GENERAL TERMS AND CONDITIONS OF DELIVERY of DATAMAISTER
B.V. (hereinafter: DATAMAISTER ), a private company having its registered office at Niasstraat 1, 3531 WR Utrecht, the Netherlands.
Article 1 – General
1.1 These General Terms and Conditions (hereinafter: Terms and Conditions) apply to all offers, orders and/or agreements between DATAMAISTER and the Client intended for the provision of services by DATAMAISTER . Any deviations from or changes to these Terms and Conditions must be confirmed in writing by DATAMAISTER and will only apply to the relevant offer/order/agreement.
1.2 “Client” is understood to mean any natural person or legal entity for whom or which DATAMAISTER performs services, including their agents, authorized representatives, legal successors and heirs.
1.3 Any general terms and conditions applied by the Client are nonbinding on DATAMAISTER , unless DATAMAISTER has agreed to them in writing.
1.4 If DATAMAISTER has agreed in writing to the applicability of one or more deviating terms and conditions, these Terms and Conditions will remain in full force in all other respects.
1.5 In addition to the Terms and Conditions, special terms and conditions may be agreed between DATAMAISTER and the Client with a view to the performance of the agreement. In the event of inconsistencies between these Terms and Conditions and any special terms and conditions, the special terms and conditions will prevail and these Terms and Conditions will apply additionally.
Article 2 – Agreements and Changes
2.1 An order placed by the Client will be considered by DATAMAISTER to be an irrevocable offer.
2.2 DATAMAISTER is only bound by an order placed with DATAMAISTER vis-à-vis the Client if and as soon as DATAMAISTER has confirmed such order in writing within 3 working days of receipt of the order, or if DATAMAISTER has commenced performing such order. DATAMAISTER explicitly reserves the right to further determine the commencement date upon said confirmation. The invoice for work for which no order confirmation is sent in connection with the nature and/or scale of the work will also constitute an order confirmation, which will be deemed to reflect the agreement accurately and in full.
2.3 The Client shall notify DATAMAISTER in a timely fashion and in writing of any changes that the Client, after having placed an order, may desire in the performance thereof and such changes are only binding on DATAMAISTER if DATAMAISTER has confirmed these arrangements/undertakings in writing. The Client will bear the risk of – correct or incorrect – performance of any orders given verbally or by telephone and/or changes in the performance thereof.
2.4 Any changes to an order placed by the Client, of any nature whatsoever, that entail higher costs than the costs that could be taken into account in the original quotation provided by DATAMAISTER will be for the account of the Client. Any cost reduction resulting from such changes do not give the Client any right with regard to a reduction of the purchase price. However, DATAMAISTER may decide at its own discretion that such changes will result in the payment of a lower purchase price.
2.5 Any changes made to the order may lead to DATAMAISTER exceeding the delivery period indicated prior to the changes. This cannot be invoked against DATAMAISTER .
2.6 In the event of cancellation of the order, the full costs incurred by DATAMAISTER so far in the context of performing the order will be charged to the Client.
Article 3 – Offers and Quotations
3.1 All offers by DATAMAISTER are free of obligation, unless the offer explicitly states otherwise.
3.2 Descriptions and prices in offers are given subject to reservation and apply only by approximation. The Client cannot derive any rights whatsoever from any errors in an offer.
3.3 DATAMAISTER ’s offers are given based on information and specifications provided by the Client. Offers are based on services to be performed within regular periods and under regular circumstances.
3.4 All prices are exclusive of turnover tax (VAT) and other government levies.
3.5 DATAMAISTER is entitled to change the agreed price if changed market prices or any other developments, such as government measures, currency exchange rates, taxes, duties, levies, etc., give cause to do so. DATAMAISTER shall inform the Client of any price increase as soon as possible in writing. If the price increase occurs within three (3) months of the conclusion of an agreement and exceeds ten (10) percent of the original price, the Client will have the right to rely on cancellation of the agreement in writing within ten (10) days of dispatch of the written notice referred to in the previous sentence, absent which the Client will be deemed to agree to the price increase.
Article 4 – Payment
4.1 Payment must be effected within 14 days of the invoice date by transfer of the amount owed to the bank or giro account stated on the invoice. The Client shall only effect payment in the currency in which the agreed prices have been included, unless otherwise agreed in writing. Any currency risk will be for the Client’s account.
4.2 The Client herewith waives its rights of setoff and suspension of performance.
4.3 If the Client does not comply with its payment obligation on the basis of Article 4.1 of the Terms and Conditions, DATAMAISTER will have the right to terminate or suspend the agreement with the Client in full or in part. In the event of termination or suspension under this provision, the Client will be fully liable for the damage incurred and to be incurred by DATAMAISTER . Furthermore, without prejudice to DATAMAISTER ’s other rights, the Client will owe interest of two (2) percent each month on (the outstanding part of) the invoice as from the date that the payment term is exceeded until the date of full payment of the invoice amount. In that event, DATAMAISTER will be entitled to demand immediate payment of all outstanding invoices and to suspend further deliveries until the entire invoice amount has been paid or satisfactory security has been provided in that regard.
4.4 All court and extrajudicial collection costs incurred by DATAMAISTER as a consequence of the Client’s failure to comply with its payment obligations will be for the account of the Client and will be calculated according to the rate of the Netherlands Bar Association.
4.5 Payments made by the Client will always first be used to settle all charges and interest due and subsequently to settle the oldest payable invoice, even if the Client states that the payment relates to a later invoice.
Article 5 – Client’s Obligations
5.1 The Client shall ensure that DATAMAISTER has all the data and/or other specifications pertaining to the agreement concerned that are required for the performance of the agreement in a timely fashion.
5.2 If the commencement or progress of the performance of the agreement is delayed by factors attributable to the Client, the damage and costs ensuing from the same for DATAMAISTER will be for the account of the Client.
5.3 The Client guarantees that the advertising material supplied is safe and does not contain any viruses, Trojan horses, worms or any other programs that may in any way damage DATAMAISTER ’s computer systems, computer programs and/or websites. The Client also guarantees that, when supplying the advertising material, it will not use any hardware and/or software that may disrupt the proper functioning of DATAMAISTER ’s computer systems, computer programs and/or websites, or send data that, due to its size and/or properties, disproportionately burdens the infrastructure of DATAMAISTER ’s computer systems, computer programs and/or websites.
Article 6 – Complaints
6.1 The Client has an obligation to continually check DATAMAISTER ’s services, beginning at the time of commencement of the services. If a deficiency is discovered, the Client shall immediately (but at least within 5 days of discovering the deficiency) inform DATAMAISTER of its objection in writing. In any event, all liabilities ensuing from any deficiency in the performance of the services by DATAMAISTER will lapse after one (1) month of performance of the relevant services by DATAMAISTER .
6.2 If, with due observance of the provisions of Article 6.1, DATAMAISTER finds the objection valid, DATAMAISTER will only be required to remedy the performance to which the objection pertains.
6.3 Making an objection within the meaning of Article 6.1 will not release the Client from its payment obligations in respect of DATAMAISTER .
Article 7 – Liability
7.1 DATAMAISTER is only liable for any non-performance, or entirely or partially incorrect performance, of the order if and in so far as this is the direct result of intent or gross negligence on the part of DATAMAISTER . DATAMAISTER ’s liability for damage caused by disruptions in the electronic services of DATAMAISTER and of third parties, such as providers, network operators or other telecommunication networks, is therefore excluded. All further or other liability for incorrect performance or other non-performance by DATAMAISTER or for consequential damage and other damage at the Client or third parties, on any ground whatsoever – except in the case of intent or gross negligence – is explicitly excluded.
7.2 Liability for indirect damage, including but not limited to damage caused by delays, loss of turnover and missed orders, is explicitly excluded.
7.3 Any liability on the part of DATAMAISTER for direct damage is limited to the amount that the Client owes or owed DATAMAISTER in the three months preceding the harmful event on the basis of the services rendered by DATAMAISTER pursuant to the agreement. On top of that, DATAMAISTER ’s total liability for damages will at all times be limited to the amount that the insurer is prepared to pay out in the relevant case.
7.4 The Client is obliged to indemnify DATAMAISTER and hold it harmless from and against any and all claims for damages by third parties engaged by the Client vis-à-vis DATAMAISTER regarding the performance of the agreement, save in the event of intent or gross negligence on the part of DATAMAISTER . Furthermore, the Client is obliged to indemnify DATAMAISTER and hold it harmless from and against any and all claims by third parties engaged by the Client, related to or ensuing from the Client’s use of goods delivered or services performed by DATAMAISTER .
Any employees of DATAMAISTER who are held liable may invoke the provisions of this article as if they were a party to the agreement between DATAMAISTER and the Client.
Article 8 – Contract Term and Deadlines
8.1 The agreement is concluded for an indefinite period of time, unless the parties explicitly agree otherwise in writing.
8.2 Any deadline agreed within the term of the agreement for the completion of certain work by DATAMAISTER will never be an absolute deadline. In the event that the deadline for performance is exceeded, the Client shall give DATAMAISTER a reasonable term within which DATAMAISTER may complete the work as yet.
Article 9 – Intellectual Property and Confidentiality
9.1 The intellectual property rights arising during or ensuing from the performance of the order, for example with regard to advertising material and other material created by DATAMAISTER , accrue exclusively to DATAMAISTER , unless otherwise agreed in writing and except for the intellectual property rights already accruing to the Client at the time that this agreement is concluded.
9.2 The Client herewith grants DATAMAISTER a non-exclusive license at no cost to use any intellectual property right accruing to the Client during the order, in so far as this is necessary to enable DATAMAISTER to perform the order.
9.3 The parties are obliged to observe confidentiality with regard to all confidential information they receive from each other or from another source in the context of the agreement. Information is considered confidential if the other party is so informed or if this ensues from the nature of the information. The parties shall take reasonable measures with regard to employees, any agents engaged or third parties in order to safeguard the confidentiality of said information.
9.4 The Client is not permitted to use the information made available to it by DATAMAISTER for any purpose other than for which it was obtained or to re-use it for any other media or activities, save with DATAMAISTER ’s consent.
9.5 The Client shall not disclose the contents of reports, recommendations or other written communications by DATAMAISTER , unless the Client has obtained written consent from DATAMAISTER .
9.6 The obligation to observe confidentiality referred to in this article will continue to exist even after cancellation or termination of the agreement between DATAMAISTER and the Client.
Article 10 – Security
10.1 If DATAMAISTER has cause to suspect that the Client will be unable to perform its obligations under the agreement, the Client will be obliged upon DATAMAISTER ’s first request to provide sufficient security for the complete performance of all its obligations with regard to agreements performed or yet to be performed in full or in part by DATAMAISTER , in a manner to be indicated by DATAMAISTER .
Article 11 – Suspension and Cancellation
11.1 If the Client fails to perform any obligation vis-à-vis DATAMAISTER in any way, as well as in the event of a request for suspension of payments, in the event that a suspension of payments or provisional suspension of payments has been granted, or in the event of a petition, report or claim for involuntary liquidation, involuntary liquidation, winding-up or discontinuation of all or part of the other party’s business, DATAMAISTER will be authorized, without prejudice to the other rights accruing to it, without any obligation to pay damages, and without notice of default or judicial intervention:
- to suspend performance of the agreement until such time as sufficient security has been provided for the payment of all amounts owed by the Client to DATAMAISTER ; and/or
- to suspend any and all of its own payment obligations; and/or
- to cancel every agreement with the Client in full or in part;
all such without prejudice to the Client’s obligation to pay for the services already performed, and without prejudice to DATAMAISTER ’s other rights, including the right to damages.
Article 12 – Force Majeure
12.1 In the event that DATAMAISTER is unable to perform the agreement as a result of force majeure, DATAMAISTER will be entitled to suspend performance of the agreement without judicial intervention or to cancel the agreement in full or in part, without being obliged to pay any damages.
12.2 Force majeure exists in the event of any circumstance beyond the control of DATAMAISTER as a result of which performance of the agreement is permanently or temporarily hindered, as well as, in so far as not already included in the same, in the event of war, risk of war, civil war, riot, strike, fire, and any other disruption to the business of DATAMAISTER or third parties engaged by it. Force majeure also exists if a third party from which DATAMAISTER purchases services regarding the performance of the agreement with the Client remains in default with regard to a proper provision of services.
Article 13 – Engagement of Third Parties
13.1 DATAMAISTER is entitled to engage third parties in the performance of an agreement on behalf of and for the account of the Client if there is cause to do so in DATAMAISTER ’s opinion or if the same ensues from the agreement. The relevant costs will be charged on to the Client in accordance with the quotation provided by DATAMAISTER .
13.2 The Client warrants the quality of the goods and services of the third parties engaged by the Client.
Article 14 – Transfer of Rights and Obligations
14.1 The Client may not transfer its rights and/or obligations ensuing from any agreement with DATAMAISTER to third parties or have them serve as security regarding claims by third parties without the prior written consent of DATAMAISTER .
Article 15 – Applicable Law, Competent Court
15.1 These Terms and Conditions, as well as all legal relationships between DATAMAISTER and the Client, are governed by Dutch law.
15.2 In so far as the law does not imperatively prescribe otherwise, only the Amsterdam District Court will be competent at first instance to examine any disputes arising with regard to any agreement or the performance of any agreement between DATAMAISTER and the Client, as well as disputes regarding these Terms and Conditions and all provisions thereof, including for obtaining provisional relief.
Article 16 – Dutch Text Prevails
16.1 In the event of a conflict between a translation and the Dutch version of the Terms and Conditions, the Dutch version will prevail.