Terms and Conditions
In these general terms and conditions, the following terms shall have the following meanings:
- offer: a price quotation from Forty for the performance of a certain service, which has not yet been approved by the client (quotation);
- Forty: the private company with limited liability Forty B.V.;
- client: the party who has given Forty an order to execute an agreement;
- agreement: a quotation accepted verbally or in writing by the client or a document otherwise approved by both Forty and the client containing the instruction to Forty to provide certain services to which these general terms and conditions have been declared applicable.
2. Offers and agreements
These general terms and conditions shall apply to all offers and agreements whereby Forty supplies goods and/or services or works of any nature whatsoever to the client, even if these goods and/or services/works have not been specified in these terms and conditions. In the event of any conflict between these general terms and conditions and the content of offers and/or agreements, the content of the offers and/or agreements shall prevail.
- Deviations from these general terms and conditions are only valid as far as the parties have expressly agreed this in writing.
- Any applicability of purchasing or other (general) terms and conditions of the client is hereby expressly rejected.
All offers are without obligation, unless stated otherwise by Forty in writing or by e-mail.
An offer made by Forty is valid for thirty days unless stated otherwise. An agreement cannot be cancelled by the client, unless otherwise agreed in writing.
If any provision of these general terms and conditions is null and void or is annulled, the other provisions of these general terms and conditions shall remain in full force and effect. Forty and the client shall consult with each other to replace the null and void or annulled general terms and conditions, whereby the purpose and scope of the null and void or annulled condition shall be sought as closely as possible.
The agreement is concluded and commences as soon as the client agrees to Forty's offer.
The agreement is entered into for an indefinite period of time unless the parties have agreed on a definite period of time in writing. An agreement for a definite period of time cannot be terminated prematurely or otherwise prematurely terminated by the client, unless otherwise agreed in writing.
Forty is permitted to have certain activities carried out by third parties.
3. Prices and payment
All prices quoted by Forty are exclusive of VAT and other government levies. In the event of an agreement involving periodical amounts to be paid by the client, Forty shall be entitled to adjust the applicable prices and rates by means of a written notification with due observance of a period of three months.
Forty shall in all cases be entitled to adjust the agreed price and rates by means of a written notification to the client for performances to be delivered at a time at least three months after the date of this notification.
All invoices will be paid by the client within 30 days of the invoice date. If the client has not paid on time, this will be notified to the client and a further term of payment of seven days will be set. If payment has not been made within that period either, then the client will be in breach of contract without any further notice of default. Forty reserves the right to suspend delivery if the client is in breach of contract.
If the client fails to pay the due amounts within the agreed term, the client shall owe statutory commercial interest on the outstanding amount without a notice of default being required. If the client continues to fail to pay the claim, the claim may be handed over, which will oblige the client to pay extrajudicial and judicial costs in full. The amount of the extrajudicial costs is hereby set at a minimum of 15% of the principal sum with a minimum of € 250.
If the client is of the opinion that the costs charged are incorrect, the client must notify Forty of its objections within seven days of the invoice date. In that case, Forty shall conduct an investigation into the correctness of the invoice amounts and communicate the results to the client. A notification made after the period referred to in this paragraph is too late. In that case the client cannot submit any objections and must proceed to payment.
After acceptance of an assignment by the client, Forty will charge a prepayment of 30% of the total amount as submitted in the quotation. As soon as this amount has been received from the client, Forty shall commence its activities. The remaining amount will be charged after completion of the project, unless otherwise agreed in writing.
The right of settlement and suspension by the client is explicitly excluded.
The parties mutually guarantee that all information of a confidential nature received from the other party before and after entering into the agreement will remain confidential, unless a legal obligation requires disclosure of this information. This obligation of confidentiality shall continue to apply after termination of the agreement.
Information shall be regarded as confidential if this arises from the nature of the information or if the information has been designated as such by one of the parties.
5. Intellectual and/or industrial property rights
All intellectual or industrial property rights to concepts, software, equipment, goods or materials developed or made available by Forty, in the broadest sense of the word, belong exclusively to Forty or its licensors. Without Forty's prior written permission, the client is not entitled to use, reproduce, publish or make known to third parties any concepts, software, equipment, goods or materials made available to them by Forty. The client shall only be granted those rights and powers explicitly granted within the agreement or otherwise and shall not reproduce or make copies of the concepts, software or other materials.
Forty is allowed to take technical measures to protect the concepts and the software. If Forty has secured the software by means of technical protection, the client is not permitted to remove, modify or evade this security.
The client is allowed to make one copy of the software for use after possible damage or theft of the software. If the technical measures taken by Forty prevent such a copy from being made, Forty shall make a copy available to the client at the latter's request. This copy must be returned to Forty at the end of the agreement and in any case at the first request and must be removed from the client's systems and continue to be removed.
Forty shall not be obliged to indemnify the client in any way on account of infringement of intellectual or industrial property rights of third parties.
The client guarantees that no rights of third parties oppose the making available to Forty of equipment, software or materials and shall indemnify Forty against any action based on the assertion that making available, using or processing infringes any right of third parties.
Forty reserves the right to use the knowledge gained through the execution of the work for other purposes, insofar as no confidential information is brought to the attention of third parties.
6. Retention of title
All items or designs delivered by Forty and located under the client shall remain Forty's property until the client has paid all amounts due for the items delivered or to be delivered under the agreement and/or activities performed or to be performed, as well as all amounts owed by the client on account of any failure to fulfil its payment obligation.
Rights (of use) shall only be granted or transferred to the client on the condition that the client pays the agreed fee on time and in full.
7. Transfer of rights and obligations
The client is not entitled to transfer the rights and/or obligations ensuing from this agreement to third parties unless Forty gives its prior written consent.
8. Maintenance work
Forty has the right to temporarily suspend services to be provided and to temporarily put products out of use if maintenance work makes this necessary. The suspension of services and/or the temporary putting out of use of products cannot in any way lead to Forty being liable for any damage of any nature whatsoever suffered by the client.
Forty shall never be liable for any damage that may arise as a result of Forty not fulfilling any obligations, unless Forty can be blamed for intent or gross fault. In the latter case, Forty's liability shall be limited to replacement of the product delivered or to repayment of what it has invoiced in this respect, at Forty's discretion. Should Forty nevertheless be liable in any other way despite the foregoing, Forty's total liability is limited to direct damage and to what its insurer pays out in any case.
Forty is never liable for consequential loss or other forms of indirect loss or damage.
Given the large amount of inter human activities on the Internet, the use of local networks and wireless communication, the client must take account of the fact that information obtained or sent via the Internet can be freely accessible.
The client shall indemnify Forty against any claim by a third party due to a fault on the part of a person or company engaged by or on behalf of the client.
10. Force majeure
Forty is not obliged to fulfil any obligations if Forty is prevented from doing so as a result of force majeure. Force majeure is also understood as a non-attributable shortcoming on the part of suppliers for Forty. If the situation of force majeure has lasted longer than fourteen days, Forty is entitled to terminate the agreement in writing. What has already been performed pursuant to the agreement will be settled proportionately.
Force majeure is understood to mean any circumstance not attributable to Forty, as a result of which Forty is unable to fulfil its obligations under the agreement, with due observance of the interpretation given to it in literature and case law.
11. Modification of the conditions
Forty reserves the right to amend or supplement these conditions. Amendments or supplements to these conditions shall also apply in respect of already at the time of the amendments or additions to agreements entered into with due observance of a period of thirty days after the written amendment or addition has been announced.
If the client does not wish to accept the amendment and/or addition to the conditions, the client may dissolve the agreement by the date on which the new terms and conditions take effect against the date on which the amendment or addition takes effect.
In the event of late payment of any payments on the due date, Forty shall offer the client a reasonable period of time in which to effect payment. If the client remains in default of payment within the set period even after the reminder has been issued, the client shall owe default interest of 1.5% per month on the overdue amount, commencing on the due date without notice of default being required.
If the client fails to meet his obligations under the agreement or fails to meet them properly, or if Forty has good reason to fear that the client will be unable to meet his obligations properly, Forty may dissolve the agreement immediately and without notice of default, without being liable to pay any form of compensation to the client. Reasonable grounds for fearing non-performance shall in any event exist if the client applies for suspension of payment or application of the law on debt rescheduling for natural persons, if a petition is filed for the client's bankruptcy, if the client is placed under administration and if a third party seizes the client's property.
Forty also has the right to terminate the agreement with immediate effect without judicial intervention if the client makes improper use of the internet (spamming), if the client spreads information in violation of international legislations and regulations and if the client spreads information that is discriminatory with regard to gender, race, appearance, religion, culture or origin or incites violence.
13. Applicable law and disputes
The agreement and any legal relationship between Forty and the client shall be governed exclusively by Dutch law.
Any disputes which may arise between Forty and the client as a result of an agreement entered into by Forty with the client, or as a result of any further agreement which may be the result thereof, will be settled exclusively by the competent judge of the Central Netherlands District Court in Utrecht.
14. Services, privacy, information security and other
Forty will make every effort to perform its services with due care. Forty's obligation is in the nature of a best-efforts obligation unless agreed otherwise in writing. If it was agreed that the services will be provided in phases, Forty shall be entitled to postpone commencement of the services belonging to a subsequent phase until the client has approved the results of a previous phase in writing. Each agreed period is approximate. The client is not entitled to compensation for exceeding the term and the agreement cannot be terminated by the client due to the term being exceeded.
If, at the request or with the prior consent of the client, Forty has carried out activities or other performances which fall outside the content or scope of agreed services, the activities or performances shall be reimbursed by the client to Forty in accordance with Forty's usual rates. However, Forty is not obliged to comply with such a request and may require that a separate written agreement be concluded for this purpose.
The client accepts that the agreed or expected time of completion of the services cannot be met by activities as referred to above in article 14.2.
As far as a fixed price has been agreed for the provision of services and the parties decide to enter into a separate agreement with respect to the extra work or performances, Forty shall inform the client in advance, in writing, of the financial consequences of the extra work or performances.
Forty acts in accordance with the applicable privacy legislation, including the General Data Protection Regulation (GDPR/AVG), and expects the client to do the same. Forty takes the protection of personal data seriously and takes appropriate measures to prevent misuse, loss, unauthorised access, unwanted disclosure and unauthorised alteration. Among other things, Forty takes privacy by design and privacy by default into account. Part of the agreement between Forty and the client is Forty's privacy regulations. In these privacy regulations Forty informs about the privacy measures taken and about the privacy rights. The client must agree to the privacy regulations.
If Forty is obliged to provide information security pursuant to the agreement, this security shall be in accordance with the agreement concluded between the parties. The information security will be generally effective and will meet a level that is appropriate to the state of the art and the sensitivity of the information concerned. However, Forty will not be obliged to provide an unreasonable level of security. The client shall adequately protect its systems and infrastructure and have antivirus software running at all times.
Forty is entitled to amend these general terms and conditions unilaterally. The client shall be informed of the amendment and the amendments shall take effect at the announced time of entry into force.