General terms and conditions
Terms and Conditions IncPlus B.V.
These Terms and Conditions apply to all legal acts of and/or all agreements with IncPlus B.V. whereby it supplies Services (as defined hereafter) to the Client, unless there is an explicit, clear and written deviation in the Agreement (as defined hereafter) in respect of these Terms and Conditions.
Article 1. Definitions
1.1. In these Terms and Conditions the following capitalized terms have the following meaning:
Terms and Conditions: these terms and conditions of IncPlus;
Service: all services (including results thereof) that IncPlus provides to the client based on the Agreement;
Intellectual Property rights: all intellectual property and related rights, such as copyright, trademark rights, patent rights, design rights, trade name rights, database rights and/or neighbouring rights, as well as rights to knowhow and performance on a par with a patentable invention, including any preparatory material(s);
Client: the party or parties to the Agreement with IncPlus;
IncPlus: the private limited company IncPlus B.V., with its registered office in Amsterdam and listed in the Commercial Register of the Chamber of Commerce in Amsterdam, under file number 61093661;
Agreement: the Term Sheet between IncPlus and the Client in which the Services are specified, and to which these Terms and Conditions apply; and
Party: IncPlus and/or the Client.
Article 2. General
2.1. Deviations of and additions to the Agreement are only valid if agreed upon in writing by the Parties.
2.2. The applicability of any purchase conditions or other conditions of the Client are hereby clearly and explicitly rejected.
2.3. If a provision in the Terms and Conditions is void or declared void, the remaining provisions of the Terms and Conditions will remain in full effect. In such event, the Parties shall engage in a dialogue to agree upon a new provision to replace said void provision, taking into account as much as possible the content and purpose of said void provision.
2.4. These Terms and Conditions also apply to Services, which IncPlus provides to the Client as part of the Agreement, which are either wholly or partly obtained from third parties.
2.5. IncPlus is entitled to modify these Terms and Conditions at its own discretion. Any changes will take effect within one (1) month after notification thereof.
Article 3. The Service
3.1. IncPlus will provide the Services mentioned in the Agreement to the best of its ability, on the basis of an efforts obligation only. IncPlus does not issue any warranty in respect of the results (if any) of the Service. The use of the Services by the Client is at all times at the sole risk of the Client.
3.2. IncPlus shall carry out the Agreement with due care and to the best of its ability, in accordance with general standards of a professional party. IncPlus has the right to, at its sole discretion, use third parties to carry out certain activities as part of the Services. IncPlus is not liable for any (attributable) default by such third parties. IncPlus is entitled to, on behalf of the Client and without prior consultation with the Client being required, accept a limitation of liability by these third parties which is binding towards the Client.
3.3. Agreed upon delivery- or other terms can never be considered to be fatal terms, unless otherwise clearly and explicitly agreed upon by the Parties in the Agreement. If IncPlus does not meet an obligation and/or not within the agreed term, the Client must send IncPlus a written notice of default, in which IncPlus is granted a reasonable period to perform.
3.4. IncPlus is entitled to perform its activities in parts or in phases, in which case each (partial) performance can be invoiced separately.
Article 4. Obligations of the Client
4.1. The Client is obligated to provide IncPlus with all necessary information IncPlus needs in order to provide the Service.
4.2. If IncPlus is dependent on (the cooperation of) the Client in its performance of the Services, the Client is obligated to (and shall also) provide any necessary and/or required cooperation at the first request of IncPlus.
4.3. The Client understands and acknowledges that a failure to provide or not promptly providing the requested information and/or cooperation may delay the performance of the Service. IncPlus is never liable for any damages and/or costs occurred due to not, not timely, or otherwise inadequately meeting the aforementioned obligation to provide information and/or cooperation.
Article 5. Intellectual Property rights
5.1. All Intellectual Property rights on materials provided by the Client to IncPlus within the scope of performing the Agreement remain vested in the Client. The Client grants IncPlus a worldwide, non-exclusive, sub-licensable, royalty-free and unencumbered right to use such materials within the scope of performing the Services and/or the Agreement.
5.2. Any and all Intellectual Property rights that arise both during and after the performance of the Agreement within the scope of the Services, are exclusively vested in IncPlus. No transfer of Intellectual Property Rights is constituted by these Terms and Conditions.
5.3. The Client is not permitted to use a Service for acts or activities which are in violation of the law, public morals, public order, these Terms and Conditions or which can damage the good name of IncPlus.
Article 6. Fees and Payment
6.1. All amounts mentioned in an offer or the Agreement are in Euro’s and are mentioned excluding VAT and/or any other governmental levies or taxes, unless otherwise mentioned.
6.2. If the Client is of the opinion that the amount invoiced is incorrect or in any way flawed, the Client must immediately inform IncPlus and present convincing evidence thereof.
6.3. the Client must settle the invoice in full within fourteen (14) days after the invoice date.
6.4. If the Client, after the expiration of one or more payment terms, fails to (fully) settle the invoice, IncPlus shall send a payment reminder to the Client. If the Client yet again fails to (fully) settle the invoice as soon as possible, but no later than fourteen (14) days (unless otherwise mentioned) after having received the aforementioned payment reminder, the Client shall immediately be in default without further notice of default being required.
6.5. IncPlus is entitled, starting from the date of default by the Client, to charge interest at the statutory rate over the owed amount and judicial and extrajudicial collection costs (calculated according to the collection rate of the Netherlands Bar Association) borne by the Client. When the Client is in default, IncPlus can also decide to collect the amount owed through a bailiff, debt-collection agency or legal proceedings.
6.6. IncPlus is entitled to suspend the performance of either all or parts of its obligations, from the date as of which the Client fails to perform its obligations.
Article 7. Warranty and indemnity
7.1. The Services are in compliance with the Agreement when IncPlus has fulfilled its obligations under article 3.1. Other (implicit or explicit) warranties regarding the Services are explicitly ruled out.
7.2. The Client guarantees its entitled to make available the materials it provides to IncPlus in the scope of the Agreement and that (the processing of) these materials does not infringe on any (Intellectual Property) right of a third party. The Client indemnifies IncPlus against any and all damages and costs resulting from claims of third parties based on a breach of this warranty.
7.3. IncPlus only registers and stores information about the Client, including personal data of its representatives, if this is necessary to carry out the Agreement. IncPlus shall comply with the Personal Data Protection Act (Wet bescherming persoonsgegevens) and other laws and regulations regarding privacy.
Article 8. Liability
8.1. Any liability of IncPlus will be limited to the amount paid out in that specific case under the professional indemnity insurance of IncPlus. When requested, IncPlus shall provide information on the professional indemnity insurance. If, for whatever reason, there is no payment from the professional indemnity insurance, the total and cumulative liability of IncPlus on any grounds whatsoever is limited to a maximum of EUR 5.000 (in words: five thousand euro).
8.2. If the performance of any Service of IncPlus is dependent on the availability of a service or cooperation of a third party, IncPlus will never be liable for any non- or limited availability of that third party Service or any absence of that third party cooperation. The Client indemnifies IncPlus of any and all claims that result from the non- or limited availability of any service of a third party that is required for supplying the Service.
8.3. The right of the Client to claim damages based on this Agreement, based on an unlawful act or any other ground, expires at least one (1) year after the event occurred which gave ground for the claim or procedure.
8.4. The aforementioned paragraphs do not apply if and insofar as the damage is caused by intent or gross negligence on the side of IncPlus or its directors.
8.5. IncPlus is not responsible for the content of information made available by the Client through the Service(s). The Client is fully responsible for complying with laws and regulations and the Client indemnifies IncPlus against any third party claims based on the violation of the Personal Data Protection Act (Wet bescherming persoonsgegevens), the Telecommunications act (Telecommunicatiewet) and/or other laws and regulations by means of (using) the Service.
Article 9. Termination of the Agreement
9.1. The duration of the Agreement is stated in the Agreement itself. IncPlus is at all times entitled to terminate the Agreement in writing, taking into account a maximum period of notice of one (1) month. IncPlus cannot be held to any form of compensation of damages and/or financial compensation as result of the (early) termination.
9.2. All of the Parties are entitled to terminate the Agreement partly or in whole if the other Party declares bankruptcy, is granted suspension of payments or when the company of the other Party is discontinued or has gone into liquidation.
9.3. All of the Parties have the right to terminate the Agreement if the other Party breaches the contract,
a. after the other Party has correctly been given a written notice of default, mentioning as many details as possible, in which a reasonable term is given to correct the default; or
b. with immediate effect if the other Party is in default and, according to Dutch Law, a written notice of default is not required.
9.4. If at any moment in case of the aforementioned termination of the Agreement performances of the Agreement have already been received by the Client, the performances and the related payment obligations will not be cancelled, unless the Client can prove that IncPlus is in default regarding those specific performances. Payments invoiced by IncPlus before the termination of the Agreement relating to already properly performed or delivered Service(s) in the scope of the Agreement remain fully due and are immediately claimable at the moment of termination.
9.5. If the Client wishes to terminate the Agreement before or during the execution of the Agreement, the Client owes IncPlus a compensation to be determined by IncPlus. This compensation includes all costs made by IncPlus and the damages suffered due to the early termination, including lost profits.
9.6. The in article 5.1 stated right of usage shall not be cancelled after the termination of the Agreement, regardless of the reason.
9.7. The Client is liable to third parties for the consequences of the termination and shall indemnify IncPlus for claims of third parties resulting from this termination.
Article 10. Confidentiality
10.1. The Parties have a duty of confidentiality regarding data of a confidential nature, regardless of the form – except (i) when the other Party gave permission beforehand for the publication of the data, (ii) when the data can reasonably be considered as non-confidential, or (iii) when the other Party by itself makes the data in any way public.
10.2. Confidential data should at least be considered data that Parties send to each other or provide access to for the execution of the Agreement.
10.3. When one of the Parties is obligated by law or by judicial decision to hand over data of the other Party to the government or government appointed agencies, the duty of confidentiality is void for that specific situation.
Article 11. Miscellaneous
11.1. E-mail messages are considered to be written correspondence, unless explicitly otherwise agreed upon.
11.2. IncPlus is entitled to transfer its rights and/or obligations arising from the Agreement to third parties without prior permission of the other Party, unless explicitly otherwise agreed upon by the parties. The Client is not qualified to do such a transfer, unless otherwise agreed upon.
11.3. Dutch law applies to the Agreement, these Terms and Conditions and the use of the Service. The Vienna Sales Convention (CISG) is explicitly excluded from this Agreement.
11.4. All disputes that arise out of or related to an Agreement between Parties and their successors shall be brought before the competent court in Amsterdam.