General terms and conditions Blueforce B.V.
Article 1. Offer and Agreement
- These general terms and conditions, hereinafter: “these conditions”, apply to all offers, quotations and (related) agreements pertaining to the provision of goods and services (inter alia, pursuant to Article 400, Book 7 of the Dutch Civil Code) by or to Blueforce B.V., hereinafter referred to as “BLUEFORCE”.
- In these conditions “the Other Party” is referred to as the party that enters into negotiations and/or an agreement with BLUEFORCE, or its legal successors or auxiliary persons. BLUEFORCE and the Other Party are hereinafter jointly referred to as “Parties”.
- An agreement for the provision of services is an organisational consultancy assignment: an assignment for contributing, for the benefit of the Other Party, to identifying, analysing and solving problems, particularly IT solutions, arising within and/or in relation to an organisation and/or between organisations. These agreements are accepted and performed to the exclusion of Articles 402 and 407 paragraph 2, Book 7 of the Dutch Civil Code.
- Related agreements are agreements entered into that pertain to, inter alia, the provision and/or maintenance of software and/or the provision of hosting services.
- All offers and quotations are without obligation, unless the offer contains an acceptance term. Offers and quotations must be accepted in writing. The agreement is concluded on the date the agreement has been signed by the parties and received by BLUEFORCE.
- Any deviations from these conditions shall only be valid if agreed in writing by the parties. If the provisions of an agreement signed by the parties deviate from the provisions of these conditions, the provisions of the agreement shall prevail.
- Any purchase terms and conditions or other conditions of the Other Party shall not apply to agreements with BLUEFORCE and are hereby expressly rejected, unless otherwise agreed.
- Offers and quotations by BLUEFORCE are based on information provided by the Other Party. The Other Party warrants that it has provided all essential information for the design and performance of the agreement. BLUEFORCE will perform the consultancy services to be provided to the best of its ability and in accordance with the requirements of good workmanship. The latter obligation has the nature of a best-efforts obligation since achieving the desired end result cannot be guaranteed.
- If the Other Party includes changes (whether or not in respect of minor items) in an offer or quotation, BLUEFORCE shall not be bound unless expressly accepted in writing by BLUEFORCE.
- A composite price quotation shall not oblige BLUEFORCE to execute part of the assignment against a corresponding part of the given quotation.
- Offers and quotations shall not apply automatically to future assignments.
Article 2. Prices and Payment
- All prices and rates are exclusive of turnover tax (VAT) and other levies imposed by the government, as well as other costs incurred in relation to the agreement, including travel and subsistence expenses, unless otherwise indicated.
- An interim change to the costs and the level of wages (CBS index of CAO wages per hour) that necessitates BLUEFORCE to adjust its rates or other allowances (such as for travel and accommodation expenses and other job-related expenses) during the term of the agreement, is passed on.
- BLUEFORCE is entitled to increase the price, if it becomes apparent during the performance of the work that the originally agreed or expected amount of work was insufficiently assessed upon conclusion of the contract, and this is not attributable to BLUEFORCE, to such an extent that it cannot reasonably be expected of BLUEFORCE to perform the work agreed at the original price. In that case, BLUEFORCE will inform the Other Party of its intention to increase the price. BLUEFORCE shall specify the date on which the increase will take effect.
- Unless expressly agreed otherwise in writing, the Other Party shall pay within 30 days after the invoice date by transfer to a bank account to be designated by BLUEFORCE, without deduction or set-off. Complaints in respect of the invoice must be communicated in writing and sufficiently motivated to BLUEFORCE, within eight days after the invoice date.
- BLUEFORCE reserves the right to demand advance payment in the quotation to cover costs to be incurred. In that case, the performance of the assignment will not commence until after receipt of the amount to be paid in advance.
- In the event of late payment and after the Other Party has been demanded to pay at least once, the Other Party shall be in default by operation of law and will be due the prevailing statutory interest on the outstanding amount. The interest on the amount due will be calculated from the date the Other Party is in default until the date of payment of the full amount due, unless otherwise prescribed by mandatory legal provisions.
- If the Other Party has failed to pay, even after the period specified has expired in the written demand, it shall also be obliged, in addition to the amount due, to compensate BLUEFORCE for all judicial and extrajudicial collection costs, lawyer’s fees included. The amount of these costs can be determined by BLUEFORCE at 15% of the total amount due.
- The due dates for the work to be completed are to be regarded as deadlines only if explicitly agreed in writing. Exceeding this deadline shall not give the Other Party the right to suspend any obligation (such as payment) or right to compensation.
- In case of a joint assignment granted to BLUEFORCE, the Other Parties, in so far as the consultancy work has been carried out on behalf of the joint clients, shall be jointly and severally liable for payment of the invoice, irrespective of the name on the invoice.
Article 3. Confidentiality and Secrecy
- BLUEFORCE and the Other Party are bound to secrecy with respect to all confidential information they may have acquired within the context of this agreement. Information is deemed to be confidential if this is communicated by the Other Party, or if its confidentiality arises from the nature of the information.
- If BLUEFORCE, pursuant to a statutory provision or a court order, is obliged to (also) provide confidential information, and BLUEFORCE may not rely on a relevant right to refuse, whether legal or recognised or permitted by the competent judge, then BLUEFORCE is not obliged to pay any compensation and the Other Party is not entitled to terminate the agreement.
Article 4. Intellectual property
- All intellectual property rights, including the rights to software and other products of the mind, arisen during or as a result of the performance of the assignment shall accrue to BLUEFORCE. Intellectual property rights accruing to BLUEFORCE will only be transferred to the Other Party if agreed in writing. Therefore, the Other Party is not permitted to act as follows in respect of works that are subject to copyright, such as documents or other intellectual property rights, without the prior written consent of BLUEFORCE:
- to change or edit them;
- to delete or modify any statements regarding copyrights, or other intellectual property rights.
- The Other Party shall have the right to use the documents and other works stated in the preceding paragraph for the purpose for which they have been provided and to make copies thereof for its own use. The Other Party gives BLUEFORCE permission to use the logo of the Other Party in the advertisements of BLUEFORCE.
- The Other Party warrants that no third party rights preclude the provision of equipment, software or other materials for the performance of the agreement. The Other Party will indemnify BLUEFORCE against claims by third parties in respect of said provision and the use of the provided hardware, software or other materials.
- BLUEFORCE reserves the right to use the knowledge acquired in the performance of the work for other purposes, provided that no confidential information is disclosed to third parties.
Article 5. Obligations of the parties
- BLUEFORCE is bound to perform its assignment to the best of its knowledge and ability.
- If BLUEFORCE upon acceptance and/or the performance of its work is confronted with facts or circumstances that may adversely affect the progress of its activities and/or results, BLUEFORCE shall inform the Other Party thereof as soon as possible.
- The Other Party will timely provide BLUEFORCE with all information and full cooperation BLUEFORCE needs for the proper performance of the assignment.
- If the information necessary for the performance of the agreement is not or not timely provided to BLUEFORCE, or not provided in accordance with the arrangements, or if the Other Party fails to fulfil its obligations in any other way, BLUEFORCE shall have the right to suspend the performance of the assignment, and BLUEFORCE shall have the right to charge resulting costs in accordance with its usual rates.
- Employees and third parties engaged by BLUEFORCE will be working under its responsibility, unless engagement of the employees and/or a third party is required by the Other Party.
- If BLUEFORCE so requests, the Other Party shall provide employees of its organisation at no cost, who are or will be involved in the work of the organisational consultancy assignment.
- If BLUEFORCE so requests, the Other Party shall provide working space and office facilities at no cost, which are necessary to properly perform the consultancy assignment on location.
Article 6. Changes, additional and less work
- The Other Party accepts that, where the services to be provided and/or work is expanded or changed, the time of completion of the work and the estimated cost may be affected as a result.
- BLUEFORCE shall inform the Other Party as soon as possible, if circumstances arise which result in a change in the assignment and/or the expected deployment and time.
Article 7. Transfer and subcontracting
- Without the written permission of the other party, the parties are not entitled to transfer the rights and obligations under this agreement to a third party. This permission shall not be refused without reasonable grounds; however, the consenting party shall be entitled to attach conditions to that permission.
Article 8. Practical arrangements
- Consultancy may only be purchased per half-day period. A consultancy day consists of eight hours. Upon purchase of a half-day (4 hours) the work is remote place.
- Consultancy work will be carried out within office hours, unless the parties have agreed otherwise. The following surcharges apply to consultancy work outside office hours.
- Monday through Friday, between 18:00 and 00:00: 125%
- Monday through Friday, between 00:00 and 09:00: 200%
- Saturdays: 150%
- Sundays and public holidays: 200%
- If work is carried out on site, the Other Party will ensure that workplaces fully comply with the Health and Safety requirements. The Other Party will also be responsible for the timely and ample supply of the people, knowledge, infrastructure and other resources required in the opinion of BLUEFORCE.
- Agreed days and/or half-days on which consultancy work will be carried out may be cancelled or changed five working days in advance at the latest without costs being charged. In case of later cancellation or change, the costs will be payable in full. A cancellation and/or change shall be communicated to the responsible BLUEFORCE project manager.
Article 9. Liability
- If either party fails to fulfil any of its obligations under the agreement, the other party shall give the defaulting party a proper notice of default in writing and as detailed as possible by means of which a reasonable period is provided to remedy the shortcoming.
- BLUEFORCE is liable for the shortcomings in the performance of the assignment by BLUEFORCE, where such shortcomings result from a failure to exercise the due care and expertise or professionalism which may be expected with regard to the performance of the assignment.
- The liability of BLUEFORCE for damages due to an attributable failure in the performance of the agreement is limited to the amount of the fee stipulated in the agreement. A further limitation of the said liability equal to the amount invoiced for the last six months applies to assignments that have a completion time exceeding six months.
- Any claims by the Other Party must be communicated to BLUEFORCE during the trial period, at least prior to the official completion, failing which the Other Party shall forfeit its right. If (all components of) the software is approved by the Other Party or the software is taken in use by the Other Party, the date of approval or the date of the start of the use of the software will be considered as the date of completion. BLUEFORCE shall not be liable for damage arising after that date.
- Liability for damage shall be exclusively accepted in respect of:
a. the reasonable costs, incurred to determine the cause and the extent of the damage, in so far as ascertaining these is related to direct damage within the meaning of these conditions;
b. any reasonable costs incurred to have the defective performance of BLUEFORCE conform to the Agreement, in so far as these can be attributed to BLUEFORCE;
c. the reasonable costs incurred to prevent or mitigate damage, in so far as the Other Party demonstrates that these expenses resulted in mitigation of direct loss within the meaning of these conditions.
- The liability of BLUEFORCE for indirect damages, consequential damages, lost profits, lost savings and damage due to business stagnation is excluded.
- The Other Party shall indemnify BLUEFORCE against all claims by third parties relating to the conclusion and/or performance of the agreement.
- Above limitations or exclusions of liability of BLUEFORCE shall also apply to employees and other auxiliary persons BLUEFORCE engages in the performance of the agreement.
- The warranty conditions and general terms and conditions of the respective manufacturer shall apply to the software supplied by BLUEFORCE. An SMA or SLA may be separately concluded with BLUEFORCE.
- If, after the date of acceptance, the Other Party would like changes to be made to the design of the software supplied or to the database, it must inform BLUEFORCE accordingly. BLUEFORCE shall not be liable for any damage the Other Party may suffer if no acceptance environment is made available to BLUEFORCE to adequately test the proposed changes.
- The limitations of liability in respect of direct damages included in these conditions shall not apply if the damage is due to intent or gross negligence by the BLUEFORCE or its subordinates.
Article 10. Force Majeure
- Parties are not bound to fulfil any obligation if they are prevented to do so as a result of any circumstance that cannot be attributed to their fault, and for which they are not accountable under the law or a legal act, or according to generally accepted standards.
- If performance of (any part of) the agreement has been delayed by more than three months due to force majeure, the parties to the agreement shall have the right to declare the (remainder of the) agreement dissolved by written statement. This shall not result in mutual liability for compensation. Any advance payments received will be refunded by BLUEFORCE, except that which has already been performed by BLUEFORCE will be paid by the Other Party or will be set off in proportion to the agreed invoice value.
- In these conditions, force majeure, in addition to the meaning in case law and the law, shall mean all external causes, foreseen or unforeseen, that BLUEFORCE cannot influence, but due to which BLUEFORCE is unable to comply with the obligations.
Article 11. Termination
- BLUEFORCE may terminate the agreement with immediate effect by giving written notice to the Other Party, without a notice of default being required if:
a. the Other Party applies for or is granted (temporary) suspension of payments; the Other Party files for bankruptcy or is declared bankrupt;
b. the business of the Other Party is liquidated;
c. the Other Party ceases its current business or a substantial part of the assets of the Other Party are seized, or if the Other Party otherwise can no longer be considered capable of meeting the obligations arising from the agreement.
- Beyond the provisions in the preceding paragraph and elsewhere in the agreement, BLUEFORCE is entitled to terminate the agreement out of court by means of a written notice if the Other Party, after proper and detailed written notice of default in which a reasonable period is provided to remedy the shortcoming, is in default.
Article 12. Non-transfer of staff
1. During the term of the agreement and for one year following termination thereof, the Other Party shall not employ staff or contractors of BLUEFORCE or otherwise cause them to work for the Other Parry, directly or indirectly, except following proper consultation on the matter with BLUEFORCE.
Article 13. Applicable law and Dispute settlement
- Agreements between the Other Party and BLUEFORCE are governed by Dutch law.
- All disputes between parties will be submitted to the competent court within whose jurisdiction BLUEFORCE has its place of business, unless the parties agree in writing to settle or cause to settle their dispute elsewhere or otherwise.
Article 14. Amendment of conditions
- BLUEFORCE reserves the right to unilaterally amend and/or supplement these conditions. The adjustment is deemed to have been accepted if the Other Party has not objected to the amended conditions within 14 days after the amendment has been stated. In any case, any amendment to these conditions will be announced on the website.