Terms and conditions

Article 1 Definitions
1. emarkable B.V., located in Dodewaard, Chamber of Commerce number 78319579, is referred to as the service provider in these general terms and conditions.
2. The counterparty of the service provider is referred to as the client in these general terms and conditions.
3. Parties are the service provider and the client together.
4. The agreement refers to the service agreement between the parties.

Article 2 Applicability of general terms and conditions
1. These conditions apply to all offers, proposals, activities, agreements and deliveries of services or goods by or on behalf of the service provider.
2. Deviations from these conditions are only possible if explicitly agreed upon in writing by the parties.
3. The agreement always entails best-effort obligations for the service provider, not result-oriented obligations.

Article 3 Payment
1. Invoices must be paid within 14 days of the invoice date, unless the parties have made other agreements in writing or a different payment term is stated on the invoice.
2. Payments are made without any right to suspension or set-off by transferring the due amount to the bank account number specified by the service provider.
3. If the client does not pay within the agreed payment term, they are legally in default, without any further notice of default being required.
If the payment arrears have continued for a period of three (3) months, the service provider is entitled to suspend its obligations until the client has fulfilled their payment obligations.
4. If the client remains in default, the service provider will proceed with collection. The costs related to this collection shall be borne by the client. If the client is in default, they shall also owe statutory (commercial) interest, extrajudicial collection costs, and other damages to the service provider in addition to the principal sum. The collection costs are calculated according to the Dutch Extrajudicial Collection Costs Decree.
5. In case of liquidation, bankruptcy, attachment, or suspension of payment of the client, the claims of the service provider against the client are immediately due and payable.
6. If the client refuses to cooperate in the execution of the assignment by the service provider, they are still obliged to pay the agreed price to the service provider.

Article 4 Offers and quotations
1. The service provider's offers are valid for a maximum of 3 months, unless a different acceptance period is stated in the offer. If the offer is not accepted within the specified period, the offer expires.
2. Delivery times in quotations are indicative and do not entitle the client to dissolution or compensation in case of exceeding them, unless the parties have explicitly agreed otherwise in writing.
3. Offers and quotations do not automatically apply to repeat orders. Parties must explicitly agree on this in writing.

Article 5 Prices
1. The prices stated on offers, quotations, and invoices of the service provider are exclusive of VAT and any other government levies, unless explicitly stated otherwise.
2. The prices of goods are based on the cost prices known at that time. Increases thereof, which could not have been foreseen by the service provider at the time of making the offer or concluding the agreement, may lead to price increases.
3. Regarding the services, parties may agree on a fixed price when entering into the agreement.
4. If no fixed price has been agreed upon, the rate for the services can be determined based on the actual hours spent. The rate will be calculated according to the service provider's usual hourly rates, applicable for the period in which the work is performed, unless a different hourly rate has been agreed upon.
5. If no rate based on the actual hours spent has been agreed upon, a target price will be agreed upon for the services, whereby the service provider is entitled to deviate up to 10% from this. If the target price turns out to be more than 10% higher, the service provider must inform the client in a timely manner why a higher price is justified. In that case, the client has the right to cancel part of the assignment that exceeds the target price plus 10%.

Article 6 Price indexation
1. The prices and hourly wages agreed upon at the commencement of the agreement are based on the price level applicable at that time. The service provider has the right to adjust the fees charged to the client annually as of January 1st.
2. Adjusted prices, rates, and hourly wages will be communicated to the client as soon as possible.

Article 7 Information provision by the client
1. The client will make all information relevant to the execution of the assignment available to the service provider.
2. The client is obliged to provide all data and documents that the service provider deems necessary for the correct execution of the assignment, in a timely manner, in the desired form, and in the desired way.
3. The client guarantees the accuracy, completeness, and reliability of the data and documents provided to the service provider, even if these originate from third parties, unless the nature of the assignment dictates otherwise.
4. The client indemnifies the service provider against any damage in any form whatsoever arising from non-compliance with the provisions of the first paragraph of this article.
5. If and insofar as the client requests it, the service provider will return the relevant documents.
6. If the client does not provide the data and documents requested by the service provider, or does not do so in a timely or proper manner, and the execution of the assignment is delayed as a result, the resulting extra costs and extra fees will be borne by the client.

Article 8 Execution of the agreement
1. The service provider will execute the agreement to the best of their knowledge and ability and in accordance with the requirements of good craftsmanship.
2. The service provider has the right to have work performed by third parties.
3. The execution takes place in mutual consultation and after written approval and payment of any agreed advance.
4. It is the client's responsibility to ensure that the service provider can start the assignment on time.

Article 9 Contract duration assignment
1. The agreement between the client and the service provider is entered into for an indefinite period, unless the nature of the agreement dictates otherwise or the parties have explicitly agreed otherwise in writing.
2. Both parties have the right to terminate the agreement by means of written notice, subject to a notice period of two (2) calendar months.
3. The termination must be sent by registered mail or by e-mail with acknowledgment of receipt. The notice period commences on the day after receipt of the termination by the other party.
4. If the agreement is terminated, the parties are obliged to fulfill all ongoing obligations until the end of the notice period, including payment of already agreed amounts for services rendered up to the end of the notice period.
5. The service provider also has the right to terminate or end the agreement with immediate effect if:
- The client is in default of fulfilling their obligations under the agreement;
- The client is in liquidation, has been declared bankrupt, or the Natural Persons Debt Restructuring Act has become applicable to them, or the client has been granted a moratorium on payments.
6. If the parties have agreed on a term for the completion of certain work within the term of the agreement, this is never a strict deadline. If this term is exceeded, the client must give written notice of default to the service provider.

Article 10 Amendment of the agreement
1. If, during the execution of the agreement, it appears necessary for a proper execution of the assignment to change or supplement the work to be performed, the parties will adapt the agreement accordingly in a timely manner and in mutual consultation.
2. If the parties agree that the agreement is changed or supplemented, the completion time of the execution may be affected thereby. The service provider will inform the client of this as soon as possible.
3. If the change or supplement to the agreement has financial and/or qualitative consequences, the service provider will inform the client about this in writing as soon as possible.
4. If the parties have agreed on a fixed fee, the service provider will indicate to what extent the change or supplement to the agreement will result in an exceeding of this fee.

Article 11 Force majeure
1. In addition to the provisions of article 6:75 of the Dutch Civil Code, a shortcoming of the service provider in the fulfillment of any obligation towards the client cannot be attributed to the service provider in the event of circumstances beyond the service provider's control, whereby the fulfillment of its obligations towards the client is wholly or partially prevented or whereby the fulfillment of its obligations cannot reasonably be demanded from the service provider. Such circumstances include breach of contract by suppliers or other third parties, power outages, computer viruses, strikes, bad weather conditions and work stoppages.
2. If a situation as referred to above arises as a result of which the service provider cannot fulfill its obligations towards the client, these obligations will be suspended as long as the service provider cannot fulfill its obligations. If the situation referred to in the previous sentence has lasted for 30 calendar days, the parties have the right to dissolve the agreement in writing, in whole or in part.
3. In the case referred to in the second paragraph of this article, the service provider is not obliged to compensate for any damage, even if the service provider enjoys any advantage as a result of the force majeure situation.

Article 12 Set-off
1. The client waives their right to set off a debt to the service provider against a claim against the service provider.

Article 13 Suspension
1. The client waives the right to suspend the fulfillment of any obligation arising from this agreement.

Article 14 Transfer of rights
1. Rights of a party under this agreement cannot be transferred without the prior written consent of the other party. This provision qualifies as a clause with proprietary effect as referred to in article 3:83, second paragraph, of the Dutch Civil Code.

Article 15 Forfeiture of the claim
1. Any right to compensation by the service provider shall in any case lapse 12 months after the event from which the liability directly or indirectly arises. This does not exclude the provisions of Article 6:89 of the Dutch Civil Code.

Article 16 Insurance
1. The client undertakes to adequately insure and keep insured delivered goods that are necessary for the execution of the underlying agreement, as well as goods of the service provider present at the client's premises and goods delivered under retention of title, against fire, explosion and water damage, as well as theft, among other things.
2. The client shall provide the policy of these insurances for inspection upon first request.

Article 17 Liability for damage
1. The service provider is not liable for damage resulting from this agreement, unless the service provider has caused the damage intentionally or through gross negligence.
2. In the event that the service provider owes compensation to the client, the damage shall not exceed the fee.
3. Any liability for damage, arising from or related to the execution of an agreement, is always limited to the amount paid out in the relevant case by the concluded (professional) liability insurance(s). This amount is increased by the amount of the deductible according to the relevant policy.
4. The limitation of liability also applies if the service provider is held liable for damage resulting directly or indirectly from the improper functioning of equipment, software, data files, registers, or other items used by the service provider in the execution of the assignment.
5. The liability of the service provider for damage resulting from intent or deliberate recklessness of the service provider or its managing subordinates is not excluded.

Article 18 Client liability
1. If an assignment is given by more than one person, each of them is jointly and severally liable for the amounts due to the service provider under that assignment.
2. If an assignment is directly or indirectly given by a natural person on behalf of a legal entity, this natural person may also be the client in a private capacity. This requires that this natural person can be considered as the (co-)policymaker of the legal entity. In case of non-payment by the legal entity, the natural person is therefore personally liable for the payment of the invoice, regardless of whether this, whether or not at the request of the client, is addressed to a legal entity or to the client as a natural person or both.

Article 19 Indemnification
1. The client indemnifies the service provider against all claims from third parties related to the goods and/or services supplied by the service provider.

Article 20 Duty to complain
1. The client is obliged to report complaints about the work performed directly in writing to the service provider. The complaint must contain as detailed a description as possible of the shortcoming, so that the service provider is able to respond adequately.
2. A complaint can in no case lead to the service provider being held to perform other work than that which has been agreed upon.

Article 21 Retention of title, right of suspension and right of retention
1. The goods present at the client and delivered goods and parts remain the property of the service provider until the client has paid the entire agreed price. Until that time, the service provider can invoke its retention of title and reclaim the goods.
2. If the agreed advance payments are not made or not made on time, the service provider has the right to suspend the work until the agreed part has still been paid. This then constitutes creditor default. A delayed delivery cannot in that case be held against the service provider.
3. The service provider is not authorized to pledge or in any other way encumber the goods covered by its retention of title.
4. If goods have not yet been delivered, but the agreed advance payment or price has not been paid as agreed, the service provider has a right of retention. The goods will then not be delivered until the client has paid in full and as agreed.
5. In the event of liquidation, insolvency, or suspension of payment of the client, the client's obligations are immediately due and payable.

Article 22 Intellectual property
1. Unless the parties have agreed otherwise in writing, the service provider retains all absolute intellectual rights (including copyright, patent law, trademark law, design and model rights, etc.) to all designs, drawings, writings, data carriers or other information, offers, images, sketches, models, mock-ups, etc.
2. The aforementioned absolute intellectual rights may not be copied, shown to third parties, and/or made available or used in any other way without the written permission of the service provider.
3. The client undertakes to keep confidential the confidential information made available to them by the service provider. Confidential information includes, in any case, that to which this article refers, as well as business data. The client undertakes to impose a written confidentiality obligation on its personnel and/or third parties involved in the execution of this agreement, to the effect of this provision.

Article 23 Confidentiality
1. Each of the parties shall keep confidential the information it receives (in any form whatsoever) from the other party and all other information concerning the other party of which it knows or can reasonably suspect that it is secret or confidential, or information of which it can expect that its dissemination may cause damage to the other party, and shall take all necessary measures to ensure that its personnel also keep the said information confidential.
2. The confidentiality obligation referred to in the first paragraph of this article does not apply to information: a. which was already public at the time the recipient received this information or has subsequently become public without a breach by the receiving party of a confidentiality obligation incumbent upon it: b. which the receiving party can prove was already in its possession at the time it was provided by the other party: c. which the receiving party has received from a third party, whereby this third party was entitled to provide this information to the receiving party: d. which is made public by the receiving party pursuant to a legal obligation.
3. The confidentiality obligation described in this article applies for the duration of this agreement and for a period of three years after its termination.

Article 24 Penalty for breach of confidentiality obligation
1. If the client violates the article of these general terms and conditions regarding confidentiality, the client shall forfeit to the service provider an immediately due and payable penalty of € 50,000 for each violation and, in addition, an amount of € 500 for each day that such violation continues. This is regardless of whether the violation can be attributed to the client. Moreover, no prior notice of default or legal proceedings are required for the forfeiture of this penalty. Nor does there need to be any form of damage.
2. The forfeiture of the penalty referred to in the first paragraph of this article does not prejudice the other rights of the service provider, including its right to claim damages in addition to the penalty.

Article 25 Non-takeover of personnel
1. The client shall not employ any employees of the service provider (or of companies that the service provider has engaged for the execution of this agreement and who were involved in the execution of the agreement). Nor shall the client otherwise directly or indirectly employ them. This prohibition applies during the term of the agreement until one year after its termination. There is one exception to this prohibition: parties can make other arrangements in good business consultation. These arrangements are valid insofar as they have been laid down in writing.

Article 26 Dispute resolution
1. Dutch law applies to these general terms and conditions.
2. The Dutch courts are competent to take cognizance of all disputes arising from these general terms and conditions. a. which was already public at the time the recipient received this information or has subsequently become public without a breach by the receiving party of a confidentiality obligation incumbent upon it: b. which the receiving party can prove was already in its possession at the time it was provided by the other party: c. which the receiving party has received from a third party, whereby this third party was entitled to provide this information to the receiving party: d. which is made public by the receiving party pursuant to a legal obligation.
3. The confidentiality obligation described in this article applies for the duration of this agreement and for a period of three years after its termination.