GENERAL TERMS AND CONDITIONS of Zwart Tech B.V., a private limited liability under the laws of the Netherlands with its statutory seat in The Hague and with its registered office address in (2595 WP) The Hague, The Netherlands at Jan Pietersz. Coenstraat 7, and registered in the trade register under number 77414764, and any of its affiliates hereinafter referred to as “Zwart Tech”.
1. In these General Terms and Conditions the following expressions shall have the meaning as set out next to them:
Affiliate means each company belonging to the same group of companies as Client respectively as Zwart Tech as set forth in section 2:24b of the Dutch Civil Code;
Agreement means all acceptances, acknowledgements and confirmations by Zwart Tech of any assignments, orders by Client and any agreement between Zwart Tech and Client regarding the provision of Services by Zwart Tech to Client, including the General Terms and Conditions and the schedules and/or annexes to any such agreement;
Client means the natural person or legal entity that enters into an Agreement with Zwart Tech concerning Services;
Engineer means every natural person selected by Zwart Tech and/or introduced to a Client through Zwart Tech;
General Terms and Conditions means these general terms and conditions of delivery of Zwart Tech;
Parties means Zwart Tech and Client and Party means any of them;
Service means the services and / or activities provided by Zwart Tech to Client in the context of an assignment or the acceptance of work.
APPLICABILITY OF THE GENERAL TERMS AND CONDITIONS
1. These General Terms and Conditions apply to and form an integral part of any Agreement (also for future business transactions), all other (legal) actions by Zwart Tech and also to unlawful acts, unless and to the extent Zwart Tech explicitly agrees otherwise in writing unless and to the extent Zwart Tech explicitly agrees otherwise in writing.
2. Any general terms and conditions of Client or any other sector specific terms and conditions are not applicable and are not binding in any way on Zwart Tech and are hereby explicitly rejected by Zwart Tech.
3. Deviations from, changes and / or additions to these General Terms and Conditions or the Agreements only apply if and insofar as Zwart Tech has expressly accepted them in writing and only apply to the specific Agreement for which they have been agreed. In the event of a conflict between a written provision in the Agreement and a provision in these Conditions, the provision in the Agreement will prevail.
4. Article 7:404 (that provides a rule for the event the intention is for an assignment to be performed by a particular person), Article 7:407(2) (that creates joint and several liability for the event an assignment is given to two or more individuals) and Article 7:409 (stipulating that if an assignment has been granted with a particular individual in mind, the assignments ends a result of that individual’s death) of the Dutch Civil Code are not applicable.
OFFER, ORDERS AND AGREEMENTS
1. Zwart Tech’s offers are open for acceptance within the period stated by Zwart Tech in the offer or, when no period is stated, within thirty (30) days from the date of the offer, provided that any offer may be withdrawn or revoked by Zwart Tech at any time prior to the receipt by Zwart Tech of Client’s acceptance thereof. The prices, Services, terms and other conditions and/or modalities stated in a quotation form one whole and cannot be claimed separately.
2. All documents belonging to Zwart Tech’s offer, such as plans, descriptions or specifications, are as accurate as possible, but not binding. Zwart Tech exclusively retains ownership to all property rights and copyrights to the offer and all documents.
3. An assignment placed by Client shall only be regarded as having been accepted by Zwart Tech following a written confirmation by Zwart Tech or if an Engineer has started carrying out the assignment for which the Engineer has been nominated.
1. Client is obliged to timely provide Zwart Tech with all necessary and relevant information for a correct execution of the Agreement. The Agreement shall be performed based on this information.
2. Client guarantees the correctness, completeness and reliability of all information provided to Zwart Tech.
3. If the execution of the Agreement is delayed because Client fails to fulfil its obligations, the associated (additional) costs and/or fees shall be at the expense of Client.
4. Client must at all times immediately inform Zwart Tech of changes in the information provided by Client.
PRICING AND PRICE ADJUSTMENTS
1. Prices and fees in any offer, confirmation or Agreement are in Euros and do not include any taxes, duties or similar levies charges, now or hereafter enacted, applicable to the Sevices.
2. Zwart Tech will add taxes, duties and similar levies to the sales price where Zwart Tech is required by law to pay or collect them and these will be paid by Client together with the fees.
3. Prices and fees are based on performance during normal working hours.
4. Services and activities that are not explicitly mentioned in the offer are not covered by the Agreement and can have a price-increasing effect.
5. Zwart Tech shall have the right to increase its prices, even if it has been agreed that the price is fixed, without this leading to a termination right (including a right of dissolution) for Client if (i) a price increase is a consequence of a statutory or other governmental measure.
1. Payments by Client shall be made in Euros unless another currency is agreed upon between the Parties and confirmed in the Confirmation Order. In the event that a currency other than the Euro shall be agreed upon, the applicable exchange rate will be fixed at the Confirmation Order date and firm for the duration of the applicable Agreement.
2. All invoices of Zwart Tech shall be payable by Client within seven (7) days upon receipt of the invoice unless otherwise agreed upon between the Parties and confirmed in the Confirmation Order. In the event of failure to pay within this term, Client shall be in default without any notice of default or reminder being required and shall be obliged to pay statutory trade interest ex article 6:119a Dutch Civil Code (wettelijke handelsrente) over the outstanding amount.
3. Zwart Tech is entitled to demand advance payment of an invoice amount or any other financial security at any time before commencing or continuing with the execution of the Agreement.
4. Payments made by Client shall in each case be used for settlement in the first place of all interest and costs payable and in the second place of invoices due and payable that are the longest outstanding, even if Client states that the payment relates to a later invoice.
5. In the event of any default by Client in the payment of any amount due, or any other default by Client, Zwart Tech shall have the right to refuse performance and/or delivery of any Products until payments are brought current and Zwart Tech may suspend, delay or cancel any credit, delivery or any other performance by Zwart Tech without any liability towards Client. Such right shall be in addition to, and not in lieu of, any other rights and remedies available under the Agreement or at law.
6. All expenses either in or out of court made by Zwart Tech for the collection of any amount due under the Agreement or any other agreement between the Parties shall be for account of Client, including but not limited to the recovery of Zwart Tech’s reasonable attorney’s fees and expenses, the amount of which will be set at a minimum of 15% of the total amount due.
7. Client shall not have the right to withhold or reduce any payments or to set-off existing and future claims against any payments due under the Agreement or under any other agreement that Client may have with Zwart Tech or any of its Affiliates (may have) and agrees to pay the amounts hereunder regardless of any claimed offset which may be asserted by Client or on its behalf.
8. In the event that Client’s financial position changes during the execution of the Agreement, Zwart Tech has the right, in whole or in part, to refuse further execution of the Agreement or to change the payment terms.
9. All items (including any intellectual property rights relating thereto) delivered to Client shall remain the property of Zwart Tech until all amounts owed under the Agreement(s) by Client are paid in full to Zwart Tech.
PERFORMANCE OF SERVICES
1. Zwart Tech will do its utmost to perform the agreed upon Services. Zwart Tech does, however, not guarantee the accomplishment of a specific result.
2. Zwart tech shall make reasonable efforts to comply to the greatest extent possible with the terms and delivery periods and/or dates and/or delivery dates whether or not these are firm deadlines and/or dates that it has specified or has been agreed between the Parties. In all cases, also if Parties have agreed a firm deadlines or delivery periods, Zwart Tech shall only be in default after Client has declared Zwart Tech in default and a reasonable term that Client has granted Zwart Tech to remedy the breach has passed.
3. Zwart Tech itself determines by which Engineers and/ or other persons the assignment are carried out.
4. Client expressly agrees that an Engineer may also work for other clients insofar as no conflicts of interest can arise with regard to the execution of the assignment.
1. Zwart Tech shall not be liable for any failure or delay in performance if such failure or delay is caused by Force Majeure as defined below.
“Force Majeure“ is in these General Terms and Conditions in addition to its effect in the law and jurisprudence, all external causes, foreseen or unforeseen, that Zwart Tech cannot influence, but which prevent Zwart Tech to fulfil its obligations, including but not limited to regulations by any government authority, fire, flood, pandemic, power outage, interruption, failure or defects in internet, telephone or other interconnection service or in electronic or mechanical equipment, staff illness of Zwart Tech exceeding ten (10) working days, strikes, late delivery or unsuitability of materials, the failure by third parties engaged by Zwart Tech to fulfil their obligations and/or default by one of the suppliers of Zwart Tech.
1. If Zwart Tech is unable to meet its obligations due to Force Majeure, it will not be liable. Insofar as compliance is not permanently unfeasible, its obligations will be suspended for the period such failure continues, without Zwart Tech being responsible or liable to Client for any damage resulting there from. If the period during which compliance is not feasible due to Force Majeure lasts or looks set to last longer than three (3) months, either Party will be entitled to terminate the Agreement, without any liability to pay damages.
2. If at the time Force Majeure takes effect, Zwart Tech has already partly met its obligations or can only partly meet its obligations, it will be entitled to invoice separately the Products that have already been delivered or can be delivered, and Client will be obliged to settle this invoice.
INTELLECTUAL PROPERTY RIGHTS
1. All intellectual property rights specifically produced for Client within the project scope by an Engineer working with Client shall transfer to Client once Client makes full payment of all fees. This shall be without prejudice to Zwart Tech’s right or option to use and/or operate, either for itself or for third parties and without any restriction, the part, the general principles, ideas, designs, algorithms, documentation, works, programing language, protocols, standards and the like on which the developments referred to are based for other purposes.
2. If Client so requests, Zwart Tech will arrange for an Engineer to sign a written statement to ensure or promote that all the intellectual property rights which accrue to an Engineer on the fruit of his labours are transferred to Client, to the extent necessary and possible. If Zwart Tech is required to pay the Engineer a fee or is otherwise compelled to incur costs in connection thereto, Client will be required to compensate Zwart Tech for these costs or for an identical sum.
3. Zwart Tech is not liable concerning Client for any fine or penalty by the Engineer, or any damage, which Client may suffer because of the fact that the Engineer invokes any intellectual property rights.
LIMITATION OF LIABILITY
1. The provisions 38 up to and including 46 of these General Terms and Conditions set out the entire liability of Zwart Tech vis-à-vis Client and its Affiliates. The limitation of Zwart Tech’s liability applies accordingly to its employees, Affiliates, agents, franchisees, sub-contractors, or other third parties engaged by Zwart Tech.
2. Zwart Tech can only be held liable by Client for an attributable failure to fulfil any obligations under an Agreement and/or (a) wrongful act(s) or any other legal ground(s) if the Products were utilized under normal use in accordance with the operating manual and conform to the Specifications.
3. In no event will Zwart Tech be liable for damages that are covered by indemnity insurance policy(ies) entered into by Client.
4. Zwart Tech’s total aggregate liability in respect of (an) attributable failure(s) to perform any obligations under an Agreement and/or (a) wrongful act(s) or any other legal ground(s) shall cumulatively be limited to the amount that is paid out in the particular case under the (liability) insurance policy(ies) Zwart Tech has entered into.
5. If no payment is made under the said insurance policy for whatever reason, Zwart Tech’s total aggregate liability in respect of (an) attributable failure(s) to fulfil any obligations under an Agreement and/or wrongful act(s) or any other legal ground(s) shall in no event cumulatively exceed the lower of either (i) the fees paid for the Services by Client under the said Agreement (excluding VAT) or (ii) € 100,000,- (hundred thousand Euros).
6. In no event will Zwart Tech be liable for any consequential, indirect, immaterial and punitive damage, loss of business profits or damage relating to business interruption.
7. Zwart Tech shall have no obligation or liability to Client if the claim is made with the competent court after a period of three (3) months from the date of delivery of the Services.
8. Zwart Tech accepts no responsibility or liability whatsoever for any shortcomings in and/or damages caused by an Engineer selected by Zwart Tech. Zwart Tech is not liable for any damages resulting from the non-compliance of the Engineer with Clients requirements.
9. Zwart Tech shall not be liable for damage, of whatever nature, that results from inaccurate and/or incomplete information and/or changed information supplied by Client.
10. Zwart Tech shall not be liable for commitments, whether or not duly, entered into by the Engineer on behalf of or at the expense of Client at the time of or in connection with the performance of the Engineer’s assignment.
1. Client will be required to compensate the Engineer for and will indemnify Zwart Tech against any claims in connection with damages (including the costs of legal counsel) of the Engineer and/or third Parties incurred at the time of or in connection with the performance of the Engineer’s assignment, if and to the extent that Client could be held liable therefore in law. Client is also required to compensate the Engineer for any damage, which the latter suffers as a result of the loss, or damage of any of his private property used in connection with the performance of the agreed tasks of the Engineer.
2. To the extent that as a result of actions or omissions of Client an authoritative relationship has been established between the Engineer and Client, Client shall indemnify Zwart Tech against any and all claims in relation to taxes and social security legislation of income tax and/or premiums, penalties and whatever more with regard to or in connection with the Engineer’s assignment.
1. A fixed-period Agreement or a specific Agreement will be terminated by operation of law as a result of the lapse of the agreed period or because of the occurrence of the pre-agreed, objectively specifiable event (for instance conclusion of the project). An Agreement for an indefinite period can only be terminated in writing, giving at least a one-month’s written notice.
2. The applicability of article 7:408 paragraph 1 of the Dutch Civil Code is expressly excluded. Client shall not be entitled to terminate the Agreement at any time and shall therefore only be entitled to (prematurely) terminate the Agreement to the extent and as explicitly set out Agreement. Agreements may only be cancelled, pre-maturely terminated or modified by Client with the written consent of Zwart Tech. If such consent is given and the assignment is cancelled or modified, Client shall reimburse Zwart Tech for all expenses incurred by Zwart Tech and Client shall accept the cancellation / termination charges charged by Zwart Tech.
3. Without prejudice to any rights or remedies Zwart Tech may have under the Agreement or at law, Zwart Tech may, by written notice to Client, cancel or terminate with immediate effect the Agreement or any part thereof without any liability whatsoever, if:
(a) Client violates or breaches any of the provisions of the Agreement and has not cured such breach within fourteen (14) days following receipt of a written notice of the breach;
(b) any proceedings in insolvency, bankruptcy (including reorganization) liquidation or winding up are instituted against Client, whether filed or instituted by Client, voluntary or involuntary, a trustee or receiver is appointed over Client, or any assignment is made for the benefit of creditors of Client.
1. Zwart Tech may without any liability whatsoever, if a change of law occurs, by written notice to Client cancel or terminate with immediate effect the Agreement(s) or any part thereof or to adjust or renegotiate the Agreement(s) to the same situation as before the change of law.
2. Upon occurrence of any of the events referred to above in provisions 50 and 53, all payments to be made by Client under the Agreement shall become immediately due and payable.
3. Client waives its rights to dissolve or nullify the Agreement or to have this Agreement dissolved or nullified in accordance with the Dutch Civil Code.
4. Termination of the Agreement does not release the Parties from their obligations under the following provisions of these General Terms and Conditions: 34-37 (Intellectual Property), 38-47 (Limitation of Liability), 50-56 (Termination), 57-58 (Confidentiality), 64 (Taking over Personnel), 63-64 (Applicable law and jurisdiction), 65-67 (Miscellaneous) or any other provision of the General Terms and Conditions and the Agreement which, by their nature, are intended to survive the termination of the Agreement.
1. Each Party shall maintain as confidential any information furnished or disclosed to one Party by the other Party, whether disclosed in writing or disclosed orally, relating to the business of the disclosing Party, its customers, and the quotation and its terms, including the pricing terms under which Client has agreed to purchase the Products.
2. Each Party shall disclose such confidential information only to its employees having a need to know such information to perform the transactions contemplated by the quotation. The obligation to maintain the confidentiality of such information shall not extend to information in the public domain at the time of disclosure, and/or information that is required to be disclosed by law or by court order.
1. With regard to the (personal) data provided by Zwart Tech in the context of the Agreement, Client and Zwart Tech are obliged to comply with the legal provisions regarding privacy protection and the protection of personal data, including but not limited to the General Data Protection Regulation (EU). 2016/679, the General Data Protection Regulation Implementation Act and other applicable laws and regulations in the field of the protection of personal data, as applicable at any time.
1. Zwart Tech shall be entitled to use third party services for the execution of the Agreement. Zwart Tech is not liable for damages arising out of any acts or non-acts of such third persons.
2. Zwart Tech has the right to wholly or partially assign the rights and obligations under an Agreement to a third party. The approval of Client of such assignment is already granted by Client. Client shall not assign any rights or obligations under the Agreement without the prior written consent of Zwart Tech. This clause has effect under property-law (“goederenrechtelijke werking“) and is binding on third parties.
TAKING OVER PERSONNEL
1. During the term of the Agreement(s) and for a period of twelve (12) months after the termination, Client shall not employ any personnel (in the broadest possible sense, including executive personnel) of Zwart Tech or have them work for them in any way, directly or indirectly, interim, through an employment contract or an assignment, through third parties, or directly or indirectly enter into any discussions with such personnel about employment. If Client violates the provisions of this paragraph, it shall incur an immediately payable penalty in the amount of € 50,000,= (fifty thousand Euros), without prejudice to Zwart Tech’s right to seek specific performance and the right to recover the actual damages in addition to the penalty from Client, among which compensation for income loss. Article 6:92 DCC subsection 2 and 3 are expressly excluded.
APPLICABLE LAW AND JURISDICTION
1. These General Terms and Conditions and the Agreement and all agreements relating thereto or resulting there from shall be governed by and construed in accordance with the laws of the Netherlands.
2. All disputes, controversies or claims arising out of or in connection with these General Terms and Conditions or the Agreement or any further agreements relating thereto or resulting there from shall exclusively be submitted in the first instance to the Court of The Hague, place of seating The Hague, the Netherlands.
1. In the event that any provision(s) of these General Terms and Conditions shall be held invalid or unenforceable by a court of competent jurisdiction or by any future legislative or administrative action, such holding or action shall not negate the validity or enforceability of any other provisions thereof.
2. In the event that any provision of these General Terms and Conditions shall finally be determined to be unlawful or unenforceable, such provision shall be deemed severed from these General Terms and Conditions, but every other provision shall remain in full force and effect, and in substitution for any such provision held unlawful or unenforceable, there shall be substituted a provision of similar import reflecting the original intent of the provision to the extent permissible under applicable law.
3. The failure on the part of either Party to exercise, or any delay in exercising, any right or remedy arising from the Agreement shall not operate as a waiver thereof; nor shall any single or partial exercise of any right or remedy arising there from preclude any other or future exercise thereof or the exercise of any other right or remedy arising from the Agreement or from any related document or by law.
CHANGE OF GENERAL TERMS AND CONDITIONS
1. Zwart Tech reserves the right to change these General Terms and Conditions.
2. These General Terms and Conditions are drawn up in the English language on the express condition that all words, terms and expressions used herein shall be construed and interpreted in accordance with Dutch law.
1. Client is not permitted to ‘re-lend’ the Engineer to a third party; i.e. to make the Engineer available to a third party so that the Engineer can render his services under the leadership and supervision of that third party, without Zwart Tech’s written permission. In any case of ‘re-lending’ Client is obliged in its turn to come to an agreement with its client about all relevant obligations from these T&C’s. Client is fully accountable towards Zwart Tech for the observance of these obligations.
2. Client expressly agrees that the Engineer will independently carry out the activities arising from the assignment without the supervision or direction of Client. Client can, however, give directions and instructions regarding the result of the assignment. Insofar as this is necessary for the execution of the assignment, coordination with Client takes place in the event of collaboration with others, so that this will proceed optimally. If necessary for the work, the Engineer will adhere to the working hours at Client.
THE REPLACEMENT OF A PROFESSIONAL
1. Zwart Tech is authorized to submit a proposal to replace an Engineer assigned to Client by another Engineer without this being a reason for Client to terminate the Agreement, based on Zwart Tech’s company or personnel policy, the need to protect jobs or its compliance with current legislation or regulations. Client may only reject such a proposal on reasonable grounds. If requested to do so, Client must give reasons for such a rejection in writing.
2. Zwart Tech will not be guilty of a breach of contract concerning Client and will not be required to compensate any damage or costs to Client if it is not or no longer able to place a (replacement) Engineer with Client in the manner and to the extent agreed in Agreement or thereafter.
3. Zwart Tech will not be required to arrange for an immediate replacement in the event of the disability of an Engineer. If that disability exceeds or threatens to exceed two months, Zwart Tech and Client will consult each other to decide on the scope for replacement.
INVOICING AND TIMEKEEPING
1. Zwart Tech will invoice Client based on the agreed timekeeping method. Unless the Parties agree otherwise in writing, the working hours will be specified on the timesheets approved by Client in a software tool provided by Zwart Tech.
2. Client must ensure that the information in respect of the Engineer on the timesheets (such as the Engineer’s name, the number of hours worked, overtime, other hours for which the Fee is payable under the Terms of the agreement and these T&C’s, any surcharges, allowances and any costs and expenses incurred in practice) is completed correctly and truthfully. Client warrants that its staff are authorized to sign the timesheets and accepts all responsibility for the signature of timesheets and the related invoices.
3. If the working hours are specified on forms supplied by the Engineer, Client will retain a copy of that form. In the event of any discrepancy between the form submitted to Zwart Tech by the Engineer and the copy retained by Client, the form, which the Engineer submitted to Zwart Tech, will serve as full basis for settlement, notwithstanding any evidence Client may provide to the contrary.
4. Zwart Tech can use a third party, at his convenience, to comply with applicable laws and regulations or for financial constructions.
INDEMNIFICATION IN CASE OF DIRECT OR INDIRECT (EMPLOYMENT) RELATIONSHIP WITH THE ENGINEER
1. Client who intends to, either directly or indirectly by and/or for third Parties, enter into an employment relationship with an Engineer, shall inform Zwart Tech of the same in writing and terminate the assignment, without prejudice to the other provisions set forth in this article unless agreed otherwise between Client and Zwart Tech explicitly in writing..
2. Client shall not within a time limit of 12 months after introduction by Zwart Tech of an Engineer directly enter into an (employment) agreement or other relationship with the relevant Engineer.
3. After the conclusion of the activities by the Engineer Client shall not be allowed to, without prior written consent of Zwart Tech, approach an Engineer within a time limit of 12 months after the conclusion of said activities in order to directly or by means of third Parties carry out activities, in any capacity whatsoever, for Client, affiliated Parties or third Parties. Within said time limit of 12 months after the conclusion of the activities by the Engineer Client shall neither be allowed to, without prior written consent of Zwart Tech, actually have the Engineer, either directly or via third Parties, carry out activities in any capacity whatsoever for Client, affiliated Parties or third Parties.
4. Breach of any of the provisions set forth in articles 79- 81 shall be subject to an immediately payable penalty of € 50.000,= (fifty thousand Euros) as well as € 1.000,= (one-thousand Euros) for each day that Client is in breach, notwithstanding the right of Zwart Tech to seek specific performance and the right to recover the actual damages in addition to the penalty from Client, among which compensation for income loss. Article 6:92 DCC subsection 2 and 3 are expressly excluded.
1. The completion time of an assignment in the field of advice and/or development of software and/or a website depends on various factors and circumstances, such as the quality of the data and information provided by Client and the cooperation of Client and relevant third parties. Unless otherwise agreed in writing, therefore, Zwart Tech shall not commit to an assignment completion time in advance.
2. If the Agreement has been entered into with the view to performance of a specific Engineer or person, Zwart Tech shall always be entitled to replace this person with one or more persons who have the same and/or similar qualifications.
3. Zwart Tech shall develop the software and/or website with due care in accordance with expressly agreed specifications or design and, if applicable, having regard to the project organisation, methods, techniques and/or procedures agreed in writing with Client.
4. Zwart Tech’s performance obligations do not include maintaining the software and/or website, and/or providing support to users and/or administrators of the software and/or the website.
5. At its discretion, Zwart Tech shall deliver the software and/or the website on the agreed type of data carrier or shall make the software available online.
6. If the Parties have not agreed an acceptance test, Client shall accept the software and/or the website in the state that it is in when delivered (‘as is, where is’), therefore with all visible and invisible errors and defects, without prejudice to Zwart Tech/s obligations as set out in section 89.
7. Zwart Tech shall strive to the best of its ability to fix errors within a reasonable term if these errors are reported in writing in a detailed manner to Zwart Tech within a period three (3) months following delivery. Zwart tech does not guarantee that the software is suitable for actual use and/or the intended use. Zwart Tech also does not guarantee that the software will operate without interruptions and/or that all errors will always be fixed. Fixing work shall be carried out free of charge unless the software was developed on the instructions of Client other than for a fixed price, in which case Zwart Tech shall charge for the costs of fixing in accordance with its usual rates.