1.1 Within these terms and conditions is DevRent: DevRent, part of Vesta Group. Located at the Westelijke Havendijk 17E, 4703RA Roosendaal, The Netherlands. Chamber of Commerce number: 52419029 0000.
1.2 Within these terms, the customer is the person or organization who has concluded an assignment agreement with DevRent.
1.3 Under assignment agreement is understood the contract agreement agreed in writing between DevRent and the customer.
2.1 The agreements between DevRent and the customer are governed by Dutch law. The applicability of the Vienna Sales Convention 1980 is excluded.
2.2 Disputes arising as a result of the order agreement concluded between the parties and / or further agreements resulting therefrom, will be settled by arbitration in accordance with the Arbitration Rules of the Dutch Stichting Geschillenoplossing Automatisering, with its registered office in Heemsteede, all without prejudice to the right to request a provision in (arbitral) summary proceedings from each of the parties and without prejudice to the right of each of the parties to take precautionary legal measures. The place of arbitration is Roosendaal, the Netherlands..
2.3 If a dispute arising from the contract of assignment between the parties or as a result of further agreements resulting from this falls within the jurisdiction of the subdistrict court, each of the parties, contrary to the provisions of article 2.2, is entitled to the case and to bring proceedings before the legally competent court. The competent authority will only grant prior jurisdiction if no arbitration proceedings have been initiated in respect of this dispute in accordance with the provisions of Article 2.2. If, with due observance of the provisions of this article 2.3, the case is brought before the legally competent court by one or more of the parties for consideration and decision, the subdistrict court of that court shall be competent to deal with the case and to decide on it.
2.4 Each of the parties is in all cases entitled to a procedure of ICT-Mediation in accordance with the ICT-Mediation Regulations of the Foundation, in respect to a dispute arising from the order agreement concluded between the parties or as a result of further agreements resulting therefrom. The other party is obliged to take an active part in a pending ICT Mediation, to which legally enforceable obligation in any case includes attending at least one joint discussion between mediators and parties, in order to give this extrajudicial form of dispute resolution a chance. Each of the parties is free to terminate the ICT Mediation procedure at any time after a joint initial discussion of mediators and parties. The provisions of this paragraph shall not prevent a party that deems it necessary to request a provision in (arbitration) summary proceedings or take precautionary legal measures.
3.1 All offers and other expressions of DevRent are without obligation, unless DevRent has indicated otherwise in writing. The Client guarantees the correctness and completeness of the data provided to DevRent by or on its behalf, on which DevRent has based its offer.
3.2 Offers from DevRent are subject to errors and / or mistakes and as long as it is possible for DevRent to deliver. No rights can be derived from quotes and / or offers.
4.1 All prices are exclusive of turnover tax (VAT) and other levies that are or will be imposed by the government. All prices stated by DevRent are always in euros and the customer must pay all payments in euros.
4.2 No rights or expectations can be derived by the customer from a preliminary calculation or budget issued by DevRent, unless the parties have agreed otherwise in writing. An available budget made known to DevRent by the customer only applies as a (fixed) price agreed between the parties for the services to be performed by DevRent if this has been expressly agreed in writing.
4.3 If the customer consists of several natural persons and / or legal entities in accordance with the contract of engagement concluded between the parties, each of these persons will be jointly and severally liable for the fulfilment of the assignment agreement vis-à-vis DevRent.
4.4 With regard to the services performed by DevRent and the amounts owed by the customer, the data from DevRent’s records provide complete proof, without prejudice to the customer’s right to provide proof to the contrary.
4.5 If there is a periodic payment obligation of the customer, DevRent is entitled to adjust in writing, in accordance with the index or other standards included in the order agreement, the prices and rates applicable to the term stated in the assignment agreement. If the order agreement does not explicitly provide for the possibility of DevRent to adjust the prices or rates, DevRent is always entitled to adjust the applicable prices and rates in writing with due observance of a period of at least three months. If the customer in the latter case does not agree with the adjustment, the customer is entitled within thirty days after notification of the adjustment to terminate the contract in writing with effect from the date on which the new prices and / or rates would come into effect.
4.6 In the assignment agreement, the parties will record the date or dates on which DevRent charges the fee for the agreed services to the customer. Amounts due are paid by the customer according to the agreed payment conditions or on the invoice. The Client is not entitled to suspend any payment or to set off amounts due.
4.7 If the customer does not pay the amounts due or does not pay them on time, the customer is liable to pay legal interest for trade agreements on the outstanding amount, without a reminder or notice of default being required. If the customer fails to pay the claim after a reminder or notice of default, DevRent can hand over the claim, in which case the customer shall also be obliged to pay all judicial and extrajudicial costs in addition to the total amount owed, including all costs calculated by external parties (experts). This does not affect the other statutory and contractual rights of DevRent.
5.1 All goods delivered to the customer remain the property of DevRent until all amounts owed by the customer to DevRent on the basis of the commission agreement concluded between the parties have been paid in full to DevRent. A customer who acts as a reseller will be allowed to sell and resell all items that are subject to DevRent’s retention of title, insofar as this is customary in the normal course of his/her business.
5.2 The property law consequences of the retention of the title of an item destined for export shall be governed by the law of the State of destination if this right contains more favourable provisions for DevRent.
5.3 If necessary, rights will be granted or transferred to the customer under the condition that the customer has paid all the amounts due from the commission.
5.4 DevRent can retain the data, documents, software and / or data files received or realized within the scope of the commission agreement, despite an existing obligation to issue or transfer, until the customer has paid all amounts due to DevRent.
6.1 DevRent will make the employee named in the assignment agreement available to the customer to perform work under the direction and supervision of the customer, unless agreed otherwise. The results of the work are at the customer’s risk. Unless otherwise agreed in writing, the employee will be made available to the customer for forty hours per week during the usual working days for DevRent.
6.2 The Customer can only deploy the employee made available for work other than the agreed work if DevRent has agreed to this in writing in advance.
6.3 The customer is only permitted to lend the posted employee to a third party to work under the direction and supervision of that third party if this has been expressly agreed in writing between the customer and DevRent.
6.4 DevRent will make every effort to ensure that the posted employee remains available for work during the agreed days for the duration of the assignment agreement, except in case of illness or termination of the employee’s employment. Even if the assignment agreement has been entered into with a view to execution by a specific person, DevRent is always entitled to replace this person after consultation with the customer by one or more persons with the same qualifications.
6.5 The Customer is entitled to request the replacement of the employee made available if the employee made available demonstrably does not meet the explicitly agreed quality requirements and the Customer informs DevRent of this within five working days after the commencement of the work, or in case of long-term illness or termination of employment of the employee made available. DevRent will give priority to the request without delay. DevRent does not guarantee that replacement is always possible. If replacement is not possible or is not possible immediately, the customer’s claims for further fulfilment of the commission agreement and all claims of the customer due to non-fulfilment of the commission agreement lapse. Payment obligations of the customer concerning the work performed will remain in full force.
7.1 If the parties have not agreed on the duration of the secondment, the commission agreement has a term for an indefinite period, in which case a notice period of one calendar month applies to each of the parties after the possible initial term. Cancellation must be given in writing.
8.1 The working hours and rest times of the employee made available are equal to the usual times and duration at DevRent. DevRent guarantees that the work and rest times and the working hours comply with the relevant laws and regulations.
8.2 The Customer will inform DevRent about a proposed (temporary) closure of his company or organization.
8.3 DevRent is obliged towards the customer and the employee made available to comply with the relevant laws and regulations regarding workplace safety and working conditions.
9.1 If the employee made available on assignment or at the request of the customer per day works longer than the agreed or usual number of working hours or works outside the usual working days at DevRent, the customer pays for these hours at the agreed overtime rate or, in the absence of an agreed overtime rate, the overtime rate normally applicable to DevRent. If requested, DevRent will inform the customer about the applicable overtime tariffs.
9.2 Any costs, travel time and accommodation costs will be charged to the customer in accordance with the usual rules and standards at DevRent. If requested, DevRent will inform the customer about the usual rules and standards.
10.1 The total liability of DevRent due to an attributable shortcoming in the fulfilment of the assignment agreement or on any legal basis, including expressly stated shortcoming in the fulfilment of a guarantee obligation agreed with the customer, is limited to the compensation of direct damage up to the amount of the price (excluding VAT) stipulated for that contract. If the contract of engagement is mainly a continuing performance contract with a term of more than one year, the price stipulated for that contract is set at the total of the fees (excluding VAT) stipulated for one year. In no case shall DevRent’s total liability for direct damage, on any legal basis, exceed € 10,000 (ten thousand Euros).
10.2 DevRent’s liability for indirect damage, consequential loss, lost profit, lost savings, loss of goodwill, damage due to business interruption, damage resulting from customer claims, damage related to the use of goods, materials or materials prescribed by the customer to DevRent, third party software and damage related to the use of suppliers prescribed by DevRent to the customer is excluded. Also excluded is the liability of DevRent related to the mutilation, destruction or loss of data or documents.
10.3 The exclusions and limitations of DevRent’s liability described in articles 10.1 to 10.3 are without prejudice to the other exclusions and limitations of DevRent’s liability as described in these general terms and conditions.
10.4 The exclusions and limitations referred to in Articles 10.1 up to and including 10.4 shall lapse if and insofar as the damage is the result of intent or deliberate recklessness on the part of the management of DevRent.
10.5 Unless fulfilment by DevRent is permanently impossible, the liability of DevRent due to imputable shortcoming in the fulfilment of an assignment agreement arises only if the Client immediately gives written notice of default to DevRent, with a reasonable term for the purification of the shortcoming and DevRent also after that term imputable remains inadequate in the fulfilment of his obligations. The notice of default must contain as complete and detailed a description of the shortcoming as possible, so that DevRent is given the opportunity to respond adequately.
10.6 The condition for the existence of any right to compensation is always that the customer reports the damage to DevRent in writing as soon as possible after the occurrence thereof. Any claim for damages against DevRent shall lapse by the mere passage of twelve months after the claim arises, unless the Customer has instituted a legal claim for compensation for the damage before the expiry of that period.
10.7 The Client indemnifies DevRent against all third party claims due to product liability as a result of a defect in a product or system supplied by the customer to a third party and which also consisted of equipment, software or other materials supplied by DevRent, unless and insofar as the customer proves that the damage was caused by that equipment, software or other materials.
10.8 The provisions of this article, as well as all other limitations and exclusions of liability mentioned in these general terms and conditions, also apply to the benefit of all (legal) persons that DevRent uses in the execution of the commission agreement.
11.1 DevRent will ensure the timely and complete payment of wage tax, social insurance premiums and turnover tax paid to the employee made available in connection with the commission contract. DevRent indemnifies the customer against all claims of the tax authorities or of the authorities for the implementation of social insurance legislation owing to the commission agreement with the customer, under the condition that the client informs DevRent in writing without delay about the existence and the content of the claim and the settlement of leave the matter entirely to DevRent, including making any settlements. To this end, the Client will grant the necessary powers of attorney, information and cooperation to DevRent to defend themselves against these claims, if necessary in the name of the customer.
11.2 DevRent does not accept any liability for the quality of the results of work that has come about under the supervision and management of the customer.
12.1 During the term of an agreement as well as one year after the termination thereof, the customer shall in no way, except with the express written consent of DevRent, employees of DevRent, companies or persons affiliated with DevRent to which DevRent has invoked to execute this assignment agreement, hiring or otherwise, directly or indirectly, let it work for them regardless of whether a reimbursement is provided for them.
12.2 Any violation as described in these general terms and conditions of the customer will result in the forfeiture of an immediately due and payable fine (without notice of default being required) of € 10,000 per month. The penalty will be due solely to the fact that the violation has been committed and will be repeated for every month or part of the month that is in breach of these terms and conditions.
13.1 If DevRent is prepared to commit to the transfer of an intellectual property right, such a commitment can only be entered into explicitly and in writing. If the parties agree in writing that a right of intellectual property with regard to software, websites, data files, equipment or other materials developed specifically for the client will be transferred to the customer, this does not affect the right or the possibility of DevRent to comply with that development, underlying components, general principles, ideas, designs, algorithms, documentation, works, programming languages, protocols, standards and the like, without any restriction for other purposes to use and / or exploit, either for oneself or for third parties. Nor does the transfer of an intellectual property right affect DevRent’s right to make developments on behalf of itself or a third party that are similar or derived from those that have been or are being made for the benefit of the customer.
13.2 All intellectual property rights to the software, websites, data files, equipment, training, test and exam material or other materials such as analyses, designs, documentation, reports, quotes, are as well made available to the customer on the basis of the order agreement. Preparatory material thereof is vested exclusively in DevRent, its licensors or its suppliers. The Client acquires the user rights that have been explicitly granted under these General Terms and Conditions, the Contract Agreement concluded between the parties and the law. A right of use to the customer is non-exclusive, non-transferable, non-pledged and non-sub licensable.
13.3 The customer shall not remove or have removed any indication (s) concerning the confidential nature of a development, or concerning copyrights, trademarks, trade names or any other intellectual property right from the software, websites, data files, equipment or materials.
13.4 Even if the assignment agreement does not expressly provide for this, DevRent is always permitted to make technical provisions for the protection of equipment, data files, websites, software made available, software to which the customer is (directly or indirectly) granted access, and such in connection with an agreed restriction in the content or the duration of the right to use these objects. The Customer will not circumvent this technical facility (s) or have it circumvented.
13.5 DevRent indemnifies the customer against any claim by a third party that is based on the assertion that software, websites, data files, equipment or other materials developed by DevRent infringe an intellectual property right of that third party, on the condition that the client immediately in writing informs DevRent about the existence and content of the claim and the handling of the case, including the making of any settlements, is passed entirely to DevRent. The Customer will provide the necessary powers of attorney, information and cooperation to DevRent to defend against these claims. This obligation to indemnify lapses if the infringement is related (i) to materials made available to DevRent by the customer for use, processing, processing or maintenance, or (ii) with changes made by the customer without the written permission of DevRent in the software, website, data files, equipment or other materials or has it installed. If it is irrevocably established in court that the software, websites, data files, equipment or other materials developed by DevRent itself infringe any intellectual property right belonging to a third party or if, in the opinion of DevRent, there is a reasonable chance that such an infringement is possible, DevRent will, if possible, ensure that the customer can continue to use the supplied, or functional equivalent, other software, websites, data files, equipment or materials. Any other or further indemnification obligation of DevRent for infringement of a third-party intellectual property right is excluded.
13.6 The customer warrants that no rights of third parties oppose the provision to DevRent of equipment, software, material intended for websites, data files and / or other materials and / or designs, with the purpose of use, maintenance, processing, installation or integration. The Client indemnifies DevRent against any claim by a third party that is based on the assertion that such availabilty, use, maintenance, processing, installation or integration infringes any right of that third party.
13.7 DevRent is never obliged to carry out data conversion, unless explicitly agreed with the customer in writing.