General Terms and Conditions

Article 1 General

These terms and conditions apply to every offer, quotation and agreement between Cloud Positive B.V., hereinafter referred to as the “Contractor,” and a Client to whom the Contractor has declared these terms and conditions applicable, insofar as the parties have not expressly and in writing deviated from these terms and conditions.

These terms and conditions also apply to actions performed by third parties engaged by the Contractor in the context of the/an assignment.

These general terms and conditions are likewise written for the Contractor’s employees and its management.

The applicability of any purchasing or other conditions of the Client is expressly rejected.

If one or more provisions in these general terms and conditions are at any time wholly or partially null and void or annulled, the remaining provisions of these general terms and conditions shall remain fully applicable. The Contractor and the Client will then consult to agree on new provisions to replace the null or annulled provisions, taking into account as much as possible the purpose and intent of the original provisions.

If there is any ambiguity regarding the interpretation of one or more provisions of these general terms and conditions, interpretation shall take place “in the spirit” of these provisions.

If a situation arises between the parties that is not regulated in these general terms and conditions, this situation shall be assessed in the spirit of these general terms and conditions.

If the Contractor does not always require strict compliance with these terms and conditions, this does not mean that the provisions do not apply, or that the Contractor in any way loses the right to demand strict compliance with the provisions of these terms and conditions in other cases.

Article 2 Quotations and Offers

All quotations and offers of the Contractor are without obligation, unless a period for acceptance is stated in the quotation. If no acceptance period is stated, the offer shall in any case lapse after 30 days.

The Contractor cannot be held to its quotations or offers if the Client can reasonably understand that the quotations or offers, or any part thereof, contain an obvious mistake or clerical error.

The prices stated in a quotation or offer are exclusive of VAT and other government levies, as well as any costs to be incurred in the context of the agreement, including but not limited to travel and accommodation, shipping and administration costs, unless indicated otherwise.

If the acceptance (whether or not on minor points) deviates from the offer included in the quotation or offer, the Contractor is not bound by it. The agreement will then not be concluded in accordance with this deviating acceptance, unless the Contractor indicates otherwise.

A composite price quotation does not oblige the Contractor to perform part of the assignment for a corresponding part of the stated price. Offers or quotations do not automatically apply to future orders.

Article 3 Contract Term, Performance Periods, Transfer of Risk, Performance and Modification of the Agreement, Price Increase

The agreement between the Contractor and the Client is entered into for a fixed term, unless the nature of the agreement dictates otherwise or the parties expressly agree otherwise in writing.

If a period has been agreed or stated for the performance of certain work or for the delivery of certain items, this is never a strict deadline. If a period is exceeded, the Client must therefore place the Contractor in default in writing. The Contractor must thereby be offered a reasonable period to still perform the agreement.

The Contractor will carry out the agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship, based on the state of science known at that time.

The Contractor has the right to have certain work performed by third parties. The applicability of Articles 7:404, 7:407 paragraph 2 and 7:409 of the Dutch Civil Code is expressly excluded.

If work is performed by the Contractor or third parties engaged by the Contractor in the context of the assignment at the Client’s location or a location designated by the Client, the Client shall provide the facilities reasonably required by those employees free of charge.

The Contractor is entitled to execute the agreement in various phases and to invoice the part thus performed separately.

If the agreement is performed in phases, the Contractor may suspend the performance of those parts that belong to a subsequent phase until the Client has approved the results of the preceding phase in writing.

The Client shall ensure that all data which the Contractor indicates are necessary, or which the Client should reasonably understand are necessary for the performance of the agreement, are provided to the Contractor in a timely manner. If the data required for the performance of the agreement are not provided to the Contractor in time, the Contractor has the right to suspend the performance of the agreement and/or to charge the Client the additional costs resulting from the delay according to the then customary rates. The performance period shall not commence earlier than after the Client has made the data available to the Contractor. The Contractor is not liable for any damage, of whatever nature, resulting from the Contractor having relied on inaccurate and/or incomplete data provided by the Client.

If during the performance of the agreement it appears that it is necessary for proper performance to modify or supplement it, the parties shall proceed in a timely manner and by mutual agreement to amend the agreement. If the nature, scope or content of the agreement is changed, whether at the request or instruction of the Client, competent authorities, etc., and the agreement is thereby changed in qualitative and/or quantitative respect, this may have consequences for what was originally agreed. As a result, the originally agreed amount may be increased or decreased. The Contractor will provide a price quotation in advance as much as possible. The originally stated period of performance may also be changed due to a modification of the agreement. The Client accepts the possibility of modification of the agreement, including the change in price and period of performance.

If the agreement is modified, including an addition, the Contractor is entitled to execute it only after approval has been given by the person authorized within the Contractor and the Client has agreed to the price and other conditions stated for the performance, including the time to be determined at which it will be carried out. Failure to execute the modified agreement immediately does not constitute a breach of contract by the Contractor and is no ground for the Client to terminate or cancel the agreement.

Without being in default, the Contractor may refuse a request to modify the agreement if this could have qualitative and/or quantitative consequences, for example for the work to be performed or the items to be delivered in that context.

If the Client fails to properly fulfill any obligation towards the Contractor, the Client is liable for all damage thereby directly or indirectly suffered by the Contractor.

If the Contractor agrees a fixed fee or fixed price with the Client, the Contractor is nevertheless at all times entitled to increase this fee or price without the Client being entitled to dissolve the agreement for that reason, if the price increase results from a power or obligation under legislation or regulations, or is caused by an increase in the price of raw materials, wages, etc., or other grounds that could not reasonably have been foreseen at the time the agreement was entered into.

If the price increase—other than as a result of a modification of the agreement—exceeds 10% and occurs within three months after conclusion of the agreement, then only the Client who can invoke Title 5, Section 3 of Book 6 of the Dutch Civil Code is entitled to dissolve the agreement by written declaration, unless the Contractor is then still willing to execute the agreement on the basis of the originally agreed amount; if the price increase results from a power or an obligation resting on the Contractor by virtue of the law; if it has been stipulated that delivery will take place more than three months after the conclusion of the agreement; or, in the case of delivery of a good, if it has been stipulated that delivery will take place more than three months after the purchase.

Article 4 Suspension, Dissolution and Termination of the Agreement

The Contractor is authorized to suspend the fulfillment of obligations or to dissolve the agreement if the Client does not, not fully, or not timely fulfill the obligations arising from the agreement; if after the agreement is concluded circumstances come to the Contractor’s knowledge that give good reason to fear that the Client will not fulfill the obligations; if at the time of concluding the agreement the Client was requested to provide security for the fulfillment of its obligations under the agreement and this security is not provided or is insufficient; or if, due to delay on the part of the Client, the Contractor can no longer be expected to perform the agreement under the originally agreed conditions.

Furthermore, the Contractor is authorized to dissolve the agreement if circumstances arise of such a nature that performance of the agreement is impossible, or if other circumstances arise which are of such a nature that unchanged maintenance of the agreement cannot reasonably be required of the Contractor.

If the agreement is dissolved, the Contractor’s claims against the Client become immediately due and payable. If the Contractor suspends fulfillment of the obligations, it retains its claims under the law and the agreement.

If the Contractor proceeds to suspension or dissolution, it is in no way obliged to compensate damages and costs in any way arising therefrom.

If the dissolution is attributable to the Client, the Contractor is entitled to compensation for the damage, including the costs, thereby directly and indirectly incurred.

If the Client fails to fulfill the obligations arising from the agreement and such failure justifies dissolution, the Contractor is entitled to dissolve the agreement immediately and with immediate effect without any obligation on its part to pay any compensation or indemnification, while the Client, by reason of breach of contract, is obliged to pay compensation or indemnification.

If the agreement is terminated prematurely by the Contractor, the Contractor will, in consultation with the Client, arrange for the transfer of work still to be performed to third parties, unless the termination is attributable to the Client. If the transfer of the work entails additional costs for the Contractor, these will be charged to the Client. The Client is obliged to pay these costs within the specified term, unless the Contractor indicates otherwise.

In the event of liquidation, (application for) suspension of payments or bankruptcy, attachment—if and insofar as the attachment is not lifted within three months—at the Client’s expense, debt rescheduling or any other circumstance as a result of which the Client can no longer freely dispose of its assets, the Contractor is free to terminate the agreement immediately and with immediate effect or to cancel the order or agreement, without any obligation on its part to pay any compensation or indemnification.

In that case the Contractor’s claims against the Client are immediately due and payable.

If the Client cancels an order in whole or in part, the work already performed and the items ordered or prepared for it, increased by any supply and delivery costs thereof and the labor time reserved for the performance of the agreement, will be charged to the Client in full.

Article 5 Force Majeure

The Contractor is not obliged to fulfill any obligation towards the Client if it is hindered from doing so as a result of a circumstance that is not due to fault and is not for its account by virtue of law, legal act or generally accepted practice.

Force majeure in these general terms and conditions includes, in addition to what is understood in law and jurisprudence, all external causes, foreseen or unforeseen, over which the Contractor cannot exercise influence but which prevent the Contractor from fulfilling its obligations. This includes strikes in the Contractor’s business or that of third parties. The Contractor is also entitled to invoke force majeure if the circumstance preventing (further) performance of the agreement occurs after the Contractor should have fulfilled its obligation.

During the period that the force majeure continues, the Contractor may suspend the obligations under the agreement. If this period lasts longer than one month, each of the parties is entitled to dissolve the agreement, without any obligation to compensate damage to the other party.

Insofar as the Contractor has already partially fulfilled its obligations under the agreement at the time the force majeure occurs or will be able to fulfill them, and the fulfilled or to be fulfilled part has independent value, the Contractor is entitled to invoice the part already fulfilled or to be fulfilled separately. The Client is obliged to pay this invoice as if it were a separate agreement.

Article 6 Payment and Collection Costs

Payment shall always be made within 30 days of the invoice date, in the manner indicated by the Contractor and in the currency in which the invoice is issued, unless otherwise indicated in writing by the Contractor.

The Contractor is entitled to invoice periodically.

If the Client fails to pay an invoice on time, the Client is legally in default. The Client then owes statutory interest. The interest on the due amount will be calculated from the moment the Client is in default until the moment of full payment of the amount due.

The Contractor has the right to have payments made by the Client go first to reduce costs, then to reduce the accrued interest and finally to reduce the principal and current interest. Without being in default thereby, the Contractor can refuse an offer of payment if the Client designates a different order for the allocation of the payment. The Contractor may refuse full repayment of the principal if the accrued and current interest and collection costs are not also paid.

The Client is never entitled to set off any amount owed by it to the Contractor. Objections to the amount of an invoice do not suspend the payment obligation. The Client who cannot invoke Section 6.5.3 (Articles 231 through 247 Book 6 of the Dutch Civil Code) is likewise not entitled to suspend payment of an invoice for any other reason.

If the Client is in default or in breach of the (timely) fulfillment of its obligations, then all reasonable costs incurred to obtain satisfaction out of court shall be borne by the Client. The out-of-court costs are calculated on the basis of what is customary in Dutch collection practice, currently the calculation method according to the “Rapport Voorwerk II.” If, however, the Contractor has incurred higher collection costs that were reasonably necessary, the actual costs incurred are eligible for reimbursement. Any legal and enforcement costs incurred will also be recovered from the Client. The Client also owes interest on the collection costs due.

Article 7 Retention of Title

Items delivered by the Contractor under the agreement remain the property of the Contractor until the Client has duly fulfilled all obligations arising from the agreement(s) concluded with the Contractor.

Items delivered by the Contractor that fall under the retention of title pursuant to paragraph 1 may not be resold and may never be used as a means of payment. The Client is not authorized to pledge or otherwise encumber items subject to retention of title.

The Client shall always do all that may reasonably be expected to safeguard the Contractor’s ownership rights.

If third parties seize the items delivered under retention of title or wish to establish or assert rights thereon, the Client is obliged to notify the Contractor thereof immediately. Furthermore, the Client undertakes to insure and keep insured the items delivered under retention of title against fire, explosion and water damage as well as theft and to provide the policy of this insurance to the Contractor for inspection upon first request. In the event of any insurance payout, the Contractor is entitled to these proceeds. Insofar as necessary, the Client undertakes in advance towards the Contractor to cooperate in all that may (prove to) be necessary or desirable in this context.

In the event the Contractor wishes to exercise its ownership rights as referred to in this article, the Client grants the Contractor and third parties designated by the Contractor unconditional and irrevocable permission in advance to enter all places where the Contractor’s property is located and to take it back.

Article 8 Warranties, Inspection and Complaints, Limitation Period

The items to be delivered by the Contractor meet the usual requirements and standards that can reasonably be set at the time of delivery and for which they are intended under normal use in the Netherlands. The warranty referred to in this article applies to items intended for use within the Netherlands. In the case of use outside the Netherlands, the Client must verify for itself whether the use is suitable for use there and meets the conditions set for it. In that case, the Contractor may impose different warranty and other conditions with regard to the items to be delivered or work to be performed.

The warranty referred to in paragraph 1 of this article applies for a period of [object Object] after delivery, unless the nature of what is delivered dictates otherwise or the parties have agreed otherwise.

If the warranty provided by the Contractor concerns an item produced by a third party, the warranty is limited to that provided by the manufacturer of the item, unless otherwise stated.

Any form of warranty lapses if a defect has arisen as a result of or ensues from improper or inappropriate use thereof or use after the expiry date, incorrect storage or maintenance by the Client and/or by third parties when, without written permission from the Contractor, the Client or third parties have made or attempted to make changes to the item, attached other items thereto that should not be attached to it, or if it has been processed or treated in a manner other than prescribed.

The Client likewise has no claim under warranty if the defect has arisen due to or is the result of circumstances over which the Contractor has no influence, including weather conditions (such as, but not limited to, extreme rainfall or temperatures), etc.

The Client is obliged to inspect (or have inspected) the delivered items immediately at the moment the items are made available to it or the relevant work has been carried out. The Client must examine whether the quality and/or quantity of the delivered items corresponds with what has been agreed and meets the requirements agreed by the parties in this respect. Any visible defects must be reported to the Contractor in writing within [object Object] after delivery. Any non-visible defects must be reported to the Contractor immediately after discovery, but in any case no later than within fourteen days, in writing. The notice must contain as detailed a description as possible of the defect so that the Contractor can respond adequately. The Client must give the Contractor the opportunity to investigate a complaint (or have it investigated).

If the Client complains in time, this does not suspend its payment obligation. In that case, the Client also remains obliged to take delivery of and pay for the other items ordered and what it has instructed the Contractor to do.

If a defect is reported later, the Client no longer has the right to repair, replacement or compensation.

If it is established that an item is defective and a complaint has been made in time in that regard, the Contractor will, within a reasonable period after the return receipt of the defective item, or if return is reasonably not possible, after written notification of the defect by the Client, at the Contractor’s option, replace or repair the defective item or pay a replacement compensation to the Client. In the event of replacement, the Client is obliged to return the replaced item to the Contractor and to transfer ownership thereof to the Contractor, unless the Contractor indicates otherwise.

If it is established that a complaint is unfounded, the costs thereby incurred, including the investigation costs, on the side of the Contractor shall be borne in full by the Client.

After expiry of the warranty period, all costs for repair or replacement, including administration, shipping and call-out charges, will be charged to the Client.

In deviation from the statutory limitation periods, the limitation period of all claims and defenses against the Contractor and third parties involved by the Contractor in the performance of an agreement amounts to [object Object].

Article 9 Liability

If the Contractor should be liable, such liability is limited to what is regulated in this provision.

The Contractor is not liable for damage of any nature whatsoever caused by the Contractor having relied on inaccurate and/or incomplete data provided by or on behalf of the Client.

If the Contractor is liable for any damage, the Contractor’s liability is limited to a maximum of once the invoice value of the order, or at least to that part of the order to which the liability relates.

The Contractor’s liability is in any case always limited to the amount paid out by its insurer, where applicable.

The Contractor is only liable for direct damage.

Direct damage shall exclusively mean the reasonable costs of determining the cause and extent of the damage, insofar as the determination relates to damage within the meaning of these conditions; the reasonable costs incurred to make the Contractor’s defective performance conform to the agreement, insofar as they can be attributed to the Contractor; and reasonable costs incurred to prevent or limit damage, insofar as the Client demonstrates that these costs have led to the limitation of direct damage as referred to in these general terms and conditions. The Contractor is never liable for indirect damage, including consequential damage, lost profit, missed savings and damage due to business interruption.

The limitations of liability included in this article do not apply if the damage is due to intent or gross negligence on the part of the Contractor or its managerial subordinates.

Article 10 Indemnification

The Client indemnifies the Contractor against any claims by third parties who suffer damage in connection with the performance of the agreement and where the cause is attributable to others than the Contractor. If the Contractor is addressed by third parties on that account, the Client is obliged to assist the Contractor both out of court and in court and to do immediately all that can be expected of it in that case. Should the Client fail to take adequate measures, the Contractor is entitled, without notice of default, to proceed to do so itself. All costs and damage on the part of the Contractor and third parties thereby arising are fully for the account and risk of the Client.

Article 11 Intellectual Property

The Contractor reserves the rights and powers vested in it under the Dutch Copyright Act and other intellectual property laws and regulations. The Contractor has the right to use the knowledge gained on its side by the performance of an agreement for other purposes, insofar as no strictly confidential information of the Client is brought to the knowledge of third parties.

Article 12 Applicable Law and Disputes

All legal relationships to which the Contractor is a party are exclusively governed by Dutch law, even if an obligation is performed wholly or partly abroad or if a party involved in the legal relationship is domiciled there. The applicability of the Vienna Sales Convention (CISG) is excluded.

The court in the district where the Contractor has its registered office has exclusive jurisdiction to hear disputes, unless the law imperatively prescribes otherwise. Nevertheless, the Contractor has the right to submit the dispute to the competent court according to the law.

Parties will not apply to the court until they have made every effort to settle a dispute by mutual agreement.

Article 13 Location and Amendment of General Terms and Conditions

These terms and conditions are available at https://cloudpositive.com/general-terms-and-conditions/.

The latest online version shall always apply, i.e., the version that was valid at the time the legal relationship with the Contractor was established.

The Dutch text of the general terms and conditions is always decisive for their interpretation.