GENERAL TERMS AND CONDITIONS
CALDERA GROUP B.V.
In these General Terms & Conditions the following terms have the meanings referred to:
1.1 Caldera Group: Caldera Group, having its registered office in Amersfoort.
1.2 Client: the party that issues the commission to Caldera Group.
1.3 Commission: the agreement between Caldera Group and the Client, by which Caldera Group commits to performing certain work.
1.4 Work: the work to be carried out for the Client within the framework of the Commission.
2. APPLICABILITY OF THESE GENERAL TERMS AND CONDITIONS AND COMING INTO EFFECT OF THE COMMISSION
2.1 These General Terms and Conditions apply to all services provided by Caldera Group to the Client, unless deviated from substantively in writing in the Commission.
2.2 In the event that these General Terms and Conditions and the Commission contain contradictory provisions or conditions, the provisions or conditions included in the Commission will apply.
2.3 Caldera Group explicitly rejects the applicability of the Client’s general terms and conditions.
2.4 The Commission will only come into effect at the moment at which the Commission, signed by both parties, is returned to Caldera Group. The Commission proposal made by Caldera Group is valid for 30 days unless a different period of validity is included in the commission proposal. If the commission proposal is not signed and returned by this deadline, the proposal will automatically cease to be applicable. As long as the Commission has not been received, Caldera Group reserves the right to deploy its staff elsewhere.
2.5 If the Commission has not yet been signed and returned, but the Work has already started, the Commission will be regarded as having come into effect at the moment at which Caldera Group started executed the Work.
2.6 Caldera Group regards all commissions by clients as being issued to it exclusively, even if the explicit or tacit intention is for a commission to be executed by a certain person. The operation of Article 7:404 of the Dutch Civil Code, which regulates the latter eventuality, and the operation of Article 7:407, paragraph 2, which establishes joint and several liability in cases in which two or more parties have received a commission, is excluded.
3. COOPERATION BY THE CLIENT
3.1 The Client must ensure that all data and documents, which Caldera Group believes are necessary for the correct and punctual execution of the Commission, are made available on time and completely.
3.2 The Client must ensure that Caldera Group is informed immediately about (changed) facts and circumstances which may be important in connection with the execution of the Work.
3.3 Unless determined otherwise by the nature of the Commission, the Client is responsible for the accuracy and completeness of the documents made available to Caldera Group, even if these come via or from third parties.
3.4 The Client must make available office space and other facilities which, in the opinion of Caldera Group, are necessary for the execution of the Work. Among other things this includes computer equipment, telephone and fax facilities. The Client is also responsible for continuity by means of sufficient back-up, security and anti-virus procedures.
3.5 If such is essential for the execution of the Commission, the Client will deploy specific personnel in order to enable Caldera Group to perform the Work. If these specific personnel are considered essential, such will be laid down in the Commission or reported to be Client on time during the execution of the Commission. Costs which arise due to the failure to make the personnel referred to available (on time) will be paid for by the Client.
4. EXECUTION OF THE COMMISSION
4.1 Caldera Group will perform the work to the best of its knowledge and ability and in accordance with the requirements of good workmanship. The Work is subject to a duty to perform on the part of Caldera Group, unless explicitly agreed otherwise in the Commission.
4.2 Caldera Group reserves the right to use third parties to fulfil the obligations resulting from the Commission. However, Caldera Group will continue to be liable vis-à-vis the Client for the execution of the Work, without prejudice to the other provisions in the Commission. Any reference to employees of Caldera Group in the Commission and in these general terms and conditions also includes third parties engaged by Caldera Group.
4.3 Caldera Group will make every effort to ensure that the employee(s) referred to in the Commission is/are available throughout the entire term of the Commission. Notwithstanding the above, Caldera Group is entitled to replace employees after consulting with the Client. If, in the event of force majeure, an employee cannot be made available, Caldera Group will make every effort to deploy an employee of the same quality.
4.4 Caldera Group can only perform more work than the Work stipulated in the Commission and charged to the Client, after the Client has granted permission to do so. Caldera Group will record extra work and/or an extension of the Commission in a new Commission. This is once again subject to the provisions under 2.4 and 2.5.
5. TERM AND TERMINATION
5.1 The Commission ends by operation of law at the end of the period stipulated in the Commission, except in the event of premature termination in accordance with the provisions below and (any) stipulations in the Commission and/or any other agreement.
5.2 The Commission can be terminated prematurely in writing at any time by the Client and Caldera Group with due regard for a period of notice of 30 calendar days, unless agreed otherwise in the Commission or if the agreement has been entered into for a definite period of time.
5.3 If the Client terminates prematurely, Caldera Group will be entitled to reimbursement by the Client in relation to the additional costs, as a consequence of the premature termination of the Commission (such as, for example, costs relating to subcontracting), unless the termination is based on facts which can be attributed entirely to the Caldera Group and if force majeure does not apply on the part of Caldera Group. In the event of premature termination, Caldera Group will, in all instances, be entitled to payment of the invoices for the work performed. Insofar as the transfer of the work implies extra costs for Caldera Group, these will be charged to the Client.
5.4 The Commission may be terminated in writing by Caldera Group with immediate effect if:
a. The Client is declared bankrupt.
b. The Client is granted a suspension of payments.
c. The Client goes into liquidation.
d. A pre-judgement seizure or a seizure under foreclosure is imposed on a substantial portion of the movable and/or immovable property, or other assets belonging to the Client.
5.5 In the event of termination of the Commission, each of the parties must make available to the other party all goods and documents they have in their possession which belong to the other party.
6.1 Unless any legal provision, regulation or (professional) rule makes such obligatory, Caldera Group and the employee(s) it deploys are obliged to observe confidentiality vis-à-vis third parties with regard to confidential information obtained from the Client. The Client can grant a dispensation in this respect.
6.2 Without written permission from the Client, Caldera Group is not entitled to use the confidential information made available for any other purpose than for which it was obtained.
However, an exception will be made in the event that Caldera Group acts for itself in disciplinary, civil or criminal proceedings whereby this information may be important. Caldera Group will inform the Client accordingly.
6.3 Unless any legal provision, regulation or (professional) rule obliges the Client to publish, or if Caldera Group has granted prior written permission, the Client will not disclose to third parties the content of reports, recommendations or other (written) communications by Caldera Group.
6.4 Both parties will impose their obligations on the grounds of this article on third parties they engage.
6.5 As an exception to Articles 6.1 and 6.2, Caldera Group is entitled to mention the work, in general terms, to (potential) Caldera Group clients.
7. FEE, OBJECTIONS AND PAYMENT
7.1 Caldera Group is entitled to the fee for the work as agreed in the Commission.
7.2 If, after the Commission has come into effect but before the Commission has been completely executed, changes occur to rate-determining factors such as, for example, wages and/or prices (based on the consumer price index), Caldera Group will be entitled to adapt the aforementioned rate accordingly. Caldera Group will inform the Client of the changed rates 30 days in advance in writing.
7.3 The fee will be charged to the Client retrospectively on the basis of the hours and/or days worked. The hours and/or days worked will be recorded on time sheets which the Client has to sign as approved every week, unless agreed otherwise in the Commission.
7.4 For each day worked, the basis is an 8-hour working day, unless agreed otherwise in the Commission, worked on weekdays, excluding generally recognised public holidays. Hours worked in excess of 9 hours a day and 45 hours per week (based on a 5-day working week) will be charged on the basis of a surcharge of 25% on top of the normal rate. Hours worked on generally recognised public holidays or at the weekend will be charged on the basis of a surcharge of 50%.
7.5 Travel and accommodation costs and other costs relating to the work to be carried out are not included in the fee and will be charged separately, unless agreed otherwise in the Commission.
7.6 All rates exclude turnover tax and other levies which are or can be imposed by the government.
7.7 The Client must pay, without any deduction, discount or set-off, within 14 days after the date on the invoice. Payment must take place in the currency referred to on the invoice, by means of a transfer to a bank account designated by Caldera Group.
7.8 If the deadline referred to under 7.7 is missed, the Client will be legally in default. In that case the Client will owe interest of 1% per month on the payable sum as from the date on which the payable sum has become due. In addition, all the costs of collection incurred after the Client is in default, both judicial and extrajudicial, will be payable by the Client. The extrajudicial costs will be set at a minimum of 15% of the principal sum and interest, without prejudice to the right of Caldera Group to claim the actual extrajudicial costs over and above this amount. The judicial costs include all the costs incurred by Caldera Group, even if these exceed the statutory liquidation rate.
7.9 Objections to the amount of the invoices submitted will not mean that the Client’s payment obligations are suspended.
7.10 Objections relating to the work carried out and/or the invoice amount must be made within 5 working days after the date on which the documents or information relating to the Client’s complaint are sent, or within 5 working days after the defect has been discovered.
7.11 In the event of a justifiable complaint, the Client will be entitled to have the rejected work improved or carried out again free of charge.
7.12 If, in the opinion of Caldera Group, the Client’s financial position and/or payment record gives cause, Caldera Group will be entitled to demand of the Client that the Client immediately provides additional security in a form to be determined by Caldera Group (including explicitly the issuing of a bank guarantee) and/or issues an advance. If the Client fails to provide the requested security, Caldera Group will be entitled, without prejudice to its other rights, to suspend the further execution of the Commission immediately, with all that which the Client owes Caldera Group, on any account, being immediately due and payable.
7.13 In the event of a joint Commission, Clients will be jointly and severally liable for payment of the entire invoice amount insofar as the work is being performed on behalf of the joint Clients.
7.14 If the non-execution of the Work commissioned can be blamed on the Client, the fee for the hours already worked (including hours spent preparing) will still be charged.
8. INTELLECTUAL PROPERTY
8.1 Without prejudice to the provisions of Article 6, the Client acknowledges the exclusive right of Caldera Group to all intellectual and industrial property rights to materials/products it has made available, or which Caldera Group has used and/or developed during the execution of the Work. The only exception to this is if and insofar as these rights were already vested in the Client before the Commission was issued.
8.2 If necessary, the Client will, without imposing additional conditions, cooperate with the transfer to Caldera Group of intellectual and industrial property rights to materials/products which it has made available to the Client, or which have been developed with the help of (products of) Caldera Group during the execution of the Commission.
8.3 The Client is explicitly prohibited from copying, publishing or using those products, including computer programmes, system designs, working methods, advice and other products of the mind of Caldera Group, such in the widest sense of the word, with the engagement of third parties or otherwise, unless Caldera Group has given its written permission.
8.4 The Client is permitted to copy written documents/products for use within its own organisation, insofar as these are commensurate with the purpose of the Commission.
8.5 The Client will ensure that the execution of this Agreement does not violate any third-party intellectual property rights. The Client indemnifies Caldera Group against violations of third-party intellectual property rights.
9. DELIVERY PERIOD
9.1 If the Client owes an advance payment, or if the Client is required to provide information and/or materials required for the execution, the period during which the work has to be completed will not start any earlier than after the payment has been received in full, or all the information and/or materials have been made available.
9.2 Because the term of the Commission can be influenced by all kinds of factors, such as the quality of information which the Client issues and the cooperation provided, the periods during which the work has to be completed will only be regarded as strict deadlines if this has been explicitly agreed. Under no circumstances can the contractor be liable for missing a deadline and/or the failure to complete work if this is caused by matters in the Client’s area of risk.
9.3 Unless it has been established that execution is permanently impossible, the Client is not permitted to dissolve the Commission simply because a deadline is missed. This does not apply if Caldera Group does not execute the Commission (in full) within a reasonable period indicated to Caldera Group at the end of the agreed delivery period. Dissolution is then permitted in accordance with Article 6:265 of the Dutch Civil Code.
10.1 Caldera Group will perform its work to the best of its ability and to a level of care which can be expected from Caldera Group.
10.2 Caldera Group is excluded from any liability, apart from liability for damage caused by intent or gross negligence by Caldera Group and its employees, and the damage suffered by the Client as a direct consequence of a serious violation by Caldera Group of the contractual obligations resulting from the Commission.
10.3 In the event of damage as described in 10.2, Caldera Group will be liable for damage to a maximum of the amount of the fee for the Commission in question over the latest full calendar month prior to the event that caused the damage. If no full calendar month has yet passed, the amount will be determined on the basis of the expected fee as described in the Commission. Under no circumstances is Caldera Group liable for indirect damage, including lost profit.
10.4 The Client indemnifies Caldera Group against third-party claims due to damage which was caused due to the Client having issued Caldera Group with incorrect or incomplete information, unless the Client demonstrates that the damage is not related to culpable actions or omissions on its part, or was caused by intent or similar gross negligence by Caldera Group.
10.5 The limitation of liability laid down in paragraph 10.3 is hereby stipulated partly on behalf of the third parties which Caldera Group engages in the execution.
11. FORCE MAJEURE
Failures by both parties to fulfil the agreement cannot be attributed to the party in question if the party in question cannot be blamed, nor be held accountable according to the law, agreement or generally accepted views (force majeure). If the situation of force majeure has lasted longer than fifteen days, or if it is expected that the situation of force majeure will last longer than fifteen days, both parties can terminate the Commission prematurely, without having to observe any cancellation period. If the Commission, of which the fulfilment was temporarily prevented by force majeure, is fulfilled after all, premature termination will no longer be possible.
12. CONTRACT TAKEOVER
12.1 The Client is not permitted to transfer any obligation from the Commission to third parties, unless Caldera Group has explicitly agreed to this in writing. Caldera Group is entitled to attach conditions to this permission.
12.2 In any event, the Client undertakes still to impose all relevant payment obligations resulting from the Commission on third parties. The Client remains at all times liable in addition to this third party for the obligations resulting from the Commission, unless the parties agree otherwise.
12.3 The Client indemnifies Caldera Group with regard to any third-party claims which might arise as a consequence of non-fulfilment or incorrect fulfilment by the Client of any obligation resulting from the Commission.
13. EXPIRY DATE
13.1 Insofar as these General Terms and Conditions do not determine otherwise, rights to claim and other authorities of the Client, on any account whatsoever, expire vis-à-vis Caldera Group in connection with the performance of work by Caldera Group in any event one year after the moment at which the Client knew or could reasonably have known about the existence of these rights and authorities.
14. WAIVER OF RIGHTS
14.1 If Caldera Group does not immediately enforce any provision or condition in the Commission, this will not influence or limit the rights and authorities of Caldera Group under the Commission. Any waiver of rights of any provision or condition in the Commission will only come into effect if done in writing.
15.1 If and insofar as, on the grounds of the reasonableness and fairness or the unreasonably onerous nature of a provision, this provision of these General Terms and Conditions cannot be invoked, the provision in question will be assigned a meaning which is as similar as possible as regards content and purport, so that it can be invoked. It goes without saying that the other provisions will continue to apply in full.
16. FINAL STIPULATIONS
16.1 The provisions of the Commission, with regard to which it is explicitly or tacitly the intention for them to continue to remain in force even after termination of the Commission, will continue to apply thereafter and will continue to find both parties.
17. TAKEOVER OF STAFF
17.1 During the term of the agreement, as well as during 12 months after its end, the Client is not permitted to recruit Caldera Group employees (including the third parties deployed by Caldera Group), who are involved in the execution of the Commission, nor to negotiate with these employees about possible employment, or enter into any direct or indirect contractual relationship with these employees, unless in consultation with, and after permission has been granted by, Caldera Group.
17.2 In the event of violation of the provision of 17.1, an immediately due and payable penalty will be owed amounting to € 25,000 per occurrence plus € 500 per day or part of the day that the violation continues, without prejudice to Caldera Group’s right to claim full compensation and/or to proceed to terminate the Agreement.
18. INVOKING GENERAL TERMS AND CONDITIONS BY THIRD PARTIES
18.1 These general terms and conditions can be invoked not only by Caldera Group, but also by all parties who are engaged in the execution of a Commission. The same applies to former employees of Caldera Group, including any heirs, if they are held liable after they have left the Caldera Group company.
19. APPLICABLE LAW/COMPETENT COURT
19.1 The Commission is exclusively subject to Dutch law.
19.2 Disputes resulting from, or connected with, the Commission will be submitted to the competent court in the province of Noord Holland, but only after it has transpired that the parties are unable to reach a solution on the basis of mutual consultation.
19.3 In derogation of the provisions in paragraph 2, Caldera Group and the Client are authorised to agree in writing to submit disputes to any other judicial body, such as an arbitration board.