Terms & conditions

Article 1. General

1.1 In these Terms & Conditions, the following definitions apply:

• a) Client: the party that gives the assignment;
• b) Contractor: the private limited liability company Confidato B.V., established in Bennekom, registered with the Chamber of Commerce under number 94688451;
• c) Assignment or Agreement: the contract for services under which the Contractor undertakes towards the Client to perform work.

1.2 All Assignments are accepted and performed exclusively by the Contractor, to the exclusion of articles 7:404 and 7:407(2) of the Dutch Civil Code, regardless of whether the Client granted the Assignment expressly or tacitly with a view to its performance by a particular person or particular persons.

1.3 All provisions in these Terms & Conditions are also made for the benefit of all those who work or have worked for the Contractor in connection with the performance of the Assignment, including staff, directors and subordinates of the Contractor. They may invoke these provisions against the Client.

Article 2. Applicability

2.1 These Terms & Conditions apply to all Assignments or Agreements between the Client and the Contractor, or their legal successors, as well as to all agreements arising from or connected with them, and to all offers and/or quotations made by the Contractor.

2.2 The applicability of any general terms and conditions of the Client is expressly rejected by the Contractor.

2.3 Provisions deviating from these Terms & Conditions are only valid if and to the extent that they have been expressly agreed in writing between the parties. Unless expressly agreed otherwise in writing, such deviations from or additions to the Terms & Conditions relate only to the Agreement concerned.

2.4 If any provision forming part of these terms and conditions or of the agreement should be null and void or is annulled, the agreement shall for the rest remain in force as much as possible, and the provision concerned shall, in consultation between the parties, be replaced without delay by a provision that approximates the purport of the original provision as closely as possible.

2.5 In the event of a conflict between the provisions of the assignment confirmation, these terms and conditions and a separate data processing agreement, the following order of precedence applies:

• the data processing agreement;
• the assignment confirmation;
• these terms and conditions.

Article 3. Formation of the Agreement

3.1 The Agreement is formed at the moment the assignment confirmation signed by the Contractor and the Client is received back by the Contractor. The assignment confirmation is based on the information provided by the Client to the Contractor at that time. The assignment confirmation is deemed to represent the Agreement correctly and completely.

3.2 If the Assignment has been given orally, or if the assignment confirmation has not (yet) been received back signed, the Assignment is deemed to have been formed under the applicability of these terms and conditions at the moment the Contractor, at the Client's request, has started performing the Assignment.

Article 4. Data and information

4.1 The Client is obliged to provide all data and information requested by the Contractor, as well as the data and information that the Client can reasonably know the Contractor needs for the correct performance of the Assignment, a) in good time, b) in the form desired by the Contractor and c) in the manner desired by the Contractor.

4.2 The Client warrants the accuracy, completeness, reliability and lawfulness of the data and information provided to the Contractor by or on behalf of the Client, even if this is provided through third parties or originates from third parties, unless the nature of the Assignment dictates otherwise.

4.3 The Client is obliged to inform the Contractor without delay of facts and circumstances that may be relevant in connection with the performance of the Assignment.

4.4 The Contractor has the right to suspend performance of the Assignment until the moment the Client has fulfilled the obligations referred to in the first, second and third paragraphs.

4.5 Additional costs, additional hours, as well as the other loss for the Contractor, arising because the Client has not fulfilled the obligations referred to in the first, second or third paragraphs, are for the account and risk of the Client.

4.6 At the Client's first request, the Contractor will return to the Client the original documents provided by the Client.

Article 5. Performance of the Assignment

5.1 The Contractor determines the manner in which and by which person(s) the Assignment is performed, but in doing so takes into account, as far as possible, the wishes made known by the Client. If the Contractor wishes to engage third parties for the account of the Client in performing the Assignment, it will only do so with the Client's approval.

5.2 The Contractor will perform the work to the best of its ability and as a careful practitioner. However, the Contractor cannot warrant the achievement of any intended result.

5.3 The Assignment is performed with due observance of the applicable (professional) regulations and what is required by or pursuant to law. The Client will each time fully cooperate with the obligations that arise from this for the Contractor.

5.4 The Client is aware that, under the Dutch Money Laundering and Terrorist Financing (Prevention) Act (Wwft), the Contractor:

• a) may be obliged to conduct an investigation into the identity of the Client and/or the client;
• b) may be obliged to report certain transactions to the authorities established for that purpose by the government.

5.5 The Contractor excludes any liability for loss arising as a result of the Contractor complying with the laws and (professional) regulations applicable to it.

5.6 The Contractor keeps a working file relating to the Assignment containing copies of relevant documents, which is the property of the Contractor.

5.7 During the Assignment, the Contractor may use electronic means of communication. The Client consents to the Contractor's use of an electronic signature as referred to in article 3:15a of the Dutch Civil Code. The Client and the Contractor are not liable to each other for loss arising from the use of electronic means of communication. Both the Client and the Contractor will do everything that may reasonably be expected to prevent risks such as the spreading of viruses and distortion.

5.8 In case of doubt regarding the content and/or transmission of electronic mail, the data extracts from the Contractor's computer systems are decisive.

Article 6. Deadlines

6.1 Deadlines within which work must be completed are only strict deadlines if this has been agreed in writing.

6.2 If the Client owes an advance payment or must make available data and information needed for the performance of the Assignment, the deadline within which the work must be completed does not commence until the payment has been received in full by the Contractor, or the data and information has been made available to the Contractor in full, respectively.

6.3 The Agreement cannot, unless it is established that performance is permanently impossible, be dissolved by the Client on account of a deadline being exceeded, unless the Client, after the agreed deadline has passed, has given the Contractor a reasonable period to still perform the Assignment (in full) and the Contractor even then does not perform the Assignment or does not perform it in full within the notified period.

Article 7. Termination

7.1 The Agreement is entered into for an indefinite period, unless it follows from the content, nature or purport of the Assignment granted that it has been entered into for a definite period.

7.2 The Client and the Contractor may terminate the Agreement at any time (in the interim) with due observance of a reasonable notice period, unless reasonableness and fairness oppose termination or termination on such notice. The termination must be communicated in writing to the other party.

7.3 The Agreement may be terminated (in the interim) by registered letter by both the Contractor and the Client without observing a notice period in the event that the other party is unable to pay its debts, or if a receiver, administrator or liquidator has been appointed, the other party arranges a debt restructuring, or for any other reason ceases its activities, or if the other party reasonably considers the occurrence of one of the above circumstances at the one party likely, or if a situation has arisen that justifies immediate termination in the interest of the terminating party.

7.4 In all cases of (interim) termination, the Contractor retains a claim to payment of the invoices for work performed by it up to that point, whereby the provisional results of the work performed up to that point will be made available to the Client subject to reservation.

7.5 If (interim) termination is proceeded with by the Client, the Contractor is entitled to compensation for the loss of occupancy incurred on its side and which it can reasonably substantiate, as well as for additional costs that the Contractor has reasonably had to incur or must incur as a result of the early termination of the Agreement (such as, among other things, costs relating to any subcontracting), unless there are facts and circumstances underlying the termination that are attributable to the Contractor.

7.6 If (interim) termination is proceeded with by the Contractor, the Client is entitled to the Contractor's cooperation in transferring the work to third parties, unless there are facts and circumstances underlying that termination that are attributable to the Client.

7.7 To the extent that transferring the work entails additional costs for the Contractor, these are charged to the Client.

7.8 On termination of the Agreement, each of the parties must hand over without delay all goods, items and documents in its possession that are the property of the other party to that other party.

Article 8. Intellectual property rights

8.1 All rights relating to intellectual creations that the Contractor develops or uses in performing the assignment, including advice, methods, (model) contracts, systems, system designs and computer programs, accrue to the Contractor, to the extent that these do not already accrue to third parties.

8.2 Except with the express prior written consent of the Contractor, the Client is not permitted to reproduce, disclose or exploit the intellectual creations or their recording on data carriers, whether or not together with or through the engagement of third parties, without prejudice to the provisions of Article 9.3.

Article 9. Confidentiality

9.1 The Contractor is obliged to keep the data and information provided by or on behalf of the Client confidential towards third parties not involved in the performance of the Assignment. This obligation does not apply to the extent that a statutory or professional duty of disclosure rests on the Contractor, including the obligations arising from the Dutch Money Laundering and Terrorist Financing (Prevention) Act (Wwft) and other national or international regulations of comparable purport, or to the extent that the Client has released the Contractor from the duty of confidentiality.

9.2 The first paragraph does not prevent confidential collegial consultation within the Contractor's organisation, to the extent that the Contractor considers this necessary for the careful performance of the Assignment or for careful compliance with a statutory or professional duty.

9.3 The Contractor is, if it acts on its own behalf in disciplinary, civil, arbitration, administrative or criminal proceedings, entitled to use the data and information of which it has become aware in performing the Assignment, to the extent that these may in its reasonable opinion be relevant.

9.4 Except with the express prior written consent of the Contractor, the Client is not permitted to disclose or otherwise make available to third parties the content of advice, opinions or other statements of the Contractor, whether or not in writing, except to the extent that this arises directly from the Agreement, is done to obtain an expert opinion regarding the Contractor's work concerned, a statutory or professional duty of disclosure rests on the Client, or if the Client acts on its own behalf in disciplinary, civil, arbitration, administrative or criminal proceedings.

9.5 The Contractor is entitled to mention the name of the Client and to describe the work performed in general terms to the Contractor's (commercial) relations as an indication of the Contractor's experience.

Article 10. Personal data and the General Data Protection Regulation

10.1 When providing and making available personal data to the Contractor, the Client will observe the General Data Protection Regulation and other applicable laws and regulations on the protection of personal data.

10.2 In performing the assignment, the Contractor will observe the General Data Protection Regulation and other applicable laws and regulations on the protection of personal data, and will process personal data obtained only to the extent not incompatible with the purpose for which the personal data is obtained.

10.3 To the extent that the Contractor processes personal data as a processor within the meaning of the GDPR in the context of the services, the Client and the Contractor conclude a data processing agreement.

10.4 The Contractor will take appropriate technical and organisational measures to secure the personal data against destruction, loss and unauthorised access.

10.5 The Client agrees that, for the purpose of the services and their optimisation, the Contractor works with third parties such as IT service providers and suppliers of bookkeeping tools, and in that context shares personal data with these third parties. In accordance with the provisions of the General Data Protection Regulation, the Contractor concludes a data processing agreement with the (sub)processors it engages. See also our privacy statement.

Article 11. Fee

11.1 The Client owes the Contractor a fee as well as reimbursement of costs incurred, in accordance with the rates, calculation methods and working methods customary with the Contractor.

11.2 The Contractor has the right to request an advance from the Client.

11.3 If, after the formation of the Agreement but before the Assignment has been fully performed, rate-determining factors such as, for example, wages and/or prices undergo a change, the Contractor is entitled to adjust the previously agreed rate accordingly.

11.4 All rates are exclusive of turnover tax and other levies imposed by the government.

Article 12. Payment

12.1 Payment must be made without any deduction, discount or set-off in Dutch currency by deposit or transfer to the bank account indicated on the invoice within fourteen days of the invoice date. The day of payment is the day the amount due is credited to the Contractor's account. Objections to the amount of the invoice do not suspend the Client's payment obligation.

12.2 If the Client has not paid within the period referred to in the first paragraph, or another period agreed between the parties, the Client is in default by operation of law and the Contractor is entitled to charge statutory interest from that moment.

12.3 If the Client, acting in the exercise of a business or profession, has not paid within the period referred to in the first paragraph, the Client is obliged to compensate all extrajudicial and judicial (collection) costs incurred by the Contractor, even to the extent that these costs exceed any judicial order for costs, unless the Contractor is ordered to pay the costs as the losing party.

12.4 If the Client is not acting in the exercise of a business or profession, the Client is obliged to compensate extrajudicial collection costs up to the maximum amount in accordance with the Dutch Decree on compensation for extrajudicial collection costs (Besluit vergoeding van buitengerechtelijke incassokosten). The Client owes these extrajudicial collection costs after, already being in default, it has been reminded in vain to pay within fourteen days.

12.5 In the case of a jointly given Assignment, the Clients are, to the extent that the assignment has been performed for the joint Clients, jointly and severally liable for payment of the invoice amount and the interest and costs due.

12.6 The Contractor reserves the right, including during the performance of an assignment, if in the Contractor's opinion the financial position or payment behaviour of the Client gives cause for this, to require full or partial advance payment and/or the provision of security from the Client, failing which the Contractor is entitled to suspend the fulfilment of its obligations.

Article 13. Complaints

13.1 A complaint relating to work performed or the invoice amount must, on penalty of forfeiture of all claims, be made known to the Contractor in writing within 30 days of the dispatch date of the documents or information about which the Client complains, or, if the Client demonstrates that it could not reasonably have discovered the defect earlier, within 30 days of the discovery of the defect.

13.2 A complaint does not suspend the Client's payment obligation, except to the extent that the Contractor has indicated to the Client that it considers the complaint well-founded.

13.3 In the case of a rightly made complaint, the Contractor has the choice between adjusting the fee charged, improving or re-performing the work concerned free of charge, or no longer performing the assignment in whole or in part against a proportionate refund of fee already paid by the Client.

Article 14. Liability

14.1 The Contractor is liable towards the Client solely for a shortcoming in the performance of the assignment to the extent that the shortcoming consists of a failure to observe the care and expertise that may be relied upon in performing the assignment.

14.2 The liability for compensation of the loss suffered is limited to the amount that is actually paid out under the professional liability insurance taken out by the Contractor, increased by the amount of the deductible. If, for whatever reason and without fault or involvement of the Contractor, no payment under that insurance should take place, any liability of the Contractor for a shortcoming in the performance of the assignment as well as for a tort caused by the Contractor is limited to the amount that the Client has paid and/or still owes to the Contractor as fee (exclusive of turnover tax), by the standard of the provisions of article 11, in respect of the work to which the loss-causing event relates or with which it is connected, up to a maximum of one hundred thousand euros (EUR 100,000).

14.3 The limitation of liability referred to in the preceding paragraph does not apply to the extent that the loss is the result of intent or gross negligence of the Contractor.

14.4 The Contractor is, however, not liable for:

• loss arising at the Client or third parties that is the result of the provision of incorrect or incomplete data or information by the Client to the Contractor, or is otherwise the result of an act or omission of the Client;
• loss arising at the Client or third parties that is the result of an act or omission of auxiliary persons engaged by the Client or the Contractor (employees of the Contractor not included), even if these work at an organisation affiliated with the Contractor;
• business, indirect or consequential loss arising at the Client or third parties.

14.5 A claim for compensation of loss must be submitted to the Contractor at the latest within twelve months after the Client discovered or could reasonably have discovered the loss, failing which the right to compensation lapses. Furthermore, the Client must notify the Contractor in writing immediately after discovery of a shortcoming. The Contractor has at all times the right, if and to the extent possible, to undo or limit the Client's loss by repairing or improving the defective product and/or the defective service.

14.6 The Client is obliged to indemnify and hold the Contractor harmless against all claims of third parties, including shareholders, directors, supervisory directors and staff of the Client as well as affiliated legal entities and businesses and others involved in the Client's organisation, that arise from or are connected with the Contractor's work for the Client, except to the extent that these claims are the result of intent or gross negligence of the Contractor.

Article 15. Limitation period

To the extent not otherwise provided in these terms and conditions, rights of action of the Client on any ground whatsoever against the Contractor in connection with the performance of work by the Contractor lapse in any event one year after the moment the Client became aware or could reasonably have been aware of the existence of these rights.

Article 16. Choice of law and forum

16.1 All agreements between the Client and the Contractor are governed exclusively by Dutch law.

16.2 Unless the parties expressly agree otherwise in writing, all disputes connected with Agreements between the Client and the Contractor are submitted to the competent court in the place where the Contractor is established.

16.3 By way of derogation from the preceding paragraph, the Client and the Contractor may opt for another manner of dispute resolution.