Article 1 Applicability
1.1 These conditions apply to all offers made by House of Performance (hereinafter called: “HofP”) and to agreements concluded by HofP and the work relating thereto, irrespective of whether they follow from a written, oral and/or electronic agreement.
1.2 Provisions that deviate from these general conditions may only be agreed in writing.
1.3 If the parties include provisions in the agreement that deviate from these general conditions, the provisions of the agreement will take precedence.
1.4 The applicability of any general conditions of the other party (hereinafter called: “Client”) is hereby explicitly rejected, unless the parties agree something else in writing.
Article 2 Offers
2.1 In all HofP’s offers a period of acceptance will be mentioned. Should this period be lacking in an offer, the period of acceptance will be a period of 30 days.
2.2 HofP’s offers are not without engagement, unless this absence of engagement was explicitly mentioned in the offer.
Article 3 Rendering of services/performance of the agreement
3.1 HofP will exert itself to render the services within the agreed time
3.2 If within the term of the agreement a period has been agreed for the completion of particular work, this will never be a deadline, unless the parties have agreed this explicitly (also with use of the word “deadline”). If there is a threat of transgression of a period of performance, HofP will report this to the Client in the progress consultation and agree on a new period in consultation with the Client, if necessary.
3.3 If and in so far as a good performance of the agreement requires this, HofP will be entitled to have certain work performed by third parties. The Client will be informed about this deployment of third parties in advance. HofP will be liable for the work of these third parties as “main contractor”.
3.4 The Client will see to it that all data of which HofP indicates that they are necessary or of which the Client should understand in reason that they are necessary for the performance of the agreement, are supplied to HofP in good time. If the data required for the performance of the agreement have not been supplied to HofP in good time, HofP will be entitled to suspend the performance of the agreement and/or to charge to the Client the extra costs following from the delay in accordance with the customary rates.
3.5 HofP will not be liable for damage, of any nature whatsoever, because HofP has proceeded on the basis of incorrect and/or incomplete data supplied by the Client, unless this incorrectness or incompleteness should be knowable to HofP.
3.6 If work is performed by HofP or third parties engaged by HofP within the framework of the order at the Client’s location or a location designated by the Client, the Client will see to the facilities desired in reason by those employees free of charge.
3.7 The Client is expected to fulfil the obligations following from the Working Conditions Act in respect of the employees of HofP or third parties engaged by HofP.
3.8 The Client will indemnify HofP for any claims of third parties that suffer damage in connection with the performance of the agreement and that cannot be attributed to HofP.
3.9 The Client will indemnify HofP for claims of third parties because of infringement of their intellectual property rights with regard to the materials or data supplied by the Client and used by HofP in the performance of the agreement.
Article 4 Amendment of the agreement/Additional work
4.1 At the request of a party the parties will enter into consultation if there are certain circumstances that impede or threaten to impede the performance of the agreement and/or it appears during the performance that an amendment or expansion of the agreement is necessary for a proper completion of the order
4.2 Before an agreement is amended in consultation, HofP will indicate whether additional costs are attached to this amendment. If additional costs are attached to an amendment of the agreement, these additional costs will be for the Client’s account, unless the attached additional costs are to be imputed to HofP.
4.3 HofP will only perform additional work if this has been agreed in writing between the parties. Unless something else has been agreed, additional work will be performed on the basis of subsequent calculation. HofP will not commence additional work, if this has not yet been agreed.
Article 5 Liability
5.1 If HofP should be liable, this liability will be limited to what has been provided in this article.
5.2 All work will be performed by HofP to the best of its ability. The agreement concluded with the Client produces an obligation for HofP to perform to the best of its ability, unless it has explicitly been laid down in the agreement that this concerns an obligation to guarantee a certain result.
5.3 HofP’s total liability will be limited to compensation of direct damage and then not more than the amount payable by the Client (excluding VAT) during 6 months prior to the month in which the damage occurred with a maximum of €100,000.00 (one hundred thousand euros) per event, in which connection a series of related events will be considered one event. HofP’s liability for all events together in one year will be a maximum of €250,000.00 (two hundred and fifty thousand euros).
5.4 The total liability for damage as a result of death or physical injury will in no event exceed €5,000,000.00 (five million euros) per event.
5.5 HofP has taken out adequate insurance with regard to the damage mentioned in the articles 5.3 and 5.4 by means of a professional and business liability insurance. HofP will not be liable beyond the amounts mentioned in article 5.3 and 5.4 unless it is a matter of wilfulness or deliberate recklessness.
5.6 HofP will never be liable for indirect damage, including consequential damage, loss of profit, loss of savings, loss of goodwill, destruction or loss of files and/or data, losses due to delays, loss suffered, damage as a result of business interruption and damage because of claims of third parties on the Client.
5.7 HofP’s liability will only be created, if the Client has held HofP in default immediately and properly in writing, setting on that occasion a reasonable period to rectify the shortcoming and HofP has also failed to fulfil its obligations after that reasonable period. The notice of default must contain a description of the shortcoming that is as detailed as possible, so that HofP can react adequately.
Article 6 Confidentiality/Services rendered
6.1 HofP will observe strict confidentiality with regard to all the Client’s confidential information that is known to it. This will also include confidentiality with regard to (financial) data about the organization, the operation of equipment, files and programming.
6.2 HofP will not make available to third parties any confidential information and data carriers that have been made available to HofP by the Client and only make such information and data carriers known to his personnel in so far as this is necessary for the performance of the agreed work. By “third parties” reference is not made here to the third parties that are engaged by HofP within the framework of article 3.3 to perform work for the Client.
6.3 Confidential information need not be kept secret by HofP if:
6.4 HofP will oblige its personnel and/or the third parties engaged by it in the performance of the order to observe these secrecy provisions.
6.5 The Client is obliged to ask and acquire HofP’s written permission beforehand for spoken or (electronically) written publications that may affect HofP’s interests in any way.
6.6 Unless something else has been agreed, the work for the Client will not be exclusive. This means that HofP will be at liberty to perform the same or similar work for other clients in so far as this is in accordance with the confidentiality to be observed by HofP in respect of the Client.
Article 7 Intellectual property
7.1 All intellectual property rights that can be exercised or may in future be exercised – in any place and at any time – with regard to the results of HofP’s services will be vested in HofP, unless something else is agreed between the parties.
7.2 By payment of the corresponding invoices the Client will acquire a user right to the works produced by HofP (such as reports, designs, sketches, drawings, software, applications, examination results, recommendations and the like), irrespective of the form that they have. This user right is limited to the Client and organizations directly affiliated with the Client. It is explicitly not permitted to surrender this user right free of charge, in return for payment or in any other way to any third party and/or to multiply or make public the works produced by HofP without HofP’s prior consent.
7.3 HofP indemnifies the Client for claims of third parties with regard to (any) infringement of intellectual property rights of those third parties, including comparable claims in connection with know-how, unlawful competition and the like.
Article 8 Compensations
8.1 In the agreement an overview has been included of all the costs that the Client must compensate to HofP. These costs may concern the deployment of one or several consultants and other costs such as material costs, printed matter and the deployment of external speakers. If the amount of these other costs could not yet be determined exactly at the time when the offer was made or the agreement was concluded, this will be done as yet in consultation with the Client.
8.2 In the event of a composite agreement HofP will not be obliged to deliver part of the matters offered at the price indicated for that component if the Client does not take all other components. If it is agreed between the parties that the Client need not take all the components, the payment for the parts that are taken will be determined by mutual consultation.
8.3 All the prices are exclusive of VAT and exclusive of any other levies that are imposed by the authorities. The amounts due will be charged including VAT and including any levies of the authorities.
8.4 Unless something else has been agreed in the agreement, HofP will be entitled to change its rates once a year. This change will not exceed the increase of the Wage Cost Index for Financial and Commercial Services category 65-74 including the special remunerations as used by the Central Bureau of Statistics.
Article 9 Payment
9.1 The terms of payment have been laid down in the agreement. If they have not been laid down in the agreement, it will hold that for small projects (shorter than 1 month) the consideration will be invoiced in a lump sum in arrears; for the other projects the term of payment will be monthly in arrears on the basis of the hours actually spent for an agreed fixed amount (for instance a percentage of the total amount).
9.2 The Client will pay the agreed consideration to HofP within 14 days after the invoice date, unless something else has been agreed in writing between the parties.
9.3 If the term of payment is exceeded, the Client will be in default without any demand or notice of default being required for the purpose. If the Client fails to make payment, it will owe an interest equal to the statutory interest. If the Client also fails to pay the invoice amount after a written reminder from HofP, in which an opportunity is given as yet to pay within 5 working days, HofP will be entitled to consider the agreement dissolved without judicial interposition. In this case the Client will owe, apart from the invoice amount increased by the statutory interest and apart from any judicial and extrajudicial costs incurred by HofP, a compensation to HofP for a culpable shortcoming.
10 Suspension and dissolution
10.1 HofP is empowered to suspend the fulfilment of the obligations or to dissolve the agreement if:
10.2 Furthermore HofP will be empowered to dissolve the agreement if circumstances occur that are of such a nature that performance of the agreement becomes impossible or cannot be required any longer according to standards of reason and fairness or if other circumstances occur that are of such a nature that unaltered continuation of the agreement cannot be expected in reason.
10.3 If the agreement is dissolved, HofP’s claims on the Client will be payable immediately. If HofP suspends the fulfilment of the obligations, it will retain its claims from the agreement.
10.4 In the event of dissolution of the agreement for a culpable shortcoming of the Client, the Client will be liable for the damage that follows from this for HofP. In this connection consideration may be given among other things to HofP’s loss of profit.
Article 11 Complaints
11.1 Complaints about the work performed by HofP or the third parties deployed by it must be reported by the Client to HofP in writing within 5 working days after discovery, but at the latest within 10 working days after completion of the relevant work. The complaint must include a description of the shortcoming that is as detailed as possible, so that HofP is able to react adequately.
11.2 If a complaint is well-founded, HofP will as yet perform the work as agreed, unless this has meanwhile become demonstrably pointless for the Client. This last fact must be made known by the Client in writing.
11.3 Unless performance of the agreed work is no longer possible or meaningful, it will only be possible for the Client to hold HofP liable after proper notice of default. For this liability reference is made to the provisions in article 5.
Article 12 Return of goods made available
12.1 If HofP has made goods available to the Client during the performance of the agreement, the Client will be obliged to return the supplied matters to HofP within 10 working days after the end of the agreement in their original condition, free of defects and complete, unless something else has been agreed between the parties. If the Client does not fulfil this obligation, all costs following from this will be for its account.
12.2 If, after a reminder to that effect, the Client still fails to fulfil the obligation laid down in article 12.1, for any reason whatsoever, HofP will be entitled to recover the damage and costs, including costs of replacement, from the Client.
Article 13 Data protection/Viruses
13.1 HofP undertakes to take suitable technical and organizational measures to protect confidential information of the Client and (personal) data against loss or any form of wrongful processing. HofP undertakes to see to it that these measures guarantee a suitable security level, taking account of the state of technology and the costs of implementation, in view of the risks that the processing and the nature of the data to be protected entail.
13.2 It is the parties’ endeavour that exchanged information carriers, electronic files or software that may be handed over within the framework of the agreement are free of viruses and the like and defects. Within this framework the parties will among other things make use of common antivirus software.
Article 14 Privacy
14.1 HofP will observe all legislation and regulations to protect the privacy of interested parties. Within this framework consideration may be given among other things to the General Data Protection Regulation (hereinafter called: “AVG”) that protects the privacy of natural persons
14.2 Within the framework of the AVG HofP has drawn up a so-called Privacy Statement. HofP will adhere to the obligations that are in the statement. This Privacy Statement is included on HofP’s website and in the attached Addendum.
Article 15 Force majeure
15.1 The parties are not obliged to fulfil any obligation if they are impeded in doing so as a result of a circumstance that cannot be blamed on them and is not for their account either by virtue of the law, a legal act or generally held views. A case of force majeure will be communicated to the other party in writing with submission of the required documentary evidence.
15.2 In these general conditions force majeure is understood to be, apart from anything that is understood thereby in the law and case law, all external causes, foreseen or not foreseen, on which a party cannot exert any influence but as a result of which that party is unable to fulfil its obligations. Strikes of work in HofP’s business or in the Client’s business are included therein.
15.3 During the period that the force majeure continues the parties may suspend the obligations from the agreement. If this period lasts for more than two months, each of the parties will be entitled to dissolve the agreement. In this dissolution no period of notice needs to be observed and the parties will not be obliged to make any compensation to each other.
15.4 In so far as at the time of occurrence of force majeure HofP has meanwhile partly fulfilled its obligations from the agreement and the part not fulfilled has no independent value, HofP will be entitled to charge the already fulfilled part separately. The Client is obliged to pay this bill as if it was a separate agreement.
Article 16 Suspension of payments / Bankruptcy
16.1 Each party will be entitled, without further notice of default or judicial interposition and without being obliged to make compensation, to dissolve the agreement with immediate effect in full or in part, if the other party applies for suspension of payments or is declared bankrupt.
16.2 Notice of the dissolution, as referred to in article 16.1, must be given in writing.
Article 17 Reason and fairness
In all cases not provided for by the agreement including these general conditions the parties will act in reason and fairness by mutual consultation.
Article 18 Applicable law and competent court
18.1 Dutch law applies to all offers and agreements.
18.2 A dispute will be present if one of the parties asserts this by registered letter. This letter must include what the subject of the dispute is.
18.3 Any disputes between HofP and the Client will be submitted to the civil court in Utrecht.
If named persons are made available by HofP, the following additional conditions will apply:
Article 19 Nature of the Agreement
19.1 The parties are entering into a contract on the basis of a contract for professional services in the sense of section 7:400 et seq. of the Civil Code, unless the parties agree something else in a specific case.
19.2 The parties explicitly do not intend to enter into a contract of employment in the sense of section 7:610 et seq. and 7:690 et seq. of the Civil Code.
19.3 The parties will do their utmost to prevent the applicability of a so-called fictitious employment.
Article 20 Performance of the order
20.1 The persons who have been made available (hereinafter called: “the Hired Persons”), may always consult with their colleagues of HofP.
20.2 If necessary for the work the Hired Persons will adjust to the Client’s working hours.
20.3 The Client will give the Hired Persons in good time all the powers that are necessary for a good performance of the work.
20.4 If for the performance of the work the Hired Persons are not given the required powers, HofP will be entitled to suspend the performance of the agreement and/or charge the Client the extra costs following from the delay in accordance with the customary rates.
Article 21 Termination of the agreement
21.1 Unless something else has been agreed, each of the parties will be entitled to terminate the agreement in the meantime by means of notice of termination by registered letter and with observance of the agreed period of notice.
21.2 The Client will pay HofP for all services rendered until the date of termination and for all costs that HofP has made for the performance of the order.
Article 22 Replacement
22.1 HofP will be at liberty to replace the Hired Persons. Prior to the replacement HofP will inform the Client which persons are going to perform the work. In that connection the Client will not be entitled to refuse the replacement otherwise than on the ground of objective qualifications.
22.2 Prior to the acceptance of the order the parties will together formulate the qualifications referred to in article 22.1 that a possible replacement must meet.
ADDENDUM: PRIVACY STATEMENT