These general terms and conditions apply to orders to and to all offers, agreements, work performed, services and products delivered (hereafter referred to as “Services”) whereby BackupCTO B.V. (hereafter referred to as “BCTO”) is a party, unless expressly agreed otherwise in writing.
These general terms and conditions apply to assignments to and to all offers, agreements, work conducted, services and products provided (hereafter referred to as “Services”) whereby BackupCTO B.V. (hereafter referred to as “BCTO”) is a party, unless expressly agreed otherwise in writing.
BCTO provides, among others, the following Services:
Client is understood to mean both the (initial) client/investor and the organization at which the service is performed.
The Client will always provide BCTO with all data or information that is useful and necessary for the sound performance of the Services in a timely manner and will provide full cooperation. The Client guarantees the correctness, completeness and reliability of the information provided to BCTO, even if it originates from third parties. If the performance of the Services is delayed because the Client fails to fulfill his obligations or the information provided by the Client does not comply with the provisions, any consequential additional costs will be borne by the Client and BCTO is authorized to charge for the additional work that has become necessary as a result.
BCTO assumes a best-effort obligation in the performance of the Services and will perform these Services to the best of its knowledge and ability in accordance with the requirements of professional practice. BCTO will take the Client's reasonable wishes as much as possible into account when performing the Services, provided that in BCTO's opinion this is conducive for the due performance of the Services. If and insofar as required for the sound performance of Services, BCTO has the right to have certain operations performed by third parties.
In the meantime, parties may agree that the approach and scope of the Services will be expanded or changed. In principle, BCTO will only perform additional work provided a written agreement has been signed by the parties. This additional work will be reimbursed by the Client against BCTO's usual rates. If BCTO believes a change in the performance of the work is necessary to meet obligations, BCTO is authorized to make that change in all reasonableness and fairness.
When the agreement is concluded, the parties may agree on a rate per hour, half-day, or a fixed fee. All rates include car travel time of no more than one (1) hour one-way from BCTO's address. Travel time associated with (foreign) travel will be charged at the agreed default rate. Any other necessary mutually agreed upon costs, including - not exclusively - travel and subsistence costs for (foreign) trips, will be charged at cost price. Invoices are created on a 4-weekly or monthly basis. Payment by the Client must be made within 14 days of the invoice date, without discount or settlement by transfer to a bank account to be designated by BCTO. If the Client does not pay the amounts due within the agreed term, he will be in default without notice of default being required. BCTO is authorized to hand over the claim, in which case, in addition to the total amount owed, the Client will also have to pay extrajudicial collection costs, the amount of which is set at 15% of the total amount owed, as well as any legal costs. If the Client objects to BCTO's invoice, the Client will state as such within 14 days of the date of the invoice. The Client has up to 14 days after the invoice date to substantiate this objection in writing. If the Client fails to comply with the above, the Client is deemed to have accepted the invoice. All prices are exclusive of VAT and any other government levies. Rates can be indexed and will be communicated at least four (4) weeks prior to the commencement date.
In the event of force majeure, BCTO's Services and any other obligations will be suspended. In that case BCTO must deliver as soon as this is reasonably possible. Force majeure is equated with unforeseen circumstances with regard to persons and/or material that BCTO uses or tends to use in the performance of Services, which are of such a nature that the performance of Services is therefore impossible, or so inconvenient and/or becomes disproportionately expensive that prompt compliance with the Services cannot be required of BCTO. Examples of such circumstances include government measures, operational, traffic and/or transport disruptions, disruptions in the delivery of required services, illness of deployed staff, strikes, lockouts, hindrances imposed by third parties, technical, fiscal, or legal complications, etcetera. If BCTO has already partially fulfilled its obligations at the commencement of the force majeure, BCTO is entitled to invoice separately any services it has already delivered, and the Client is obliged to pay this invoice.
Except insofar as this is impossible under Dutch law, BCTO's liability will be limited to the amount paid out in the case concerned by its liability insurance. If, for whatever reason, no payment is made by that insurance, any liability is limited to compensation for direct damage up to no more than 50% of the contract value claimed up to the time of the error and still outstanding. BCTO's total liability due to attributable failure to perform the Services is limited to compensation for direct damage up to no more than 50% of the contract value claimed up to the time of the error and still outstanding. BCTO's liability due to an attributable failure to perform the Services only arises if the Client gives BCTO immediate and proper notice of default in writing, setting a reasonable term to undo the default, and BCTO continues to fail imputably in the performance of the Services after that term. BCTO is not liable for damage caused by the Client's failure to provide correct information in a timely manner, which BCTO, in its opinion, needs for the correct performance of the Services. Except for the aforementioned liability, BCTO has no liability whatsoever for compensation towards the Client and/or third parties, regardless of the ground on which an action would be based. With this - but not exclusively - BCTO does not bear any liability for compensation towards the Client and/or third parties following or as a result of any advice or report by BCTO. A claim will in any case lapse if BCTO has not been notified in writing of the claim immediately after completion of the assignment.
BCTO reserves the right to cancel Services in whole or in part in the event of such changes in law, regulations, jurisprudence or (semi-) government policy that compliance can no longer reasonably be expected from BCTO. In such cases, BCTO must notify the Client of the cancellation in writing. In such cases, the latter is not entitled to claim damages.
The premature termination of a Service is only possible if the parties have expressly agreed to this in writing or upon payment of the amount due until the original end of Service unless the parties have agreed to a different payment in writing.
Dutch law applies to all Services. Any disputes between BCTO and the Client that may arise from the Services or result from them, will initially be settled by means of legal proceedings before the competent court in Utrecht. Any judicial and extrajudicial costs reasonably incurred, following from the Client's non-compliance with obligations arising from the agreement, will be borne by the Client.
BCTO is authorized to change these general terms and conditions. The latest version of the general terms and conditions is always applicable and can be obtained at no cost.
If one or more provisions of these general terms and conditions prove to be void or annulled, the remainder of these general terms and conditions will remain in force. In that case, the void or annulled provision(s) will be replaced by a legally valid provision in terms of content, scope and effect which is similar to the void or annulled provision(s) in as far as possible. The Client is not entitled to transfer his rights and obligations under the agreement without BCTO's prior written consent.