in part by others;
The Client shall make all information, data and documents relevant to the correct execution of the Agreement available to the Contractor in a timely manner and in the desired form and manner;
If the Client does not timely or improperly provide the information, documents, facilities and/or staff requested by the Client that are necessary for the execution of the Order, the resulting additional costs and/or fees will be borne by the Client;
The Client guarantees the accuracy and completeness of the information, data and documents provided, even if from third parties, unless the nature of the agreement dictates otherwise;
The Client guarantees that, if the activities are extended to activities for (legal) persons affiliated with the Client (within the meaning of art. 2:24 b of the Dutch Civil Code), the Agreement between the Parties and these general terms and conditions also apply to these activities.
Article 5 - Confidentiality
The Contractor is obliged to keep the information provided by or on behalf of the Client confidential from third parties that are not involved in the execution of the Agreement. This obligation does not apply insofar as the Contractor has a legal or professional obligation to disclose or the Client has released the Contractor from the obligation of confidentiality;
Contractor takes appropriate measures to protect Client's Personal Data and other confidential information. Contractor will inform Employees and third parties to be engaged about the confidential nature of the information. Processing of personal data by the Contractor takes place in accordance with the applicable (inter) national laws and (Professional) regulations in the field of personal data protection;
The Client is aware that in some cases, the Contractor is obliged to disclose Client's confidential information on the basis of (inter) national laws or (Professional) regulations. To the extent necessary, the Client hereby gives its consent and cooperation to such disclosure;
Contractor excludes any liability for damage that occurs to the Client as a result of Contractor complying with the laws and (Professional) regulations applicable to him;
Parties will impose their obligations under this article on third parties they engage.
Article 6 - Intellectual Property
Any intellectual property that occurs when the Contractor executes the Assignment remains the exclusive property of the Contractor;
The Client is expressly prohibited from reproducing, disclosing or exploiting the products that are subject to the Contractor's intellectual property rights, or products subject to intellectual property rights with regard to the use of which the Contractor has acquired user rights, beyond what has been agreed within the Agreement. This includes, for example (but not limited to): computer programs, system designs, working methods, advice, (model) contracts, reports, templates, macros and other mental products;
By entering into the Agreement with the Contractor, the Client gives the Contractor permission to process the Client's name and/or logo in relevant documentation (for example in communications about the Assignment) when executing the Assignment.
Article 7 - Force majeure
If the parties are unable to fulfill the obligations under the Agreement, not timely or properly as a result of force majeure within the meaning of art. 6:75 of the Dutch Civil Code, those obligations will be suspended until the parties are still able to fulfill them in the agreed manner;
If the situation referred to in paragraph 1 occurs, the parties have the right to terminate the Agreement in whole or in part and with immediate effect in writing, without the right to any compensation;
If the Contractor has already partially fulfilled the agreed obligations upon the occurrence of the force majeure, the Contractor is entitled to invoice the Work performed separately and prematurely and the Client must pay this invoice as if it concerned a separate transaction.
Article 8 - Fees
The Activities carried out by the Contractor will be charged to the Client on the basis of time spent and costs incurred, unless the parties expressly agree otherwise, such as payment of a fixed price. Payment of the fee does not depend on the result of the Activities unless otherwise agreed in writing. Travel time and accommodation costs for the Activities are charged separately;
In addition to the fee, the expenses incurred by the Contractor and the invoices of third parties engaged by the Contractor will be charged to the Client;
The Contractor has the right to request payment of an advance from the Client. Failure to (timely) pay the advance may be a reason for the Contractor to (temporarily) suspend the Activities;
When the Parties agree on a total amount for the Activities, this is always a target price, unless otherwise agreed in writing;
Contractor may deviate from the target price by up to 10%. The Client must let the Contractor know in good time why a higher price is justified if the target price is more than 10% higher;
The rates mentioned do not include VAT and other levies imposed by the government;
The contractor has the right to index the rates annually as of 1 January on the basis of the CBS consumer price index for all households. This adjustment will never take place if it would result in lower amounts than the last applicable ones. This adjustment also never takes place if the Agreement was entered into three months or less ago (art 6:236 i of the Dutch Civil Code);
If an Assignment (partly) consists of the Contractor leading or organizing group meetings (for example a workshop or training) and less than two weeks before the intended meeting there is a cancellation or rescheduling of the meeting by the Client without a reasonable alternative, the Contractor is entitled to charge 100% of the costs.
Article 9 - Payment
Payment by the Client of the amounts due to the Contractor must be made within 30 days of the invoice date, unless otherwise agreed, without the Client being entitled to any deduction, discount, suspension or set-off. The day of payment is the day of crediting the amount due to the Contractor's account;
Payment must be made in euros (€), with conversion from other currencies at the mid-market exchange rate (as published by the ECB) in force on the day the fee became due to the Contractor;
If the Client has not paid within the period referred to in paragraph 1, the Client is in default by operation of law and the Contractor is entitled to charge the statutory (commercial) interest from that moment on;
If the Client has not paid within the period specified in paragraph 1, the Client is obliged to reimburse all judicial and extrajudicial (collection) costs actually incurred by the Contractor. The reimbursement of the costs incurred is not limited to any cost order determined by the court;
In the event of an Order given jointly, Clients are jointly and severally liable for payment of the invoice amount, the interest (s) and costs due;
If the Client is at any time in a state of bankruptcy or suspension of payment, the Client must report this to the Contractor immediately;
If, in the Contractor's opinion, the financial position or payment behavior of the Client gives reason to do so, or if the Client fails to pay an advance or an invoice within the specified payment period, the Contractor is entitled to require the Client to provide (additional) security immediately in a form to be determined by the Contractor. If the Client fails to provide the requested security, the Contractor is entitled, without prejudice to its other rights, to immediately suspend further execution of the Agreement and all that the Client owes the Contractor for whatever reason is immediately due and payable.
Article 10 - Liability
The Contractor will perform its work to the best of its ability and in doing so will observe the care that can be expected of the Contractor. If a mistake is made because the Client has provided the Contractor with incorrect or incomplete information, the Contractor is not liable for the resulting damage;
The Contractor is not liable for indirect damage, including: loss of profit, missed savings, damage due to business interruption and other consequential or indirect damage resulting from the Contractor's failure, late or improper performance;
If the Client demonstrates that it has suffered damage as a result of a mistake on the part of the Contractor that would have been avoided if it had acted with due care, the Contractor will be liable for the damage resulting from this error up to a maximum of one of the amounts as laid down in subparagraphs 1 and 2 of this article, unless there is intent or gross negligence on the part of the Contractor and unless any mandatory (intern)national law or regulation does not allow such a limitation:
In the case of an advisory assignment, administrative secondment, outsourcing or other work, the Contractor is liable up to a maximum of the amount of the fee that the Contractor has received in the context of the relevant Assignment. In the case of an assignment with a duration of more than six months, the liability referred to here is limited to a maximum of the fee that the Contractor has invoiced in the context of the relevant Assignment over the last 6 months;
In the case of Assurance engagements, the Contractor is liable up to a maximum of three (3) times the fee for the Activities performed in the context of the relevant Assurance engagement up to the time of the attributable shortcoming(s). If the performance of the Assurance Engagement covers a period longer than 12 months, the amount referred to above will be set at three (3) times the fee for the Activities performed in the context of the relevant Engagement in the last 12 months.
A coherent series of attributable failures counts as one (1) attributable failure;
The limitations of liability included in this article do not apply if and insofar as there is intent or deliberate recklessness on the part of the Contractor or its management;
The Client is obliged to take damage-limiting measures. The Contractor has the right to undo or limit the damage by repairing or improving the Activities carried out;
A claim for compensation for damage must be submitted to the Contractor no later than one month after the Client has discovered or could reasonably have discovered the damage, after which the right to compensation lapses;
The Client indemnifies the Contractor against claims from third parties for damage caused by the Client not providing the Contractor with any Documents, or has provided incorrect or incomplete Documents;
The Client is obliged to indemnify and indemnify the Contractor against all claims from third parties – including shareholders, directors, supervisory directors and personnel of the Client as well as affiliated legal entities and companies and others involved in the Client's organisation – arising from or related to the activities of the Contractor on behalf of the Client, except insofar as these claims are the result of intent or gross negligence on the part of the Contractor;
To the extent that these general terms and conditions do not provide otherwise, the Client's rights of action against the Contractor in connection with the performance of work by the Contractor will in any case lapse after one year from the moment at which the Client became aware or could reasonably have become aware of the existence of these rights;
The provisions of paragraphs 1 to 10 of this article relate to both the contractual and the non-contractual liability of the Contractor towards the Client.
Article 11 - Termination
The Client and the Contractor may terminate the Agreement immediately at any time (prematurely) without observing a notice period by means of a written notification to the other party. If the Agreement ends before the Assignment is completed, the Client will owe the fee in accordance with the hours specified by the Contractor for Activities performed for the Client;
If the Client proceeds to (premature) termination, the Contractor is entitled to compensation for the loss of occupation that has arisen on its side and can be made plausible, to compensation for additional costs that the Contractor has already incurred, and to compensation for costs arising from any cancellation of third parties engaged (such as - among other things - any costs relating to subcontracting);
If the Contractor proceeds to (premature) termination, the Client is entitled to the Contractor's cooperation in the transfer of Activities to third parties, unless there is intent or deliberate recklessness on the part of the Client, as a result of which the Contractor is forced to terminate the contract. A condition for the right to cooperation as stipulated in this paragraph is that the Client has paid all underlying outstanding advances or all invoices.
Article 12 - Fixed-term service
The Agreement for a service with a fixed-term service (such as a subscription) is entered into for the duration of one (1) year, unless the nature of the Agreement dictates otherwise or something else has been agreed in writing;
At the end of the period in the first paragraph, the Agreement will be automatically converted into an Agreement for an indefinite period, unless the Client or Contractor terminates the Agreement with a notice period of two (2) months. If the Client is a consumer, a notice period of one (1) month applies;
The Client cannot terminate an Agreement for a fixed-term service earlier than after one (1) year;
At the end of the minimum term of one (1) year, the Client can terminate the Agreement with a two (2) months notice. If the Client is a consumer, a notice period of one (1) month applies;
If the Agreement for a service has been entered into for less than one (1) year, the Agreement cannot be terminated.
Article 13 - Other provisions
The Client will not hire or approach any Employees involved in the performance of the Activities to enter into employment with the Client, whether or not temporarily, directly or indirectly, or to perform work directly or indirectly for the benefit of the Client, whether or not in paid employment, during the term of the Agreement or any extension thereof and during the 12 months thereafter;
These general terms and conditions have been drawn up in both Dutch and English. In the event of any discrepancy or contradiction between the English and Dutch texts, the Dutch text shall be binding;
Provisions in the Assignment that expressly or by their nature must remain in force after the expiry or termination of the Assignment shall remain in force after expiry or termination, including Articles 6, 8, 9, 10, 13 paragraph 1 and 14.
Article 14 - Applicable law and choice of forum
The agreement between the Client and the Contractor is governed by Dutch law.
Disputes are settled by the competent (sub-district) court in the district of The Hague.
Article 15 - Repair clause nullities
If any provision of these general terms and conditions or of the underlying Assignment/Agreement should be wholly or partly null and void and/or not valid and/or unenforceable, as a result of any statutory regulation, court order or otherwise, this shall have no consequence whatsoever for the validity of all other provisions of these general terms and conditions or the underlying Assignment/Agreement;
If any provision in the Assignment or part of the Assignment cannot be invoked by law, the remaining part of the Assignment will remain in full force and effect, on the understanding that the provision on the part that cannot be invoked must be deemed to have been amended in such a way that it can be invoked, whereby the intention of the parties with regard to the original provision or the original part is maintained as much as possible.
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