Purchase Conditions Keune Haircosmetics Manufacturing B.V. Version 12.2020
Keune Haircosmetics B.V.
3762 EA Soest
PART A - GENERAL
1 - Definitions
1.1 The following definitions are used in these terms and conditions:
- Customer: the above-mentioned entity, including all legal entities affiliated with it from time to time, as referred to in Article 2:24b of the Dutch Civil Code.
- Supplier: the Customer's other party, who is able to provide the Performance.
- Agreement: any agreement between the Customer and the Supplier relating to the Performance.
- Performance: the products and/or services to be delivered by the Supplier, the provision of the right of use and results related to these deliveries (including intellectual property rights), or a combination thereof, all this including the activities aimed at the delivery of the Performance, materials, and documentation.
2 - General provisions
2.1 These conditions apply to all Performance to be carried out by the Supplier for the benefit of the Customer, including the quotation and negotiation process relating thereto and orders placed.
2.2 These conditions consist of:
Part A - General;
Part B - Flexible Work;
Part C - Facility Services;
Part D - ICT;
Part E - Logistics;
Part F - Execution of works, technical installation works and/or maintenance.
2.3 Part A (general) always applies, with the understanding that a distinction is sometimes made between the supply of products and services. Parts B to F apply in addition to Part A and only apply if the Customer purchases the services concerned. In the event of any inconsistencies between Part A and any of the other parts, the provisions of the other part shall prevail for the relevant service to which that part relates.
2.4 In the event that the Customer consists of several companies that purchase Services from the Supplier, separate relationships will be established between the Supplier on the one hand and the individual Customers concerned on the other hand. This implies that rights and obligations of the Supplier, as described in these conditions, only relate to the delivery of the Performance to that individual Customer and the relationship between the Supplier and the individual Customer.
2.5 Any general terms and conditions or branch conditions used by the Supplier do not apply, even if they are referred to in e-mails, invoices or other (digital) documents.
2.6 Deviations from and/or amendments to these Purchase Conditions must be expressly agreed in writing.
2.7 All parties will fully finance any investments themselves, even if no relationship is established between the Supplier on the one hand and the Customer on the other.
2.8 The Customer can never be obliged to purchase a certain minimum volume or to purchase any of the Supplier's Performance on an exclusive basis.
3 - Formation of the Agreement and amendments
3.1 Every quotation of the Supplier is free of charge and has a validity period of at least six months unless a longer period is stated in the quotation.
3.2 If the Supplier's order confirmation deviates from the original order or order, the Customer shall only be bound after he has expressly agreed to the deviation in writing.
3.3 The Customer is entitled to change the scope and/or the quality of the Performance to be delivered by means of a notification to the Supplier. If a change, in the opinion of the Supplier, has consequences for the agreed fixed price and/or the time of delivery, he is obliged, before effecting the change, to inform the Customer of this in writing as soon as possible. If these consequences for the price and/or time of delivery are, in the opinion of the Customer, unreasonable, the parties shall consult on this. Any changes resulting from those consultations shall be agreed upon in writing.
3.4 The Supplier may not make or perform any changes with regard to the Performance without the Customer's prior written consent.
4 - Prices
4.1 All prices are in Euros and exclusive of VAT. Unless otherwise agreed, prices include all costs related to the performance and the Supplier's obligations, such as, for example, taxes, levies, and Supplier's travel and accommodation expenses.
4.2 The Supplier guarantees that the prices, as applied by him towards the Customer, do not or hardly exceed the selling prices of qualitatively equivalent performances of other suppliers.
4.3 The agreed price is fixed and cannot be unilaterally increased by the Supplier unless a price increase has been explicitly agreed in writing.
5 - Additional work
5.1 Additional costs or additional work shall not be eligible for compensation unless they arise from additional wishes of the Customer or from circumstances which should reasonably be at the expense and risk of the Customer. Work which the Supplier could or should have foreseen would be necessary to deliver the Performance in accordance with the agreed specifications shall not be regarded as additional work.
5.2 If the Supplier is of the opinion that there will be additional work which is eligible for compensation, he shall inform the Customer thereof as soon as possible in writing and shall issue a written quotation, which will specify a fixed price as well as a time for completion of the additional work.
5.3 The Supplier shall not start with the performance of the additional work before the Customer has approved in writing the written quotation as referred to in the previous paragraph. The additional work is also subject to these conditions.
6 - Delivery of the Performance (general)
6.1 Supplier shall deliver the Performance at the agreed location and at the agreed time or within the agreed period(s).
6.2 As soon as Supplier knows or expects that the Performance cannot be delivered at the agreed time or within the agreed period, Supplier shall immediately inform Customer of the cause, the consequences and the possible measures to limit the delay and any damage. This is without prejudice to the Customer's rights.
6.3 Unless explicitly agreed otherwise in writing, the Supplier is not entitled to deliver in parts.
6.4 The Supplier waives the rights and powers vested in the Supplier pursuant to the right of retention.
7 - Delivery of products
7.1 This article 7 only applies if and insofar as the Performance consists of the delivery of products.
7.2 The transport of products to be delivered by Supplier to the agreed location shall be at Supplier's expense and risk, including any related (import) taxes and other levies unless otherwise agreed.
7.3 All products must be properly packed and secured in such a way that with normal transport they reach their destination in good condition.
7.4 The Customer is entitled to demand from the Supplier that packing and packaging material supplied by him be removed free of charge.
7.5 As soon as the products delivered by the Supplier have been delivered to the agreed location and have been accepted by the Customer, the Customer becomes the owner of the goods. If payment for the products is made prior to delivery, the Customer shall become the owner of the products as soon as payment has been made.
7.6 The Supplier shall bear the risk of damage or loss of the products until the moment of acceptance by the Customer or, if this is at a later moment, until the moment of actual delivery of the case at the agreed place of delivery. The risk shall not pass to the Customer as long as the Supplier has not (fully) fulfilled his delivery obligations.
8 - Provision of services
8.1 This article 8 only applies if and to the extent that the Performance consists of the provision of services.
8.2 The Supplier guarantees that the services to be provided to the Customer shall be performed in a competent manner, in accordance with the latest state of the art and without interruption.
8.3 The Supplier is responsible for and shall take care of the resources, employees, and/or third parties to be called in for the services to be provided.
8.4 The employees deployed by the Supplier in connection with the services to be performed must have the right qualifications, experience, and knowledge as well as the usual and/or legally required diplomas or accreditation. The Customer may set additional or specific requirements for the employees deployed by the Customer, such as for example the submission of a Certificate of Good Conduct.
8.5 Should an employee be unable or, in the reasonable opinion of the Customer, unsuitable to perform the activities to be carried out in connection with the performance, the Supplier shall ensure the timely and adequate replacement of that employee, without any increase in the agreed rates or fee.
9 - Acceptance
9.1 If the Customer so requests, the Supplier shall offer (parts of) the Performance for approval (acceptance) and shall cooperate fully in this respect.
9.2 Even after acceptance, the Performance must continue to comply with article 10.1.
9.3 Rejected products or materials shall be at Supplier's disposal. If the Supplier does not collect the rejected products within a reasonable period set by the Customer, these products can be returned or destroyed by the Customer at the Supplier's expense and risk.
10 - Quality
10.1 The Supplier guarantees that:
a. the Performance meets the promised characteristics, the agreed specifications and conditions and/or drawings, samples, models, and/or other data approved by the Customer;
b. the Performance meets the soundness, quality, and environmental requirements to be imposed on it, and is free from defects as well as third-party rights;
c. the Performance complies with applicable industry regulations, applicable laws and regulations, and safety requirements and is suitable for the purpose for which the Performance is intended
d. it has the necessary quality, certifications, expertise, and experience to be able to implement the Agreement in a high-quality manner.
10.2 The Supplier guarantees that all relevant items and information have been supplied, including documentation, parts, auxiliary materials, accessories, tools, spare parts, user instructions, and instruction books. The Customer may use and reproduce the information thus provided for its own use.
10.3 If the Performance does not comply with article 10.1, the Supplier shall immediately repair or replace or remedy the defect or shortcoming at the expense of the Customer, at the Customer's discretion, and without prejudice to the Customer's other rights.
10.4 If the Supplier fails to fulfill his obligations under this article or fails to do so fully or properly, the Customer is entitled after a reasonable term, at the expense of the Supplier, either himself or through the intervention of a third party engaged by him, to replace or repair the delivered Performance.
10.5 The Customer may invoke Article 10.1 during a period which, in view of the nature of the Performance, is reasonable, but not less than a period of two years after delivery and acceptance of the Performance. Sections 6:89 and 7:23 of the Dutch Civil Code shall not apply.
11 - Availability of spare and service parts
11.1 Supplier warrants the availability of spare and service parts necessary for repair and maintenance of the delivered Performance at reasonable prices and usual discount for at least 10 (ten) years after the last delivery of the Performance under the Contract.
12 - Provision of information and verification
12.1 At the Customer's request, the Supplier shall provide, in the form and frequency prescribed by the Customer, all information and reports which the Customer considers relevant in the context of the (performance) of the Agreement.
12.2 The Customer is entitled to require a statement from the Supplier's external accountant as to the accuracy and completeness of the amounts invoiced to the Customer or other information provided by the Supplier to the Customer.
12.3 The Customer has the right to investigate the performance and quality of the Performance and the compliance with the agreements made and conditions applicable in that respect. The Supplier shall lend the Customer and any qualified auditor engaged by the Customer for the audit every assistance in this, and shall implement any points for improvement found at its own expense.
13 - Invoicing and payment
13.1 The Supplier is entitled to invoice after delivery and acceptance of the delivered Performance. Partial or pre-invoicing is only permitted after the written consent of the Customer.
13.2 Invoicing takes place in the manner prescribed by the Customer and must meet the legal requirements. Every invoice states the purchase or order number and is provided with a description of the delivered Performance to which the invoice relates and the other information required by the Customer.
13.3 Payment of amounts owed by the Customer shall take place within 60 days of receipt of the invoice by the Customer and acceptance of the invoiced Performance unless expressly agreed otherwise in writing.
13.4 The Customer is entitled to require the Supplier to provide security (such as the provision of a bank guarantee) for the fulfillment of its obligations under the Agreement.
13.5 The Customer and companies affiliated with the Customer are entitled to set off their claims on the Supplier against claims of the Supplier on the Customer or companies affiliated with the Customer.
13.6 Non-payment by the Customer of an invoice on the grounds of a clear substantive inaccuracy of that invoice or of the inadequacy of the invoiced Performance does not give the Supplier the right to suspend or terminate its performance.
13.7 Payment by the Customer does not imply a waiver of any right accruing to the Customer or acceptance of the Performance delivered by the Supplier.
14 - Location regulations
14.1 If the Supplier carries out activities at a location of the Customer, the Supplier shall observe the instructions, (statutory) regulations, and house and behavior rules applicable to the location. In performing the Agreement, the Supplier shall take all safety measures which, in view of the nature of the Agreement and according to generally accepted standards in the sector, are necessary and/or mandatory.
15 - Liability and Insurance
15.1 As far as liability is concerned, the parties adhere to the provisions of the Civil Code.
15.2 The Supplier shall indemnify the Customer against all claims and damages in connection with the delivery of the Performance by the Supplier, any shortcoming in the fulfillment of the Supplier's obligations towards the Customer, and/or any unlawful act by the Supplier.
15.3 Without prejudice to the above provisions, the Supplier shall, for the duration of the Agreement, maintain adequate liability insurance, which provides a minimum coverage of five million Euros per event. At the Customer's first request, the Supplier shall provide the Customer with a copy of the insurance policy.
16 - Ketenaansprakelijkheid en wet aanpak schijnconstructies bij levering diensten
16.1 Leverancier houdt zich in de uitvoering van de Overeenkomst ten opzichte van haar medewerkers aan geldende wet- en regelgeving en de eventueel toepasselijke cao. Leverancier legt alle arbeidsvoorwaardelijke afspraken ten behoeve van de uitvoering van de Prestatie op een inzichtelijke en toegankelijke wijze vast.
16.2 Leverancier verschaft desgevraagd aan bevoegde instanties en/of Afnemer toegang tot deze arbeidsvoorwaardelijke afspraken en werkt mee aan controles, audits of loonvalidatie, een en ander voor zover dat wettelijk is toegestaan.
16.3 Leverancier verplicht zich jegens Afnemer:
a. op eerste verzoek van Afnemer een kopie van actuele verklaringen inzake betalingsgedrag bij de Belastingdienst te verstrekken aan Afnemer;
b. alle aanwijzingen van Afnemer, onder meer in verband met identificatie van bij Afnemer door Leverancier tewerkgestelde medewerkers, strikt na te leven en deze op te leggen aan de desbetreffende medewerkers.
16.4 Leverancier is verplicht om de in artikel 16.1, 16.2 en 16.3 opgenomen verplichtingen onverkort op te leggen aan alle partijen waarmee zij contracten aangaat ten behoeve van de uitvoering van de Overeenkomst.
16.5 Afnemer is bevoegd om in door Afnemer te bepalen gevallen dat deel van de overeengekomen vergoeding dat betrekking heeft op loonbelasting, omzetbelasting en sociale premies in te houden op de door Afnemer verschuldigde bedragen en deze te voldoen op een door Leverancier aan te houden geblokkeerde rekening in de zin van de Wet Ketenaansprakelijkheid (G-rekening).
16.6 Leverancier vrijwaart Afnemer voor aanspraken van derden verband houdend met het niet nakomen van enige verplichting van Leverancier jegens diens medewerkers, Afnemer of de Belastingdienst.
17 - Ownership of materials
17.1 All materials, molds, software, source codes, designs (functional, technical and design), texts, descriptions, (technical) documentation, (administrative) data, and the like relating to the Performance are the property of the Customer and shall be carefully stored by the Supplier for a period of five years, or so much longer as required by the applicable statutory regulations. At the Customer's first request, the Supplier shall hand over or destroy the aforementioned materials. After the expiry of the aforementioned period, the parties shall determine in consultation what is to be done with these materials.
18 - Intellectual Property Rights
18.1 All intellectual property rights arising in the context of the Performance (which also include designs, images, drawings, sketches, models, and offers) accrue to the Customer at the time of their creation, unless explicitly agreed otherwise in writing. Insofar as required by law, the Supplier shall transfer these rights to the Customer upon the first request, which transfer is hereby accepted. Insofar as a further deed is required for the transfer of such rights, the Supplier hereby irrevocably authorizes the Customer to draw up such deed and to sign it on behalf of the Supplier. The transfer of intellectual property rights referred to in this article also implies the surrender of personality rights to the extent permitted by law.
18.2 To the extent that the Performance includes intellectual property rights (or comparable rights) which were already vested in the Supplier or its licensors at the start of the Agreement, and therefore was not specifically created for the benefit of the Customer, the Supplier hereby grants to the Customer, free of charge, a non-exclusive, worldwide, irrevocable, unlimited, transferable and perpetual (sub)license with regard to those rights.
18.3 The Supplier indemnifies the Customer against all claims related to the infringement of any right of a third party in respect of the delivered Performance.
18.4 In the event that it is established in or out of court that the use of (parts of) the Performance infringes on the rights of third parties, the Supplier shall, at his expense and at the Customer's choice
a. obtain the right for the Customer to continue using the Performance;
b. replace the infringing part of the Performance with another, non-infringing part; or
c. modify the Performance, with due observance of the requirements and specifications set by the Customer, in such a way that the infringement ceases.
18.5 Any change and/or replacement in connection with article 18.4 may not result in the Customer being restricted in the possibilities for use of (parts of) the Performance. If the Supplier does not succeed in realizing one of the above-mentioned solutions, the Supplier shall take back the Performance and compensate the Customer for the price on the basis of the then-current new value, all this without prejudice to the Customer's other rights.
18.6 The Supplier is not allowed to use trademarks, trade names, and logos of the Customer or companies affiliated to the Customer without the Customer's prior written consent.
19 - Secrecy and handling of (personal) data
19.1 The Supplier shall observe confidentiality with respect to information, specifications, drawings, know-how, and other data originating from the Customer, the confidential nature of which is known or should be known to him. The Supplier is not permitted to make the aforementioned data available to a third party in any way whatsoever or to use them himself other than in connection with the Agreement. The Supplier shall impose this obligation on its personnel and on third parties engaged by it.
19.2 The Supplier is only allowed to advertise or give publicity to the fact that the Supplier supplies products to or performs services for the Customer or to use the Customer as a reference after having received explicit written permission from the Customer. The Customer is entitled to withdraw the permission given.
19.3 If the Supplier uses, collects, and/or records personal data in the framework of the Performance, the Supplier shall comply with all applicable (European) laws and regulations in the field of personal data protection. At the Customer's first request, the Supplier shall sign a processing agreement from the Customer to guarantee this.
19.4 All data used, collected, and/or recorded by the Supplier in the framework of the Performance are and shall at all times remain the property of the Customer and shall be adequately protected by the Supplier against loss, disclosure, or unlawful processing. The Supplier shall provide this data to the Customer upon the first request in the format desired by the Customer. The Supplier is not permitted to change this data, use it (other than in connection with the performance of the Agreement), destroy it, or provide it to any third party, without the Customer's prior consent.
20 - Force majeure
20.1 In the event of (temporary) force majeure, the Supplier shall be (temporarily) released from his obligations under the Agreement. If the force majeure situation has not ended within three weeks, the Customer has the right to dissolve or cancel the Agreement. In this case there is no right of the Supplier to compensation or undoing of already delivered performances.
20.2 The term 'force majeure' shall in any case not be understood to include non-fulfilment or late fulfilment by a third party of its obligations towards the Supplier; illness, unsuitability of or lack of personnel of the Supplier or of third parties engaged by the Supplier; and strikes.
21 - Term, cancellation, dissolution, and termination
21.1 Unless the parties have explicitly agreed in writing on a fixed-term contract or agreed on a notice period other than the one stated below, the Customer is entitled to terminate the Agreement (prematurely) subject to a notice period of one month, without the Supplier being entitled to any compensation.
21.2 In case the performance of the Performance as a result of Covid-19 (or a variant of Covid-19 or any other epidemic) and/or by measures imposed by the authorities in connection therewith cannot take place, or cannot be performed as intended at the conclusion of the Agreement and/or placement of the relevant order(s), the Customer is entitled to cancel the Agreement and/or relevant order(s) free of charge, without the Supplier being entitled to compensation.
21.3 In the event of
a. the Supplier fails to fulfill any of his obligations under the Agreement (or these Conditions) and the Supplier, after having been warned in writing, fails to fulfill his obligation(s) within a reasonable period of time as set out in the relevant warning; or
b. the takeover of (part of) the business of the Supplier
With immediate effect and without judicial intervention being required and without the Customer being liable to pay any compensation, the Customer is entitled either to suspend the fulfillment of its obligations under the Agreement or to dissolve the Agreement, either wholly or in part.
the Agreement, or to dissolve or give notice of termination of the Agreement in whole or in part, at the Customer's discretion. In all cases, the Customer is entitled to charge the Supplier for all damage suffered and costs incurred by the Customer.
21.4 Each of the parties has the right to terminate the Agreement in whole or in part with immediate effect, without being obliged to pay any compensation, by means of a written notification to the other party if:
a. the other party is granted a moratorium or declared bankrupt;
b. the other party ceases its business activities or liquidates its undertaking.
22 - Consequences of termination
22.1 In the event of full or partial termination of the Agreement, regardless of the cause, the Supplier shall:
a. provide data, documents and/or materials already developed by the Supplier under the Agreement and any data necessary for its further development to the Customer upon request;
b. lend its full cooperation to the transfer of the work performed by the Supplier under the Agreement to the Customer or to a third party designated by the Customer so that the continuity thereof is guaranteed
c. at the Customer's request, to continue the delivery of the Performance under the same conditions as laid down in the Agreement for up to six months after the end of the Agreement, so that a proper transfer is guaranteed.
23 - Other provisions
23.1 The Customer may ask the Supplier to make use of an ICT tool for requesting quotes, processing orders or submitting invoices, for which the Supplier shall render its co-operation without charging any additional costs.
23.2 The Supplier is not permitted to transfer rights and obligations arising from any agreement with the Customer in whole or in part to a third party or to pledge them, without the prior written consent of the Customer.
23.3 Notwithstanding the other provisions of these conditions, the Supplier is only entitled to engage third parties for the provision of the Performance with the written consent of the Customer. Even after consent has been obtained, the Supplier always remains fully liable and responsible for the (timely and correct) performance of all the Supplier's obligations towards the Customer.
23.4 If the Customer is entitled to impose a penalty on the Supplier, for whatever reason, this penalty will never replace any other rights of the Customer, such as the right to damages or the right to performance.
23.5 Should any provision in these conditions or any Agreement be void or unenforceable pursuant to applicable mandatory provisions, this shall not affect the validity of the remaining provisions.
24 - Applicable law and disputes
24.1 These terms and conditions and any Agreement shall be governed by Dutch law. The applicability of the Vienna Convention on contracts for the sale of goods is excluded.
24.2 Any dispute between the Supplier and the Customer shall be submitted for settlement to the competent court in the district where the Customer is located.
PART B - FLEXIBLE LABOUR
The provisions of this Chapter shall apply in addition to Part A of these Terms and Conditions if the Supplier provides flexible labor to the Customer.
25 - Definitions
25.1 In this Part B the following definitions are used in addition to those in article 1:
Flexworker: The natural person, who is registered with the Supplier to obtain temporary work and enters into an (employment or agency) agreement with the Supplier to perform temporary work for the Customer.
26 - Management and supervision
26.1 The Customer shall use its best efforts in respect of the Flexworker to supervise or direct the work performed by the Flexworker on account of the assignment given to the Supplier.
27 - Requirements and replacement of Flexworker
27.1 The Supplier guarantees that its work shall be performed in a competent manner and shall always employ competent Flexworkers, who meet the applicable job profiles of the Customer, to the Customer.
27.2 The Supplier shall ensure that each Flexworker complies with all statutory requirements and permits to be able to legally perform work in the Netherlands. The Supplier hereby explicitly declares that it will comply with the obligations incumbent upon it pursuant to the Dutch Compulsory Identification Act (WID) and the Foreign Nationals (Employment) Act (WAV). The Supplier shall indemnify the Customer against all claims related to non-fulfillment by the Supplier of obligations as referred to in this article 27.2.
27.3 The Supplier shall require Flexworkers to comply with the Customer's instructions and applicable house rules.
27.4 The Supplier shall immediately arrange for the replacement of a Flexworker at the Client's request if the Client is not satisfied with the performance, characteristics or conduct of the relevant Flexworker.
27.5 Unless otherwise agreed in writing, and without prejudice to the other provisions of these conditions, the Client may terminate the supply of a Flexworker at any time, subject to a notice period of (i) one day if the Flexworker is working on the basis of a temporary employment agreement and (ii) one week in all other cases.
27.6 The Parties shall separately set forth in writing the conditions for the entering into of a direct employment relationship by the Customer with a Flexworker, failing which the Customer shall not be liable to pay the Supplier any fee when entering into a direct employment relationship with a Flexworker.
28 - Additional requirements Supplier
28.1 During the term of the Agreement, the Supplier shall:
a. registered in the trade register of the Chamber of Commerce as a company that provides labor under one of the following SBI codes: 78201 (Temporary employment agencies), 78203 (Job pools) or 7830 (Payrolling); and
b. certified in accordance with NEN4400 and shall upon the first request provide the Customer with a copy of the certificate
29 - Monitoring and administration
29.1 For each Flexworker placed, the Supplier shall, with due observance of the applicable laws and regulations:
a. arrange for a meticulous check and recording of Flexworkers' personal details, including diplomas, number and period of validity of identification certificate, valid residence permit, and work permit (for Flexworkers of non-Dutch origin), which recording shall, if necessary, be transparent to the Customer and/or supervising authorities;
b. perform an interim check on the performance of the Flexworker;
c. perform a final check after completion of the Supply to verify whether the Flexworker has met the agreed requirements;
d. before the expiry of the pre-agreed term for the Supply of the Flexworker, contact the Client about the definitive end date.
29.2 The Customer shall in any event check with the Customer on the Flexworker's first working day that, on the basis of the person, his/her identity card, and the information received from the Supplier, the correct person has reported to the Supplier.
29.3 The Supplier shall keep records of the statements referred to in paragraph 1(a) of this article. These copies shall be kept for the Customer, with due observance of the legal retention period. At the Customer's first request, the Supplier shall make these records transparent to the Customer and/or supervisory authorities.
PART C - FACILITY SERVICES
The provisions in this chapter apply in addition to Part A of these Terms and Conditions if the Customer purchases Facility Services from the Supplier.
30 - Tools and use of spaces
30.1 Tools, materials, machines, and other materials, machines, and other aids required in connection with the performance are the responsibility of the Supplier. These can only be used if the Customer has agreed to this in writing. The use is at the expense and risk of the Supplier.
30.2 Prior to the commencement of the Agreement, the parties shall agree on which utilities and rooms of the Customer the Supplier may use. The Supplier shall keep the rooms it uses clean.
PART D - ICT
The provisions of this Part D shall apply additionally
apply to Part A of these Conditions if ICT is part of the Performance.
31 - Definitions
31.1 In this Part D the following definitions are used in addition to the definitions included in article 1:
- Acceptance Test: The (test) procedure with which it can be demonstrated that the Equipment and Software each separately, in mutual coherence and in connection with other equipment and software to be used by the Customer functions in accordance with the agreed specifications, the intended purpose and the other requirements as laid down in the Agreement.
- Software: the whole of Standard and Custom software with accompanying new and/or improved versions.
Custom software: the software created in connection with or as a result of an agreement between the Customer and the Supplier, including (i) software or software to be developed and/or adapted by the Supplier for the benefit of the Customer and (ii) changes and/or additions to the Standard Software, including the associated documentation, materials, object codes, and source codes.
- Standard Software: software with accompanying Documentation and materials, as described in the Agreement, which has not been specifically developed or adapted by the Supplier for the benefit of the Customer.
- Documentation: all user, operating, and technical manuals, flow charts, descriptions, and other documentation necessary or useful for the implementation, use, understanding, and maintenance of the Equipment and Software.
- Equipment: The equipment or hardware to be supplied by the Supplier to the Customer, including the accompanying Documentation and materials on which or in connection with which the Software must be implemented and must function by the Supplier.
- License: The right of the Customer to use the Software in accordance with the provisions of the Agreement.
31.2 'Performance' as defined in article 1 is also understood in this Part D to mean Equipment and Software, if and insofar as these are supplied by the Supplier.
32 - Delivery
32.1 Unless otherwise agreed, the Supplier shall arrange for delivery and working installation or implementation of the Software and/or Equipment at the Customer's premises.
32.2 Simultaneously with the delivery of Bespoke software the Supplier shall transfer to the Customer information carriers with source and object codes, Documentation (including a detailed elaboration of the technical specifications), and other materials pertaining to the Bespoke software de facto and in the (intellectual) property.
33 - Documentation
33.1 The Documentation to be provided by the Supplier shall give a correct, complete and detailed description of the Equipment and/or Software to be supplied by the Supplier and of the maintenance thereof. The Documentation is suitable to enable users to easily use the Equipment and/or Software to its full extent and to maintain it or have it maintained. Furthermore, the Documentation must be drawn up in both the English language and the language of the country in which the Customer is located.
33.2 If the Customer finds that the Documentation provided is incomplete, incorrect or outdated, the Supplier will replace, alter or adapt the Documentation at the Customer's first request and at its own expense.
33.3 The Customer may reproduce the Documentation for his own use.
34 - Quality
34.1 In addition to Article 10.1, Supplier warrants that:
a. The Software and Equipment function and are fit for purpose;
b. The Software and Equipment are free of defects and contain no foreign elements (such as logic bombs, back doors, viruses, or worms);
c. The Software and Equipment works efficiently, properly and, if the Software and Equipment were supplied by the Supplier, interdependently;
d. The Software and Equipment continue to meet the agreed and promised requirements, properties, and specifications even during peak loads;
e. The Software and Equipment shall (continue to) function fully and without further investment with the Customer's network, system, software, and equipment.
35 - Security and continuity
35.1 The Supplier shall ensure that the Performance meets the security requirements that may reasonably be set for it and the security requirements set by the Customer.
35.2 At the Customer's request, the Supplier shall deposit the relevant versions of the Software in source code form together with all materials which are necessary for the installation and implementation, for understanding the composition and structure of the Software and for the maintenance of the Software with an independent third party (the "Agent"). The Agent shall provide the aforementioned materials to the Customer free of charge and without additional conditions if the Supplier is granted a moratorium on payments, goes bankrupt, or fails to meet its obligations and the Customer is entitled to terminate the Agreement on this basis.
35.3 If and insofar as the Performance consists of providing 'Software as a Service (SaaS), the Supplier shall ensure adequate back-up facilities for the Customer's data which are collected using or in SaaS. Furthermore, the Supplier shall enable the Customer to store this data from the Supplier's website or interface in a format to be determined by the Customer in order to make his own back-ups.
36 - Acceptance
36.1 Prior to the delivery and/or installation of the Performance, the parties shall agree on the acceptance criteria and the manner in which the Acceptance Test shall take place.
36.2 The Customer shall perform the Acceptance Test within a reasonable period of time after delivery and/or installation of the Performance. The Customer's acceptance of the Performance shall be recorded in writing by the Customer. The date of the written record shall count as the acceptance date.
36.3 If the Customer does not accept (parts of) the Performance, the Customer shall notify the Supplier thereof in writing, stating reasons. The Supplier shall adjust the non-accepted (parts of the) Performance without delay and offer it to the Customer again for acceptance. If the Customer does not (fully) accept the Performance even then, the Supplier is in default. In that case, the Customer is entitled to dissolve or terminate the Agreement in whole or in part, without prejudice to the other rights to which the Customer is entitled.
37 - Maintenance
37.1 If the Customer purchases maintenance from the Supplier, the Supplier shall take care of:
a. repairing faults in the Performance and removing failures, both preventively and correctively; and
b. - in the case of Software maintenance, the provision of improved and new versions of the Software.
37.2 Maintenance shall be carried out in such a way that it causes as little hindrance as possible to the Customer's business operations. Maintenance shall be carried out at the Supplier's location unless it is necessary to carry out the maintenance at the Customer's location.
37.3 If the Customer reports a fault or malfunction in the Performance to the Supplier, the Supplier shall start as soon as possible and subsequently work continuously and with the best possible dedication on remedying the fault or removing the malfunction.
37.4 Adjustments to Equipment or Software may not - in the Customer's opinion - adversely affect the Performance. Improved and new versions of the Software must contain at least the same functionalities as originally agreed.
37.5 The Customer is not obliged to take a new or improved version of the Software into use. The Supplier is able to carry out maintenance at least 7 years after delivery and acceptance of the Equipment and/or Software.
37.6 The costs of executing Software maintenance are included in the costs which the Customer pays the Supplier for the use of the Software.
38 - Licence
38.1 If the Customer acquires a Licence, this Licence is irrevocably granted by the Supplier to the Customer for the period stated in the Agreement. If no specific term for the Licence has been agreed, the Customer has the perpetual right to use the Software for which the Licence was granted and this right cannot be terminated.
38.2 The Customer is entitled to allow third parties to use the License if this is necessary or useful for carrying out work for the Customer. Furthermore, the Customer is entitled to transfer or give in use the Licence to an affiliated company.
38.3 If the Supplier fails or refuses to fulfill his obligations in connection with the Licence on market terms, the Customer has the right to modify or have modified the Licensed Software for maintenance purposes or otherwise.
38.4 Unless explicitly agreed otherwise in writing, the right of use is not bound to certain equipment, location, or persons.
38.5 The Customer is entitled to make copies of the Software for backup purposes. In the event of calamities, these copies may be used for fall-back to fall-back facilities of the Buyer or third parties engaged by the Buyer for that purpose.
PART E - LOGISTICS
The provisions of this Part E shall apply in addition to Part A of these Conditions if the Performance consists solely of logistics services.
39 - Additional conditions
39.1 If the Performance to be provided by the Supplier consists of the transport of goods for the Customer within the Netherlands, the General Transport Conditions 2002 version 2015 ("AVC 2015") apply except insofar as they have been deviated from by Agreement or in these Conditions - insofar as this is permitted on the basis of mandatory provisions.
39.2 If the Performance to be provided by the Supplier consists of the transport of goods for the Customer, whereby the Dutch borders are crossed, the CMR Convention shall apply. In the event of contradictions between the provisions of the Agreement or these conditions, the provisions of the CMR convention shall prevail.
PART F - EXECUTION OF WORKS, TECHNICAL INSTALLATION WORKS, AND/OR MAINTENANCE
The provisions of this Part F apply additionally to Part A of these Conditions if the Performance relates to the execution of (technical installation) works and/or maintenance thereof.
40 - Definitions
40.1 In this Part F the following definitions are used in addition to those included in article 1:
- Auxiliary materials: tools, equipment, auxiliary materials, equipment, auxiliary materials, auxiliary works, and other auxiliary materials necessary for the performance of the Performance and the carrying out of auxiliary works necessary for the performance of the Performance and the carrying out of auxiliary works necessary.
- Object: the item, the installation of any other object in respect of which the Supplier performs or will perform maintenance activities at the Customer's instruction.
- Item: monetary amounts designated as such in the agreed budget and at the expense of which expenses further described in the budget will be charged.
40.2 'Supplier' as defined in article 1 can in this Part F also mean a 'contractor'.
41 - Performance
41.1 The Supplier is obliged to carry out the Performance in accordance with the drawings to be provided by or on behalf of the Customer. The Supplier is obliged to follow the orders and instructions given to him by the Customer.
41.2 The Supplier's obligations include:
a. the supply of the necessary building materials and the performance of the necessary work;
b. the provision of auxiliary materials;
c. the payment of advance payment, costs of connection of auxiliary pipes, and the like.
41.3 The manner in which the Performance is carried out must be such that neither the Customer nor third parties are likely to experience any unnecessary hindrance.
41.4 If objects or substances are found during the performance of the Performance, which can reasonably be expected to cause damage to persons, property, or the environment, the Supplier shall immediately report this to the Customer. Furthermore, the Supplier shall immediately take the safety measures required by the circumstances, if possible in consultation with the Customer.
41.5 The Supplier shall immediately inform the Customer in writing in the event of dangerous situations, risks, near-accidents, and accidents.
41.6 The Customer is entitled to appoint one or more third parties to be called in by the Customer as the person(s) charged with managing the performance.
42 - Knowledge of Supplier
42.1 Prior to the performance of the contract, the Supplier shall acquaint himself with all relevant facts and circumstances - including the location of cables and pipes - on the site and/or in the buildings where the Performance is to be carried out.
42.2 The Supplier is deemed to be familiar with the statutory regulations and government decisions relevant to the performance of the Performance. The consequences of compliance with these regulations and orders shall be for the account of the Supplier.
43 - Ancillary supplies
43.1 The Supplier shall be responsible for the transport, correct receipt, and storage of Ancillary Items.
43.2 The Supplier warrants that all Ancillary Items are properly maintained and approved in accordance with the applicable standards and requirements.
44 - Location
44.1 The Supplier is obliged to leave the rooms he enters in connection with the performance of the work or where the Performance is delivered clean at the end of the working day and after the work is finished. Waste and packaging material must be removed by the Supplier immediately after it is released, at its own expense and risk.
45 - Planning
45.1 Unless otherwise agreed, the activities carried out by the Supplier shall be delivered on the date indicated by the Customer and in accordance with the Customer's work plan.
45.2 If the speed of construction or a changed order of the activities to be carried out makes an adjustment of the work plan desirable, the Supplier shall be obliged to fulfill his obligations under the Agreement in accordance with this adjusted work plan, without this leading to any claim for extra payment, an increase in the costs or compensation. Waiting time shall not be reimbursed.
46 - Acceptance
46.1 The Performance shall be deemed delivered when the Customer has approved the work in writing after inspection and any remaining points or defects have been repaired to the Customer's satisfaction and the Customer has declared in writing that the Performance performed by the Supplier can be deemed delivered. If the Customer does not approve the Performance, the Customer shall inform the Supplier thereof, stating the reasons.
46.2 In the event of rejection by the Customer, the Supplier shall immediately proceed to repair or replace the rejected item, without the Supplier being entitled to any additional compensation and without prejudice to the Customer's right to compensation for the damage he has suffered.
47 - Maintenance
47.1 If the Performance also consists of maintenance, the Supplier shall ensure the repair of defects to the Object and the removal of faults, both preventive and corrective.
47.2 Supplier shall repair defects and faults during the maintenance period at the Customer's first request, free of charge and with due haste. If service levels have been agreed between the parties with regard to the performance of maintenance, the Supplier guarantees that these service levels will be observed.
48 - Affixing of advertising
48.1 The affixing of his name, advertising, or other notices by the Supplier on fences, hoardings, or elsewhere on the worksite is only permitted after written approval by the Customer.
49 - Compensation
49.1 If the sum of the expenditures, which are charged to a Supposed Item, turns out to be higher or lower than the amount of that Supposed Item, the discrepancy will be settled, after written agreement thereof by the Customer and subject to the following:
a. When purchasing building materials and equipment, the prices shall be calculated on the basis of delivery free to the worksite;
b. When work is carried out, the actual hours spent and the hourly rates agreed upon between the parties shall be taken into account;
c. Unless expressly agreed otherwise in writing, the Supplier shall not be entitled to apply a surcharge to the fees referred to in (a) and (b).
49.2 The costs on the construction site for general arrangement, care, and execution shall not be charged separately but shall be deemed to be included in the agreed fee.