Article 1 - Definitions
In these General Conditions:
"MonetDB Solutions" means MonetDB Solutions B.V., incorporated under the laws of the Netherlands, established at Science park 106, 1098XG, Amsterdam, the Netherlands; registration with the Kamer van Koophandel Amsterdam: 58004963.
"Principal" means the party having an agreement with MonetDB Solutions as referred to in article 2.1 of these General Conditions.
Article 2 - Applicability
2.1 These General Conditions shall be applicable to all offers and agreements in virtue of which MonetDB Solutions shall render advice or carry out advice-, research- and/or development work on behalf of the other party, or carries out other work, or supplies other matters, and also to any other offers and agreements to which MonetDB Solutions declares these General Conditions to be applicable. Any conditions of the Principal regarding the purchase, contracting or other conditions shall not be applicable.
2.2 Deviations from and additions to these General Conditions shall be binding for MonetDB Solutions only if and in so far as such deviations or amendments have been explicitly confirmed by MonetDB Solutions in writing.
2.3 If any stipulation or provision of these General Conditions or of the agreement would for whatever reason appear to be null and void, this shall not affect the validity of the other stipulations and provisions.
Article 3 - Authority
Unless specifically agreed otherwise with the Principal, only the CEO of MonetDB Solutions is authorized to represent and bind MonetDB Solutions in whatever manner.
Article 4 - Offer and acceptance
4.1 All offers, quotations and the like shall not be binding. If notwithstanding the above, a binding offer has been made, it shall be valid only for a period of not more than 60 days.
4.2 The money amounts mentioned in the offer shall be exclusive of VAT or any other levy or charge imposed by government authorities, and such amounts shall have been calculated on the basis of rates, methods of calculation and prices operative at the time of the offer.
4.3 MonetDB Solutions shall not be bound unless the order has been confirmed explicitly in writing or email by MonetDB Solutions.
Article 5 - Terms and phasing of performance
5.1 The terms of performance quoted by MonetDB Solutions are non-binding unless agreed otherwise. Such terms shall only be indicative in respect of the time of the provision of the results of research activities, and thus never shall be interpreted as an ultimate or fatal term, however, it is understood that MonetDB Solutions will use its best endeavours to perform within such terms. If MonetDB Solutions expects that any indicated term of performance will be exceeded, MonetDB Solutions shall inform the Principal thereof as soon as possible. In the event a term of performance has been or will be exceeded, MonetDB Solutions shall be entitled to perform its obligations within a new term to be agreed upon with the Principal.
5.2 If it has been agreed that the work shall be carried out in phases, MonetDB Solutions shall be entitled to postpone the commencement of the work for the next phase until the Principal shall have approved in writing the results of the preceding phase and shall have complied with all his payment obligations with respect to the preceding phase.
Article 6 - Cooperation of the Principal
6.1 MonetDB Solutions shall not be obliged to commence or to continue the work as long as the Principal has not or not adequately provided all documents, matters, data and/or information that MonetDB Solutions needs for the performance of the work.
6.2 If the Principal, after having been given notice thereof, still fails to provide the documents, matters, data and/or information needed by MonetDB Solutions for the performance of the work, the Principal shall be liable to MonetDB Solutions for the damages caused thereby to MonetDB Solutions.
Article 7 - Liaison
MonetDB Solutions shall be entitled to demand from the Principal that he shall appoint a person as a liaison in connection with the performance of the agreement, and with whom MonetDB Solutions shall be able and entitled to maintain all contacts relating to the agreement.
Article 8 - Results
8.1 Provided that the Principal shall have entirely fulfilled his obligations towards MonetDB Solutions, the Principal shall be entitled to use within his normal course of business the results, reported in writing by MonetDB Solutions within the framework of the agreement, all this with due observance of the following provisions.
8.2 Reports and drawings which have been prepared within the framework of an order or which have been provided by the Principal shall, in so far as these can be considered to be the result of the order, be respectively shall remain the Principal's property, without prejudice to the right of MonetDB Solutions to keep copies of the written data provided or prepared, in order to be able to support the results, if necessary.
8.3 With respect to computer programs developed by MonetDB Solutions only by virtue of the Principal's order and on his behalf, the Principal shall obtain the non- exclusive right to use such computer programs in his own business and within the limits of the normal course of his business. The Principal is aware of the fact that the computer programs and pertaining documentation provided by MonetDB Solutions may contain confidential information and business secrets of MonetDB Solutions, and the Principal is obliged to keep these computer programs and documentation secret and he shall not disclose or provide them to any third party for use or any other purposes. MonetDB Solutions shall furthermore be entitled to implement technical measures in order to protect the computer programs developed by it.
8.4 The Principal is aware and agrees that modifications made to the MonetDB open-source code base as a result of work performed by MonetDB Solutions for the Principal under this contract may become available in future releases of the MonetDB source code, under the then prevailing license structure issued by MonetDB B.V.
8.5 Unless explicitly otherwise agreed in writing, the models, measuring- equipment, measurement set-ups, methods of calculation and other appliances, and also all materials used or manufactured by or by order for MonetDB Solutions, shall remain MonetDB Solutions' property. The Principal is cognizant of the fact that the aforementioned models, equipment, set-ups, methods of calculation, appliances and materials contain confidential information and business secrets of MonetDB Solutions, and the Principal is obliged to keep all data and information relative thereto secret and shall not make them known or provide them to any third party for use or any other purposes.
8.6 Any publication by the Principal of the results of an order or of reports or drawings prepared by MonetDB Solutions requires MonetDB Solutions' prior written consent.
8.7 The Principal shall only after MonetDB Solutions' prior written consent be entitled to make use of the results of an order for the submission of claims or the institution of a lawsuit, or for purposes of publicity.
Article 9 - Intellectual and industrial ownership
9.1 Without prejudice to the provisions of the preceding article all intellectual and/or industrial property rights relating to work performed by MonetDB Solutions, including any patent rights and copyrights, shall vest in MonetDB Solutions.
9.2 The Principal is not allowed to remove or change wholly or partly any indication regarding copyrights, trademarks, trade names or other intellectual or industrial property rights on computer programs, documentation, reports or drawings provided by MonetDB Solutions, the aforesaid including any indications regarding the confidential character and secrecy.
Article 10 - Secrecy by MonetDB Solutions
10.1 MonetDB Solutions shall not without the Principal's permission disclose to third parties the Principal's business secrets or any other information or data relating to the Principal of which MonetDB Solutions should reasonably have understood that they were to be kept secret.
10.2 If MonetDB Solutions is threatened to be injured or its reputation is threatened to be harmed by the fact that the Principal, without MonetDB Solutions' prior written consent, is providing information related to MonetDB Solutions to third parties, MonetDB Solutions shall be exempted from the secrecy obligation as referred to in the previous paragraph.
Article 11 - Invoicing
11.1 Invoices will be submitted and calculated applying the rates, prices and methods of calculation in effect on the date of invoice.
11.2 Unless explicitly otherwise agreed in writing, the total amount due by the Principal shall be invoiced to the Principal in the following parts and at the following points of time:
30% of the total amount due at the date of entering into the agreement;
50% of the total amount due after MonetDB Solutions has completed the performance of the research or test program, or at the point of time indicated in the quotation or the offer;
20% of the total amount due after delivery of the results of the research or test program or after the order has been completed or on delivery of the matters agreed upon.
Email, phone and Skype-based consultancy is invoiced at 100 % pre-payment of the expected duration of the task.
11.3 Unless explicitly otherwise agreed, all costs stemming from travelling abroad and subsistence of MonetDB Solutions representatives related to performing the work, shall be invoiced.
Article 12 - Payment
12.1 Payment shall be effected in Dutch currency (euro) without any deduction, postponement or compensation whatsoever, within the period as indicated on the invoice. If no period has been indicated, payment is to take place within 30 days after the date of the invoice. Any objection against the invoice must have been received by MonetDB Solutions in writing within 14 days after the date of the invoice and such objection does not suspend the Principal's payment obligation.
12.2 If the term of payment is exceeded, the Principal shall be in default at law. Without any summons, exhortation or any notice of default being required, for the account of the Principal shall be the interest, corresponding to a percentage of three points above the discount rate on promissory notes of De Nederlandsche Bank N.V. (Central Bank of the Netherlands), or above the standard interest rate replacing that discount rate, increased by the additional interest charge, if any, that MonetDB Solutions owes to its lenders during the period concerned, and for the account of the Principal shall be all costs of recovery, the recovery costs hereby set at least 15% of the amount recovered, with a minimum of EUR 500.
12.3 Electronic communication regarding offers for work and subsequent invoicing are considered binding.
Article 13 - Securities
MonetDB Solutions shall, if the Principal' s financial standing is in doubt or in case of other business considerations, be entitled at any time, also during the performance of an agreement, to demand payment in advance or further security. If this demand is not complied with to MonetDB Solutions' satisfaction, then MonetDB Solutions shall be entitled to suspend the performance of all current agreements with the Principal or to dissolve these agreements wholly or partly without any notice of default being required, without however MonetDB Solutions being liable to compensate any damages itself and without prejudice to MonetDB Solutions' other rights in such an event.
Article 14 - Retention of title
Any goods supplied to the Principal shall remain MonetDB Solutions' property whether or not these may already have been taken in use by the Principal, unless and until all amounts due by the Principal to MonetDB Solutions for goods supplied or to be supplied in virtue of an agreement, or work carried or to be carried out in virtue of such an agreement or because of claims relating to default in the performance of such agreements, shall have been fully paid by the Principal. Regarding any goods still being MonetDB Solutions' property, the Principal shall not grant any rights to third parties without MonetDB Solutions' prior written consent, and the Principal shall be bound to give written notice to MonetDB Solutions immediately in the event that a third party seizes any goods still being MonetDB Solutions' property or in any other way wants to lay any claims in respect thereof.
Article 15 - Postponement, dissolution
If the Principal does not, not duly or not in time fulfil any obligation towards MonetDB Solutions, or if the Principal is declared bankrupt or a petition for this has been filed in court or if the Principal has filed a request for suspension of his payments or if this has been granted to him, or if the Principal's business is thrown idle or liquidated, if the Principal's goods have been seized or if the Principal loses the free control of his assets, then MonetDB Solutions has the right to postpone the performance of all current agreements or to dissolve these wholly or partly without any notice of default being required, without however MonetDB Solutions being liable itself to compensate any damages and without prejudice to any further rights of MonetDB Solutions in such an event.
Article 16 - Force Majeure and change of circumstances
16.1 If MonetDB Solutions' performance of an agreement is temporarily or permanently prevented by force majeure or if, after the agreement has been entered into, circumstances arise, which could not reasonably have been foreseen at the time the agreement was entered into and which are of such a nature that the Principal can not reasonably and equitably demand an unmodified performance of the agreement, MonetDB Solutions shall be entitled, without judicial intervention and without being liable itself to pay any damages, to dissolve the agreement wholly or partly, or, at MonetDB Solutions' choice, to postpone the performance of the agreement and to demand from the Principal that by mutual arrangement the agreement shall be modified in such a way that the performance of the agreement shall be reasonably possible for MonetDB Solutions.
16.2 Force Majeure is also understood to include the full or partial default of a third party from whom goods or services are obtained.
Article 17 - Liability
17.1 MonetDB Solutions shall carry out the work with care and to the best of its ability and shall to the best of its ability aim at results as useful as possible. However, MonetDB Solutions does not give any guarantee regarding the work or the results thereof. Notwithstanding the above, MonetDB Solutions shall at its cost remedy any deficiency in the work as proven by the Principal, if such deficiency was caused by faulty workmanship on the part of MonetDB Solutions and the Principal has within 3 months after completion of the work or termination of the agreement notified MonetDB Solutions in writing of such deficiency.
17.2 Unless the Principal proves that the damages suffered by him are directly and solely caused by gross negligence or willful failure of the management or senior supervisory personnel of MonetDB Solutions, and subject to the stipulations of article 18, MonetDB Solutions shall neither in the contract nor at law be liable for damages suffered by the Principal or third parties in connection with the agreement. MonetDB Solutions shall never be liable for damages as a consequence of the implementation of the results of its work or of exceeding terms, nor for consequential or indirect damage, including but not limited to loss of production and damage because of loss of profit or savings.
17.3 If, in accordance with the above, MonetDB Solutions is liable to make good any damage, its aggregate liability under the agreement shall - with the exception of the case mentioned in article 18.2 - be limited to an amount not exceeding 20% of the sum total of the order, or in a given case of the - estimated, if necessary - entire compensation, excluding VAT, due to MonetDB Solutions with respect, to the relevant agreement, all this with a maximum of EUR 20.000.
17.4 Any obligation of MonetDB Solutions for compensation of damages shall lapse if the Principal has not made a written appeal for this within six months after the completion of the order or after the termination of the agreement.
17.5 The Principal shall save and hold harmless MonetDB Solutions and those persons MonetDB Solutions makes use of in the performance of the agreement against any claims by third parties in connection with the use or the application of results, data, knowledge, information, designs or software originating from MonetDB Solutions.
Article 18 - Presence on MonetDB Solutions' sites
18.1 If the Principal and/or his employees are on the sites or in, on or near the buildings or installations of MonetDB Solutions, they shall have to observe MonetDB Solutions' instructions. The Principal shall oblige his employees to comply with said instructions.
18.2 MonetDB Solutions shall never be liable for damage or injuries sustained by the Principal, his employees and/or his goods when being on the sites or in on or near the buildings or installations of MonetDB Solutions, barring a payment made by insurance contracted by MonetDB Solutions for this matter.
Article 19 - Modifications and additions
Modifications of or additions to agreements entered into are binding for MonetDB Solutions only if and in so far as such modifications or additions have been confirmed explicitly and in writing by MonetDB Solutions.
Article 20 - Assignment
The Principal's rights and obligations arising from an agreement with MonetDB Solutions shall only with MonetDB Solutions' prior written consent be assigned to any third party, to which consent MonetDB Solutions can attach conditions.
Article 21 - Disputes and applicable law
21.1 Disputes which cannot be settled amicably by negotiation between the parties shall be exclusively settled by arbitration in Amsterdam under the rules of the Netherlands Arbitration Institute (“NAI”) at Rotterdam by 3 arbitrators appointed in accordance with said rules. The language of the arbitration shall be Dutch.
21.2 In case of conflict between the Dutch and the English version of these conditions, the Dutch version shall prevail.
21.3 Dutch law shall exclusively apply to all agreements between MonetDB Solutions and the Principal.
Article 22 – Duration of agreement
22.1 This agreement shall be effective as of the date of signature and remains applicable until the end of a contract without affecting the outstanding invoices and corrective actions.
22.2 Either party can terminate the agreement with one month notice without affecting the financial obligations for work performed.