GENERAL TERMS AND CONDITIONS - Tribe Of Sustainability Change Agents (TOSCA)
In these general terms and conditions the following terms when capitalised in the singular or plural have the meanings indicated:
Annex: Appendix to these terms and conditions containing specific provisions with regard to the Service to be provided;
Service: A service provided by TOSCA to the Client under the Agreement including, if applicable, the results of such services;
IP rights: All intellectual property rights and related rights such as copyright, trademark rights, patent rights, design rights, trading name rights, database rights and related rights, as well as rights to know-how and performances on a par with a patentable invention;
Client: The natural or legal person who has concluded or will conclude an Agreement with TOSCA;
Agreement: The written agreement between TOSCA and Client concerning delivery of the Service;
Parties: TOSCA - Tribe Of Sustainability Change Agents (TOSCA) and Client;
1.1. These terms and conditions apply to and form an inseparable part of all offers, quotations, work, agreements and delivery of services by or on behalf of TOSCA and any other related legal acts as between TOSCA and the Client or its legal successor. Where these terms and conditions state that an action must be performed in writing, this includes e-mail.
1.2. Deviations from these terms and conditions shall only be valid if expressly agreed in writing between TOSCA and the Client and shall only be valid for the specific agreement to which they refer.
1.3. These terms and conditions shall at all times take precedence over any purchasing or other conditions of the Client.
1.4. Once these terms and conditions have applied to a legal relationship between TOSCA and the Client, the Client shall be deemed to have agreed in advance to the applicability of these terms and conditions to Agreements concluded and to be concluded thereafter.
1.5. If and insofar as any provision in these terms and conditions is declared void or annulled, the other provisions of these terms and conditions shall remain in full force and effect. In such case, the parties will mutually determine a new provision to replace the void or annulled provision, taking into account as far as possible the meaning of the void/annulled provision.
1.6. In case of conflict between provisions of an Agreement and these terms and conditions, the provisions of the Agreement shall prevail.
1.7. Electronic communication between the Parties shall be deemed to be received on the day of transmission unless proved otherwise.
2. Quotations and formation of Agreement
2.1. A quotation or other offer made by TOSCA is always without obligation and must be seen as resulting in an Agreement on acceptance, unless otherwise indicated in writing by TOSCA.
2.2. Offers and quotations lose their validity four weeks after date of signature, unless otherwise stated in writing.
2.3. Client guarantees the accuracy and completeness of the data provided by it or on its behalf to TOSCA and on which TOSCA bases its offers. If such data prove to be incorrect or incomplete, TOSCA is entitled to amend the offer.
2.4. An Agreement is established by written acceptance by Client of an unamended, valid quotation and/or offer by TOSCA.
3. Execution of Agreement and delivery
3.1. TOSCA will carry out the Agreement to the best of its knowledge and ability. This Agreement imposes an obligation to perform to the best of a Party’s abilities, and not an obligation to achieve a result, unless and insofar as TOSCA has expressly promised a result in the written Agreement and the result in question is also specified in sufficient detail in the Agreement.
3.2. The Agreement determines the delivery periods and dates as well as the places and manner in which the Services will be delivered and/or completed. The lead time of an order depends on various factors and circumstances, such as the quality of the data and information provided by Client and the collaboration of Client and relevant third parties. The delivery periods mentioned shall therefore not apply as final deadlines, unless the Parties have expressly agreed otherwise in writing. In the event of (the risk of ) exceeding a (delivery) period, Parties shall consult as soon as possible in order to take appropriate measures.
3.3. If it has been agreed that the Services under an Agreement will be performed in phases, TOSCA is entitled to postpone commencement of Services for a phase until Client has approved the results of the preceding phase in writing.
3.4. TOSCA is not obliged to follow instructions that change or supplement the content or scope of the agreed Services; if such instructions are followed, the relevant work will be remunerated in accordance with TOSCA's usual rates and TOSCA will notify Client of this.
3.5. TOSCA is entitled to have all or part of the Agreement performed by third parties or to engage third parties in the performance of the Agreement.
3.6. Services will be deemed accepted between the Parties unless Client substantiates why the Services are not accepted, in detail, in writing, within ten (10) working days of delivery of the relevant Services. TOSCA must then replace or amend the Services within a reasonable period of time. If the Client again refuses to accept the Services, the Parties will repeat the acceptance procedure. This procedure will be repeated provided that Client substantiates during the repeated acceptance test why the Services have not been accepted.
3.7. The risk of loss, theft, embezzlement or damage to items, products, information/data, documents or programmes created or used in the context of performance of the Agreement shall pass to Client at the time they are placed under the actual control of Client or that of a party assisting Client.
5. Prices and terms of payment
5.1. The prices expressed in TOSCA offers, quotations and invoices exclude sales tax (VAT) and other levies imposed by the government, unless explicitly stated otherwise.
5.2. Unless expressly agreed otherwise, price indications, estimates, budgets and/or pre-calculations provided by TOSCA are indicative and no rights or expectations may be derived from them. TOSCA is obliged to inform Client if a pre-calculation or budget is exceeded only when this has been agreed between the Parties.
5.3. The Parties will state in the Agreement the date(s) on which TOSCA will invoice Client for Services. Invoices shall be paid by Client in accordance with the payment terms stated on the invoice. In the absence of a specific arrangement, Client shall pay the amount due within thirty (30) days of the invoice date, to the bank account specified by TOSCA.
5.4. If Client fails to pay the amounts due on time Client will be liable for statutory interest on the outstanding amount, without any reminder or notice of default being required. TOSCA is entitled to suspend its obligations from that time and until such time as Client has fulfilled its payment obligations. If Client remains in default of payment after demand for payment or notice of default, TOSCA may pass the claim on for collection in which case, in addition to the total amount then due, Client will be obliged to reimburse all judicial and extrajudicial costs, including costs of external experts.
5.5. TOSCA is entitled during the term of an Agreement to increase the prices for its Services annually with effect from 1 January, in accordance with the price index for the previous calendar year published by the CBS (Consumer Price Index, ‘Alle huishoudens’), plus a maximum of fifteen percent thereof (15%). TOSCA is entitled to implement this price increase at a later date if it deems it desirable from an administrative point of view.
5.6. Comments or complaints regarding invoices, bills and expense claims must be made in writing within fourteen (14) days of receipt of the relevant invoice, bill or expense claim, failing which they shall be deemed to have been accepted. Such complaints shall not suspend the obligation to pay.
5.7. TOSCA is entitled to invoice the Client on an interim basis and/or to require advance payments, to apply set off, or to require security for performance by the Client. If advance payments due are not paid or not paid on time, TOSCA is entitled to suspend the work until the agreed amount has been paid. This will constitute creditor default. Late delivery cannot be claimed against TOSCA in such case.
5.8. Client agrees to electronic invoicing by TOSCA.
6. Amendment of the assignment or additional work.
6.1. The Client accepts that the time schedule of the Agreement may be affected if the scope of the Agreement is extended and/or changed in the interim. If the interim change affects the agreed fee, TOSCA will notify the Client accordingly, as soon as possible.
6.2. Client is responsible for TOSCA being able to start the assignment on time.
6.3. If additional work has to be carried out by TOSCA pursuant to an amendment to the Agreement as a result of an additional request by Client, such work will be charged to the Client on a post-calculation basis using the rates applicable at the time, unless expressly otherwise agreed in writing.
6.4. TOSCA is entitled to carry out such additional work without (prior) written consent of the Client insofar as the costs incurred by this additional work do not exceed ten per cent (10%) of the originally agreed total price.
6.5. If the cost of additional work exceeds ten per cent (10%), TOSCA will inform Client. Parties will then mutually agree the measures to be taken.
7. Obligations of the Client
7.1. Client shall ensure that all data and/or information which TOSCA indicates as necessary, or which Client should reasonably understand to be necessary for the performance of the Agreement, including information relating to legislation and regulations to be observed by TOSCA which are specific to the Client's line of business, are provided to TOSCA in a timely manner, and Client shall render all cooperation requested by TOSCA. Quotations and offers by TOSCA as well as the Agreement concluded thereafter are based on the information provided by the Client.
7.2. The client guarantees the accuracy, completeness and reliability of the data and documents made available to the service provider, even if they originate from third parties, insofar as the nature of the assignment does not dictate otherwise.
7.3. If data required for the execution of the Agreement are not provided to TOSCA in time, TOSCA is entitled to suspend execution of the Agreement and/or charge the Client for the additional costs resulting from the delay, according to the usual rates in force at the time.
7.4. Insofar as usernames and/or passwords are provided by TOSCA in the context of the Agreement, the Client is responsible for these usernames and/or passwords and is fully and independently liable for any misuse made of the usernames and passwords, unless such misuse is the result of intent or gross negligence on the part of TOSCA.
7.5. Insofar as usernames and/or passwords are provided by TOSCA in the context of the Agreement, the Client is prohibited from providing these usernames and/or passwords to third parties without TOSCA's consent.
8. (Interim) termination and its consequences
8.1. An Agreement commences on the date as specified in Article 3 for the period as agreed between the Parties in writing and terminates by operation of law on the date agreed between the Parties or when the provision of Services has been completed.
8.2. Unless expressly agreed otherwise between the Parties there can be no interim termination of the Agreement.
8.3. Each Party is entitled to dissolve the Agreement in whole or in part in the event of bankruptcy or suspension of payments of the other Party, as well as in the event of shutdown or liquidation of the business of the other Party other than for the purpose of the reconstruction or merging of companies and other than in the event of a change in the control of the business of the other Party.
8.4. Dissolution of the Agreement on the grounds of imputable failure is only permissible after a written notice of default that is as detailed as possible and sets a reasonable term for remedying the failure, unless otherwise provided for in these terms and conditions or otherwise prescribed by law.
8.5. In the event of dissolution of the Agreement there will be no reversal of what TOSCA has already delivered and/or performed nor of the related payment obligation, unless Client proves that TOSCA is in default with regard to the essential part of such performance. Amounts invoiced by TOSCA before the dissolution in connection with what TOSCA has already duly done or delivered in performance of the Agreement will remain due in full, with due observance of the previous sentence, and will become immediately payable at the time of dissolution.
8.6. In the event of dissolution of the Agreement, all rights granted to Client shall lapse. Client shall no longer be entitled to use the Service.
8.7. Articles which by their nature are intended to continue to apply after the end of the Agreement shall remain in full force and effect after termination of the Agreement.
9. IP Rights
9.1. Unless otherwise stipulated in the Agreement all IP Rights, including copyright, patent rights, trademark rights, plan and design rights as vested in all the Services provided under the Agreement as well as any other materials or information made available by TOSCA, belong exclusively to TOSCA and/or its licensors.
9.2. Nothing in these terms and conditions and/or the Agreement implies a transfer of IP Rights. The Client only acquires the non-exclusive and non-transferable right to use the Services for the purposes and under the conditions set out in the Agreement. If not provided otherwise in writing, the right of use granted shall only apply to the Netherlands.
9.3. The Client is not allowed to remove or change any mention with regard to IP Rights in the results of the Services.
9.4. TOSCA expressly does not waive its personality rights as mentioned in Section 25 of the Copyright Act.
9.5. TOSCA is permitted to use the Services and the materials used for the performance of the Agreement, such as designs, plans, films, software, (electronic) files, reports, formats and interviews, for its own promotion and/or publicity, unless otherwise stipulated in the Agreement.
9.6. TOSCA reserves the right to implement technical protection measures in the Services. The Client is not allowed to circumvent these technical protection measures or to offer means for that purpose.
9.7. TOSCA indemnifies Client against legal claims by third parties based on the allegation that (parts of) the Services developed by TOSCA infringe any IP Right applicable in the Netherlands, on the condition that the Client informs TOSCA immediately in writing of the existence and content of such legal claim and leaves the handling of the case, including the conclusion of any settlements, entirely to TOSCA. To this end, Client shall provide the necessary powers of attorney, information and cooperation to TOSCA so that it can defend itself, if necessary on behalf of Client, against such legal claims.
9.8. The above obligation to indemnify shall lapse if the alleged infringement relates to:
(i) materials made available to TOSCA by Client; and/or
(ii) changes made or caused to be made to the Service by the Client.
9.9. If it is irrevocably established in law that the Services developed by TOSCA infringe any IP Right belonging to a third party, or if in TOSCA's judgement there is a good chance that such an infringement will occur, TOSCA will, as far as possible, ensure that Client can continue to use the Service (or something functionally equivalent) without disruption. If TOSCA, in its sole judgment, cannot ensure or cannot ensure other than in a way that is unreasonably (financially) burdensome that the Client can continue undisturbed use of the Service delivered, TOSCA will take back the delivered Service and credit the acquisition costs thereof, less a reasonable fee for usage. Any other or further liability of TOSAC or obligation of TOSCA to indemnify due to infringement of the IP Rights of a third party is completely excluded.
10.1. Parties shall treat all information they obtain from each other in any form, whether written, oral, electronic or tangible, including but not limited to software, (source) code, programmes, applications, customer data, know-how, technical specifications or documentation (‘confidential information’), as strictly confidential and keep it secret.
10.2. Parties shall only use confidential Information for the purposes for which it was provided and in doing so will observe at least the same duty of care and safeguards that apply to their own internal confidential information. Parties shall only provide confidential Information to employees to the extent necessary within the scope of the (performance of the) Agreement.
10.3. The obligations to keep confidential Information confidential do not apply to the extent that the Party that received information can demonstrate that the information in question:
(i) was already known to it at the time of receipt;
(ii) was already publicly known at the time of receipt;
(iii) became publicly known after receipt without this being attributable to the receiving Party;
(iv) has been lawfully received from a third party together with the right to disclose it free from any obligation of confidentiality;
(v) is required to be disclosed by law or regulation or pursuant to a court order and the providing Party has notified the other Party of such mandatory disclosure;
(vi) has been made public with the approval of the providing Party.
10.4. Neither of the Parties shall, during the term of the Agreement as well as for one (1) year after the end thereof, without the prior consent of the other Party, employ or otherwise directly or indirectly allow employees of the other Party who are or have been involved in the execution of the Agreement to work for them.
10.5. If Client breaches obligations concerning confidentiality, Client is liable to immediately pay TOSCA a fine of €5,000 for each breach and, in addition, an amount of €500 for each day that a breach continues. This is irrespective of whether the breach can be attributed to Client. Moreover, no prior notice of default or court proceedings are required to create liability for payment of such penalty, nor is any form of damages required.
10.6. The liability to pay the penalty referred to in the preceding paragraph shall not affect TOSCA's other rights including its right to claim damages in addition to the penalty.
11.1. TOSCA's liability for imputable failure in the fulfilment of its obligations and/or for wrongful acts is limited to compensation for the direct damage suffered by Client up to a maximum of the amount paid out in the case in question by the insurance company of the partner within the TOSCA partnership who took on the assignment as main contractor, or up to a maximum of the amount of the fee stipulated for the performance of the Agreement, whereby in the case of continuing performance contracts, the stipulated fee will be the fee for one year.
11.2. Direct damage means exclusively:
(i) reasonable costs that the Client would have to incur to have TOSCA's performance brought into compliance with the Agreement, however such compensatory damage shall not be paid if the Agreement is dissolved by or at the request of the Client;
(ii) reasonable costs incurred to determine the cause and extent of the damage, insofar as such determination relates to direct damage within the meaning of this Agreement;
(iii) reasonable costs incurred to prevent or limit damage, insofar as the Client demonstrates that these costs have resulted in limiting direct damage within the meaning of this Agreement.
11.3. Any liability of TOSCA for damages other than direct damage including but not limited to consequential damage, loss and/or damage to data, loss of profits and loss of turnover, is excluded.
11.4. The limitations mentioned in previous paragraphs of this article shall lapse if and insofar as the damage is the result of the intent or conscious recklessness of TOSCA.
11.5. The liability of TOSCA due to an attributable shortcoming in the fulfilment of an Agreement only arises in all cases if the Client gives immediate and proper written notice of default, whereby a reasonable term is set for remedying the attributable shortcoming, and TOSCA can also be held accountable after that period continues to fall short in the fulfilment of its obligations, except in the case of a permanent attributable shortcoming. The notice of default must contain a description of the shortcoming that is as complete and detailed as possible, so that TOSCA is able to respond adequately.
11.6. Agreement only arises in all cases if Client gives immediate and proper notice of default in writing, whereby a reasonable period is given to remedy the attributable failure, and TOSCA continues to fail imputably in the fulfilment of its obligations even after that period, except in the case of a permanently attributable failure. The notice of default must contain as complete and detailed a description of the failure as possible, so that TOSCA is able to provide a complete response.
11.7. A condition for the creation of any right to compensation is always that the Client reports the damage to TOSCA in writing as soon as possible after its occurrence. Any claim for damages against TOSCA will lapse twelve (12) months after the occurrence of the claim.
11.8. Client's use of the Services is entirely at Client’s own risk and responsibility. TOSCA accepts no liability for Client's use of the Services. Client shall indemnify TOSCA for any third party claims arising from Client's use of the Services.
12. Force majeure
12.1. There shall be no imputable failure to perform the Agreement by the Parties in the event of force majeure.
12.2. Force majeure includes, inter alia, interruptions in the supply of electricity, strikes, riots, government measures, fire, natural disasters, floods, shortcomings of suppliers to the Parties, shortcomings of third parties engaged by Parties, internet connection failures, hardware failures, failures of (telecommunication) networks and other unforeseen circumstances.
12.3. If the force majeure continues for at least thirty (30) days the Parties shall be entitled to dissolve the Agreement without being obliged to pay damages, rectify, or provide compensation in respect of such dissolution.
12.4. If TOSCA can still partially perform or has performed under the Agreement at the time of the force majeure, it is entitled to deliver such performance and invoice it separately, as if under a separate Agreement.
13. Transfer of rights and obligations
13.1. The rights and obligations under the Agreement can only be (sub)licensed and/or transferred by the Parties to third parties if the other Party agrees to this in writing.
14. Dispute settlement and mediation
14.1. If a dispute between the Parties cannot be resolved satisfactorily, the dispute shall, prior to submission to a court, be submitted to duly authorised representatives of the Parties to attempt possible settlement or to an independent mediator for mediation.
15. Applicable law and competent court
15.1. These terms and conditions are exclusively governed by Dutch law
15.2. Any disputes arising between TOSCA and Client in the context of or in connection with this Agreement will be submitted exclusively to the competent court in the district of Breda.