General terms and conditions
Article 1. General
1. The agreement shall come into force by the general terms and conditions at hand together with the confirmation of order by the customer and CYMTV.
2. These general terms and conditions shall be applicable to any and all offers, quotations and agreements between CYMTV and a customer, insofar as the parties not explicitly deviate from these general terms and conditions.
3. The applicability of any purchasing terms and conditions and/or any other terms and conditions of the customer is expressly denied.
Article 2. Coming into effect of the agreement and quotations
1. Quotations by CYMTV shall be based on the information supplied by the customer. The customer warrants that he has timely and truthfully supplied all information that is essential for the planning, execution and completion of the order. 2. All quotations and offers by CYMTV shall be free of obligations, unless the quotation states an acceptance term. If no acceptance term is stated, no right in any manner whatsoever can be derived from the quotation or offer.
3. The agreement shall come into effect as per the day of signing by CYMTV or the day of sending the written confirmation of order by CYMTV to the customer respectively.
4. The agreement shall be entered into for an indefinite period, unless the content, nature or purpose of the order determines that it has been entered into for a fixed period.
Article 3. Execution by third parties
1. CYMTV shall have the right, insofar as this is required for a proper execution of the agreement, to have the order partly carried out by third parties. CYMTV shall only proceed thereto after consultations with the customer.
2. The applicability of the articles 7:404, 7:407 paragraph 2 and 7:409 of the Dutch Civil Code is hereby expressly excluded.
Article 4 – Execution of the order
1. CYMTV shall observe the care of a good supplier in the execution of his activities.
2. By force of the agreement, CYMTV undertakes a best efforts obligation and therefore does not provide any guarantees concerning the results of the order, unless explicitly determined otherwise.
Article 5. Changes of the order
1. Changes in the order by the customer that could not have been foreseen by CYMTV and that entail additional work, shall be paid by the customer to CYMTV pursuant the rate agreed in the agreement.
Additional work shall furthermore be the rescheduling of activities by CYMTV if this is required as a result of supplying incorrect or incomplete data by the customer. CYMTV shall invoice the costs for additional work to the customer on the basis of a subsequent calculation. 2. The customer shall timely inform CYMTV in writing of any changes in the execution of the order requested at a later time by the customer after confirmation of the order. In the event that these changes are not supplied in writing, the risk of the execution of such changes shall be to the account of the customer.
3. Changes made in an order that has already come into effect, may result in the fact that the originally agreed delivery time shall be exceeded by CYMTV.
Article 6. Cooperation of the customer
1. The customer shall at all times, thereto requested and at his own initiative, supply all relevant information to CYMTV that is required for a correct execution of the order granted.
2. If information required for the execution of the agreed order, is not or not timely or not in agreement with the arrangements entered into made available, or if the customer has not met his (information) obligations, CYMTV shall have the right to suspend the execution of the agreement.
3. In order to let the execution of the order proceed orderly and as far as possible according to the time schedule, the customer shall timely make staff from his own organisation available, unless the nature of the order determines otherwise. The customer shall ensure that his staff has the proper skills and experience to carry out the activities.
4. If and insofar as CYMTV requests such, the customer shall supply CYMTV at his premises and free of charge a private workspace with telephone and, if so desired, a fax and/or data net connection, unless the nature of the order determines otherwise.
5. If there are ensuing costs to CYMTV as a result of the fact that the customer has not, not timely or not properly made staff, requested data, documents and facilities available, such costs shall be to the account of the customer.
Article 7 – Confidentiality
1. The customer and CYMTV shall be held to secrecy of all confidential information that they have acquired from each other within the framework of the agreement or from any other source. Information shall be considered confidential when this has been indicated as such by the other party or when this ensues from the nature of the information.
2. If CYMTV, on the grounds of a legal condition or a court order, is held to supply confidential information to a third party appointed thereto by law or the competent court and CYMTV cannot appeal to any entitlement to refuse to give evidence, CYMTV shall not be held to any compensation or redress for damages and the customer shall not have the right to annul the order on the grounds of any resulting damages.
3. The customer and CYMTV shall impose their obligations on the grounds of this article to any other third parties to be commissioned by them.
Article 8. Intellectual property
1. All models, works and/or inventions developed by CYMTV on behalf of the customer are and shall remain the property of CYMTV.This shall include all intellectual property rights including but not limited thereto, any copyrights, model rights and or patent rights.
2. All documents, such as reports, computer programmes, system designs, methods, advice and contracts issued by CYMTV on behalf of the customer, may be used by the customer and may be multiplied by the customer for his own use within the own organisation. The documents supplied by CYMTV may not be made public, multiplied and/or exploited or made known to any third parties by the customer unless the nature of the supplied documents determines otherwise.
Article 9. Rates
1. If, after the agreement has come into effect, but before the order has been completed, rate-determining factors (e.g. wages and/or prices) are subject to change, CYMTV shall be entitled to change the previously agreed rate accordingly.
2. The customer shall have the right to annul the order if the increase constitutes more than 10% (ten percent). If the authority to increase the rate ensues from an authority pursuant the law, the customer shall not have the right to annul the order.
3. The fee of CYMTV is exclusive of: expenses of CYMTV, invoices by commissioned third parties, VAT and other levies that are or may be imposed by the authorities.
Article 10. Terms of payment
1. Payment shall be effected within fourteen days from invoice date, unless a different payment term is agreed between CYMTV and customer and is listed on the invoice. Payment shall be effected in a manner to be indicated by CYMTV denominated in euro. If no manner is indicated then payment shall be effected by means of wire transfer to CYMTV’s ING bank account. Any objections against invoice amounts do not suspend the payment obligation by the customer.
2. If the customer fails to timely pay an invoice, the customer shall be legally in default and an interest of 10% (ten percent) is due by the customer. In such a case the customer shall pay interest on each month or any part thereof, whereby any part of a month is considered an entire month. The interest on the amount due shall be calculated from the time that the customer is in default until the time of payment of the entire amount that is due.
3. If the customer fails to pay an invoice after two written reminders with an interval of at least one week, then CYMTV is entitled to add an additional penalty fee of no more than 25% (twenty-five percent) to the amount that customer is due to pay, at CYMTV’s sole discretion. This penalty fee, if issued, is non-disputable. Additionally, CYMTV is entitled to shut down or suspend all services or products delivered to the customer until all open invoices are settled.
4. In the event of liquidation, bankruptcy (filing), attachment or (preliminary) suspension of payment of the customer or when the Debt Repayment Natural Persons Act (“WSNP) has been declared applicable to the customer, the claims of CYMTV on the customer shall immediately become payable.
5. Payments shall in the first place serve to reduce the costs, secondly to reduce the arrear interest and finally to reduce the customer amount and the accrued interest.
6. If the customer assigns a different order for the attribution of the payment, CYMTV shall have the right to refuse an offer to pay, and this shall not constitute an omission on his part. CYMTV may refuse the full payment of the customer amount, if this payment does not include the arrear and accrued interest and collection costs.
7. The customer shall never be entitled to settlement of what he is due to CYMTV.
8. If the customer is in default or fails to (timely) fulfil his obligations, all reasonable costs for the out of court collection shall be to the account of the customer. The out of court costs shall be calculated on the basis of what is customary in the Dutch collection practice, at this time the calculation method according to Dutch national directive for the courts of 2000 to calculate out of court collection costs (“Rapport Voorwerk II”).
9. CYMTV may at all times require further security, in the absence whereof CYMTV may suspend the execution of the agreement. If this requirement is not met to the satisfaction of CYMTV, CYMTV shall have the right to suspend the execution of, or to refuse all agreements with the customer, without being held to any compensation for damages and without prejudice to any other of his right in this agreement or by law.
Article 11. Complaints and investigations
1. CYMTV has to be informed in writing of complaints with respect to activities carried out and/or with respect to the invoice amount within two weeks on completion of the activities at the latest date, in default of which any claim against CYMTV shall become void.
2. Complaints as referred to in paragraph 1 of this article, do not suspend the payment obligations of the customer.
3. If and insofar as a complaint is accepted, the customer may choose between adjusting the invoiced fee or improving or once again carrying out the rejected activities free of charge. If carrying out the activities has verifiably become useless, the customer is entitled to a pro rata restitution of the fee already paid by the customer.
Article 12. Time for performance
If within the duration of the order a term has been agreed for the completion of certain activities, this term shall never be final. When the performance time is exceeded, the customer shall declare CYMTV in writing to be in default.
Article 13. Annulment
1. Both parties may prematurely terminate the agreement at all times in writing with due observance of a reasonable term.
2. If the customer prematurely terminates the agreement, CYMTV shall be entitled to compensation in view of the resulting occupancy loss which has to be made plausible, whereby the average monthly invoice amount to date is taken as the starting point, unless the termination is based on facts and circumstances that may be attributed to CYMTV. The preliminary results of the activities carried out up to that time, shall conditionally be made available to the customer.
3. In the event that one of the parties becomes bankrupt, requests suspension of payment or ceases its activities, the other party shall have the right to prematurely terminate the agreement without any requirement to observe a term of notice.
4. In the event of premature termination by CYMTV, the customer shall be entitled to the cooperation of CYMTV concerning the transfer of activities to be carried out to any third parties. When the transfer of the activities incurs additional costs to CYMTV, the customer shall be charged for any such costs.
Article 14 – Liability
1. CYMTV shall not be liable for any damages of whatever nature that arise from the fact that CYMTV has based himself on incorrect and/or incomplete data supplied by customer.
2. Should CYMTV be liable for any damages whatsoever, the liability of CYMTV shall be limited to the invoice amount, at least to that part of the amount to which the liability is related.
3. The liability of CYMTV shall in each case always be limited to the amount paid up by his insurer in such an event.
4. CYMTV shall exclusively be liable for direct damages.
5. Direct damages shall exclusively be the reasonable costs to establish the cause and the scope of the damage, insofar as the establishment relates to damages in the sense of these general terms and conditions, any reasonable costs incurred to bring the faulty performance by CYMTV in line with this agreement, insofar as these may be attributed to CYMTV, and reasonable costs, incurred to prevent or limit the damage insofar as the customer proves that these costs have resulted in a limitation of the direct damages as referred to in these general terms and conditions.
6. CYMTV shall never be liable for indirect damages, including consequential damage, loss of profit, missed savings and damage through stagnation of work.
Article 15. Indemnification of third parties
1. The customer indemnifies CYMTV against any possible claims by third parties who incur losses in relation to the execution of the agreement and the cause of which cannot be attributed to CYMTV.
2. The customer shall be held to support CYMTV in and out of court in the event that CYMTV is addressed on the grounds of the first paragraph of this article and to immediately take all actions that may be expected from him in such a case. When the customer is in default with respect to taking adequate measures, CYMTV, without any requirement for a notice of default, shall be entitled to proceed thereto himself. All costs and damages on the side of CYMTV and third parties resulting thereof, shall fully be to the account and risk of the customer.
Article 16. Time limit
In deviation of the legal time limits, the time limit of all claims and defences with respect to CYMTV shall be one year.
Article 17. Contract transfer
1. The customer shall not have the right to transfer any obligation from the agreement to third parties without the written consent of CYMTV. Insofar as CYMTV may have given written permission for a contract transfer, the customer shall at all times be jointly liable with such third party for the obligations from the agreement of which these general terms and conditions constitute a part.
2. Furthermore, insofar as CYMTV may have given written permission for a contract transfer, the customer shall inform CYMTV in advance thereof and CYMTV shall have the right to terminate the agreement as per the date on which the transfer comes into effect.CYMTV shall not be held to pay any compensation for damages in such an event.
Article 18. Processing of Personal Data
1. Insofar as processing of personal data of a counterparty is processed in the context of the services of CYMTV this personal data will be processed in a proper and careful manner, in accordance with the Data Protection Act and the General Data Protection Regulation. CYMTV refers to the Privacy Statement for further information.
2. In addition to the previous paragraph 1, CYMTV also notes that appropriate technical and organizational measures will be taken to protect the personal data processed from a counterparty against loss or any other form of unlawful processing, taking into account the current state of the art and the nature of the processing.
Article 19. Applicable law
1. This agreement shall be governed by the law of the Netherlands.
2. All disputes concerning the agreement at hand and the execution thereof arising between the parties, shall exclusively be submitted to the competent court of the place of residence of CYMTV.
Article 20. Service level
1. The standard service level offered on technical issues that are CYMTV product- or service-related is as follows:
– Confirmation of receipt of issue acknowledgement: 2 hours
– Response to issue acknowledgement: 6 hours
– Fix (definite or temporary work-around): 3-5 days
The above are maximum values during office hours (Monday through Friday from 9:00AM to 5:00PM CET, excluding public holidays)
2. Should a customer require faster response times, then CYMTV can offer additional service level agreements.
3. For all agreements, deliveries and other transactions where no service level specification is included, the service level as described in article 20.1 shall be valid.