GENERAL TERMS AND CONDITIONS GRADIENT B.V.
ARTICLE 1: GENERAL
1. These general terms and conditions concern the terms and conditions of Gradient B.V., hereinafter referred to as: “Gradient”, registered in the trade register of the Chamber of Commerce for Amsterdam under Chamber of Commerce number: 62258788.
2. All references to “Customer” refer to the party whom Gradient provides it’s services and offers, as well as the party that gives the order to Gradient.
ARTICLE 2: APPLICABILITY
1. These conditions apply to all offers and to all Gradient agreements. The applicability of any purchase conditions or other conditions of the Customer is explicitly excluded.
2. The possible non-application of a (part of a) provision of these general terms and conditions shall not affect the applicability of the other provisions.
ARTICLE 3: OFFERS
1. All offers from Gradient are, unless agreed otherwise, without obligation and automatically expire after a period of 30 days.
2. The prices used by Gradient are exclusive of VAT and possible costs. These costs may include – but not exclusively – travel expenses, transportation costs and invoices from third parties engaged. Costs will be discussed up front with the Customer for approval.
ARTICLE 4: EXECUTION OF AGREEMENT
1. Gradient will execute the agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship.
2. Gradient has the right to engage third parties for certain activities.
3. The Customer shall ensure that all data, of which Gradient indicates that they are necessary or of which the Customer should reasonably understand that they are necessary, must be provided to Gradient in time. If the information required for the execution of the agreement is not provided to Gradient in time, Gradient has the right to suspend the performance of the agreement or to charge the Customer for the additional costs arising from the delay according to the usual rates.
4. If Gradient or third parties engaged by Gradient carry out activities within the framework of the assignment at the location of the Customer or a location designated by the Customer, the Customer shall provide the facilities reasonably desired by those employees free of charge.
ARTICLE 5: ADJUSTMENT AGREEMENT
1. If it becomes apparent during the execution of the agreement that it is necessary for a proper execution to change or supplement the work to be performed, the parties shall adjust the agreement accordingly in mutual consultation. The time of completion of the execution can therefore change. Gradient will inform the Customer of this as soon as possible.
2. If the change or supplement to the agreement will have financial consequences, Gradient will inform the Customer in advance.
ARTICLE 6: CONTRACT PERIOD AND EXECUTION TERMS
1. The agreement is entered into for an indefinite period of time, unless parties agree otherwise in writing.
2. Specified timings for the completion of an assignment can never be regarded as a final deadline, unless the parties have expressly agreed otherwise in writing. If Gradient does not expect to be able to fulfill its obligations within the specified period, it will notify the Customer as soon as possible.
3. Gradient is entitled to demand (partial) advance payment from the Customer before proceeding to provide the services.
4. Overrun by Gradient of a delivery period as referred to in paragraph 2 does not qualify as a shortcoming attributable to Gradient and does not justify the dissolution of the agreement by the Customer, nor does this result in Gradient being liable for the compensation of any damage suffered by the Customer as a result of the actual longer delivery period.
ARTICLE 7: PROGRESS & EXECUTION OF WORK
1. Gradient can not be obliged to commence the execution of work before all the necessary information is in its possession and the possibly agreed (installment) payment. In the event of delays resulting from this, the specified delivery periods will be adjusted pro rata.
2. If the provision of the services can not take place normally or without interruption due to causes beyond Gradient’s fault, Gradient is entitled to charge the Customer for the resulting costs. This will be done in mutual consultation.
ARTICLE 8: EQUIPMENT, SOFTWARE
The Customer must ensure, at it’s own risk, it has proper equipment, software and other (network) facilities available to receive the services provided by Gradient.
ARTICLE 9: HONORARIUM / FEE
1. The parties will agree upon the amount of the fee in writing (e-mails or order confirmations). Gradient’s fee does not depend on the outcome of the assignment(s).
2. If written recording of the fee has not taken place, Gradient is authorized to determine this on the basis of its usual hourly rates, applicable for the period in which the work took place.
ARTICLE 10: CONFIDENTIALITY
1. Both parties are obliged to keep confidentiality to all information that they have obtained from each other within the framework of the agreement. This obligation continues even after termination of the agreement.
2. The following shall be considered Confidential Information:
a. any information about a party that is or may come into possession of the other party during the preparation and the performance of an agreement and
b. any information that is indicated as confidential by a party and
c. all data, materials, products, login details, technology, computer programs, specifications,
manuals, business plans, software, marketing plans, business plans, financial information,
and other information disclosed or submitted by a party and
d. any information about or received from a party that can reasonably be expected by the other party to be confidential.
2. Both Parties are obliged to inform his employees, agents and subcontractors who are familiar with the confidential information in writing to obtain the same confidentiality obligation as the Customer.
3. If a party, its employees and/or third parties hired by him is in breach of an obligation under this agreement, that party will immediately pay an immitigable penalty in the amount of EUR € 5.000 for each breach and, in addition, be liable for compensation of actual damages.
ARTICLE 11: COMPLAINTS
1. Complaints about the work carried out must be reported to Gradient in writing within 8 days of discovery, but no later than 14 days after completion of the work in question.
2. If a complaint is well-founded, Gradient will carry out the remaining work.
3. Submitting a complaint never suspends the payment obligations of the Customer.
ARTICLE 12: INTELLECTUAL PROPERTY
1. All copyrights and other intellectual property rights relating to the services provided by Gradient rest with Gradient. The Customer acknowledges these rights and will refrain from any infringement.
2. All deliverables and documents provided by Gradient are exclusively intended to be used by the Customer. The Customer is not permitted to publish or reproduce information obtained from Gradient in any form whatsoever, unless this is permitted in writing by Gradient.
3. The Client indemnifies Gradient against all third-party claims relating to intellectual property rights on the information and documents made available to Gradient that are used in the execution of the agreement.
4. Gradient has the right to use the knowledge acquired during the execution of the work for other purposes, insofar as no confidential information of the Customer arrives at third parties.
ARTICLE 13: LIABILITY
1. Advices provided by Gradient are best efforts commitments and not result commitments. Gradient is therefore not liable with regard to advice given if no result is achieved.
2. Gradient is not liable for claims from the Client and / or third parties that are the result of, or are related to, incorrect information supplied by the Client to Gradient.
3. Every liability of Gradient as well as of its employees and the persons engaged by Gradient in the performance of the assignment is limited to the amount paid out under Gradient’s professional / business liability insurance.
4. In the event that the Gradient insurance policy referred to in paragraph 3 does not provide cover in a specific case, the liability of Gradient as well as of its employees and the persons engaged by Gradient in the performance of the assignment shall be limited to a maximum of the total fee of the assignment charged to the Client.
5. The Customer indemnifies Gradient against any claims from third parties that suffer damage in connection with the execution of the agreement and of which the cause can be attributed to others than to Gradient.
6. Gradient is never liable for any damage that results from errors in software used by Gradient or other computer software or information made available via the internet or intranet, freeware or shareware.
7. Gradient is not liable for damage in the form of loss of turnover, reduced goodwill or any other consequential loss that has arisen at the Client.
8. Gradient accepts no liability whatsoever for the possible presence of viruses on the information carriers supplied by it or data or software supplied or downloaded via the Internet. The Customer must personally test the supplied data carriers, data or software for the presence of viruses.
ARTICLE 14: PAYMENTS
1. Payment of invoices must be made within 14 days of the invoice date. Objections to invoices do not suspend the payment obligation.
2. The Customer shall make the payments owed to Gradient without discount or set-off, unless stated otherwise in signed agreements. The Customer is not entitled to suspend payment of invoices for work already performed.
ARTICLE 15: COLLECTION COSTS
1. If the Customer fails to comply with one or more of its obligations towards Gradient, all costs for obtaining satisfaction out of court, such as with regard to writing reminders, summonses and including the actual incurred lawyer’s fees, at the expense of the Customer.
ARTICLE 16: OWNERSHIP RESERVATION
Gradient reserves the ownership of the goods and services supplied and to be delivered within the framework of the agreement up to the moment the Customer has met its related payment obligations towards Gradient.
ARTICLE 17: DECOMMISSIONING
1. Gradient has the right to (temporarily) decommission delivered products and / or services and / or to limit their use if the Customer fails to fulfill an obligation to Gradient in respect of the agreement, or acts contrary to the general terms and conditions. The obligation to fulfill the payment of the amounts due remains also during the decommissioning.
2. Gradient activates the product and its service as soon as the Customer has fulfilled his obligation and has paid a fixed amount for the product or service.
ARTICLE 18: RETURNS OF USED PRODUCTS / GOODS
If Gradient has made products and goods available to the Customer during the execution of the assignment, the Customer is obliged to return the delivered goods to their original condition, free of defects and in full, at the request of Gradient within 14 days. If the Customer does not comply with this obligation, all resulting costs are for his account.
ARTICLE 19: FORCE MAJEURE
In case of force majeure, Gradient is authorized to suspend the execution of the agreement without judicial intervention, or to dissolve the agreement, without being obliged to pay any compensation. If the force majeure situation occurs when the agreement has been partially executed, the Customer is obliged to fulfill its obligations toward Gradient up to that moment. All costs incurred by Gradient up to that time shall be immediately and fully due and payable.
ARTICLE 20: SUSPENSION, TERMINATION AND DISSOLUTION
1. Gradient is entitled to terminate the agreement in writing at any time.
2. In case of agreements with a term of one year or less, the Customer can terminate the contract with due observance of a notice period of three months. For agreements with a term of more than one year or agreements for an indefinite period, the Customer must observe a notice period of six months.
3. If the agreement is terminated prematurely by the Customer, Gradient shall be entitled to compensation on account of the resulting loss of occupancy, which can be attributed to it, unless there are facts and circumstances on which the termination is attributable to Gradient.
4. Gradient is authorized to suspend the fulfillment of the obligations or to dissolve the agreement if: the Customer does not, not fully or not timely fulfill the obligations from the agreement; after the conclusion of the agreement Gradient learns of circumstances giving good ground to fear that the Customer will not fulfill the obligations; the Client has been requested to provide security for the fulfillment of his obligations under the agreement when the contract is concluded and this security is not provided or is insufficient, Gradient is entitled to dissolve the agreement.
5. Gradient is also entitled to dissolve the agreement if circumstances arise which are of such a nature that fulfillment of the agreement is impossible or if circumstances arise which are of such a nature that unaltered maintenance of the agreement can not reasonably be made by Gradient.
6. If the agreement is dissolved, Gradient’s claims against the Customer will be immediately due and payable.
7. If Gradient proceeds to suspension or dissolution, it shall in no way be obliged to pay compensation for damage and costs in any way whatsoever.
8. If the dissolution is attributable to the Client, Gradient is entitled to compensation of the damage, including the costs, thereby arising directly and indirectly.
9. If the agreement is terminated prematurely by Gradient, Gradient will, in consultation with the Customer, ensure the transfer of work still to be performed to third parties. This unless the cancellation is attributable to the Customer. The additional costs that this entails will be charged to the Customer.
10. If the Customer cancels a placed order in whole or in part, the ordered or prepared items, plus any costs already incurred, the lost profits thereof and the labor time reserved for the execution of the agreement, will be fully charged to the Customer.
ARTICLE 21: DISPUTES AND APPLICABLE LAW
1. Disputes between Gradient and the Customer shall be settled by the competent court in Amsterdam, even if the Customer is not a party established in the Netherlands.
2. Gradient shall remain entitled to summon the Customer before the court that is competent according to the law or the applicable international treaty.
3. Only Dutch law applies to every agreement between Gradient and the Customer.
ARTICLE 22: CHANGE OF CONDITIONS
Gradient is authorized to change the general terms and conditions. These changes take effect at the announced time of entry into service and after the forwarding of the changed conditions by Gradient to the Customer.
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