Please find below the General Terms and Conditions of Fhris.
Clause 1. Definitions
Client: any natural person or legal entity who has given Fhris an order to perform work;
Contractor: Fhris Portaal B.V. of Fhris Applicatiebeheer B.V., with its registered office in Eindhoven, and its place of business at Philitelaan 57-109, 5617 AK Eindhoven;
Parties: Client and Contractor;
Order: the order in writing for the provision of services, between Client and Contractor, stating which services are provided;
Work: all work that has been ordered resulting from the Contract for the Provision of Services;
Software Products: collective name for the operating and application programs, methods, rules and accompanying data and documentation, aimed at the controlled functioning of a computer system, and more specifically, the collection of programs that together form the operating system;
Delivery: the delivery or provision of Software Products to Client and the granting of access to Client to use Software Products;
Contract for Use: The agreement between Client and Contractor for use of Software Products.
Clause 2. Applicability
These General Terms and Conditions apply to all offers, quotations and agreements entered into with the Contractor as well as all agreements and other contractual obligations still to be entered into between the Parties.
Clauses and agreements that deviate from these General Terms and Conditions are only valid if they have been agreed upon in writing.
Any purchasing or other conditions issued by the Client shall not apply.
If one or more provisions of these General Terms and Conditions should be null and void or annulled, the order/assignment and the remainder of the General Terms and Conditions shall remain in force. The provisions that are invalid or cannot be applied legally shall be replaced by provisions that correspond as closely as possible with the purport of the provisions to be replaced.
These General Terms and Conditions shall also apply to future legal relationships between Parties, unless these Terms and Conditions have been amended. In that case, the new Terms and Conditions shall apply.
These General Terms and Conditions shall replace Contractor’s general terms and conditions from an earlier date.
Clause 3. Offers
All Contractor’s offers shall be free of obligation, unless the opposite has been explicitly stated in a written offer.
If no period of validity is indicated, offers will be valid for 30 days.
The brochures, price lists and all information provided in connection with an offer or quotation are approximations only and are subject to change without prior notice, unless the Contractor has explicitly stated that they are to be regarded as an exact specification.
Clause 4. Formation of Contract for the Provision of Services
An order will only be concluded by the Contractor accepting a request to enter into an order.
The Contract for the Provision of Services is concluded at the moment the Contractor has received the returned Contract for the Provision of Services signed by Client. If no signed confirmation of the agreement has been received, formation of the agreement appears from the Contractor executing the order given.
The Contract for Use of Software Products is concluded at the moment the Contractor has received the returned Contract for the Provision of Services signed by Client. If no signed confirmation of the Contract has been received, formation of the agreement appears from the Contractor making the Software Products available.
Supplements and amendments to the agreements may only be made in writing.
Parties are obliged to strictly and completely fulfil their obligations resulting from the Contract.
Offers can be accepted by Client in writing and verbally. Acceptance by email / digitally is also considered to be in writing.
The Contract for the Provision of Services is entered into for an indefinite period, unless the nature of the Contract for the Provision of Services dictates otherwise or if the Parties expressly agree otherwise in writing.
Clause 5. Correct Provision of Information
Client is expected to provide all required information that Contractor deems necessary for the proper execution of the Contract for the Provision of Services, in a timely, correct and proper manner.
The Client is expected to provide all required information that Contractor considers to be necessary for the correct execution of the order accurately and correctly. Contractor has the right to postpone the order until these obligations have been met.
If the information provided was incorrect or incomplete, the Contractor will not be responsible for any loss or damage. Any extra costs, hours or damage incurred by the Contractor will be borne by the Client.
The Client is aware that Contractor may be required by the Money Laundering and Terrorist Financing (Prevention) Act (Wwft): a) to conduct an investigation into the identity of the Client and/or the Contracting Party; b) to report certain transactions to the authorities appointed by the government for this purpose.
Clause 6. Premature Termination
Without prejudice to the provisions of the Contract, Contractor shall be entitled, without being obliged to pay any compensation, to terminate the Contract prematurely in whole or in part with immediate effect and without further notice of default or judicial intervention at the moment Client is declared bankrupt, requests a provisional suspension of payments or loses the authority to dispose of its assets or parts thereof due to attachment, placement under guardianship or in any other way, unless the guardian or custodian acknowledges the obligations under the Contract as an estate debt.
Parties shall also be entitled to terminate the Contract, in whole or in part, with immediate effect and without judicial intervention, if the other Party fails to fulfil any other obligations arising from this Contract, or fails to do so in time or adequately, which failure is of such a serious nature that it cannot reasonably be required to continue the Contract, and if, after having been given notice of default for this reason by registered letter, if so required, within a reasonable period stipulated in the notice of default, the Party failing to fulfil its obligations continues to do so or fails to take the appropriate steps to rectify the situation.
Premature termination of the Contract by Client is possible at all times, with due observance of a one-month notice period. Termination must take place in writing.
Clause 7. Price
Contractor’s rates are not dependent on the result of the work performed. Contractor’s rates may consist of a predetermined amount per agreement and a graduated scale provided to Client.
All rates are exclusive of turnover tax (VAT) and other levies, whether imposed by the government or otherwise.
All rates are exclusive of the costs of any third parties engaged by Contractor.
In the event of demonstrable changes to one or more of the cost-determining factors such as purchase prices, exchange rates, wages, taxes, levies, duties, charges, freight and such like after conclusion of the Contract, Contractor shall be entitled to amend the agreed prices accordingly, all this insofar as this is not prohibited by law and regardless of whether or not the change was foreseeable for the Contractor at the time of conclusion of the Contract.
In exceptional cases, a change in rates, other than determined in previous provisions of this Clause, may take place.
Contractor shall be entitled to adjust rates as per 1 January of each calendar year on the basis of the CBS consumer price index figure (CPI) for the month of July in the current year.
Clause 8. Payment
Invoicing shall take place on the first working day of the new month. The actual number of users who had access to the Contractor's system in the previous month are taken into account.
Payment must always be made within 14 days from the invoice date, in a manner to be indicated by Contractor and in the currency stated in the invoice, unless otherwise agreed in writing.
If, based on facts and circumstances, it is reasonable to doubt whether Client will meet its payment obligation, Contractor has the right to demand a bank guarantee.
Client must check the invoice thoroughly and immediately. Any objections concerning (the amount on) the invoice must be made in writing to Contractor within 14 days of the date of the invoice.
All judicial and extrajudicial (collection) costs incurred by Contractor as a result of non-compliance by the Client with its obligations shall be borne entirely by the Client.
Clause 9. Delivery
The services or Software Products will be delivered, as offered in the quotation / offer, at the agreed rates.
Contractor is entitled to suspend delivery, including blocking access to Software Products, if Client does not meet any payment obligation or does not meet it on time.
If the agreed delivery time is exceeded, or is at risk of being exceeded, this shall be communicated to the Client as soon as possible. In case of force majeure on the part of the Contractor, the term will be extended by the same period as this force majeure. Agreed delivery times are never to be regarded as deadlines. Exceeding these delivery times does not entitle the Client to dissolve the Contract for the Provision of Services in whole or in part or to any compensation, unless it is a matter of gross fault or gross negligence on the part of the Contractor.
Clause 10. Complaints
A complaint concerning the work must be made in writing to Contractor within 14 days of discovery of the defect, provided Client can demonstrate that he could not reasonably have discovered the defect earlier, at the risk of forfeiture of legal action.
A complaint as referred to in the first sentence of this Clause will not suspend the Client's payment obligation.
Clause 11. Liability and Responsibility
If advice is given by Contractor (for instance by back-office teams, sales staff or consultants) to Client’s employees within the scope of employment conditions, collective bargaining agreements, taxation, laws and regulations and/or other subjects of a legal nature, this is done on the condition and in the expectation that Client verifies the advice or has it verified by experts. Contractor accepts no responsibility or liability for the accuracy and/or completeness of advice.
Contractor shall perform its duties to the best of its ability, exercising the care that may be expected of it. If an error is made because Client provided incorrect or incomplete information, Contractor shall not be liable for any damage caused as a result.
If Contractor is forced to perform extra work or incur extra costs as a result of the fact that Client or a third party engaged by Client should deviate from the execution of its activities without prior consent of Contractor, or caused by Client providing incorrect or incomplete information to Contractor, Contractor shall be entitled to charge the Client for the extra work or costs as additional work at the rates then charged by Contractor.
Contractor shall not be liable for any indirect damage, including loss of profit, loss of data, third-party claims or damages, fines or additional assessments, missed revenues or savings, reputational or image damage or other indirect or consequential damage arising from or in connection with the non-fulfilment of any obligation by Contractor, or any wrongful act.
Client indemnifies Contractor against any claims by the Client's personnel that are related to the services provided by Contractor to the Client.
The responsibility for the quality and accuracy of the data provided rests entirely with the Client.
Client indemnifies Contractor against any claims from Client’s relations associated with the services provided by Contractor on behalf of the Client.
Client will provide information and cooperation which the Contractor reasonably considers necessary for the execution of the Contract in a timely manner. Client warrants that the information it provides is correct and complete and will ensure that it is provided in a timely manner.
Contractor shall be liable for shortcomings in the execution of the work, insofar as they are the result of failure by Contractor to exercise the care, expertise and professionalism which may reasonably be relied upon in the execution.
Liability for damage caused by shortcomings shall be limited to 50% of the amount of the fee received by Contractor for its work. In the event of activities with a duration of more than six months, the liability referred to here shall be further restricted to a maximum of the amount invoiced for the last six (6) months.
To cover the liability arising from paragraph 9 of this Clause, the Contractor has taken out Business and Professional Liability Insurance.
When Contractor engages third parties, Contractor shall always exercise due care. Contractor shall not, however, be liable for any of these third parties’ shortcomings.
After a period of 3 (three) months following the termination of the actual work for the Client arising from the Contract, Contractor can no longer be held liable for any damage as referred to in subclause 9.
Clause 12. Intellectual Property
Contractor reserves the rights and powers that it is entitled to under the Copyright Act and other intellectual legislation and regulations. Contractor is entitled to use the knowledge gained by the implementation of an agreement for other purposes, to the extent that no strictly confidential information of the Client is brought to the knowledge of third parties.
Clause 13. Retention of Title
Ownership of the delivered Software Products rests with Contractor and/or with a supplier of Contractor. If the intellectual (property) rights are vested in a supplier of Contractor, Contractor warrants that it is entitled to grant the licence for the use of Software Products.
The licence for the use of Software Products will only be granted to the Client once the Client has fulfilled all its obligations under the Contract. If a licence has been granted and any obligation referred to in the previous sentence is not fulfilled, as well as in case of bankruptcy, suspension of payments, liquidation or dissolution (of the company) of the Client, Contractor shall be entitled to revoke the licence without any demand or notice of default. In such a case, the Contract will also be dissolved without judicial intervention, without prejudice to Contractor’s right to claim damages.
Clause 14. Force Majeure
Contractor shall not be liable for not, not correctly or not timely fulfilling its obligations under the contract in the event of force majeure and is not obliged to compensate any damage in case of force majeure. Force majeure is understood to be any circumstance beyond the control of the Contractor which temporarily or permanently prevents the fulfilment of the Contract and which should not be at its own risk, either by law or according to standards of reasonableness and fairness.
During force majeure, Contractor’s delivery and other obligations are suspended. With regard to the already executed part of the Contract, Client remains obliged to pay. If the force majeure situation has lasted longer than two weeks, Parties will consult on an adjustment of the Contract in such a way that further execution of the Contract is meaningful for both Parties.
Force majeure is taken to mean: strike, sit-down strike, blockades, embargo, government measures, war, revolution and/or any similar situation, power failures, failures in electronic communication lines, fire, explosion and other calamities, water damage, flood, earthquake and other natural disasters, as well as extensive illness of epidemiological nature of personnel.
As soon as the Contractor is faced with a situation of force majeure as referred to in this Clause, Contractor shall notify the Client accordingly.
Clause 15. Confidentiality, Privacy and GDPR
Parties shall observe secrecy with regard to all information that comes to their knowledge within the scope of the execution of the Contract for the Provision of Services and of which they know or could reasonably suspect the confidential nature, unless publication is permitted or is compelled by law or a court of law.
Unless agreed in writing otherwise, the Contractor shall be permitted to report the conclusion of the contract for work in one or more (press) reports.
Contractor shall observe the General Data Protection Regulation in the performance of its work.
Insofar as the agreement entails the processing of personal data by the Contractor, Contractor shall act as processor. In this capacity, Contractor shall comply with all statutory obligations incumbent on it and shall cooperate in signing an appropriate processing agreement.
By entering into the agreement concerned, the Client instructs Contractor to process personal data, including the use of aggregated and anonymised data for statistical research concerning (the quality of) its services. Contractor will only carry out other processing if instructed by Client or if a legal obligation exists to do so.
Client retains ownership of the personal data at all times. At the end of the Contract, the data will be provided to the Client on request on a common data carrier. Contractor will communicate any costs for this to Client in advance.
All employees who act under the authority of Contractor and have access to the personal data shall observe secrecy with regard to the personal data of which they have knowledge, unless a statutory provision obliges them to disclose it.
Contractor will take appropriate technical and organisational measures to secure the personal data against loss or any form of unlawful processing. These measures will be appropriate, taking into account the latest technology and the costs involved, and will also be aimed at preventing unnecessary collection and further processing of personal data.
Clause 16. Electronic Communication
For the purpose of executing the order, Client and Contractor may communicate with each other by electronic means at the Client’s request. Client and Contractor are not liable to each other for damage that may occur to either or both of them as a result of the use of electronic means of communication, including damage resulting from non-delivery or delay in delivery of electronic communications, interception or manipulation of electronic communications by third parties or by software/hardware used for sending, receiving or processing electronic communications, transmission of viruses and non-functioning or malfunctioning of the telecommunications network or other resources required for electronic communications, except insofar as the damage is the result of intent or gross negligence. Both Client and Contractor will do or omit to do everything that can reasonably be expected of each of them to prevent the occurrence of the aforementioned risks. The data extracts from the sender's computer systems provide conclusive evidence of (the contents of) the electronic communication sent by the sender until the recipient has furnished proof to the contrary.
Clause 17. Applicable Law
All offers, quotations and agreements entered into with Contractor as well as all agreements and other contractual undertakings between Parties shall be governed exclusively by Dutch law.
Any disputes arising from the Contract between Client and Contractor or other agreements that may result from it, will be settled by the competent court.
A dispute shall not result in the suspension of payment obligations arising from this Contract.
Clause 18. Final Provisions
Contractor reserves the right to amend or supplement the General Terms and Conditions. Changes can be made at any time and, depending on the impact of the changes, will be discussed (in advance) with the customer.
If Client does not want to accept an amendment or addition, Client can inform Contractor of this in writing until the date on which the new conditions come into effect, after which Parties will consult each other.
Parties shall ensure that all persons engaged by them directly or indirectly comply with the obligations set out in this document.
Client shall not hire or approach employees involved in the performance of the work to enter into direct or indirect employment with the Client, either temporarily or permanently, or to perform work for the Client, either directly or indirectly, whether as an employee or not, during the term of the Contract or any extension thereof and for twelve months thereafter.