Article 1 Applicability of the General Terms and Conditions of Purchase
1.1 These General Terms and Conditions of Purchase will apply to every offer, tender and agreement between the Contractor and the Client.
1.2 If a provision of the General Terms and Conditions of Purchase is found to be invalid or is declared void, this will not affect the validity of the remaining provisions. In that case, parties will introduce a provision to replace the provision that is invalid or has been declared void that will, as far as possible, approximate the intention of the parties.
1.3 The applicability of general terms and conditions of the Contractor is expressly rejected.
Article 2 Tenders and offers
2.1 All tenders and offers from the Contractor will be valid for a 30-day period, unless it has been agreed in writing that tenders and offers are without obligation.
2.2 The prices specified in a tender or offer are excluding VAT and including other government levies, any costs to be incurred in the scope of the agreement (including costs for travel and accommodation, dispatch costs and administrative costs), unless agreed otherwise in writing.
Article 3 Delivery (terms), performance and amendment of the agreement
3.1 The agreement is an obligation to achieve a result on the part of the Contractor.
3.2 The delivery term is a final deadline.
3.3 The Contractor must request in a timely manner, all information of which it knows or should know that it is necessary for the performance of the contract from the Client. If the Contractor requests no (additional) information from the Client, the Contractor should be ensured of the proper information to enable performance of the contract.
3.4 The Client will be entitled to have the agreement performed in various phases.
3.5 If the agreement is performed in phases, the Client may suspend payment for the performance of the components that belong to a next phase, until the Client has approved the results of the preceding phase in writing.
3.6 Amendments to an initial contract through the actions of the Contractor may affect the agreed time planning and the costs for the performance. Additional costs arising from this will be borne by the Contractor.
3.7 The Contractor may only charge additional work to the Client if and in so far as the Client has consented to this in advance in writing.
3.8 After advance written consent to that effect by the Client, the Contractor will be entitled to engage third parties in and for the performance of the agreement, in so far as the nature of the performance of the Contractor so permits.
Article 4 Payment
4.1 The payment term will never be a final deadline.
4.2 The Contractor will not be entitled to suspend its obligations and/or proceed to a setoff.
Article 5 Claims
5.1 The Client is entitled to submit a claim within a term of 30 days after a defect has become known or should have been known.
Article 6 Confidentiality
6.1 Both parties are obliged to maintain secrecy of any confidential information received from each other in the scope of the agreement. Information will be deemed confidential if this has been communicated by the other party or if this arises from the nature of the information. The party receiving confidential information will only use this for the purposes that it has been provided for.
Article 7 Liability
7.1 The Client will not be liable for damages of any kind, resulting from an assumption based on incorrect and/or incomplete information proffered by or on behalf of the Contractor.
7.2 Except for in case of intent or gross negligence by the Client or its management, it will only be liable for direct damage and the compensation will in all cases be limited to the amount paid out by its liability insurer plus the excess. If the insurance does not pay out, and yet the Client is still liable, then this compensation will be limited to a maximum of € 25,000.
7.3 The Contractor will indemnify the Client immediately on first request against, and fully compensate the Client for all claims that the Client receives from the Contractor (who ordered the service in question to be provided for the Client) in connection with the service performed by the Contractor, including the costs for legal assistance.
7.4 All rights of claim and other entitlements (for whatever reason) the Contractor has towards the Client must be received by the Client in writing within three months after the moment in time when these arose, or else when these became known to the Contractor or should reasonably have become known to the Contractor, at the risk of forfeiture of the rights in question.
7.5 The Contractor will indemnify the Client against all possible tax liabilities pertaining to staff and/or third parties made available by the Contractor.
7.6 The Contractor will ensure adequate third-party insurance coverage is in place.
Article 8 Cancellation
8.1 In case of the delivery of services, the Client will be entitled to cancel the agreement without further motivation, subject to the condition that the following percentage from full performance of the agreement is paid by the Client, unless otherwise agreed in writing:
a. in case of cancellation more than 3 months prior to delivery of the service as laid down in the agreement: 40% of the fee determined in the agreement;
b. in case of cancellation in the period between 3 months and 1 month prior to delivery of the service as laid down: 65% of the fee as determined in the agreement;
c. in case of cancellation within 1 month prior to delivery of the service as laid down: 90% of the fee as determined in the agreement.
d. the Client will never be indebted to the Contractor for amounts in excess of the aforementioned amounts from article 8.1.
Article 9 Dissolution of the agreement
9.1 The Client will be entitled to dissolve this agreement forthwith without owing any compensation if:
a. the Contractor fails to comply with the obligations from the agreement in full, in part or in time;
b. after concluding the agreement, the Client becomes aware of circumstances giving good cause for concern that the Contractor will fail to comply with its obligations in full, in part and/or in time;
c. the assets of the Contractor are seized, or else if the Contractor is granted a moratorium, or else is granted statutory debt adjustment under the Dutch Debt Restructuring (Natural Persons) Act, or else is declared bankrupt.
d. if the agreement is dissolved, the claims from the Client against the Contractor will become immediately due and payable.
Article 10 Intellectual property rights
10.1 The Client has or will have exclusive ownership of all existing and future intellectual property rights (including, but not limited to copyright) attached to or arising from the agreement.
10.2 The Contractor guarantees it will respect the intellectual property rights of third parties and it will indemnify the Client against all claims from third parties towards the Client in connection with any (alleged) breach of this by the Contractor (or by its staff and any third parties it engaged).
10.3 If and in so far as intellectual property rights are not vested in the Client, then the Client will be entitled to use the knowledge it acquired in performing an agreement for other purposes as well, in so far as no strictly confidential information from the Contractor is communicated to third parties.
10.4 The Client and the Contractor of the Client are entitled to make audio, photo and/or video recordings of the works/services arising from the agreement, unless the Contractor has explicitly stipulated otherwise. The audio, photo and/or video recordings may be used by the Client and the Contractor of the Client in internal and external communications without the prior written consent of the Contractor, unless otherwise agreed in writing.
10.5 Unless otherwise agreed in writing, the rights to be levied by BUMA-STEMRA will be borne by the Client.
Article 11 Non-solicitation clause
11.1 Without explicit written consent in advance from the Client, the Contractor will not be permitted, for the duration of the agreement and for one year after the end of the agreement (for whatever reason), to (in)directly perform works or have works performed that are similar to the works offered by the Client to the Contractor of the Client in question, for which the Client has engaged the Contractor.
Article 12 Non-competition clause
12.1 Without explicit written consent in advance from the Client, the Contractor will not be permitted, for the duration of the agreement and for one year after the end of the agreement (for whatever reason), to (in)directly perform works or have works performed that are similar to the works offered by the Client.
II DELIVERY OF MOVABLE GOODS
The provisions included in this section apply concurrently with the general provisions in these General Terms and Conditions of Purchase, if the Contractor delivers movable goods to the Client.
Article 13 Delivery
13.1 Shipments will be Delivered Duty Paid up to the named place of destination as indicated in the agreement, unless otherwise agreed in writing.
Article 14 Retention of title
14.1 The movable goods delivered by the Contractor will not be subject to retention of title.
Article 15 Inspection
15.1 The Client must inspect the delivered goods (or have these inspected) within seven work days after the movable goods have come under its control. Any defects must be reported to the Contractor in writing within seven work days after having been detected or reasonably could have been detected.
15.2 If it has been determined that the delivery is defective and a complaint to that effect has been lodged in time, the Contractor will replace the defective movable item or ensure the defect is remedied within a reasonable period of time at the Client’s discretion.
III CONTRACTOR IS AN INDEPENDENT WORKER WITHOUT EMPLOYEES
The provisions included in this section apply concurrently with the general provisions in these General Terms and Conditions of Purchase, if the Contractor is an independent worker without employees.
Article 16 Other provisions
16.1 The Contractor guarantees the Client that he will carry out the agreement fully in accordance with the agreement at all times. He will immediately notify the Client in writing if he is unable to comply with this.
16.2 The Contractor will be prohibited from entering into agreements with third parties on behalf of the Client in whatever way, or else to pose as a power of attorney, an employee or a representative of the Client towards third parties, in default of which the Contractor will indemnify the Client at first request against all claims and actions arising from this.
16.3 If the Contractor engages an artist/entertainer/performer (all in the broadest sense) for services to be provided, the Contractor will impose the provisions as referred to in article 10.4 of these General Terms and Conditions of Purchase on the artist/entertainer/performer in question.
IV CONTRACTOR IS A LEGAL ENTITY
The provisions included in this section apply concurrently with the general provisions in these General Terms and Conditions of Purchase, if the Contractor is a legal entity.
Article 17 Other provisions
17.1 The Contractor, its staff, or else third parties it engages will be prohibited from entering into agreements with third parties on behalf of the Client in whatever way, or else to pose as a power of attorney, an employee or a representative of the Client towards third parties, in default of which the Contractor will indemnify the Client at first request against all claims and actions arising from this.
17.2 If the Contractor, or else the person / third party engaged by the Contractor fails to comply with his obligations in full, in part and/or in time, the Client will be entitled to suspend its (payment) obligations and/or withdraw the contract, without further announcement or notice of default. In such cases, the Client may furthermore call the Contractor to account for all damages incurred and/or yet to incur by the Client.
17.3 If the Contractor engages the services of an independent worker without employees to perform the work, he will indemnify the Client against all (tax) liabilities arising from the agreement between the Contractor and the independent worker in question.
17.4 If the Contractor engages an artist/entertainer/performer (all in the broadest sense) for services to be provided, the Contractor will impose the provisions as referred to in article 10.4 of these General Terms and Conditions of Purchase on the artist/entertainer/performer in question.
Article 18 PROCESSING PERSONAL DATA
18.1 If the Contractor processes personal data when executing the Agreement, the terms and conditions as set out below will apply in addition to the General Terms and Conditions of Purchase.
18.2 The definitions used in these terms and conditions will have the meaning as ascribed to them by the General Data Protection Regulation (to be referred to hereinafter as: GDPR) or as applied by the legal system in the broadest sense.
18.3 In processing personal data, the Contractor will act as Controller, or, if the Contractor processes personal data for the benefit of a third party, as Processor. The Client will fulfil the role of processor or sub-processor (depending on the capacity of the Contractor in processing personal data).
Article 19. Purposes of processing
19.1 In processing the personal data the Client will be authorised to process these to perform the Agreement, plus for those purposes that reasonably coincide with this, or for those purposes that are determined with specific consent.
19.2 Under the Agreement, the Client may process all personal data of all categories of parties involved that are submitted to him for processing or that have been brought to his attention. If special personal data are processed in using the Services, the Contractor must notify the Client of this in advance and the Contractor will have full responsibility for these personal data and the obligations attached to them by the GDPR.
19.3 The Client has no control over the purpose and the means for processing personal data and bears no responsibility for these personal data, the use of the personal data, the provision to third parties and the duration of the retention period.
19.4 The Contractor guarantees that he maintains a data processing register and the Contractor indemnifies the Client against all liabilities and claims in connection with the failure to comply, or the failure to properly comply with this register.
19.5 The Client will not be responsible for any other processing of personal data, which will in any case include, but not be limited to the collection of the personal data by the Contractor, processing for purposes the Client was not notified of by the Contractor in writing, processing by third parties or for other purposes. The full responsibility for this processing lies with the Contractor.
19.6 The Contractor guarantees that the content, the use and the order for processing of personal data are not unlawful and do not breach any rights of third parties. The Contractor indemnifies the Client against all claims from third parties arising from the failure to comply with the aforementioned guarantee by the Contractor.
Article 20 Obligations from parties
20.1 In so far as reasonable, the Client will cooperate with the Contractor in conducting a Data Protection Impact Assessment or DPIA. Costs incurred or to be incurred by the Client for these works must be fully compensated by the Contractor. The Client may demand financial security in advance for this before cooperating.
20.2 The obligations of the Contractor also apply to those who process personal data under the authority of the Contractor, including the Contractor’s staff or third parties it engaged.
Article 21. Transfer of Personal Data
21.1 The Client processes personal data in countries within the European Economic Area. Besides this, the Contractor grants the Client permission to process personal data in countries outside the European Economic Area.
21.2 Upon request, the Client will notify the Contractor about which country or countries the personal data are transferred to.
Article 22 Engaging sub-processors
22.1 The Contractor grants general permission to the Client to engage sub-processors. Upon request, the Client will notify the Contractor about which sub-processors it engages, provided that the same or more strict obligations are imposed on these sub-processors than those imposed on the Client in processing personal data.
22.2 If the Client intends to engage new sub-processors to process personal data, the Client will inform the Contractor of this. The Contractor will be expected to grant permission if the same or more strict obligations are imposed on the sub-processor than those imposed on the Client in processing personal data.
Article 23. Data leaks
23.1 In case of a breach of the personal data, the Client will undertake to the best of its ability to notify the Contractor within a reasonable term after the subjective detection of this.
23.2 The Contractor bears exclusive responsibility as to what extent it informs the Dutch Data Protection Authority or the party involved, unless the Client also has an obligation under the law or its own responsibility.
Article 24. Request from parties involved
24.1 If a party involved files a request to the Client regarding his personal data, the Client will forward this request to the Contractor. The Client may notify the party involved of this.
24.2 The Contractor bears full responsibility as to what extent he responds to the request from the party involved, unless the Client also has an obligation under the law or its own responsibility.
Article 25 Indemnification
The Contractor indemnifies the Client against penalties or claims from third parties in connection with the violation of the obligations under the GDPR, unless there is intent or gross negligence on the part of the Client.
Article 26 Penalty clause
In case of a violation of an obligation from articles 6 and/or 11 and/or 12 and/or 18-24 of these General Terms and Conditions of Purchase, the Contractor will incur an immediately due and payable penalty to the Client in the amount of € 20,000.- per violation, plus € 500.- for each day or part of a day that the violation continues, without prejudice to the right of the Client to claim compliance and/or full compensation instead of the penalty.
Article 27 Applicable law and disputes
All legal relationships between the Client and the Contractor are governed exclusively by Dutch law. The competent court of the district Midden-Nederland, location Utrecht, has exclusive jurisdiction to hear disputes between the parties.
Version May 2018