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Terms and Conditions

TERMS AND CONDITIONS

Article 1 – Definitions 

  1. ITYM IT Services BV, with its registered office in Amsterdam, Chamber of Commerce number 95066861, is referred to in these terms and conditions as the service provider.
  2. The service provider’s counterparty is referred to as the client in these terms and conditions.
  3. The parties are the service provider and the client.
  4. The term "Agreement" refers to the service agreement between the parties.

Article 2 – Applicability of the Terms and Conditions 

  1. These terms and conditions apply to all quotations, offers, work, agreements, and the provision of services or goods by or on behalf of the service provider.
  2. Any deviation from these terms and conditions is permitted only if expressly agreed to in writing by the parties.
  3. The agreement always imposes best-efforts obligations on the service provider, not performance obligations.

Article 3 – Payment

  1. Invoices must be paid within 45 days of the invoice date, unless the parties have agreed otherwise in writing or a different payment term is specified on the invoice.
  2. Payments shall be made without any claim to suspension or set-off by transferring the amount due to the bank account number provided by the service provider.
  3. If the client fails to pay an invoice within the agreed time frame, the client shall be in default by operation of law, without the need for any formal notice. From that moment on, the service provider is entitled to suspend its obligations until the client has fulfilled its payment obligations.
  4. If the client fails to pay, the service provider will proceed with collection. The costs associated with such collection shall be borne by the client. If the client is in default, the client shall owe the service provider, in addition to the principal amount, statutory (commercial) interest, extrajudicial collection costs, and other damages. The collection costs are calculated in accordance with the Decree on Compensation for Extrajudicial Collection Costs.
  5. In the event of the client’s liquidation, bankruptcy, seizure of assets, or suspension of payments, the service provider’s claims against the client shall become immediately due and payable.
  6. If the client refuses to cooperate with the service provider in the performance of the contract, the client is still obligated to pay the agreed-upon price to the service provider.

 Article 4 – Offers and Quotations

  1. The service provider’s offers are valid for a maximum of one month, unless a different acceptance period is specified in the offer. If the offer is not accepted within that specified period, it expires.
  2. Delivery times stated in quotations are approximate, and if they are exceeded, this does not entitle the client to terminate the contract or claim damages, unless the parties have expressly agreed otherwise in writing.
  3. Offers and quotations do not automatically apply to repeat orders. The parties must expressly agree to this in writing.

Article 5 – Prices

  1. The prices listed in the service provider’s offers, quotations, and invoices are exclusive of VAT and any other government taxes, unless expressly stated otherwise.
  2. The prices of goods are based on the cost prices known at that time. Any increases in these costs that the service provider could not have foreseen at the time the offer was made or the agreement was concluded may result in price increases.
  3. With regard to the services, the parties may agree on a fixed price when entering into the agreement.
  4. If no fixed price has been agreed upon, the rate for the services may be determined based on the actual hours worked. The rate is calculated according to the service provider’s standard hourly rates in effect during the period in which the work is performed, unless a different hourly rate has been agreed upon.
  5. If no rate based on actual hours worked has been agreed upon, a target price will be agreed upon for the services, and the service provider is entitled to deviate from this by up to 10%. If the actual price exceeds the target price by more than 10%, the service provider must inform the client in a timely manner of the reasons justifying the higher price. In that case, the client has the right to cancel the portion of the assignment that exceeds the target price plus 10%.

Article 6 – Price Indexation 

  1. The prices and hourly rates agreed upon at the time the agreement was entered into are based on the price levels in effect at that time. The service provider has the right to adjust the fees charged to the client annually, effective January 1.
  2. Any changes to prices, rates, and hourly wages will be communicated to the client as soon as possible.

Article 7 – Provision of Information by the Client

  1. The client shall make all information relevant to the performance of the assignment available to the service provider.
  2. The client is required to provide the service provider with all information and documents that the service provider deems necessary for the proper performance of the assignment, in a timely manner and in the desired format and manner
  3. The Client warrants the accuracy, completeness, and reliability of the data and documents made available to the Service Provider, even if they originate from third parties, unless the nature of the assignment dictates otherwise.
  4. The Client shall indemnify the Service Provider against any and all damages arising from a failure to comply with the provisions of the first paragraph of this section.
  5. If and to the extent that the client requests it, the service provider shall return the relevant documents.
  6. If the client fails to provide the information and documents requested by the service provider, or fails to do so in a timely or proper manner, and if this causes a delay in the performance of the assignment, the resulting additional costs and fees shall be borne by the client.

Article 8 – Cancellation of the Order

  1. The client is free to terminate the contract with the service provider at any time.
  2. If the client cancels the assignment, the client is obligated to pay the service provider the wages owed and any expenses incurred.

Article 9 – Performance of the Agreement 

  1. The service provider shall perform the agreement to the best of its knowledge and ability and in accordance with the standards of good workmanship.
  2. The service provider has the right to have work performed by third parties.
  3. The work will be carried out by mutual agreement and following written approval and payment of any agreed-upon deposit.
  4. It is the client’s responsibility to ensure that the service provider can begin work on the assignment in a timely manner.

Article 10 – Term of the Contract

  1. The agreement between the client and the service provider is entered into for an indefinite period, unless the nature of the agreement dictates otherwise or the parties have expressly agreed otherwise in writing.
  2. If the parties have agreed on a deadline for the completion of certain work within the term of the agreement, such a deadline shall never be considered a strict deadline. If this deadline is exceeded, the client must give the service provider written notice of default.

Article 11 – Amendment of the Agreement

  1. If, during the performance of the agreement, it becomes apparent that it is necessary to modify or supplement the work to be performed in order to ensure the proper performance of the assignment, the parties shall amend the agreement accordingly in a timely manner and by mutual agreement.
  2. If the parties agree to amend or supplement the agreement, this may affect the date of completion of the work. The service provider will notify the client of this as soon as possible.
  3. If any amendment or addition to the agreement has financial and/or qualitative implications, the service provider shall notify the client of this in writing as soon as possible.
  4. If the parties have agreed on a fixed fee, the service provider shall indicate to what extent the amendment or addition to the agreement will result in this fee being exceeded.

Article 12 – Force Majeure

  1. In addition to the provisions of Article 6:75 of the Dutch Civil Code, a failure by the service provider to fulfill any obligation toward the client shall not be attributed to the service provider in the event of a circumstance beyond the service provider’s control, which wholly or partially prevents the fulfillment of its obligations toward the client or which makes the fulfillment of its obligations unreasonably impossible to expect of the service provider. Such circumstances include, among others, breaches of contract by suppliers or other third parties, power outages, computer viruses, strikes, adverse weather conditions, and work stoppages.
  2. If a situation as described above arises, as a result of which the service provider is unable to fulfill its obligations toward the client, those obligations shall be suspended for as long as the service provider is unable to fulfill them. If the situation referred to in the previous sentence has lasted for 30 calendar days, the parties shall have the right to terminate the agreement in whole or in part by written notice.
  3. In the circumstances referred to in the second paragraph of this article, the service provider shall not be liable for any damages, even if the service provider derives any benefit from the force majeure situation.

Article 13 – Set-off

The Client waives its right to set off a debt owed to the Service Provider against a claim against the Service Provider.

Article 14 – Suspension

The Client waives the right to suspend performance of any obligation arising from this agreement.

Article 15 – Transfer of Rights

The rights of a party under this agreement may not be assigned without the prior written consent of the other party. This provision shall be deemed a clause with property law effects as referred to in Article 3:83, paragraph 2, of the Civil Code.

Article 16 – Lapse of the claim

Any right to compensation for damages caused by the service provider shall in any event expire 12 months after the event from which the liability directly or indirectly arises. This does not preclude the provisions of Article 6:89 of the Civil Code.

Article 17 – Warranty
The parties have entered into a service agreement, which imposes on ITYM IT Services BV only an obligation to use its best efforts and therefore no obligation to achieve a specific result.

Article 18 – Insurance

  1. The Client agrees to adequately insure and maintain adequate insurance coverage for goods delivered that are necessary for the performance of the underlying agreement, as well as for the Service Provider’s goods located at the Client’s premises and goods delivered under retention of title, against, among other things, fire, explosion, water damage, and theft.
  2. The client shall make the policy for this insurance available for inspection upon first request.

Article 19 – Liability for Damages

  1. The service provider shall not be liable for any damages arising from this agreement, unless the service provider caused the damages intentionally or through gross negligence.
  2. In the event that the service provider is liable to pay compensation to the client, the amount of such compensation shall not exceed the fee.
  3. Any liability for damages arising out of or in connection with the performance of a contract is always limited to the amount paid out in the relevant case under the applicable (professional) liability insurance policy or policies. This amount is increased by the deductible specified in the relevant policy.
  4. This limitation of liability also applies if the service provider is held liable for damage resulting directly or indirectly from the malfunction of the equipment, software, data files, records, or other items used by the service provider in the performance of the assignment.
  5. The service provider may be held liable for damages resulting from willful misconduct or gross negligence on the part of the service provider, its managers, or its employees.

Article 20 – Client Liability

  1. If an order is placed by more than one person, each of them is jointly and severally liable for the amounts owed to the service provider under that order.
  2. If an order is placed directly or indirectly by a natural person on behalf of a legal entity, that natural person may also be considered the private client. For this to apply, the natural person must be regarded as a (co-)decision-maker of the legal entity. In the event of default by the legal entity, the natural person is therefore personally liable for payment of the invoice, regardless of whether it was issued in the name of a legal entity, in the name of the client as a natural person, or in the name of both, whether or not at the client’s request.

Article 21 – Indemnification 

The client shall indemnify the service provider against all claims by third parties arising from the goods and/or services provided by the service provider.

Article 22 – Obligation to File a Complaint 

  1. The client is required to report any complaints regarding the work performed to the service provider immediately in writing. The complaint must include as detailed a description as possible of the deficiency, so that the service provider is able to respond appropriately.
  2. In any case, a complaint cannot result in the service provider being required to perform work other than what was agreed upon.

Article 23 – Retention of Title, Right of Suspension, and Right of Retention

  1. Items located at the client’s premises, as well as delivered items and parts, remain the property of the service provider until the client has paid the full agreed price. Until that time, the service provider may invoke its retention of title and reclaim the items.
  2. If the agreed advance payments are not made or are not made on time, the service provider has the right to suspend the work until the agreed amount has been paid. This constitutes a default by the debtor. In such a case, a delay in delivery cannot be held against the service provider.
  3. The Service Provider is not authorized to pledge or otherwise encumber the goods subject to its retention of title.
  4. If goods have not yet been delivered but the agreed advance payment or price has not been paid as agreed, the service provider has a right of retention. The goods will not be delivered until the client has paid in full and in accordance with the agreement.
  5. In the event of the client’s liquidation, insolvency, or suspension of payments, the client’s obligations shall become immediately due and payable.

Article 24 – Intellectual Property

  1. Unless the parties have agreed otherwise in writing, the service provider retains all exclusive intellectual property rights (including copyrights, patent rights, trademark rights, design rights, etc.) to all designs, drawings, documents, data storage media or other information, quotations, images, sketches, models, mock-ups, etc.
  2. The intellectual property rights referred to above may not be copied, shown to third parties, made available to third parties, or used in any other way without the written consent of the service provider.
  3. The Client agrees to maintain the confidentiality of any confidential information provided to it by the Service Provider. Confidential information shall in any case include the information referred to in this section, as well as business data. The Client agrees to impose a written confidentiality obligation on its employees and/or third parties involved in the performance of this agreement, in accordance with the terms of this provision.

Article 25 – Confidentiality

  1. Each party shall keep confidential any information it receives from the other party (in any form whatsoever) and any other information concerning the other party that it knows or has reasonable grounds to believe is secret or confidential, or information that it can reasonably expect would cause harm to the other party if disclosed, and shall take all necessary measures to ensure that its personnel also maintain the confidentiality of such information.
  2. The duty of confidentiality referred to in the first paragraph of this section does not apply to information:
  3. that was already public at the time the recipient received this information or became public thereafter without any breach by the recipient of a duty of confidentiality imposed on them;
  4. provided that the receiving party can prove that it already possessed such information at the time it was disclosed by the other party;
  5. which the receiving party received from a third party, where such third party was authorized to provide this information to the receiving party
  6. that is disclosed by the receiving party pursuant to a legal obligation.
  7. The confidentiality obligation described in this article shall remain in effect for the duration of this agreement and for a period of three years following its termination.

Section 26 – Penalty for Breach of Confidentiality 

  1. If the Client breaches the confidentiality provision of these General Terms and Conditions, the Client shall forfeit to the Service Provider an immediately payable penalty of €000 for each breach, plus an additional amount of €500 for each day that the breach continues. This applies regardless of whether the breach can be attributed to the Client. Furthermore, no prior notice of default or legal proceedings are required for the imposition of this penalty. Nor is any form of damage required.
  2. The imposition of the fine referred to in the first paragraph of this section does not affect the service provider’s other rights, including its right to claim damages in addition to the fine.

Article 27 – Non-transfer of personnel

The Client shall not hire any employees of the Service Provider (or of companies that the Service Provider has engaged to perform this agreement and that are or have been involved in the performance of the agreement). Nor shall the Client otherwise have them work for it, either directly or indirectly. This prohibition shall remain in effect for the duration of the agreement and for one year following its termination. There is one exception to this prohibition: the parties may, in good business consultation with each other, make other arrangements. Such arrangements shall be effective only to the extent that they are set forth in writing.

Article 28 – Amendments to the Terms and Conditions

  1. ITYM IT Services BV reserves the right to amend or supplement these terms and conditions.
  2. Minor changes may be made at any time.
  3. ITYM IT Services BV will discuss any major changes to the scope of services with the customer in advance whenever possible.

Article 29 – Governing Law and Jurisdiction

  1. All agreements between the parties are governed exclusively by Dutch law.
  2. The court in the district where ITYM IT Services BV is located or maintains its place of business shall have exclusive jurisdiction to hear any disputes between the parties, unless otherwise required by law.

Article 30 – Attribution
These terms and conditions were created using RocketLawyers.