Services & Procurement
Terms & Conditions for Procurement
Terms & Conditions for the procurement of Services
of Intravacc B.V. (hereinafter referred to as ”Intravacc”), having its registered address at Antonie van Leeuwenhoeklaan 9, 3721 MA Bilthoven, trade register number: 73887757.
I GENERAL
Article 1 Definitions
The following terms are written with initial capitals in these General Terms & Conditions Services and are defined as follows:
1.1
Professional Errors: shortcomings such as mistakes, acts of carelessness, negligence, omissions and erroneous advice, which a competent and conscientious contractor would, in the given circumstances and assuming a normal degree of attention, competence and professionalism, not commit;
1.2
Schedule: a document attached to the Contract which, when initialed by both Parties, forms an integral part of the Contract;
1.3
Services: the work the Contractor is to perform for Intravacc under the terms of the Contract;
1.4
Contractor: the counterparty of Intravacc;
1.5
Contract: the written agreement between Intravacc and the Contractor, which includes the Purchase Order sent out by Intravacc to which the Terms and Conditions are declared to apply;
1.6
Party: Intravacc or Contractor, depending on the context;
1.7
Intravacc Staff: the staff made available by Intravacc under the Contract;
1.8
Contractor’s Staff: the members of staff or assistants used by the Contractor for the purpose of performing the Contract for whom the Contractor is responsible under the terms of the Contract;
1.9
Terms and Conditions: these general terms and conditions, which apply to and form an integral part of the Contract.
1.10
Working Day: calendar day, except weekends and generally recognized public holidays within the meaning of section 3, subsection 1 of the General Extension of Time Limits Act.
Article 2 Application
2.1
Amendments or additions to the Contract or derogations from the Terms and Conditions (or parts of them) are binding only if they have been explicitly agreed in writing by the Parties. II PERFORMANCE OF THE CONTRACT
Article 3 Guarantees given by the Contractor
3.1
The Contractor guarantees that the Services to be provided by it or on its behalf meet the requirements laid down in the Contract.
3.2
The Contractor guarantees that the Services to be provided by it or on its behalf will be performed in a professional manner.
Article 4 Assessment and acceptance
4.1
Intravacc will assess the results of the Services within 30 days of the date of their delivery. If it decides that the results are satisfactory, it will notify the Contractor that they have been accepted.
4.2
If Intravacc decides that the results of the Services are unsatisfactory, it will notify the Contractor that they have not been accepted. 4.3
Intravacc may have the results of the Services assessed by third parties.
4.4
If Intravacc has not notified the Contractor within 30 days of the date of delivery of the Services, it will be deemed to have accepted the results.
4.5
Intravacc is not obliged to make any payment to the Contractor until the results have been accepted.
Article 5 Place and time of performance
The Services will be performed at the time and place stated in the Contract.
Article 6 Replacement of staff responsible for performing the Services
6.1
Only in exceptional circumstances may the Contractor replace staff who are responsible for performing the Services.
6.2
Without the prior consent of Intravacc, the Contractor may not replace either temporarily or permanently the staff who are responsible for performing the Services. Intravacc will not withhold its consent without good reason and may attach conditions to its consent. The fees charged for the staff originally deployed may not be raised if they are replaced.
6.3
If Intravacc wishes to replace staff who are responsible for performing the Services, because it feels that this is either necessary or desirable for the proper performance of the Contract, the Contractor will comply with Intravacc’s request. The fee charged will not be any higher than that laid down in the Contract for the staff replaced.
6.4
If staff responsible for performing the Contract are replaced, the expertise, qualifications and experience of the replacement staff deployed by the Contractor must be at least equal to those of the original staff or must meet the criteria agreed by the Parties in this regard.
Article 7 Use of Contracting Authority’s property
In performing the Services, the Contractor may make use of property belonging to Intravacc, which Intravacc has lent to the Contractor for this purpose. Conditions may be attached to the loan of property.
Article 8 Subcontracting
8.1
In performing the Contract, the Contractor may make use of third-party services only after it has obtained Intravacc’s consent. Intravacc will not withhold its consent without good reason. It may attach conditions to its consent.
8.2
The fact that Intravacc has given its consent does not affect the Contractor’s own responsibility and liability for discharging the obligations imposed on it under the Contract, and for discharging the obligations imposed on it as an employer under tax and social insurance law.
III RELATIONSHIP BETWEEN PARTIES AND SUPERVISION
Article 9 Progress reports
The Contractor will report to Intravacc on the progress of the work as often as and in a manner as the Contract prescribes, or as Intravacc deems fit.
Article 10 Contacts
10.1
Each Party will designate a contact who will be responsible for maintaining contacts in relation to the performance of the Contract. The Parties will notify each other of the person they have appointed as their contact.
10.2
The contacts may represent and bind the Parties only as regards the performance of the Contract. They may not amend the Contract.
Article 11 Supervisory/steering committee
The Contract may provide for the formation of a supervisory or steering committee whose duties, powers and composition may be laid down in the Contract.
Article 12 Method of notification
12.1
Notifications given by one Party to the other, including undertakings and further agreements, that are relevant to the performance of the contract, are binding on the Parties only if they are given or confirmed in writing by an authorized person.
12.2
‘In writing’ is understood to include ‘electronically’, provided: a. the notification can be consulted by the addressee; b. the authenticity of the notification is sufficiently guaranteed; and c. the identity of the sender can be determined with sufficient certainty.
Article 13 Confidentiality
13.1
The Contractor will not divulge in any way any information that comes to its knowledge in performing the Contract and which it knows or may reasonably be assumed to know is confidential, except in so far as it is compelled to divulge such information under a statutory regulation or court ruling.
13.2
The Contractor will impose the same duty of confidentiality on its Staff and guarantees that they will fulfil it.
13.3
The Contractor will not divulge to third parties in any way the results of the Services performed or provide any information on the results to third parties without Intravacc’s express written consent. Intravacc may attach conditions to such consent.
13.4
The Contractor must hand over to Intravacc, within 10 Working Days of the completion of the work, all information (i.e. written documents, computer files, etc.) which the Contractor has in its possession for the purpose of performing the Contract.
13.5
If the Contractor breaches its duty of confidentiality, Intravacc may impose a penalty of EUR 50.000,- for each breach. Payment of a penalty that is payable immediately does not discharge the Contractor from its liability for indemnifying any loss caused by the breach.
Article 14 Processing of personal data
14.1
In so far as the Contractor processes personal data on behalf of Intravacc for the performance of the Contract, the Contractor will be regarded as a processor within the meaning of the Personal Data Protection Act (WBP) and the Contract as a contract within the meaning of the section 14, subsection 2 of the Personal Data Protection Act. The Contractor may not at any time use the personal data provided to it, or have them used, in whole or in part, in any way other than for the performance of the Contract, except where statutory obligations provide otherwise.
14.2
In the case referred to in article 14.1, the Contractor will take appropriate technical and organizational security measures to protect the personal data from loss or any form of unlawful processing. Such measures will guarantee, with due regard for the state of the technology and the cost of its implementation, an appropriate level of security given the risks arising from the processing and the nature of the data to be protected. The measures will be designed in part to prevent unnecessary collection and further processing of personal data. The Contractor will lay the measures down in writing.
14.3
The Contractor will process personal data, as defined in section 1 of the Personal Data Protection Act, in a proper and careful manner and in accordance with the applicable legislation and any code of conduct applied by Intravacc. The above applies in full to cross-border transmission and/or distribution and/or provision of personal data to non-EU countries.
14.4
The Contractor will cooperate in full with Intravacc to ensure that data subjects within the meaning of section 1(f) of the Personal Data Protection Act: (i) have access to their personal data, (ii) can have personal data removed or corrected, and/or (iii) can see that personal data have been removed or corrected if they were incorrect, or, if Intravacc disagrees with a data subject, to record that the data subject considers their personal data to be incorrect.
14.5
On the basis of section 34a of the Personal Data Protection Act, Contractor will immediately and adequately inform Intravacc of all relevant incidents of which Contractor is aware, in order to – if such is obligated on the basis of section 34a of the Personal Data Protection Act – make it possible for Intravacc to notify the relevant authority or the person(s) involved of such incident. Contractor will take appropriate measures to minimize the consequences of the incidence and to avoid recurrence of the incident and will inform Contractor on such measurements
Article 15 Security and vaccination policy
15.1
The Contractor’s Staff involved in the performance of the work, in so far as the work is performed on Intravacc’s premises, must comply with Intravacc’s security procedures and other rules. Intravacc will inform the Contractor in good time about these procedures and rules.
15.2
Intravacc may require certificates of good conduct to be produced in respect of the Contractor’s Staff, no later than three Working Days before they start work on Intravacc’s premises.
15.3
Intravacc may carry out security checks on members of the Contractor’s Staff, in accordance with the rules usually applied by Intravacc. The Contractor must lend its full cooperation to such checks. Intravacc may, on the basis of the results of a security check, refuse to allow the person in question to work on the Contract, without giving any reasons.
15.4
The Contractor’s Staff involved in the performance of the activities on Contracting Authority’s premises should observe all the access and safety procedures. If the respective member of Staff has not fulfilled his obligations resulting from this, for instance the one with regard to the vaccination obligation and the possession of a valid proof of identity, the respective member of Staff will be refused access. The costs and consequences resulting from this will be at the expense and risk of the Contractor. The vaccination obligation relates in principle to DTaP-IPV (diphtheria, tetanus, acellular pertussis, poliomyelitis), MMR (mumps, measles, rubella) and an annual check-up for TBC. With regard to activities in specific building sections the vaccination programme/schedule may be adjusted. If required by the applicable vaccination policy or rules, vaccination can take place on Intravacc’s premises in which case vaccines will be provided by Intravacc at no cost. Vaccination elsewhere will be on the account of Contractor. If the Contractor does not observe the vaccination policy and/or programme/schedule, Contractor’s Staff may be refused access and Intravacc will be compensated by the Contractor for the losses resulting from this. In addition, the Contractor will indemnify Intravacc for losses resulting from Contractor’s (including Staff) lack of compliance with the vaccination policy and/or programme/schedule. IV FINANCIAL PROVISIONS
Article 16 Payment and upward and downward contract variations
16.1
Intravacc will pay for the costs actually incurred and the hours actually worked by the Contractor, unless a fixed fee has been agreed in the Contract.
16.2
Should any additional requirements stipulated by Intravacc, any new information that is brought to the notice of Intravacc or any changes to the statutory regulations applicable to the work in question lead to the work performed by the Contractor under the Contract becoming demonstrably more demanding or extensive, this additional work constitutes an upward contract variation for which the Contractor may charge a fee. Additional work or new information which the Contractor could have foreseen when the Contract was signed is not regarded as constituting an upward contract variation. If a Party regards a particular request as constituting an upward contract variation, it will notify the other Party thereof as quickly as possible.
16.3
The Contractor will not start any additional work that constitutes an upward contract variation until it has received a written order to this effect from Intravacc. In order to obtain such an order, the Contractor will issue a written quotation specifying the amount of additional work that is to be performed, its duration and cost. Any additional work performed by the Contractor will be subject to the provisions of the Contract, including those on fees and discounts, where relevant, in so far as these have not been amended by Intravacc’s written order. When submitting a quotation, the Contractor may not impose terms and conditions that are either more detailed or more stringent than the original Terms and Conditions, unless it does so with Intravacc’s consent.
16.4
The Contractor must accept and carry out an order for additional work representing up to a maximum of 15% of the original Contract value. Such an order for additional work is subject to the provisions of the Contract.
16.5
Should any new information that is brought to the notice of Intravacc or any changes to the statutory regulations applicable to the work in question lead to the work performed by the Contractor under the Contract becoming demonstrably less demanding or extensive, this constitutes a downward contract variation for which Intravacc is entitled to a discount. If a Party regards a particular change as constituting a downward contract variation, it will notify the other Party thereof in writing as quickly as possible. If a fixed fee has been agreed, the Parties will consult to agree on the value of the discount, which will be deducted from the agreed fee.
Article 17 Invoicing
17.1
The Contractor will send the invoice electronically so that Intravacc can receive and process it electronically, in accordance with the specifications issued by Intravacc.
17.2
The Contractor will send invoices to Intravacc. Each invoice will state the date and number of the Contract and the relevant VAT charge. If applicable under article 4, the Contractor will enclose a copy of the notice of acceptance with the invoice, together with any other information requested by Intravacc.
17.3
If it has been agreed that the invoice will be based on the actual amount of time spent as calculated after the completion of the Contract, the Contractor will compile an itemized invoice in a format which Intravacc is free to specify. The Contractor’s invoice will state the number of days and hours actually and necessarily spent on the Contract, as well as the relevant dates, and will also contain a brief description of the work performed, and of any travel and accommodation expenses if these are not included in the daily or hourly rates.
17.4
The Contractor will present separate invoices for any upward contract variations after the additional work in question has been completed and accepted by Intravacc. The invoices will explicitly state the nature and amount of the additional work performed, which will be itemized on the basis of authentic documents.
Article 18 Payment and invoice audits
18.1
Intravacc will pay the Contractor the amount owing under the Contract no later than 30 days of receiving the relevant invoice, provided it satisfies the provisions of the Contract.
18.2
Where payment is made by Intravacc within 14 days of receipt of the invoice, a deduction of 4% from the invoice amount shall be applied.
18.3
If Intravacc fails without good reason to pay an invoice within the time limit stipulated in article 18.1 and Contractor has provided notice of such overdue payment to Intravacc which Intravacc has failed to correct within 10 Working Days of the subject notice, Contractor is entitled to statutory interest as referred to in article 6:119b, paragraph 1 of the Dutch Civil Code.
18.4
Intravacc may instruct an accountant designated by Intravacc, as referred to in article 2:393, paragraph 1 of the Dutch Civil Code, to audit the invoices submitted by the Contractor to determine their accuracy. The Contractor will allow the accountant to inspect its books and documents, and will supply him with any information he requests. This audit is confidential and does not involve any more than is necessary to check the invoices. The accountant will report as quickly as possible to both Parties. Intravacc will pay the cost of the accountant’s audit, unless the latter’s work reveals that the invoices in question are not accurate or complete, in which case the Contractor will be liable for the cost of the inspection.
18.5
Intravacc may defer payment of an invoice or a portion thereof, about which the Parties have failed to reach agreement, for the duration of the accountant’s audit. Intravacc will exercise this right only if it has reasonable doubts about the accuracy of the invoice in question.
18.6
The Contractor is not entitled to suspend or terminate its work on account of Intravacc’s failure to pay an invoice within the stipulated time limit, or if Intravacc does not pay an invoice because it suspects that the invoice is inaccurate or because the Services have not been properly performed.
Article 19 Advance
19.1
If Intravacc, for the purpose of performing the Contract, makes one or more payments for Services that have not yet been rendered, it may require the Contractor to issue Intravacc with an on-demand bank guarantee prior to making the payment(s) in question, to the value of the payment(s) in question. Intravacc will not be required to pay any of the cost of the guarantee.
19.2
If Intravacc does not accept certain Services within the stipulated time limit as a result of a failure that is attributable to the Contractor, the Contractor is liable to pay statutory interest on the advance for as long as the failure persists.
19.3
The on-demand bank guarantee will be issued by a bank approved by Intravacc, in accordance with the model enclosed with these Terms and Conditions (see Annex 1).
V NON-PERFORMANCE
Article 20 Potential delays
20.1
If there is any possibility of the work being delayed, the Contractor will immediately notify Intravacc, explaining the reasons for and the consequences of the potential delay. The Contractor will also propose measures to avoid further delay. 20.2 Within 14 days of receiving the notification referred to in the preceding paragraph, Intravacc will notify the Contractor whether or not it agrees with the proposed measures and the consequences described by the Contractor. Agreement does not imply any acceptance by Intravacc of the cause of the potential delay, and does not affect any other rights vested in Intravacc under the Contract.
Article 21 Liability
21.1
If one of the Parties fails to discharge its obligations under the Contract, the other Party may give notice of default. The defaulting Party is deemed to be immediately in default, however, if it is clear that there is no prospect whatsoever of it discharging the obligations in question within the stipulated time limit for reasons other than force majeure. The notice of default will be given in writing, and the defaulting Party will be given a reasonable period of time in which to discharge its obligations. This is a strict deadline. The defaulting Party is in default if it fails to discharge its obligations by the deadline set.
21.2
The notice of default referred to in the preceding paragraph is not required if the time limit by which the agreed Services should have been performed has been extended prior to its expiry. If the defaulting Party fails to discharge its obligations as described in the preceding paragraph by the end of the extended time limit, the defaulting Party is held to be immediately in default as from that date.
21.3
If Contractor imputably fails to discharge its obligations, it is liable to Intravacc for any loss incurred by Intravacc, on the understanding that the liability is limited per event to an amount of: – €150,000 for contracts whose total value is less than or equal to €50,000; – €300,000 for contracts whose total value is greater than €50,000 but less than or equal to €100,000; – €500,000 for contracts whose total value is greater than €100,000 but less than or equal to €150,000; – €1,500,000 for contracts whose total value is greater than €150,000 but less than or equal to €500,000; – €3,000,000 for contracts whose total value is greater than €500,000. Related events will be treated as a single event. The limitation of liability referred to above will not apply: a. in the event of third-party claims for compensation in respect of death or personal injury; b. in the event of criminal intent or gross negligence on the part of the Contractor or the Contractor’s Staff; c. in the event of a breach of intellectual property rights as referred to in article 24.
21.4
If, in performing the Services, the Contractor makes use of property belonging to Intravacc as referred to in article 7, the Contractor is liable for any damage caused to such property. The liability amounts set out in article 21.3 apply mutatis mutandis.
21.5
If damage of whatever nature is caused to the Contractor and/or third parties as a result of the Contractor using Intravacc’s property for the purpose of performing the Services, the Contractor will be wholly liable for this damage. The liability amounts set out in article 21.3 apply mutatis mutandis.
21.6
The Contractor is liable for all obligations in respect of the Contractor’s Staff, including those arising under tax and social insurance law. The Contractor indemnifies Intravacc against any liability in this connection.
21.7
Intravacc’s liability is in any event limited to events of gross negligence or willful misconduct.
Article 22 Dissolution and termination
22.1
Without prejudice to the other provisions of the Contract, either Party may dissolve the Contract, in full or in part out of court by registered mail, if the other Party is in default or is permanently or temporarily unable to fulfil its obligations.
22.2
If one of the Parties is unable to discharge its obligations under the Contract as a result of force majeure, the other Party is entitled to dissolve the Contract, subject to a reasonable period, in full or in part out of court by registered mail, without its action creating any entitlement to compensation, but no earlier than 15 Working Days as from the date on which the circumstance that produced the force majeure arose.
22.3
The term ‘force majeure’ is in any event understood not to include: staff shortages, strikes, staff illness, shortages of raw materials, transport problems, late delivery or the unsuitability of items required for the performance of the work, liquidity or solvency problems on the part of the Contractor or failures on the part of third parties engaged by the Contractor.
22.4
Intravacc may dissolve the Contract forthwith out of court by registered mail, without being required to send any demand or notice of default, if the Contractor applies for or is granted a provisional or definitive suspension of payments, files for bankruptcy, is declared bankrupt, if its business is wound up, if it ceases trading, if a substantial proportion of its assets are seized, if it undergoes a merger or a division or is dissolved, or if it is deemed on any other grounds to be no longer capable of discharging its obligations under the Contract.
22.5
If the Contract is dissolved, the Contractor will repay any undue amounts already paid by Intravacc, plus the statutory interest on those amounts from the date on which they were paid. If the Contract is partially dissolved, the Contractor only has to repay payments relating to the part of the contract that has been dissolved.
22.6
In addition, Intravacc may terminate the Contract at any time by giving notice of termination by registered mail. In such an event, the account between Intravacc and the Contractor will be settled on the basis of the Services provided and costs reasonably incurred by the Contractor in carrying out the assignment in question and of any commitments reasonably entered into for the future for the purposes of the present Contract. Intravacc is not obliged to compensate the Contractor in any way for the consequences of the termination of the Contract.
Article 23 Retention of right to demand performance
The fact that one of the Parties omits to demand the performance of any provision of the Contract within a time limit set by the Contract does not affect its right to demand performance at a later date, unless the Party in question has expressly agreed to the non-performance in writing.
VI MISCELLANEOUS
Article 24 Intellectual property
24.1
Intravacc is the owner of all results of the Services and all intellectual property rights (such as but not limited to patent rights, copyrights and knowhow) that may be exercised in relation to the results of the Services performed by the Contractor, irrespective of where and when they may be exercised. In pursuance of the Contract, the Contractor assigns such intellectual property rights to Intravacc as soon as they arise. Intravacc hereby accepts the assignment of these rights.
24.2
Intravacc is the owner of all database rights that may be exercised in relation to the results of the Services performed by the Contractor, irrespective of where and when they may be exercised. In pursuance of the Contract, the Contractor assigns such intellectual property rights to Intravacc as soon as they arise. Intravacc hereby accepts the assignment of these rights.
24.3
In so far as the results of the Services performed are achieved partly or wholly using existing intellectual property rights that do not accrue to Intravacc, the Contractor grants Intravacc a non-exclusive and irrevocable right of use for an indefinite period. In such an event, the Contractor guarantees that it is entitled to grant the aforesaid right of use.
24.4
In so far as a separate instrument needs to be executed for the assignment of the rights referred to in articles 24.1 and 24.2, the Contractor hereby irrevocably authorizes Intravacc to draft such an instrument and sign it on the Contractor’s behalf, without prejudice to the Contractor’s obligation to cooperate with the assignment of these rights as soon as Intravacc requests it to do so, without attaching any conditions to its cooperation.
24.5
If there is a difference of opinion between the Parties on the intellectual property rights referred to in articles 24.1 and 24.2, in relation to the results of the Services performed, it will be assumed, in the absence of proof to the contrary, that the rights rest with Intravacc. In all cases, Intravacc may continue to use the results for the purposes specified in the Contract.
24.6
The Contractor hereby renounces vis-à-vis Intravacc any moral rights vested in it, i.e. the Contractor, as referred to in the Copyright Act, in so far as the relevant regulations allow it to do so. Acting both in its own capacity and on behalf of the members of its Staff working on the Contract, and as authorized to this end, the Contractor renounces vis-à-vis Intravacc any moral rights vested in these members of its Staff, in so far as the relevant regulations allow it to do so.
24.7
The Contractor indemnifies Intravacc against all claims brought by third parties in respect of any breach of their intellectual property rights, including equivalent claims relating to knowledge, unlawful competition and suchlike. The Contractor is obliged to take any action that may help to prevent stagnation and to limit the additional costs and/or losses incurred as a result of such breaches, and to do so at its own expense.
24.8
Without prejudice to the above provisions, Intravacc may, if a third party holds the Contractor liable for a breach of its intellectual property rights, dissolve the Contract in writing, in full or in part, out of court, without prejudice to its other rights vis-à-vis the Contractor, such to include but not limited to any right to compensation. Intravacc will not exercise its right to dissolve the Contract until it has first consulted the Contractor.
24.9
Intellectual property rights arising from the Services performed other than those referred to in articles 24.1 and 24.2 may never be exercised against Intravacc, and the Contractor assigns to the Contractor a non-excusive and irrevocable right to use such rights, free of charge, for an indefinite period for the purposes of the Contract’s objectives.
Article 25 Assignment of rights and obligations under the Contract
25.1
Contractor may not transfer its rights and obligations under the Contract to third parties without the consent of Intravacc. Intravacc will not withhold its consent without good reason, but may attach conditions. Intravacc may assign this Agreement, without any consent, to an entity that acquires all or substantially all of its business or assets to which this Agreement pertains, whether by merger, reorganization, acquisition, sale, or otherwise.
25.2
Paragraph 1 does not apply to the establishment of limited rights, such as a right of pledge.
Article 26 Insurance
26.1
The Contractor has taken out and will retain adequate and customary insurance cover in accordance with generally accepted standards in respect of the following risks: a. professional liability, i.e. the risks arising from Professional Errors; b. business liability, including liability for damage caused to persons or Intravacc’s property; c. loss of or damage to business property (including as a result of fire or theft), including items of property owned by Intravacc.
26.2
At Intravacc’s request, the Contractor will immediately present either the original or certified copies of the policies and proof of the payment of premium for the insurances referred to in paragraph 1 or a statement from the insurer to the effect that these policies exist and the premium has been paid. The Contractor will not terminate either the insurance contracts or the terms applying to them without Intravacc’s prior written consent. Nor will the Contractor change the insured sum to Intravacc’s disadvantage without Intravacc’s prior written consent. The insurance premiums owed by the Contractor are deemed to be included in the agreed prices and fees.
Article 27 Employment of other Party’s Staff, bribery and conflict of interests
27.1
Neither Party may employ members of the other Party’s Staff, or negotiate with members of the other Party’s Staff on the possibility of the latter entering into its employment, without the other Party’s consent both during the term of the Contract and for a period of one year following its termination. The other Party will not withhold its consent without good reason.
27.2
The Parties will not offer to each other or to third parties, or ask for, accept or obtain a promise of, from each other or third parties, whether for themselves or for any other party, any gift, reward, compensation or benefit of any form whatsoever if this could be construed as constituting an illicit practice. Such a practice may constitute grounds for dissolving the Contract either in full or in part.
27.3
Should it transpire that a member of the Contracting Authority’s Staff is also in the Contractor’s employment, regardless of whether or not such employment is paid, or was in the Contractor’s employment at the time when negotiations took place on the formation of the Contract, and that the Contracting Authority was not informed of this prior to the signing of the Contract, the Contracting Authority may dissolve the Contract with immediate effect, without being required to give any notice of default or to pay any compensation.
27.4
The Contractor will not deploy staff on the Contract who were employed by the Contracting Authority during a period of two years prior to the start of the work other than with the Contracting Authority’s consent.
Article 28 Invalidity
28.1
If one or more provisions of the Terms and Conditions or the Contract are found to be invalid or are nullified by a court of law, the remaining provisions will retain their legal force. The Parties will consult on the former provisions in order to make an alternative arrangement. The alternative arrangement must not undermine the purpose and the purport of the Terms and Conditions or the Contract. Article 29 Follow-up order 29.1 The Contract does not entitle the Contractor to any follow-up orders.
Article 30 Publicity
30.1
The Contractor may not refer to the Contract either implicitly or explicitly in publications (including press releases) or advertisements and may use the Contracting Authority’s name as a reference only with the Contracting Authority’s consent.
Article 31 Long-term provisions
31.1
Provisions which by their nature are intended to persist after the Contract has been performed will remain in force after the expiry of the Contract. These obligations include in any event the provisions on guarantees (article 3), liability (article 21), intellectual property rights (article 24), confidentiality (article 13), the employment of the other Party’s Staff (article 27.1), and disputes and applicable law (article 32). Article 32 Disputes and applicable law 32.1 All disputes arising out of or in connection with the Contract shall, at Contracting Authority’s sole discretion, be finally settled by the competent court in The Hague, the Netherlands or under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The language of arbitration will be English. The place of arbitration will be The Hague, the Netherlands. The Parties shall accept the arbitral award as final.
32.2 The Contract is governed by Dutch law.
Terms & Conditions for the procurement of Maintenance
of Intravacc B.V., having its registered address at Antonie van Leeuwenhoeklaan 9, 3721 MA Bilthoven, trade register number: 73887757.
Article 1 Definitions
The following terms with a capital letter in these terms and conditions have the following meaning:
1.1
Acceptance: determination by Intravacc that there are no remaining issues and that the performances provided comply with the standards required.
1.2
Additional Work: work assigned via Further Assignments, being one-off as well as structural, resulting from unforeseen interim extensions of the requirements, specifications and designs – beyond what was agreed originally – which was not or could not (or no longer) be laid down in the Agreement (including the Specifications). Not included in Additional Work are activities which the Contractor could or should have foreseen in order to be able to provide the agreed performances in accordance with the agreed requirements and specifications.
1.3
Agreement: the agreements (including Further Agreements) between Intravacc and the Contractor, which includes the purchase order(s) sent out by Intravacc of which these terms and conditions form part.
1.4
Contract variations for less work: activities which, as agreed and laid down in Further Assignments, are cancelled as a result of the unforeseen premature lapsing of requirements, specifications and designs – deducted from what was originally agreed – which were or could not (or no longer) be laid down in the Agreement (including the Specifications).
1.5
Contractor: the natural person or legal entity who/which has been entrusted with the performance of the Maintenance Services and who by signing this Agreement has undertaken to fulfil the performances set out in the Agreement.
1.6
Contractor’s Personnel: the members of staff to be engaged by the Contractor for the performance of the Agreement. The term Contractor’s Personnel means also third parties involved by the Contractor in the performance of the Agreement.
1.7
Corrective Maintenance: a maintenance service by means of a separate assignment in accordance with clause 7 paragraph 3 involving the remedy of Defects and Faults which have occurred or threaten to occur which were discovered during the performance of the Preventive Maintenance or after Intravacc notified a fault, all this within the scope of the Specifications and with due observance of the agreed Response, Reaction and Repair Periods. The activities required to this end not only involve the carrying out of repairs and replacements, but can also relate to shutting down or taking out of operation (parts of) the respective installation.
1.8
Defect: the installation or parts thereof not or not fully complying with the standards which ought to be required of a properly functioning installation, the specifications laid down in the Specifications, the technical, functional and/or operational specifications in the associated and/or manufacturer’s provided product or parts specifications and/or the standards and values stated in the applicable (statutory) rules. A Defect may also be connected with harmful effects for humans and the environment.
1.9
Fault(s): Maintenance Services not or not fully complying with the statutory requirements and/or requirements and conditions as agreed and laid down in this Agreement.
1.10
Further Assignments: written assignments of Intravacc (including purchase orders) to the Contractor agreed in proper consultations between Intravacc and the Contractor to perform Additional Work and implement Contract variations for less work or carrying out Corrective Maintenance.
1.11
Installations: Intravacc’s installations as described and specified in the Specifications.
1.12
Intravacc: Institute for Translational Vaccinology.
1.13
Maintenance Services: all services described and specified in the Agreement (including the Specifications), aimed at rendering into and maintaining the Installations in optimum operational, functional and safe condition with due observance of the relevant (inter-)national rules. The following are included, but not limited to, the Maintenance Services:
1. Preventative maintenance;
2. Corrective Maintenance;
3. Modifications; 4. Contract variations;
5. Keeping available sufficient Parts and Miscellaneous Materials at Prices in line with the market;
6. Removal of defective Parts, consumed Miscellaneous Materials and waste;
7. Each year formulating the Year and Detail Plan;
8. Supplying reports
9. Improvement advice;
10. Participation in consultations;
11. Presence of revision documentation;
12. Management of Specifications or parts of the Specifications.
1.14
Miscellaneous Materials: working and consumable materials of low value such as lubricants, cleaning agents, bolts, nuts, gaskets, LEDs, fuses, etc.
1.15
Modification(s): performing activities to and/or fitting Parts into Installations in connection with an implemented or still to be implemented change of the technical, functional or operational specifications of the respective Installation laid down in the Specifications.
1.16
Parts: parts of the Installations (including fresh air filters), components and spare parts. Preventative Maintenance: a Maintenance Service including the execution of the activities prescribed in the Specifications on the basis of plans to be agreed each year according to the frequencies stated in the Specifications.
1.17
Prices: the agreed contract price, rates and fees which the Contractor will charge Intravacc for the performances provided by the Contractor pursuant to the Agreement and any discounts applicable to them.
1.18
Primary Responsible Contact: the employee(s) entrusted with the management of the project appointed by Intravacc or the Contractor, who is/are the sole person(s) with the power to give Further Assignments, to determine the plans and to implement changes to the Specifications and/or to amend them. The Primary Responsible Contacts, in connection with the arrangements laid down in the Agreement, are entitled to bind each other with regard to the execution of the Maintenance Services. Their substitutes will only act in the event of their illness or holidays.
1.19
Professional faults: failures, such as mistakes, carelessness, negligence, omissions, wrong advice, which a skilled and prudent provider of services ought to have avoided in the given circumstances, observing normal attention within the scope of normal professional knowledge and normal professional practice and with application/use of normal means.
1.20
Reaction Period: the maximum period allowed between the notification of a Fault and/or Defect by Intravacc to the Contractor and the confirmation by the Contractor to Intravacc of the receipt of the notification of the Fault and/or Defect.
1.21
Repair Period: the maximum period allowed between the notification of a Fault and/or Defect by Intravacc to the Contractor, the successive instruction by Intravacc to the Contractor to perform Maintenance Services and the delivery of the respective Installation in working order.
1.22
Response Period: the maximum period allowed between the notification of a Fault and/or Defect by Intravacc to the Contractor, the successive instruction by Intravacc to the Contractor to perform Maintenance Services and the start of the activities by the Contractor.
1.23
Specifications: the Specifications for maintenance of process-specific installations Intravacc.
1.24
Subcontracting: the Contractor having certain parts of the activities carried out by other natural persons or legal entities under his responsibility.
1.25
Working Days: calendar days on which the agreed activities will be carried out within the Working Hours, except for weekends, public holidays and collective days leave indicated by the parties (such as construction industry holiday).
1.26
Working Hours: the Working Hours start at 08.00 and finish at 17:00.
1.27
Work Sites: the sites specified in the Specifications where the Installations connected to the primary technical provisions have to be maintained by the Contractor with due observance of the provisions set out in the Agreement.
1.28
Year: a consecutive period of 12 calendar months.
Article 2 Purpose of the agreement
2.1
Laying down between the parties the contractual terms with the aim of performing the maintenance of the Installations during the term of the Agreement such that by doing so maximum safeguards are created for the quality and continuity of the process-specific technical infrastructure required for the research and production of humane vaccines. Pursuant to the Agreement and any Further Assignments the Contractor and Intravacc undertake to supply or buy the Maintenance Services required to this end.
2.2
The Contractor states that he is sufficiently aware of the relevant objectives of Intravacc and Intravacc with regard to the Agreement, the relevant part of the organisation and business operations of Intravacc and the processes which depend on an optimum, safe and efficient operation of the Installations.
2.3
The parties will notify each other immediately, preferably in writing, about any fact, circumstance, action or omission which might be relevant to the performance of the Agreement.
Article 3 Applicable conditions
3.2
The Contractor will refrain from performing Additional Work or implementing Contract variations for less work without a Further Assignment from Intravacc .
3.3
The current, relevant national and international (statutory) rules with regard to for instance safety and the environment are applicable. The Contractor is deemed to be aware of these rules, and guarantees to act in accordance with them. The Contractor will also stipulate from any subcontractors to be engaged by him that they are aware of these rules and will comply with them. The costs and consequences resulting from compliance with these rules will be at the expense of the Contractor.
Article 4 Primary responsible contacts and consultations
4.1
The parties will each appoint a Primary Responsible Contact as meant in clause 1, paragraph 8, and their substitutes. The Primary Responsible Contacts appointed by each party and their substitutes are or will be specified in the Specifications.
4.2
Apart from the Primary Responsible Contacts the parties will each appoint one or more contacts and the parties will arrange one or more periodic consultations, organise the representatives of each party taking part in this, the frequency and the duties of the chairman and the secretary. The appointed contacts and periodic consultations will be designated, described and determined in the Specifications.
Article 5 Consequences of termination
5.2
On termination of the Agreement Intravacc’s rights with regard to the Contractor’s obligations which continue as to their nature after the termination of the Agreement as further detailed in section 24, will remain in full force and effect.
Article 6 Intravacc’s obligations
6.1
The Specifications, forming in a material sense the basis of the Preventative Maintenance to be performed, will be maintained and managed by Intravacc in a manner such that the objectives of the Preventative Maintenance are optimally supported.
6.2
The responsibility for the primary technical provisions to which the Installations are connected rests with Intravacc. Changes to this will be notified by Intravacc to the Contractor.
6.3
Intravacc will set up and maintain a central service desk, the so-called Intravacc Coordination Point, which will be as well as for inquiries, consultations, assistance and advice. In the event of urgent breakdowns, defects and calamities Intravacc will be available outside Working Days and Working Hours via Intravacc’s security system as stated in the breakdown notification procedure.
6.4
Intravacc will ensure the availability of a breakdown notification procedure, to be adhered to with regard to Corrective Maintenance and a Preventive Maintenance procedure.
6.5
Intravacc is also obliged, where appropriate, to provide access for the Contractor’s Personnel to Intravacc’s premises and the Work Sites outside Working Hours, without prejudice to the provisions with regard to Intravacc’s general and applicable access guidelines.
6.6
Intravacc is obliged to provide the Contractor with all facilities reasonably to be provided by Intravacc, without prejudice to the provisions in the Agreement with regard to secrecy and security. These services to be provided will in principle be supplied free of charge.
Article 7 The Contractor’s obligations
7.1
The Contractor undertakes to provide and deliver promptly the Maintenance Services specified in the Agreement as well as the availability of the Parts and Miscellaneous Materials required to this end.
7.2
The Contractor will perform the Maintenance Services with due care and in accordance with the generally accepted industrial standards in such a manner that they contribute to the realisation of the objectives intended by means of these services with regard to guaranteeing the operational security and safety of the Installations in an economically effective manner.
7.3
The Contractor is not allowed to carry out Corrective Maintenance without a work order sheet issued by the Intravacc Co-ordination Point. In urgent cases, which will only be regarded as such at the Intravacc Co-ordination Point’s indication, a work order sheet will be issued to the Contractor afterwards in the manner described in the Specifications under 2.1.2.3.
7.4
The Preventative Maintenance will be performed in such a manner that, running up to the next Preventative Maintenance session, any necessary Corrective Maintenance outside the Preventative Maintenance period cannot be due to no or insufficient Preventative Maintenance.
7.5
With regard to initiating and performing Corrective Maintenance the Contractor will observe the current breakdown notification procedure.
7.6
The Contractor will ensure that the maintenance organisation required for the performance of the Agreement, including the necessary aids/equipment and the Contractor’s Personnel required for the performance of the Agreement complies, qualitatively as well as quantitatively, and continues to comply with the standards required of it.
7.7
During the term of the Agreement the Contractor will ensure an adequate management, coordination and guidance of the activities in connection with the performance of the Maintenance Services and the Contractor’s Personnel involved in it.
7.8
The Contractor will identify, on request or voluntarily, new relevant technical developments and will make proposals in this respect for improvement by means of improvement advice.
7.9
Also, in performing the management duties for Intravacc with regard to the Specifications as referred to in clause 6.1, the Contractor will notify to Intravacc any differences identified during the fulfilment of the Agreement between the actual situation and the technical documents as specified in the Specifications, by means of a copy of the updated “Object List and Inventory” (“Object- en Inventarisatielijst”).
7.10
The Contractor will set up and maintain a central service desk, which will be permanently accessible during as well as outside Working Hours for noting Faults and Defects as well as for inquiries, consultations, assistance and advice.
7.11
Amongst other things with a view to the Contractor’s obligations resulting from the provisions in clause 9 with regard to agreed dates, times and periods, the Contractor will ensure the availability in sufficient numbers and at reasonable prices of Parts and Miscellaneous Materials. Where necessary the Contractor will safeguard this availability, at his discretion, by means of contracts with suppliers and subcontractors.
Article 8 Assignment and subcontracting
8.1
The parties will not assign to third parties in full or in part the obligations resulting from the Agreement without the written consent of the other party, except that Intravacc may assign this Agreement, without any consent, to an entity that acquires all or substantially all of its business or assets to which this Agreement pertains, whether by merger, reorganization, acquisition, sale, or otherwise.
8.2
A prior written consent for subcontracting given by Intravacc does not discharge the Contractor from any obligation or liability under the Agreement. The Contractor is fully liable for the actions of subcontractors as if they themselves were performing the respective Maintenance Services.
8.3
Before the Contractor enters into any subcontracting agreement, Intravacc must have been given sufficient opportunity to verify the nature of the subcontracting and to provide comments on it, as well as the intended subcontractor, the part of the Maintenance Services contracted out to the subcontractor and other details requested by Intravacc.
8.4
The Contractor will include all relevant provisions of the Agreement in any subcontracting agreement and any subcontracting agreement should include provisions enabling the assignment of the subcontracting agreement to Intravacc.
8.5
No subcontracting agreement whatsoever will create a contractual relationship between Intravacc and the subcontractor. This is exclusively possible if an assignment of the subcontracting agreement between the contract-awarding company and the subcontractor is executed as referred to in the previous paragraph.
8.6
If the Contractor has any part of the Maintenance Services carried out by a subcontractor without having obtained the prior written consent of Intravacc to this end or if the Contractor has any part of the Maintenance Services carried out beyond the limits set to this end in Intravacc’s consent, Intravacc will be entitled to: a) demand the termination of that subcontracting agreement and themselves carry out or have the work assigned to the subcontractor carried out, namely at the expense and risk of the Contractor, and/or b) terminate the Agreement fully or partially with immediate effect on the grounds of breach of this Agreement by the Contractor.
Article 9 Delivery periods, Plans, Reaction Periods, Response and Repair Periods
9.1
The Preventative Maintenance will be carried out with due observance of the time schedule agreed for the respective maintenance period and laid down in the detailed plan. This detailed plan and the preceding year plan, as well as the formation and implementation of any changes to it, are further described and laid down in the Specifications.
9.2
The Corrective Maintenance will be carried out with due observance of the agreed Reaction, Response and Repair Periods. These periods have been determined by the parties as follows:
| ‘Repair’ | ‘Reaction Period’ | ‘Response Period’ | ‘Repair Period’ |
| ‘Urgent repair’ | ’30 Minutes’ | ‘2 Hours’ | ‘the actual Response Period + 4 hours, Unless otherwise agreed’ |
| ‘Non-urgent repair ‘ | ’12 Hours’ | ’24 Hours’ | ‘the actual Response Period + 4 hours, Unless otherwise agreed’ |
Deviations from these periods can only be further agreed per individual case and laid down between Intravacc and the Contractor.
9.3
The delivery periods for Additional Work and Modifications are detailed in the Further Assignments relating to them.
9.4
The delivery periods for the reports to be submitted by the Contractor mentioned in the Specifications are laid down in the Specifications.
9.5
If the Contractor is aware or ought to be aware or it can be or ought to be expected that the performance of (parts of) the maintenance cannot take place within the periods, dates and times (further) agreed, the Contractor will notify Intravacc of this immediately stating the cause of the delay and the measures proposed by the Contractor to avoid or undo the threatened delay.
Article 10 Working hours
10.1
The activities to be carried out on the Work Sites by the Contractor under the Agreement and any Further Agreements will in principle be carried out on Working Days within Working Hours.
10.2
If the Contractor and/or Intravacc deem it necessary to continue – on other grounds than those as a result of attributable failure of the Contractor – activities already started outside the days and times mentioned in paragraph 1 of this clause, the associated extra costs can only be charged if the activities are carried out after agreement and at the explicit request of Intravacc.
Article 11 Personnel
11.1 For the performance of the Agreement the Contractor will make and keep available sufficient and – exclusively – qualified Personnel. The extent and level of knowledge and experience of the Contractor’s Personnel to be deployed by Contractor for the performance of the Agreement should be in accordance with the requirements set by Intravacc and failing this, with the general requirements of skill and expertise.
11.2
If at Intravacc’s discretion there are insufficiently qualified personnel, Intravacc will be entitled to order the removal of these personnel and the Contractor will be obliged to replace them immediately with due observance of the provisions in paragraph 1 of this clause.
11.3
The Contractor will as much as possible deploy the same personnel. On each replacement, for instance in the event of illness or leave, the Contractor will guarantee replacement Personnel with a comparable level of knowledge and experience.
11.4
The Contractor will keep up to date in a data file specifically relating to Intravacc the relevant qualifications and other data of all the members of staff deployed or to be deployed at Intravacc. After any change to this file, the Contractor will provide Intravacc immediately with a new and full summary.
11.5
During the term of the Agreement and for one year afterwards the parties will not employ (an) employee(s) of the other party or have these employees work for them in any other way without the prior written consent of the other party. The Contractor guarantees that the provisions set out in this paragraph will also be complied with by third parties affiliated to or engaged by the Contractor.
11.6
Neither of the parties is entitled to induce members of staff of the other party to performances, undertakings and the like for any form of reward or gift to that member of staff, without which such reward or gift the performance or undertaking would not have been formed or would have been formed under other conditions.
11.7
Without prejudice to the provisions in the previous paragraphs the Contractor will exclusively deploy personnel for the performance of the Agreement who: a. are aware of the applicable Work Procedures and Work Permits of Intravacc; b. have complied promptly with the vaccination obligations as laid down in the Work Procedures taking into account the time, normally not more than 6 months, which is required to build up sufficient immunity after vaccination; c. are in possession of a valid proof of identity; d. will observe the company rules applicable at Intravacc.
11.8
The parties will ensure that their personnel are aware of the specific rules and regulations applicable to specific Work Sites and that they will act according to these rules. A delay in the performance of the Maintenance Services as a result of the refusal of access meant in clause 12, removal of the Contractor’s Personnel and/or the withdrawal of proofs of identity will not form grounds for a granting of a deferment of the completion or for compensation or additional payments to the Contractor, unless it appears that the refusal of access or removal of persons is not based on objections to the person involved.
Article 12 Access and security
12.1
The Contractor’s employed personnel have at all times to sign in and sign out at the Intravacc Co-ordination Point on each visit after having entered Intravacc’s premises, whilst submitting a valid proof of identity before starting activities on the Work Sites and immediately after having finished. The Contractor will ensure that the Contractor’s Personnel can furnish proof of identity on entering the buildings and/or the premises of Intravacc as being an employee of the Contractor (his subcontractors and/or suppliers).
12.2
The Contractor’s personnel (including subcontracted or hired personnel) involved in the performance of the activities on Intravacc’s premises should observe all the access and safety procedures. If the respective member of staff has not fulfilled his obligations resulting from this, for instance the one with regard to the vaccination obligation and the possession of a valid proof of identity, the respective member of staff will be refused access. The costs and consequences resulting from this will be at the expense and risk of the Contractor. The vaccination obligation relates in principle to DTaP-IPV (diphtheria, tetanus, acellular pertussis, poliomyelitis), MMR (mumps, measles, rubella) and an annual checkup for TBC. With regard to activities in specific building sections the vaccination programme/schedule may be adjusted. If required by the applicable vaccination policy or rules, vaccination can take place on Intravacc’s premises in which case vaccines will be provided by Intravacc at no cost. Vaccination elsewhere will be on the account of Contractor. If the Contractor (including its personnel) does not observe the vaccination policy and/or programme/schedule, the Contractor’s personnel may be refused access and Intravacc will be compensated by the Contractor for the losses resulting from this. In addition, the Contractor will indemnify Intravacc for losses resulting from Contractor’s (including personnel) lack of compliance with the vaccination policy and/or programme/schedule.
12.3
If during the performance of the work objects or substances are encountered, the presence of which is not stated in the Specifications and of which it can be reasonably deemed that they could inflict damage to persons, goods or the environment, the Contractor will notify Intravacc of this immediately, in this case the Intravacc Co-ordination Point. He will take immediately, if necessary in consultation with Intravacc, the safety measures required by the circumstances.
12.4
The Contractor will ensure that his Personnel deployed at Intravacc are and remain familiar with the access and safety provisions, including the “Intravacc Work Procedures” and “Work Permits” and will take suitable measures to this end. The Contractor will ensure that these access and safety provisions are also actually observed.
12.5
Pursuant to the provisions set out in clause 2.37 of the Working Conditions Decree (Arbeidsomstandighedenbesluit) (Bulletin of Acts, Orders and Decrees 1997, 60) the Contractor will appoint one or more coordinators (‘V&G Coordinators’) (Health & Safety Co-ordinators) for the implementation phase. These coordinators will implement the coordination tasks mentioned in clause 2.34 of the Working Conditions Decree.
12.6
Intravacc is at all times entitled to subject the Contractor’s Personnel performing work at Intravacc to a safety examination. The Contractor will cooperate fully with this examination. Intravacc is entitled by reason of the outcomes of such an examination to refuse the deployment of the respective member of staff under the Agreement in the execution of Intravacc’s activities. In that case the Contractor will be obliged to replace that person (have that person replaced) by another who is equal as to education, experience and expertise and to observe the secrecy with regard to this new person as meant in clause 19. The secrecy clause remains effective for the person who has been replaced.
12.7
Immediately after a (near) accident has occurred, the Contractor will notify Intravacc of this providing all information in this respect.
Article 13 Ownership of replaced Parts
13.1
The ownership of faulty Parts released when the Maintenance Services are carried out, will on replacement transfer to the Contractor unless this is explicitly deviated from in the event of Additional Work or Modifications in a Further Assignment. The Contractor will at his expense and risk take care of the removal of these superfluous materials.
13.2
If (either) party deems it necessary, the parties will in mutual consultation formulate and keep an up to date parts list of the Parts to be kept available.
Article 14 Acceptance and notice of default
14.1
Acceptance by Intravacc of the Contractor’s performance will take place on the basis of the checklists, measuring reports and measuring records to be submitted by the Contractor to Intravacc which relate to the performances rendered.
14.2
Should Intravacc conclude from the reports meant in paragraph 1 or otherwise that the performances rendered by the Contractor show Faults, Intravacc will report these Faults in writing to the Contractor. The Contractor will remedy the Faults reported by Intravacc at the Contractor’s expense and risk within the periods mentioned in clause 9.
14.3
Faults which could not reasonably be detected during the Acceptance of the Contractor’s performances will be reported in writing to the Contractor by Intravacc as soon as possible after being detected, but not later than within three (3) working days. The Contractor will remedy the Faults reported by Intravacc at the Contractor’s expense and risk within the periods mentioned in clause 9.
14.4
The said Faults will be specified in a so-called ‘punch list’ (list of remaining points).
14.5
Minor Faults which by their nature and/or number do not reduce the operability of the Installations, will not form reasons to prevent the (re-)commissioning of the installations.
14.6
If the Contractor, even after been given a notice of default as meant in clause 14.2 does not, not promptly or no longer fulfil his obligations to remedy the Faults, Intravacc will – notwithstanding their further rights, including those with regard to penalties and termination – be entitled either to remedy this default themselves or have them remedied by third parties at the expense of the Contractor. The Contractor will be obliged to give his cooperation and – if required at Intravacc’s first request – to supply the necessary information.
Article 15 Prices
15.1
The Prices of the Maintenance Services payable by Intravacc to the Contractor are determined in euros and further specified and laid down in the Agreement. In the event of implemented interim changes in the Specifications by means of Further Assignments, the Price per order will be determined in accordance with the provisions with regard to pricing in the Agreement.
15.2
The Prices meant in the Agreement are set: – excluding VAT; – including all costs directly or indirectly connected with the execution of the Maintenance Services such as for instance design and/or revision drawings, availability of Parts, costs of proofs of identity, travel times, breaks, consultations, removal of superfluous Parts, consumed Miscellaneous Materials, formulation of detailed plans, reports, management of Specifications, insurance, travel and accommodation costs of the Contractor’s Personnel; – with regard to the hourly rates: exclusively payable for the hours actually spent. The travel times are deemed to have been included in the hourly rates; which are applicable up to and on the expiry of the warranty periods.
15.3
Changes in the Prices meant in the first paragraph, either up or down, with regard to the wage component are only allowed if and insofar as the development of the CBS (Statistics Netherlands) cost-of-living index figure gives rise to this. Price increases exceeding the rise in the cost-of-living index figure require the consent of
Intravacc. When requested, the Contractor has to submit a proper justification for this. With regard to the Parts, price rises are only allowed if and insofar as the price developments of Parts on the regular market justify this. Price changes as mentioned above can only be implemented once a Year in connection with the final date of each Year and the date on which the index figures are published.
15.4
The Contractor undertakes to do his utmost to obtain for the benefit of Intravacc all discounts, credits and refunds which are allowed by law from the suppliers and subcontractors, for those materials and/or services that are deployed in connection with the Agreement.
Article 16 Invoicing and payment
16.1
The contract price for the Preventive Maintenance due each Year will be specified and charged by the Contractor in arrears in 4 equal instalments every calendar quarter within thirty (30) calendar days after an instalment has become due, with the measuring and checking records attached. The last, 4th, instalment relating to the current maintenance period, will only fall due at the moment of Acceptance.
16.2
The costs payable for Contract Variations will – exclusively when they are assigned in writing by means of Further Assignments – be charged on the basis of actual costs stating the number of hours worked or not worked, the hourly rate agreed and the Prices of the Parts used or not used by the Contractor either in the form of a credit or a debit invoice.
16.3
In order to obtain payment, the invoices have to be submitted by the Contractor in duplicate in the name of Intravacc, ‘Afd. Crediteurenadministratie, Postbus 457, NL-3720 AL BILTHOVEN’, quoting the number and the date of the Agreement and, if applicable, the order number (Corrective Maintenance) or the number and the date of the Further Assignment (Contract Variations, Modifications). The invoices will be pooled as far as possible until a total invoice value of approx./a maximum of €10,000.00 (excluding VAT) has been reached. The invoices thus collected will be charged on a collective invoice specified per building. A summary has to be attached to the collective invoice on which the following details are specified/to which the following documents have to be attached: – the work order/order number (the so-called 31- or PO number); – the work permit (if necessary) signed by all the parties involved; – the approved cost specification stating the reference number from the “Object List and Inventory” (see Specifications); – the actual Prices payable; a work report by the respective Contractor’s member of staff who dealt with the fault and resolved it.
16.4
Intravacc will make the invoice payable not later than 30 days after Acceptance or – if this is later – within 30 days after having received the invoice.
16.5
Where payment is made by Intravacc within 14 days of receipt of the invoice, a deduction of 4% from the invoice amount shall be applied.
16.6
If Intravacc disputes any part or any invoice in whole or in part, Intravacc has to send a letter giving the reasons to the Contractor within a period of thirty (30) calendar days after having received the invoice, with the request to the Contractor to credit the amount of the nonaccepted part of the invoice or, if applicable, the full amount of the invoice.
16.7
If the invoice has been formulated or submitted inaccurately, Intravacc will be entitled to return the invoice within ten (10) Working Days to the Contractor (or have it returned), indicating why the invoice is not satisfactory.
16.8
In the event of a dispute as meant in paragraph 5 of this clause, Intravacc will only pay (have paid) the nondisputed part of the invoice and Intravacc can suspend (have suspended) the payment of the disputed part until an arrangement has been made by the parties or until such a dispute has been settled in court.
16.9
Submission of a credit note, approval of an invoice or a part thereof can never be interpreted as the Parties waiving their rights.
16.10
Payment by or for Intravacc of the invoices of the Contractor or a part of this will take place notwithstanding Intravacc’s right still to dispute in writing the accuracy of this afterwards.
16.11
Intravacc exceeding a payment period or non-payment by Intravacc of an invoice by reasons of the assumed inaccurate contents of that invoice or of the performances rendered being faulty, will not entitle the Contractor to suspend or terminate his performances.
16.12
In case of advance payments Intravacc will, for the security of the performance of the Contractor’s agreed obligations, at all times be entitled to have a bank guarantee issued by one of the big Dutch merchant banks. The text of the bank guarantee will have the purport of the text of a model provided by Intravacc. The costs of the bank guarantee are at the expense of the Contractor. The issue of a bank guarantee, the amount of the guarantee, the moment of issue and the criteria for returning it, will in each individual case be further agreed and laid down.
Article 17 Taxes
17.1
The parties safeguard each other against all direct and indirect taxes, levies, excise taxes and other costs which they have to pay to any authority and which are imposed on the other Party. The Parties agree to indemnify each other against any compensation, penalty, surcharge including interest or other costs resulting from these which are the consequence of any action contrary to the obligations of the Parties applicable under this clause.
17.2
The Contractor accepts full and exclusive liability for the payment of all taxes, levies national insurance contributions and corresponding insurance premiums and/or other costs with regard to the employment of the Contractor’s Personnel.
17.3
At Intravacc’s first request the Contractor must provide all the information with regard to the national insurance contributions and pay-roll taxes of Personnel involved in the execution of the Agreement and which are payable by the Contractor.
17.4
In the event of an authority demanding that Intravacc withholds taxes, levies, excise duties, national insurance contributions and similar insurance premiums and/or other costs from payments due to the Contractor in connection with providing the Maintenance Service, Intravacc will be entitled to do so. Intravacc will notify the Contractor immediately of the said demands of the authority so that the Contractor, if required, can lodge objections against such demands. However, such objections should not prevent Intravacc from complying with the demands of the authority. Any amount paid in such a manner by Intravacc and payable by the Contractor, has to be reimbursed immediately and will initially be set-off against amounts still outstanding under the Agreement.
17.5
The obligations resulting from this provision will continue to be effective even after the Agreement has expired or been terminated for as long as the authority is allowed to impose taxes, levies, national insurance contributions and/or other costs.
Article 18 Audit
18.1
The Contractor and his subcontractors or their subsubcontractors have to retain according to the applicable rules and regulations the records, invoices, correspondence, files and all documents of any nature whatsoever which relate in any way to performing the Maintenance Service.
18.2
Intravacc or its authorised representative should at all reasonable times have unlimited access to all the documents mentioned in paragraph 1 of this clause in order to be able to examine and verify whether: a. the costs and/or Prices have been charged in accordance with the Agreement. b. the Maintenance Service is being performed in accordance with the Agreement and in accordance with the applicable laws, regulations and provisions. If costs and/or Prices are disputed and the Contractor refuses access, Intravacc will be entitled not to refund these costs as if the costs and/or Prices charged are regarded as undue.
18.3
In the event that Intravacc wishes to subject a subcontractor to an audit, Intravacc has to request the Contractor in writing to start up the audit procedure. Such a request can only be refused on reasonable grounds.
18.4
Intravacc will be entitled to copy and retain the documents as indicated in paragraph 1 of this clause for internal use.
18.5
Intravacc’s right to have an audit carried out, will remain effective for a period of two (2) years after Acceptance or, if sooner, the termination of the Agreement.
18.6
The Contractor will ensure that the provisions of this clause will be incorporated into each subcontracting agreement including all contracts entered into by the subcontractors or their sub-subcontractors and that the said provisions will be included in any similar document resulting from the Agreement so that the Contractor or the subcontractor is granted the same auditing rights as those granted to Intravacc.
Article 19 Confidentiality
19.1
Without prejudice to the rights granted to the parties in this Agreement, the parties will observe strict confidentiality with regard to the information about each other’s organisation, the operation of the Installations (including any data files and software). Moreover, the parties undertake to observe secrecy with regard to all matters that have come to their knowledge regarding each others’ business operations. Subject to the prior written consent of the other party, neither party will make information and data carriers which he has at his disposal available to third parties, or to his Personnel beyond what has been allowed in the Agreement, and, insofar as this is allowed to be disclosed to third parties under the Agreement, only insofar it is necessary to render the agreed performances. The Parties will ensure that their Personnel are (and remain) familiar with this obligation of secrecy and will oblige their Personnel to observe these provisions and ensure their compliance. In the event of violation of the secrecy provisions in this paragraph, the one party may demand from the other party that the deployment of the respective member of staff in the performance of the Agreement is terminated with immediate effect.
19.2
Without the written consent of the other party neither party will mention the Agreement, its contents and the execution in publications or advertising statements. Name signs, unless they are name signs on tools and materials, are not allowed in or at the Work Sites or at Intravacc.
19.3
The obligations under this clause continue to be effective notwithstanding the completion of the Maintenance Service or the termination of the Agreement.
Article 20 Warranty
20.1
The Contractor declares and warrants that the Maintenance Services, the Parts and Miscellaneous Materials used and the skill deployed to this end will be free from failures, defects and faults and that they will be in accordance with the requirements of the Agreement during a warranty period of 12 (twelve) months after the date of Acceptance.
20.2
The Contractor warrants that with regard to maintenance actions original, or – however after consultation with Intravacc – equivalent, exchangeable and functionally similar – new – Parts will be applied.
Article 21 Penalty on non- or overdue fulfilment
21.1
If the Contractor does not or not within the periods, dates and times stipulated to this end in the Agreement comply with his obligations with regard to the performance of the Maintenance Services or the remedying of Faults, the Contractor will owe a penalty to Intravacc without any further notice of default being required, without prejudice to any other rights he has by law or under the Agreement. The amount of the penalty is in the event of: Preventative Maintenance 5% of the contract sum per building for each day that the validation of a building lasts longer than agreed; Corrective Maintenance 10% of the invoice value for each day that the fulfilment period has been exceeded.
21.2
The penalty can be withheld by Intravacc on payment of the invoices submitted by the Contractor.
21.2
If the penalty mentioned in the previous paragraph cannot be applied to the instalment invoiced, regardless of the reason, the Contractor shall pay the amount of the penalty to Intravacc within 30 days after the date of the demand for payment.
21.3
If the Contractor does not pay the amount of the penalty promptly and the delay is not attributable to Intravacc, Intravacc may claim the statutory interests of the amount, with which payment the Contractor is in default. Intravacc’s right to statutory interests will become effective on the date following the ultimate date on which the payment should have been made. It is not possible to claim compounded interest.
21.4 If Intravacc has not made payable the invoices submitted within the period mentioned in clause 16, paragraph 4, the Contractor can claim statutory interests on the amount of which Intravacc is in default. The Contractor’s right to statutory interests will become effective on the date following the ultimate date on which the payment should have been made. It is not possible to claim compounded interest.
Article 22 Liability and insurance
22.1
The Contractor is obliged to Intravacc to compensate for all losses suffered and to be suffered by Intravacc as a result of the performance of the Agreement and which are his fault.
22.2
The Contractor and Intravacc respectively have at all times unlimited liability in the event of gross negligence or intention on the part of the Contractor or Intravacc respectively.
22.3
The Contractor has unlimited liability for all physical injuries, including death, loss or damage (including consequential loss) to third parties resulting from or attributable to the performance of the Maintenance Services regardless of the question as to whether such a loss or damage is or is not a result or attributable to any action or omission on the part of Intravacc.
22.4
The Contractor holds Intravacc harmless against all claims from third parties including the Contractor’s Personnel by virtue of damage suffered by these third parties which are connected in any way to the performance of the Agreement, notwithstanding the provisions set out in paragraph 1 of this clause.
22.5
Intravacc is not liable for damage to or loss of user/consumable materials, resources, tools, machines and equipment of the Contractor unless there is gross negligence or intention on the part of Intravacc.
22.6
Subject to the provisions set out in paragraph 4 of this clause, the amount of the compensation will be limited to € 5,000,000.00 per event, a maximum of € 10,000,000.00 per annum.
22.7
The term damage in the previous paragraph also means damage as a result of the unlawful use or loss of keys which may have been provided by Intravacc to the Contractor for the performance of the Agreement and/or Further Assignments.
22.8
In order to cover his liabilities under the Agreement, the Contractor will take out an insurance which is adequate at Intravacc’s discretion, or keep adequate insurance cover for his liabilities. This insurance should also cover the liability of the Contractor with regard to the indemnity granted by the Contractor to Intravacc for damage to third parties in connection with the activities to be performed by the Contractor.
22.9
The Contractor will not suspend or terminate this insurance without Intravacc’s prior consent or change to Intravacc’s disadvantage the conditions under which this insurance is taken out and the amount of the insured sums. The insurance premiums payable by the Contractor are deemed to have been incorporated in the Prices. When requested, the Contractor will submit to Intravacc for inspection the insurance policy and the modes of payment relating to the policy.
22.10
The Contractor hereby assigns to Intravacc in advance all claims with regard to the payment of insurance proceeds which are not directly paid to Intravacc by the insurance companies.
22.11
The Contractor indemnifies Intravacc against all claims by third parties with regard to any infringement of intellectual (property) rights, patents, copyrights and licenses of third parties. Comparable claims with regard to know-how, trademark, unlawful competition etc. are included in this. Without prejudice to the provisions set out above, Intravacc will be entitled, if third parties hold Intravacc liable with regard to infringements as meant above, to dissolve the Agreement in writing, in whole or in part, without judicial interference, notwithstanding their further rights. Intravacc will only exercise their right to dissolve the Agreement after prior consultation with the Contractor.
22.12
Behaviour of subcontractors/auxiliary persons will be regarded as actions taken by the Contractor. The Contractor will at all times be liable for these actions in accordance with the provisions set out in the Agreement.
Article 23 Non-attributable failure (force majeure)
23.1
When there is a non-attributable failure in the performance of the Agreement by either party, the Agreement will be fully or partially suspended for the duration of such a failure without the parties being obliged to pay any compensation to each other.
23.2
A non-attributable failure does not in any event include: third parties (engaged by the Contractor) not fulfilling obligations or not fulfilling them within due time, lack of Personnel, illness of Personnel, delayed deliveries or unsuitability of materials, equipment, software, and/or parts, breach of third parties engaged by the Contractor and/or liquidity or solvency problems on the part of the Contractor.
23.3
A case of non-attributable failure will be notified in writing to the other party submitting the necessary documentary evidence.
23.4
If during a period of 30 days either party cannot perform his obligations under the Agreement or fails in its performance as a result of a non-attributable failure, the other party will be entitled to terminate the Agreement by means of a registered letter with immediate effect, without judicial interference, without there being any right to compensation.
Article 24 Termination
24.1
Intravacc can terminate the Agreement with immediate effect by means of a notice of termination, without prejudice to the rights and remedies retained by Intravacc by virtue of the Agreement or the law, if the Contractor is declared bankrupt, applies for a moratorium, applies for a suspension or undertakes a similar legal action and in the event of other factual or legal measures being taken with the result that the Contractor loses the full control or power over a substantial part of his assets or other facilities or threatens to lose this at any time.
24.2
If the Contractor remains in default of the performance of any part of the Maintenance Service to be performed, Intravacc can send a notice of default to the Contractor including a specification of the details of this default. If the Contractor does not start to remedy the respective default or does not continue the remedial works within a reasonable period, not to exceed five (5) calendar days after having received such a notice, all this to Intravacc’s satisfaction, Intravacc can terminate the Agreement in full or in part without prejudice to the rights and remedies Intravacc has under the Agreement or the law.
24.3
In the event that Intravacc sends a notice of (partial) termination of the Agreement to the Contractor, which notice will become effective immediately after its delivery to the Contractor or on any later date stated in the notice, the Contractor should immediately on that date: a. discontinue providing the Maintenance Service as indicated in the notice; b. assign to Intravacc or their authorised representative all rights, title and obligations, or the relevant parts of these acquired in connection with the performance of the Maintenance Service, insofar as this is required by Intravacc; c. return all information provided by or on behalf of Intravacc and deliver all information and all other data or documents as drafted by the Contractor or a subcontractor in connection with the performance of the Maintenance Service within a period of thirty (30) calendar days from the actual date of termination.
24.4
If Intravacc sends a notice of termination to the Contractor with regard to the Maintenance Service or a part of it, the Contractor will only be entitled to payment for the respective part of the Maintenance Service which has been completed in accordance with the Agreement. All the costs, substantiated by documents, incurred by Intravacc as a direct consequence of the Contractor’s default, will be due from the Contractor to Intravacc.
24.5
In the event of termination the undue amounts paid by Intravacc to the Contractor increased by the statutory interest since the date of payment, will have to be refunded by the Contractor within one month after the date on which the demand to this end was sent.
24.6
Obligations which by their nature are intended to continue effective even after the dissolution of the Agreement, will continue to exist after the dissolution of the Agreement. These obligations include for instance: indemnification against infringement of intellectual (property) rights, secrecy, assignment of insurance proceeds, warranty, disputes, applicable law and choice of an address for service.
Article 25 General
25.1
The omission by either party to demand fulfilment of any provision within a period mentioned in the Agreement, does not affect the right still to demand fulfilment unless the respective party has agreed to the non-fulfilment explicitly and in writing.
25.2
Amendments to the Agreement or supplements to it are possible, but they are only valid insofar they have been agreed in writing between the parties.
25.3
If one or more provisions of the Agreement now or in the future appear to be not or not fully legally valid pursuant to (inter)national legal rules and/or legal relationships, the remaining provisions of it will remain in full force and effect. The parties undertake to replace the invalid clauses by legally valid ones, approaching in a legally effective manner as closely as possible to the intention of the parties and the economic result aimed at by them.
Article 26 Disputes and applicable law
26.1
All disputes arising out of or in connection with the Contract shall, at Contracting Authority’s sole discretion, be finally settled by the competent court in The Hague, the Netherlands or under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The language of arbitration will be English. The place of arbitration will be The Hague, the Netherlands. The Parties shall accept the arbitral award as final.
26.2 The Contract is governed by Dutch law
Terms & Conditions for the procurement of IT
of Intravacc B.V., having its registered address at Antonie van Leeuwenhoeklaan 9, 3721 MA Bilthoven, trade register number: 73887757.
GENERAL PROVISIONS
The General Terms & Conditions IT consist of these General Provisions and Special Provisions. These General Provisions relate to all IT Contracts involving the Contracting Authority. The Special Provisions relate to specific types of IT Contract involving the Contracting Authority.
Article 1 Definitions
Where written with initial capitals, the following terms are defined as follows in these general terms and conditions:
1.1
Acceptance: the approval by the Contracting Authority of the Deliverable or parts thereof.
1.2 Acceptance Procedure: the procedure recorded in the Contract for use by the Contracting Authority in determining whether or not to proceed with Acceptance of the Deliverable.
1.3
Additional Work: work that is not included in the Contract and results in costs that exceed the Fee.
1.4
Agreed Use: the use that the Contracting Authority intends to make of the Deliverable as known to the Counterparty – or as the Counterparty may reasonably be expected to know – at the time of the conclusion of the Contract on the basis of the Specifications and/or on the basis of the information referred to in article 4, in so far as such use is not expressly excluded or limited in the Contract.
1.5
Completion: the presentation by the Contractor of the Deliverable (or parts of it) for Acceptance.
1.6
Counterparty: the Contractor or Supplier with whom the Contract is concluded.
1.7
Contract: the agreements between the Contracting Authority and the Counterparty, which includes the Purchase Order(s) sent out by Contracting Authority of which the Terms and Conditions form part.
1.8
Contracting Authority: the party for whose benefit a Contract is concluded.
1.9
Contractor: a Counterparty who has undertaken to perform a Contract.
1.10
Defect: every fault or other failure as a consequence of which the Deliverable is not suitable for the Agreed Use.
1.11
Deliverable: a Product to be delivered by the Counterparty, a Contract to be performed by it or a License to be granted by it or a combination thereof, including Materials and Documentation.
1.12
Delivery: the supply by the Counterparty of Products in the manner specified in the Contract, as evidenced by a confirmation of receipt thereof issued by the Contracting Authority.
1.13
Documentation: every description of the Deliverable and its properties, whether or not specifically intended for the installation, Implementation, use, management and/or maintenance thereof.
1.14
Enhanced Version: a subsequent version of the Standard Software in which Defects have been repaired and/or its operation has otherwise been improved.
1.15
Fee: the total price agreed for the Deliverable. 1.16 Implementation: the entirety of acts and measures needed in order to make the organization of the Contracting Authority suitable for the Agreed Use of the Product and/or Software.
1.17 Installation: the placement and connection of the Product and/or the setting up of Software by the Counterparty.
1.18 License: a right entitling the Contracting Authority to install and use Standard Software in accordance with the Agreed Use, including all reproductions and disclosures thereof, whether temporary of otherwise, which may reasonably be deemed necessary for this purpose.
1.19
Maintenance: work to be performed by the Contractor for the purpose of repairing and/or enhancing the Deliverable.
1.20
Materials: equipment and consumables for the installation, implementation, use or maintenance of the Deliverable, such as cables, smartcards and physical data carriers on which the Software is supplied.
1.21
New Version: a subsequent version of Standard Software that contains predominantly new or modified functionalities, whether or not issued under a new name.
1.22
Object Code: translation of the Source Code into a code that can be directly read and executed by a computer.
1.23
Patch: a correction to Standard Software that is intended to be temporary.
1.24
Product: the thing to be delivered by the Supplier to the Contracting Authority on the basis of the Contract.
1.25
Schedule: an annex to the Contract that forms part of it once it has been initialed by the parties.
1.26
Software: the set of program rules to be provided by the Counterparty and capable of being used, either directly or indirectly, by a computer to achieve a particular, defined result. Software can be classified as Standard Software or Custom Software.
1.27
Source Code: the entirety of program instructions in their original programming language, including the accompanying Documentation, intended for execution by a computer and in such a form that it can be used by a programmer who has knowledge and experience of the programming method and technology to modify the software.
1.28
Specifications: the documents made available to the Counterparty (including explanatory notes and amendments) that describe and explain the organization of the Contracting Authority, the Deliverable and the intended use thereof by the Contracting Authority, and the contract award procedure.
1.29
Standard Software: Software developed for general use that is made available to the Contracting Authority on a non-exclusive basis.
1.30
Supplier: the Counterparty to the Contract who has undertaken to deliver a Product or grant a License.
1.31
Staff: the members of staff and/or auxiliary personnel used by parties in performing the Contract.
1.32
Terms and Conditions: the General Terms & Conditions IT consisting of these General Provisions and all Special Provisions.
1.33
Vital Deadline: a deadline expressly agreed as such by the parties, where failure by the party concerned to meet the deadline constitutes default without the necessity of notice of default.
1.34
Working Days: calendar days, with the exception of weekends and official public holidays within the meaning of section 3 of the General Extension of Time Limits Act.
Article 2 Contacts and escalation
2.1
Each party will designate a contact to be responsible for keeping in touch with the other party in matters relating to the performance of the Contract. The parties will notify each other of the person they have designated as their contact.
2.2
The contacts may represent and bind the parties in so far as the performance of the Contract is concerned. They are not competent to alter the Contract.
2.3
Without prejudice to the provisions of article 37, the parties must have an internal escalation procedure or arrange for such a procedure to be drawn up.
Article 3 Status of notifications
3.1
Notifications by one party to the other (including undertakings, agreements or further agreements) that are of importance to the performance of the Contract will be binding on the parties only if they are made or confirmed in writing by a person competent for this purpose.
Article 4 Duty of inquiry and disclosure
4.1
To determine the use which the Contracting Authority intends to make of the Deliverable the Counterparty must sufficiently acquaint itself with: a) the objectives of the Contracting Authority in concluding the Contract; b) the organization of the Contracting Authority in so far as relevant to the Contract.
4.2
In discharging the duty of inquiry and disclosure referred to in article 4.1, the Counterparty must also form an opinion on the feasibility of the Deliverable within the parameters specified by the Contracting Authority for this purpose.
4.3
For the purposes of article 4.1, the Contracting Authority will provide the Counterparty with sufficient information. The Contracting Authority will supply the Counterparty, on request, with additional information in so far as this is not of a confidential nature and can reasonably be deemed relevant to the performance of the Contract. If anything is unclear, the Counterparty will make inquiries of the Contracting Authority in good time.
4.4
The Parties will keep each other informed of developments and changes that are or may be of importance to the performance of the Contract.
Article 5 Quality assurance
5.1
The Contracting Authority may always take measures to guarantee the quality of the Deliverable. The Counterparty will cooperate with such measures and implement their results in such manner as may reasonably be expected of it.
Article 6 Delivery
6.1
The Counterparty will make the Delivery all at once.
6.2
Upon Delivery the parties will visually check the quantity and inspect the exterior for observable damage.
6.3
If damage is discovered the Contracting Authority need not take receipt of the Product. This is without prejudice to the Counterparty’s obligation to make timely Delivery.
6.4
The Contracting Authority will provide the Counterparty with a receipt for Products it receives. This receipt is without prejudice to the rights of the Contracting Authority under the Contract.
6.5
The Counterparty will make as much use as possible of sustainable packaging materials and arrange for their environmentally friendly removal.
Article 7 Transfer of risk and title
7.1
The risk of damage to or loss of Products that constitute or form part of the Deliverable will pass to the Contracting Authority upon Delivery.
7.2
Without prejudice to the provisions of article 8, title to the Deliverable (or parts of it) will pass to the Contracting Authority upon Acceptance.
Article 8 Intellectual property rights
8.1
All intellectual property rights that can be exercised in relation to a Deliverable, no matter where or when, are vested in: a. the Contracting Authority in so far as the Deliverable concerned has been or is being designed or produced specifically for the Contracting Authority and/or has been designed or is being produced under the direction or supervision of the Contracting Authority or by reference to its instructions or designs. In so far as necessary, these rights are transferred by the Counterparty to the Contracting Authority under the Contract, such transfer being hereby accepted in advance by the Contracting Authority; b. the Counterparty or a third party in all other cases; the Counterparty grants the Contracting Authority in such cases a non-exclusive right, as determined in the Contract, to use the Deliverable that is in any event sufficient for performance of the provisions of the Contract(s).
8.2
The rights referred to in article 8.1 (a) are assigned to the Contracting Authority upon signature of the Contract. In so far as a separate instrument needs to be executed at any time for the assignment of these rights, the Counterparty irrevocably authorizes the Contracting Authority to draw up such an instrument and sign it on behalf of the Counterparty, without prejudice to the Counterparty’s obligation to cooperate in the assignment of these rights as soon as the Contracting Authority requests it to do so, without attaching any conditions to its cooperation. In so far the Counterparty hereby also irrevocably authorizes the Contracting Authority to have the assignment of these intellectual property rights entered in the appropriate registers.
8.3
In the event of a disagreement between the parties about intellectual property rights in relation to the Deliverable (or parts of it), it will be assumed, in the absence of proof to the contrary, that the rights are vested in the Contracting Authority. Irrespective of the outcome of that dispute, the Contracting Authority may continue with the Agreed Use.
8.4
The Counterparty hereby renounces, in so far as necessary, both in its own capacity and on behalf of its Staff, all personality rights as referred to in section 25, subsection 1 (a) to (c) of the Copyright Act 1912, in so far as the relevant legislation allows it to do so. The Counterparty guarantees to the Contracting Authority that it is competent to renounce these rights, including on behalf of its staff.
8.5
The Counterparty will indemnify the Contracting Authority against all claims brought by third parties in respect of any breach of their intellectual property rights, including personality rights as referred to in section 25, subsection 1 of the Copyright Act and equivalent claims relating to knowledge, unlawful competition and so forth. The Counterparty is obliged, as soon as the Contracting Authority so requests, to assume responsibility for defending any proceedings brought against the Contracting Authority in connection with the Deliverable for breach of the intellectual property rights of a third party. For this purpose the Contracting Authority will immediately inform the Counterparty of any such proceedings and provide the Counterparty with the necessary powers of attorney and assistance. The Counterparty will also indemnify the Contracting Authority against all damages and costs that it may be ordered to pay in such proceedings and against the costs of the proceedings themselves, including, but not limited to, the costs of obtaining legal advice in this connection.
8.6
In the event of an alleged breach of the intellectual property rights of a third party, the Counterparty will, at its expense, take all measures that may help to prevent disruption of the operational activities of the Contracting Authority and to mitigate the costs incurred and/or loss or damage suffered as a result of such breach.
8.7
Without prejudice to the provisions of articles 8.5 and 8.6, the Contracting Authority may, if a third party holds it liable for a breach of its intellectual property rights, cancel all or part of the Contract in writing without recourse to the courts and without prejudice to its other rights against the Counterparty, including, but not limited to, any right to compensation.
Article 9 Documentation
9.1
Documentation must be drawn up in such a way as to ensure that the Deliverable can be properly used, managed and maintained by the Contracting Authority and third parties.
9.2
The Contracting Authority may reproduce and amend Documentation and publish it for use within its organization without owing a further fee, provided that any copyright acknowledgements etc. it contains are left intact.
Article 10 Authorizations
10.1
The Counterparty will be responsible for obtaining and maintaining any authorization that may be required under any national or international regulation for the performance of the Contract.
10.2
The Counterparty will immediately inform the Contracting Authority of everything that, in its view, constitutes or may constitute an infringement of the authorization.
Article 11 Acceptance
11.1
The Contracting Authority is not obliged to make any payment to the Counterparty before Acceptance takes place. Pre-Acceptance payments are always made subject to the condition precedent of Acceptance.
11.2
The Contracting Authority will inform the Counterparty within 30 days after Completion or Delivery whether it accepts the Deliverable. It may do this by means of an explicit notification to this effect or by forwarding the test report as referred to in article 58.3 if the Custom Software is approved in the report.
11.3
Acceptance includes approval of the Documentation.
11.4
If the Contracting Authority is unable to notify the Counterparty within the period referred to in article 11.2 whether it accepts the Deliverable, it will notify the Counterparty of its inability to do so before the expiry of the period concerned, stating its reasons and specifying within what period it will notify the Counterparty whether it accepts the Deliverable.
11.5
If no notification as referred to in article 11.2 or 11.4 is given or if the additional period for Acceptance as referred to in article 11.4 expires without further notice from the Contracting Authority, the Deliverable will be deemed to have been accepted by the Contracting Authority.
11.6
If the Contracting Authority accepts the Deliverable despite having discovered that it has one or more Defects, it will inform the Counterparty of this either in the notification or in the test report referred to in article 11.2. The Counterparty will repair these Defects in accordance with the provisions of article 12.5.
Article 12 Guarantees
12.1
The Counterparty guarantees that it will only use Staff who have the skills and qualifications that have been agreed or are necessary for the performance of the Contract, taking account of the nature of the Deliverable and the expertise claimed by the Counterparty. It also guarantees that the Staff used by it will meet the requirements that may be made of an equivalent service provider that is reasonably competent and acts in a reasonable manner.
12.2
The Counterparty guarantees that it will not supply Staff to or allow them to work for the Contracting Authority if they also work for third parties and could as a result have a conflict of interest.
12.3
The Counterparty guarantees that it will repair any Defects at its own expense during a period of 12 months after Acceptance. If the Contracting Authority wishes to invoke this guarantee, it will inform the Counterparty of this in writing and, in emergencies, by telephone. The Counterparty will repair the Defects forthwith, taking account of their nature and seriousness. Repair will be carried out, where necessary, in consultation with the Contracting Authority. If the Counterparty shows that the Defect is of a kind that the Contracting Authority should reasonably have discovered when carrying out the Acceptance Procedure, it may charge the Contracting Authority for extra costs incurred as a consequence in repairing the Defect.
12.4
If, when performing the guarantee referred to in article 12.3, the Counterparty makes use of a work-around solution, it will reimburse any loss or damage suffered by the Contracting Authority as a result. Article 26 applies mutatis mutandis.
12.5
Further to article 12.3, the Counterparty guarantees that Defects that are discovered by the Contracting Authority during the Acceptance Procedure but are not regarded by it as a reason for not proceeding with Acceptance will be repaired with due dispatch at the expense of the Counterparty after Acceptance.
12.6
The guarantee referred to in article 12.3 does not apply in so far as the Counterparty shows that a Defect has occurred as a consequence of a change made to the Deliverable without its consent by the Contracting Authority or a third party used by it. Nor does the guarantee apply if the Defect is demonstrably due to incorrect, careless or injudicious use of the Deliverable by the Contracting Authority.
12.7
The Counterparty guarantees that it can maintain the Deliverable for five years after the date of Acceptance, during at least three of which the Maintenance will be carried out in the manner specified in the Special Provisions on Maintenance.
Article 13 Support and Maintenance
13.1
The Counterparty will, on request, acquaint the Contracting Authority and its Staff with the use of the Deliverable. If the Counterparty has also been charged with Implementation of the Deliverable, this support will, in principle, be given by Staff who have been involved in such Implementation.
13.2
The nature, scope, duration and (if applicable) costs of the support must be specified separately in the Contract.
13.3
If the Contracting Authority so wishes, the Counterparty will maintain the Deliverable in accordance with the provisions of article 12.7.
Article 14 Invoicing, discounts and Additional Work
14.1
The Counterparty will invoice for the work in the manner prescribed in the Contract.
14.2
The Counterparty will send the invoice electronically so that it can be received and processed electronically, in accordance with the specifications given by the Contracting Authority.
14.3
The Contracting Authority is entitled to an agreed discount on the Fee or penalty, without prejudice to the other rights or claims, including, but not limited to: a) its claim to performance of the agreed obligation to perform the contractual obligations in relation to the Deliverable; b) its right to compensation; and/or c) its right to cancellation.
14.4
Additional Work must be notified in good time to the Contracting Authority, must always be invoiced separately and does not qualify for reimbursement other than with the prior consent of the Contracting Authority.
Article 15 Payment and invoice audits
15.1
The Contracting Authority will pay the amounts owed by it under the Contract to the Counterparty no later than 30 days after receipt of the invoice, if this complies with the provisions of article 14.1. The period of 30 days will start to run from the date of receipt of the invoice or the date of Acceptance, whichever is the later.
15.2
Where payment is made by the Contracting Authority within 14 days of receipt of the invoice, a deduction of 4% from the invoice amount shall be applied.
15.3
If the Contracting Authority fails without valid reason to pay an invoice within the time limit stipulated in article 15.1, it will automatically be liable to pay compensation as referred to in article 96, paragraph 4 of Book 6 of the Civil Code and statutory interest as referred to in article 119a of Book 6 of the Civil Code on the amount outstanding. The compensation and interest will be paid at the Contractor’s request. The Counterparty will not be entitled to the payment of interest if the invoice in question does not meet the agreed requirements.
15.4
The Contracting Authority may instruct an accountant designated by it, as referred to in article 393, paragraph 1 of Book 2 of the Civil Code, to check that an invoice submitted by the Counterparty is accurate. The Counterparty will allow the accountant to inspect its books and documents, and will supply him with any data and information he requests. This audit will be confidential and will not involve any more than is necessary to verify the invoice. The accountant will report the audit findings with due dispatch to both parties. The Contracting Authority will pay the cost of the accountant’s audit unless the audit reveals that the invoice in question is not accurate or complete, in which case the Counterparty will be liable for the cost of the audit.
15.5
The Contracting Authority may defer payment of an invoice, or part of an invoice, about which the parties have failed to reach agreement for as long as the accountant’s audit lasts. The Contracting Authority will exercise this right only if it has reasonable doubts about the accuracy of the invoice in question. 15.6 The Counterparty waives any right it may have to suspend or terminate its work on account of the Contracting Authority’s failure to pay an invoice within the stipulated time limit, or if the Contracting Authority does not pay all or part of an invoice because it suspects that the invoice is inaccurate or because the Deliverable is defective.
Article 16 Advances
16.1
If the Contracting Authority, in performing the Contract, is to make a payment for a Deliverable that has not yet been accepted, it may require the Counterparty to issue it with an on-demand bank guarantee for the value of the payment in question before it makes the payment. The Contracting Authority will not be required to pay any of the cost of the guarantee.
16.2
If the Contracting Authority does not accept the Deliverable within the stipulated time limit owing to a failure that is attributable to the Counterparty, the Counterparty will be liable to pay statutory interest on the advance for as long as the failure persists.
16.3
The on-demand bank guarantee, based on the model enclosed with the Contract, will be issued by a credit institution generally deemed to be of sound repute, as designated in the implementing regulations based on section 37 of the GPCIT. After final Acceptance, the document recording the guarantee will be returned to the Counterparty.
Article 17 Duty of secrecy
17.1
The parties may not divulge in any way whatever any information that comes to their attention in the course of performing the Contract and that they know or may reasonably be assumed to know is confidential, except in so far as they are obliged to divulge such information under a statutory regulation or court ruling. Where the parties have agreed a different form of dispute resolution, a ruling of a body competent under article 37.1 to resolve a dispute will be equated with a court ruling for this purpose.
17.2
The parties will impose on their Staff the same duty of secrecy as is provided for in article 17.1.
17.3
The Counterparty will cooperate, at the request of the Contracting Authority, in enabling the Contracting Authority, or a third party acting on its behalf, to supervise the safekeeping and use of confidential information by the Counterparty.
17.4
The Counterparty will hand over to the Contracting Authority, as soon as it requests, all information that the Counterparty has in its possession for the purpose of performing the Contract, including any copies made of such information.
17.5
When a Counterparty breaches the duty of secrecy provided for in article 17.1, it will owe the Contractor Authority a penalty of € 50,000, due and payable forthwith, for each infringement.
Article 18 Processing of personal data
18.1
In so far as the Counterparty processes personal data for the Contracting Authority in the course of performing the Contract, the Counterparty is designated as processor within the meaning of the Personal Data Protection Act and the Contract also constitutes an agreement within the meaning of section 14, subsection 2 of the Personal Data Protection Act. The Counterparty is not entitled to use the personal data in its possession (or cause such data to be used) wholly or partly for a purpose other than the performance of the Contract, subject to any statutory obligations to the contrary.
18.2
The Counterparty will take the appropriate technical and organizational security measures referred to in article 18.1 in order to secure the personal data against loss or any other form of unlawful processing. These measures must guarantee a level of security commensurate with the risks posed by the processing and nature of the data to be protected, taking account of the latest technology and the costs of implementation. The measures must be partly designed to prevent the unnecessary collection and further processing of personal data. The Counterparty will record the measures in writing.
18.3
The Counterparty will process personal data as defined in section 1 of the Personal Data Protection Act in a proper and careful manner and in accordance with the applicable legislation and any applicable code of conduct of the Contracting Authority. The above also applies in full to the cross-border transmission and/or distribution and/or provision of personal data to non-EU countries.
18.4
The Counterparty will cooperate fully with the Contracting Authority in order to allow data subjects within the meaning of section 1 (f) of the Personal Data Protection Act (i) to inspect their personal data, (ii) to have their personal data deleted or corrected, and/or (iii) to show that their personal data have been deleted or corrected or, if the Contracting Authority disputes the position taken by the data subject, to record that the data subject regards his personal data as incorrect.
18.5
On the basis of section 34a of the Personal Data Protection Act, Counterparty will immediately and adequately inform the Contracting Authority of all relevant incidents of which Counterparty is aware, in order to – if such is obligated on the basis of section 34a of the Personal Data Protection Act – make it possible for the Contracting Authority to notify the relevant authority or the person(s) involved of such incident. Counterparty will take appropriate measures to minimize the consequences of the incidence and to avoid recurrence of the incident and will inform Contracting Authority on such measurements.
Article 19 Security procedures, internal rules and vaccination policy
19.1
In so far as the contractual obligations for the Deliverable are performed at the Contracting Authority’s premises, the Counterparty will instruct its Staff to comply with the Contracting Authority’s security procedures and internal rules.
19.2
The Contracting Authority may require certificates of good conduct to be produced in respect of the Counterparty’s Staff at least three Working Days before they start work at the Contracting Authority’s premises.
19.3
The Contracting Authority may carry out (or cause to be carried out) a security check on the Counterparty’s Staff who have been or are assigned to work on the Contract, in accordance with the rules usually applied by the Contracting Authority. The Contractor will cooperate fully in such checks. The Contracting Authority may, on the basis of the results of a security check, refuse to allow the person in question to work on the Contract.
19.4
The Counterparty will report the arrival of its Staff at a location of the Contracting Authority in good time to the Contracting Authority’s contact. The Counterparty will ensure that its Staff are able, at the request of the Contracting Authority, to produce evidence of their identity and to show that they are working for or on behalf of the Counterparty. The Contracting Authority may refuse any person access to any of its locations.
19.5
If a person who belongs or belonged to the Staff of the Counterparty and who visits locations of the Contracting Authority in that capacity no longer works (or will no longer work) for the Counterparty for any reason whatever, the Counterparty will immediately report this to the Contracting Authority’s contact.
19.6
The Contractor’s Staff involved in the performance of the activities on Contracting Authority’s premises should observe all the access and safety procedures. If the respective member of Staff has not fulfilled his obligations resulting from this, for instance the one with regard to the vaccination obligation and the possession of a valid proof of identity, the respective member of Staff will be refused access. The costs and consequences resulting from this will be at the expense and risk of the Contractor. The vaccination obligation relates in principle to DTaP-IPV (diphtheria, tetanus, acellular pertussis, poliomyelitis), MMR (mumps, measles, rubella) and an annual check-up for TBC. With regard to activities in specific building sections the vaccination programme/schedule may be adjusted. If required by the applicable vaccination policy or rules, vaccination can take place on Contracting Authority’s premises in which case vaccines will be provided by Contracting Authority at no cost. Vaccination elsewhere will be on the account of Contractor. If the Contractor (including its Staff) does not observe the vaccination policy and/or programme/schedule, the Contractor’s Staff may be refused access and Intravacc will be compensated by the Contractor for the losses resulting from this. In addition, the Contractor will indemnify Contracting Authority for losses resulting from Contractor’s (including Staff) lack of compliance with the vaccination policy and/or programme/schedule.
Article 20 Working conditions
20.1
In so far as work is performed at the Contracting Authority’s premises, the Contracting Authority will ensure that the place of work is adequate and safe.
20.2
The Counterparty will ensure that its Staff are aware in good time of the rules on working conditions in force at the Contracting Authority’s premises and will notify the Contracting Authority with due dispatch if it becomes aware of circumstances that breach (or may breach) these rules.
Article 21 Publicity
21.1 The Counterparty may not refer, implicitly or explicitly, to the Deliverable in publications (including press releases) or advertisements and may use the Contracting Authority’s name as a reference only with the Contracting Authority’s prior consent.
Article 22 Replacement of Counterparty’s staff
22.1
The Counterparty will replace Staff only with the prior consent of the Contracting Authority. The Contracting Authority may not withhold its consent unreasonably and may attach conditions to its consent.
22.2
The Contracting Authority may demand the replacement of Staff if it considers that their continued assignment to the work is no longer desirable for reasons connected with the individuals concerned.
22.3
Where Staff are replaced, the Counterparty may not charge any costs for this to the Contracting Authority unless the Counterparty shows that there was no reasonable basis for the request for replacement.
22.4
Where Staff are replaced, the Counterparty will provide replacements at the same rate and ensure that their expertise, qualifications and experience are at least equal to those of the original Staff or satisfy the conditions agreed by the parties.
Article 23 Subcontracting
23.1
In performing the Contract the Counterparty may use the services of third parties only with the prior consent of the Contracting Authority. This consent, to which the Contracting Authority may attach conditions, may not be withheld unreasonably.
23.2
The Contracting Authority’s consent is without prejudice to the Counterparty’s own responsibility and liability for discharging the obligations to which it is subject under the Contract and its obligations as an employer under the tax, healthcare insurance and social insurance legislation.
Article 24 Assignment of rights and obligations
24.1
Neither Party may assign its rights and obligations under the Contract to third parties without the consent of the other party, except that the Contracting Authority may assign this Agreement, without such consent, to an entity that acquires all or substantially all of its business or assets to which this Agreement pertains, whether by merger, reorganization, acquisition, sale, or otherwise. 24.2 Article 24.1 does not apply to the establishment of limited rights such as the right to hold another’s property in security.
Article 25 Impending delay
25.1
In the event of an impending delay in the performance of the contractual obligations in relation to the Deliverable, the Counterparty will immediately notify the Contracting Authority, explaining the reasons for and consequences of any delay. The Counterparty will also propose to the Contracting Authority measures to avoid delay or further delay.
25.2 As quickly as possible after receiving the notification referred to article 25.1, the Contracting Authority will notify the Counterparty whether or not it agrees to the proposed measures. Agreement does not imply any acceptance by the Contracting Authority of the cause of the impending delay, and is without prejudice to its rights against the Counterparty.
Article 26 Liability
26.1
If either party fails to discharge an agreed obligation, the other party may give it notice of default. In such a case the defaulting party will be given a reasonable period in which to perform the obligation. If the party in breach still fails to perform the obligation within this further period, it will then be deemed to be in default. Notice of default is not necessary where the period for performance constitutes a Vital Deadline or where it must be inferred from a notification from or the conduct of the defaulting party that it will fail to perform its obligation. A party that imputably fails to discharge its obligations is liable to the other party for any loss or damage suffered and/or yet to be suffered by the latter.
26.2
The liability referred to in article 26.1 for personal injury and damage to property and consequential loss or damage is limited to an amount of € 1,250,000 per event. For this purpose, interrelated events will be treated as a single event.
26.3
The liability referred to in article 26.1 for loss or damage other than that referred to in article 26.2 is limited per event to an amount not exceeding four times the Fee. For this purpose, interrelated events will be treated as a single event.
26.4
The limitations of liability set out in articles 26.2 and 26.3 do not apply: a) to third-party claims for compensation as a result of death or injury, and/or b) if there has been intent or gross negligence on the part of the other party or its Staff, and/or c) to breaches of intellectual property rights as referred to in article 8.
26.5.
The Counterparty is liable for all obligations in respect of its Staff, including those arising under tax, healthcare insurance and social insurance legislation. The Counterparty will indemnify the Contracting Authority against any liability in this connection.
Article 27 Force majeure
27.1
A failure to perform the Contract that is not attributable to the fault of a party and for which it is also not accountable by law or juristic act or according to generally accepted standards constitutes force majeure.
27.2
The term force majeure in relation to the Counterparty is in any event deemed not to include staff shortages, strikes, staff illness, late delivery or unsuitability of items required for the performance of the contractual obligations in relation to the Deliverable and liquidity or solvency problems.
27.3
If the Counterparty can claim some benefit in respect of a failure as referred to in article 27.1 that it would not have had in the event of proper performance, it will compensate the Contracting Authority for any loss or damage suffered by the Contracting Authority as a consequence of that failure, up to a maximum of the value of the benefit concerned. The provisions of articles 26.2 and 26.3 apply in that regard.
Article 28 Defects involving compatibility with other software or hardware
28.1
At the request of the Contracting Authority, the Counterparty will engage in consultations with other designated counterparties and/or suppliers of the Contracting Authority if it appears at any time that the Deliverable is not working properly with other software and/or products used or to be used by the Contracting Authority.
28.2
The purpose of the consultations referred to in article 28.1 will be to establish the cause of the incompatibility and, if possible, find a solution. Any reasonable costs incurred in participating in the consultations and finding a solution will be borne by the Contracting Authority, unless the incompatibility is imputable to be Counterparty.
Article 29 Insurance
29.1
The Counterparty has taken out and will maintain liability insurance that is appropriate and customary by prevailing standards.
29.2
The liability insurance policy must provide cover for at least €1,250,000 per claim and for a minimum annual payment of 200% of this amount.
29.3 On request, the Counterparty will immediately present proof to the Contracting Authority of the payment of premiums and, save where barred by statutory obligations, at the same time report any previous claims under the same policy in the current policy year.
29.4
The Counterparty may not cancel an insurance policy as referred to in article 29.1 for the term of the Contract without the prior consent of the Contracting Authority. Nor will the Counterparty, of its own volition, change the terms on which the insurance policy was taken out to the detriment of the Contracting Authority.
Article 30 Cancellation and notice of termination
30.1
Without prejudice to the other provisions of the Contract, either party may cancel the Contract in full or in part by registered letter, without recourse to the courts, if the other party is in default or performance is permanently or temporarily impossible.
30.2
In the event of force majeure, the parties may not cancel the Contract until a period of 15 Working Days has elapsed since the start of the force majeure.
30.3
The Contracting Authority may cancel the Contract forthwith by registered letter, without recourse to the courts and without being required to send any prior demand or notice of default, if the Counterparty applies for a provisional or final suspension of payments or files for bankruptcy or is declared bankrupt, if its business is wound up, if it ceases business activities, if control of its business operations undergoes a major change, if a substantial proportion of its assets are seized, if it undergoes a merger or a division or is dissolved, or if it is deemed on any other grounds to be no longer capable of discharging its obligations under the Contract. This power also applies if, during the term of the Contract, other grounds for exclusion as referred to in section 2.86 of the Public Procurement Act apply.
30.4
The Contracting Authority may also cancel the Contract in the manner specified in article 30.3 if it has good grounds for assuming that a court of law would set aside the Contract under the applicable public procurement laws if an application to this effect were made. The Counterparty is entitled to reimbursement of costs reasonably incurred in performing the Contract and the costs of reasonable future obligations already entered into in connection with the Contract. If, however, the Contracting Authority shows that the unlawfulness is wholly or partly attributable to the Counterparty, the Counterparty is not entitled to compensation.
30.5
If the Contracting Authority has concluded two or more interrelated Contracts with the Counterparty, the Contracting Authority may cancel in the specified manner the other Contract(s) in the cases referred to in articles 30.1 and 30.3. Evidence of an interrelationship as referred to above must be apparent from the (related) Contracts.
30.6
Contracting Authority may give notice terminating it by registered letter, where applicable with immediate effect. In such an event, the account between the Contracting Authority and the Contractor will be settled on the basis of the activities already carried out by the Contractor in performing the Contract at the time of the notice of termination and costs reasonably incurred by the Contractor in carrying out the assignment in question and of any commitments reasonably entered into for the future. The Contracting Authority is not obliged to indemnify the Contractor in any other way for the consequences of terminating the Contract.
Article 31 Retention of right to demand performance
3.1
If either party fails to demand performance of any provision of the Contract within a time limit set by the Contract, this is without prejudice to its right to demand performance at a later date, unless the party in question has expressly agreed to the non-performance in writing.
Article 32 Exit clause
32.1
If the Contract ends early for any reason whatever, the Counterparty will, as soon as the Contracting Authority so requests, take whatever action is necessary to ensure that a new counterparty or contracting authority can, without impediment, assume responsibility for performing the Contract and/or that a new counterparty can work on a similar Deliverable for the benefit of the Contracting Authority. The Counterparty will also immediately return to the Contracting Authority all documents, books, papers and other items, including data and information carriers, made available to it by the Contracting Authority.
32.2
Other than in a case where the Contract is cancelled pursuant to the provisions of article 30.1 or 30.3, the Counterparty will perform the services referred to in article 32.1 at the rates and on the terms specified in the Contract or, in the absence thereof, at the rates generally applied by the Counterparty and on such terms as may be agreed. The services referred to in article 32.1 will be provided free of charge if the Counterparty imputably fails to discharge an obligation, such to include the situation referred to in the last sentence of article 30.4.
Article 33 Employment of other party’s staff, bribery and conflicts of interest
33.1
Neither party may employ members of the other party’s Staff, or negotiate with members of the other party’s Staff on the possibility of the latter entering into its employment, without the other party’s consent either during the term of the Contract or for a period of one year after its termination. The other party may not withhold its consent without good reason.
33.2
The parties may not offer to each other or to third parties – or solicit, accept or obtain from each other or third parties – whether for themselves or for any other party, any gift, reward, compensation or benefit of any form whatsoever if this could be construed as an illicit practice. Such a practice may constitute grounds for cancelling the Contract either in full or in part.
33.3
If it is found that a member of the Contracting Authority’s Staff is also in the Counterparty’s employment or was also in the Contractor’s employment at the time when negotiations took place on the formation of the Contract, regardless of whether or not this is or was paid employment, and that the Contracting Authority was not informed of this prior to the conclusion of the Contract, the Contracting Authority may cancel the Contract with immediate effect, without being required to give notice of default or to pay any compensation and without prejudice to any right of the Contracting Authority to compensation.
33.4
Other than with the Contracting Authority’s consent, the Counterparty may not assign staff to the Contract who were employed by the Contracting Authority within a period of two years prior to the start of the work.
Article 34 Continuing obligations
34.1
Termination of the Contract will not discharge the parties from obligations which, by their nature, are intended to continue in force thereafter. These obligations include in any event the provisions on indemnification for breaches of intellectual property rights and on guarantees, liability, the duty of secrecy, disputes and the applicable law.
Article 35 Follow-up order
35.1
The Counterparty cannot derive any right from the Contract to obtain a follow-up order.
Article 36 Void and set-aside provisions
36.1
If one or more provisions of the Contract are found to be void or are set aside by a court of law, the remaining provisions of the Contract will retain their legal force as far as possible. The parties will consult on the void and setaside provisions in order to agree on an alternative arrangement. This may not affect the object and tenor of the Contract.
Article 37 Disputes and applicable law
37.1
All disputes arising out of or in connection with the Contract shall, at Contracting Authority’s sole discretion, be finally settled by the competent court in The Hague, the Netherlands or under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules.The language of arbitration will be English. The place of arbitration will be The Hague, the Netherlands. The Parties shall accept the arbitral award as final.
37.2
The Contract is governed by Dutch law. GENERAL TERMS & CONDITIONS IT – SPECIAL PROVISIONS ON PURCHASES These provisions apply, together with the General Terms & Conditions IT, to the purchase of IT Products (referred to below as Products) such as computers, laptops and servers.
Article 38 Installation
38.1
If the nature and/or scope of the Deliverable warrants this, the Supplier may inspect the place of Installation of the Product prior to Delivery.
38.2
If the Supplier considers the place of Installation to be unsuitable, it will immediately notify the Contracting Authority of this. The Contracting Authority and the Supplier will then consult together to determine a suitable place of Installation.
Article 39 Guarantees
39.1
Further to article 12, the Supplier guarantees that: a) the Product will be composed of new parts upon Delivery; b) at the time of Delivery it will have full title to the Product and that the Product is not subject to any reservation of title, limited right or seizure or attachment by a third party and is free from other encumbrances and limitations.
Article 40 Special duty to provide information
40.1
For at least three years after the conclusion of the Contract the Supplier will, of its own volition, provide the Contracting Authority with information about ways of enhancing the operation of the Product.
Article 41 Product modifications
41.1
Where a manufacturer prescribes a Product modification, the Supplier will ensure that the modification is made as quickly as possible and free of charge either by itself or by the manufacturer of the Product. GENERAL TERMS & CONDITIONS IT – SPECIAL PROVISIONS ON LICENCES The provisions of this special part apply, together with the General Provisions of the GPCIT, to the acquisition of Licenses by the Contracting Authority.
Article 42 Additional definitions
Further to article 1, the following terms, where written with initial capitals, are defined as follows in this special part of the GPCIT:
42.1
Escrow: the depositing of the Source Code (or a copy thereof) with an independent third party to enable the Contracting Authority, in cases where one or more of the conditions specified in the Escrow Agreement are fulfilled, to use the Source Code (or cause it to be used) to resolve faults and otherwise maintain and manage the Standard Software.
42.2
Installation Copy: a data carrier containing the Standard Software for which the License is granted.
42.3 Owner: the person in whom the intellectual property right to the Standard Software is vested.
Article 43 Nature and content of the License
43.1
Subject to the Terms and Conditions, the Supplier grants to the Contracting Authority a perpetual and irrevocable License to the Standard Software and to New Versions thereof if the Contracting Authority is entitled to receive them. The License does not entail any transfer by the Supplier to the Contracting Authority of any patent, copyright or trademark in relation to the relevant Standard Software.
43.2
The License in any event includes the following (for which the Contracting Authority does not owe any additional fee): a) the right to use all functionalities of the Standard Software that are accessible to the Contracting Authority, even if they are not mentioned in the Documentation; b) the right to make, save and regularly test copies of the Standard Software and keep them on hot standby for the purposes of disaster recovery; c) the right to use the Standard Software for testing and development purposes; d) the right to use the Standard Software without any limitation or restraint in terms of place, hardware, duration and so forth, including its use by third parties on behalf of the Contracting Authority.
43.3.
The Contracting Authority may make and use copies of the Standard Software as often as it considers necessary for the purpose of its operational activities. If it does so and thus owes an additional payment to the Supplier it will notify the Supplier of this with due dispatch. The Contracting Authority may not remove any notices of ownership and copyright when reproducing Standard Software.
43.4.
Until the moment of Acceptance of the Standard Software, the Contracting Authority obtains from the Supplier a non-exclusive right to use the Standard Software for installation and testing purposes.
43.5
If the Supplier repairs Defects in the Standard Software only by issuing Patches or Enhanced Versions, the Contracting Authority is entitled to receive and use them free of charge during the guarantee period referred to in article 12.3, even if it has not agreed any Maintenance with the Supplier.
Article 44 Guarantees
44.1 Further to article 12, the Supplier guarantees that: a) the Standard Software does not contain any technical features, functions or other extraneous elements that could prevent the Agreed Use at any time, whether temporarily or otherwise; b) if it is not the Owner of the Standard Software, it has been authorized by the Owner to grant this License to third parties on behalf of the Owner. The Supplier will furnish the Contracting Authority, on request, with a copy of the authorization.
Article 45 Provision of an Installation Copy
45.1
The Supplier will, if possible, provide the Contracting Authority with an Installation Copy or enable it to make a copy itself. The price of the copy is included in the Fee.
45.2
If the Contracting Authority is entitled to receive New Versions, the provisions of article 45.1 will also apply to them.
45.3
If the Installation Copy has been mislaid or has been damaged in such a way that the Agreed Use is no longer possible, the Supplier will, on request and with due dispatch, provide the Contracting Authority with a new Installation Copy of the original version delivered to the Contracting Authority and of any Enhanced and New Versions thereof used by the Contracting Authority or will enable the Contracting Authority itself to make such a copy. In so far as applicable, the Supplier will be entitled only to reimbursement of the cost price of the materials of the Installation Copy.
Article 46 Conversion into other Licenses
46.1
If the Supplier wishes at any time to convert the License granted to the Contracting Authority into another license in respect of the Standard Software, it will consult in advance with the Contracting Authority about this and about the exchange ratio to be applied in this connection. Such a conversion may not have disadvantageous consequences of any kind whatever for the Contracting Authority.
46.2
If the parties do not reach agreement in the consultations referred to in article 46.1, the Contracting Authority may continue to exercise its License in full.
Article 47 Escrow
47.1
The Contracting Authority may at all times require the Supplier to provide for Escrow, even if this has not been initially agreed.
47.2
The Escrow must include all information not in the public domain that is reasonably needed by the Contracting Authority to resolve faults and maintain and manage the Standard Software in such a way that it can continue to make the Agreed Use thereof. The Escrow must satisfy the conditions normally applicable to escrow in the Dutch market at the time the arrangements are made.
47.3
If Escrow forms part of the Contract, the Supplier will furnish the Contracting Authority with proof that the Escrow fulfils the relevant provisions of the Contract or make provision for such an arrangement with due dispatch.
47.4
Even if Escrow does not form part of the Contract, the Contracting Authority is still entitled subsequently to require that such an arrangement be concluded or to accede at any time to an Escrow agreement as referred to in article 47.2. Any reasonable costs incurred in this connection will be borne by the Contracting Authority.
GENERAL TERMS & CONDITIONS IT – SPECIAL PROVISIONS ON CONTRACTS
The provisions of this special part apply, together with the General Terms & Conditions IT, where the Supplier performs services for the Contracting Authority such as consultancy, development of Custom Software, directing IT projects, managing and operating IT infrastructure, provision of network and workplace services and Secondment.
GENERAL
Article 48 Additional definitions
Further to article 1, the following terms, where written with initial capitals, are defined as follows in this special part of the General Terms & Conditions IT:
48.1
Secondment: the provision of Staff by the Contractor to the Contracting Authority to carry out work under the direction and supervision of the Contracting Authority.
48.2
Custom Software: Software specifically developed or yet to be developed for the Contracting Authority or modifications to Standard Software specifically made for the Contracting Authority.
Article 49 Time and place of work
49.1
The work will be carried out at the time and place specified in the Contract. The Contracting Authority may change the place where the work is to be carried out, provided that it makes this known to the Contractor no later than three Working Days before the change is to take effect. If the change demonstrably causes extra costs for the Contractor, the Contracting Authority will reimburse such costs. If the opposite is the case, the Contracting Authority is entitled to a corresponding reduction in the Fee.
Article 50 Assignment of specific Staff
50.1
If the Contracting Authority enters into the Contract on the basis that it will be implemented by one or more specific persons, the Contractor will ensure that these persons are and remain charged with its actual implementation.
Article 51 Progress reporting and work consultations
51.1
The Contractor will report to the Contracting Authority on the progress of the work in the manner specified in the Contract. In doing so it will provide information about the state of the work, the number of hours spent on the Contract to date and other aspects relevant to its performance.
51.2
The parties will consult together as often as they consider necessary about the progress of the work.
Article 52 Professional indemnity insurance
52.1
Without prejudice to the provisions of article 29, the Contractor has taken out and will maintain professional indemnity insurance that is appropriate and, taking account of the nature and scope of the Contract, customary by prevailing standards. SPECIFIC TYPES OF SERVICE CONTRACT Consultancy services
Article 53 Day-to-day management and supervision
53.1
The Contractor is responsible for the day-to-day management and supervision of implementation of the Contract.
Article 54 Project managers
54.1
Each party may appoint a project manager whose powers, tasks and responsibilities are recorded in the Contract.
Article 55 Project phasing
55.1
If the project is to be carried out in phases, the different phases will be specified in the Contract. The Contract will also state what work is to be carried out in each individual phase, to what work vital deadlines apply, what the outcome must be and when and how the phases will be concluded. Development of Custom Software
Article 56 Management and supervision, appointment of project managers and project phasing
56.1
Articles 53 to 55 apply mutatis mutandis to the development of Custom Software.
Article 57 Completion
57.1
A Contract to develop Custom Software includes Completion. Completion involves the handing over of the Source Code and the Object Code.
Article 58 Acceptance procedure
58.1
Without prejudice to the provisions of article 11, Acceptance of Custom Software will take place as follows.
58.2
The Contractor will give the Contracting Authority timely notice of Completion in respect of the Custom Software.
58.3
If the Contracting Authority carries out or commissions an acceptance test, it will draw up and sign a test report as quickly as possible and send it to the Contractor. The test report will record any Defects that are discovered and whether the Contracting Authority approves or rejects the Custom Software.
58.4
If the Contracting Authority approves the Custom Software, the date of signature of the test report will be deemed to be the date of Acceptance.
58.5
If the Contracting Authority does not approve the Custom Software when carrying out the acceptance test for the first time, it will repeat the test in full or in part within such reasonable period as it may set. Subsequently, the Contracting Authority will record in a supplementary test report whether the Defects discovered in the first test have been repaired and whether it now approves the Custom Software.
58.6
If the Contracting Authority rejects the Custom Software, the Contractor will repair the Defects at its own expense within a reasonable period set by the Contracting Authority and starting on the date of signature of the test report. If the Contractor fails to make the repairs, the Contracting Authority may itself repair the Defects, or have them repaired by a third party, at the expense of the Contractor after giving notice to the Contractor. In such cases the Contractor will cooperate fully and free of charge, for example by providing the necessary information to the Contractor as soon as it requests. If the Contracting Authority itself repairs a Defect, or has it repaired by a third party, for the reason referred to above, this does not in any way relieve the Contractor of its agreed responsibilities for the Custom Software.
58.7
If the Contracting Authority once again rejects the Custom Software after the second acceptance test, the Contractor will be deemed to be in default as a result. In that case the Contracting Authority may cancel the Contract with immediate effect, without recourse to the courts and without any demand or notice of default being required for this purpose.
Article 59 Maintenance of Custom Software
59.1
If the Contracting Authority itself maintains Custom Software or has it maintained by a third party, the Contractor will assist it, on request, for a fee set at the current market rate. For this purpose, the Contractor will, on request, provide the requisite information or supplementary information to the Contracting Authority or a third party used by it in this connection. The above also applies to management activities carried out in respect of Custom Software by the Contracting Authority itself or by a third party on its behalf.
59.2
If the Contracting Authority has agreed with the Contractor that the latter will also carry out Maintenance, the relevant provisions of that Contract will apply. Secondment
Article 60 Applicability
60.1
Secondment exists – and hence articles 61 to 67 apply – only if the relevant Contract has been expressly designated by the parties as a Secondment Agreement.
Article 61 Guarantees
61.1
Further to the provisions of article 12.1, the Contractor guarantees that it will always have sufficient Staff to perform the Contract properly for the Contracting Authority.
Article 62 Working days and working hours
62.1
The working days and working hours of Staff made available by the Contractor will be the same as those of the Staff of the Contracting Authority at the same location.
62.2
Overtime occurs only if work is carried out at the request of the Contracting Authority outside the working days and working hours referred to in article 62.1. Work carried out for a maximum of half an hour immediately after the working hours referred to in that article is not deemed to be overtime.
Article 63 Secondments and foreign postings
63.1
Staff seconded to the Contracting Authority may not be hired out by the Contracting Authority to third parties without the Contractor’s consent.
63.2
Staff seconded to the Contracting Authority may not be posted by the Contracting Authority to work outside the Netherlands without the Contractor’s consent.
Article 64 Leave and courses
64.1
Staff of the Contractor will take leave only after consulting with the Contracting Authority and allowing for the normal progress of the work.
64.2
The costs of leave taken by Staff of the Contractor will be borne by the Contractor.
64.3
The costs of courses taken at the request of the Contracting Authority and the costs of the consequent time off work will be borne by the Contracting Authority.
64.4
Each year the Contracting Authority may designate a number of days on which its office will be closed for reasons to be specified. On such days no work will be performed by Staff of the Contractor at that location.
Article 65 Indemnity
65.1
The Contractor indemnifies the Contracting Authority against claims by Staff of the Contractor based on the alleged existence of an employment contract with the Contracting Authority.
GENERAL TERMS & CONDITIONS IT – SPECIAL PROVISIONS ON MAINTENANCE
The provisions of this special part apply, together with the General Terms & Conditions IT, where the Contracting Authority agrees with the Contractor for Maintenance to be performed by the Contractor.
GENERAL
Article 66 Additional definitions
Further to article 1, the following terms, where written with initial capitals, are defined as follows in this special part of the General Terms & Conditions IT :
6.1
Corrective Maintenance: the tracing and resolution by the Contractor of Faults reported by the Contracting Authority or Faults that have otherwise become known to the Contractor.
66.2
Repair Time: the periods, expressed in Service Hours, between the moment when a Fault is reported to be Contractor and the moment it is resolved.
66.3
Innovative Maintenance: the provision by the Contractor to the Contracting Authority of New Versions or newly developed parts of Products and/or new Documentation.
66.4
Preventive Maintenance: measures taken by the Contractor to prevent Faults and related forms of service.
66.5
Response Time: the time within which the Contractor (or Staff of the Contractor) must adequately respond to a report by the Contracting Authority of a Fault and other requests by the Contracting Authority for service.
66.6
Service Levels: requirements such as Response Times and Repair Times included in the Contract in respect of Maintenance and other agreed forms of service.
66.7
Service Hours: hours that fall within the agreed service period.
66.8
Fault: a technical problem that occurs when using the Deliverable.
Article 67 Maintenance of Deliverables previously provided
67.1
Even where an agreement for Maintenance in respect of a Deliverable previously provided by the Contractor to the Contracting Authority is concluded between them at a later date, these Special Provisions apply to such Maintenance.
Article 68 Maintenance starting date
68.1
The Contractor will provide Maintenance from the date specified in the Contract.
Article 69 Time and place of Maintenance
69.1
The Contractor will perform the Maintenance at or from its premises. The Contractor will perform Maintenance at the Contracting Authority’s premises only where reasonably necessary.
69.2
Maintenance that may disrupt the business operations of the Contracting Authority will, in principle, be performed outside the Contracting Authority’s normal working hours.
69.3
If disruption of the business operations referred to in article 70.2 is inevitable, given the importance of resolving the Fault immediately, the Contractor will give the Contracting Authority timely notice of this before starting the Maintenance work.
Article 70 Progress reporting and work consultations
70.1
The Contractor will report to the Contracting Authority on the progress of the work in the manner specified in the Contract. In doing so it will provide information about the state of the work, the number of hours spent on it to date and other aspects relevant to the performance of the Maintenance.
70.2
The Parties will consult together as often as either considers necessary about the progress of the work.
70.3
The Contractor will ensure that information on the causes of Faults and the results of Maintenance is adequately recorded and filed and that, if necessary, the Documentation is modified.
Article 71 Corrective Maintenance and work-around solutions
71.1
Maintenance consists in any event of Corrective Maintenance.
71.2
The guarantee in article 12.7 that the Contractor will maintain the Deliverable for at least three years after Acceptance in accordance with these provisions applies in full to Corrective Maintenance, even if the Contracting Authority does not wish to acquire New Versions or the latest models of a Product.
71.3
The Contractor will use a work-around solution only with the consent of the Contracting Authority. Unless the parties agree differently in a specific case, the Contractor will replace a work-around solution as quickly as possible with a final solution.
Article 72 Preventive Maintenance
72.1
As part of Preventive Maintenance the Contractor will examine the Deliverable regularly and check at least once a year that it is working properly.
Article 73 Reporting and prioritizing Faults
73.1
The Contracting Authority will report Faults and their resolution in the manner prescribed in the Contract.
73.2
In reporting a Fault the Contracting Authority will assign a priority level to it in accordance with the provisions of the Maintenance Contract.
73.3
In responding to a report as referred to in article 73.1 the Contractor will always aim to resolve the Fault as quickly as possible, whether or not by means of a work-aroundsolution. The provisions of article 71.3 apply in this connection.
Article 74 Compliance with Service Levels
74.1
The Contractor will use its best effort to achieve the Service Levels. The consequences of not achieving them are regulated in the Contract. The provisions of article 14.3 apply in this connection. The Contract may in any event be cancelled in the event of repeated failures to achieve the Service Levels.
74.2
Notwithstanding the provisions of article 74.1, Repair Times and Response Times are deemed to be Vital Deadlines.
74.3
Service Levels do not detract from the other provisions of the Contract.
Article 75 Maintenance by third parties
75.1
Where the Contracting Authority has agreed a Maintenance Contract with the Contractor, its rights under the Contract will be preserved in respect of any maintenance carried out at the request of the Contracting Authority by a third party during the term of the relevant Contract only if the Contractor has failed to perform its obligations under the Contract or if the Contracting Authority has obtained the Contractor’s consent for this.
Article 76 Maintenance result testing
76.1
The Contracting Authority may test (or cause to be tested) whether a Fault has actually been resolved. The Contractor is obliged to cooperate in such a test. If it is apparent from the test that a Fault has not been properly resolved, the Contracting Authority may recover the cost of the testing from the Contractor.
Article 77 Professional indemnity insurance
77.1
Without prejudice to the provisions of article 29, the Contractor has taken out and will maintain professional indemnity insurance in a manner in keeping with normal business practice, taking account of the nature and scope of the Maintenance. SPECIFIC MAINTENANCE Products
Article 78 Product modifications
78.1
Product modifications that are not prescribed by the manufacturer or the Supplier will be made by the Contractor in consultation with the Contracting Authority and only after the Contracting Authority has agreed to the price quoted for the work.
Article 79 Replacement of parts
79.1
If the replacement of parts by the Contractor causes or may cause changes to the functioning of the Product, this replacement will be made only with the consent of the Contracting Authority.
79.2
Parts may be replaced only by new parts that are at least equivalent in functional and technical terms. Software
Article 80 Scope of Maintenance
80.1
Further to the provisions of article 71.1, Software Maintenance consists not only of Corrective Maintenance but also of Preventive Maintenance and support. If the Contracting Authority so wishes, Software Maintenance will also include Innovative Maintenance.
Article 81 Support
81.1
Further to the provisions of article 13, the Contractor will provide support to the Contracting Authority, at its request, in the form of advice on the use and functioning of Software.
81.2
The Contracting Authority may request the Contractor for support at the times referred to in the Maintenance Contract.
81.3
If the Contracting Authority requests support as referred to in article 81.2, the Contractor will arrange as quickly as possible and, if applicable, within the Response Time for contact between a program specialist and the Contracting Authority.
Article 82 Enhanced and New Versions
82.1
The Contractor will ensure a consistent policy on the release of versions. The basic principle is that Enhanced and New Versions should become available in good time. The Contractor will for this purpose regularly study the need to issue such versions and will inform the Contracting Authority as quickly as possible about the findings of its study. Contractor will ensure that, in the event of Standard Software, within a year after the official release date of a new Windows version the Standard Software will be adjusted in order to be ready for use on the newest Windows version.
82.2
Interim changes to Software made as a consequence of Corrective Maintenance will, as far as possible, form part of Enhanced and New Versions.
82.3
The Contractor will provide the Contracting Authority, on request, with a copy of a New Version for the purposes of testing and evaluation. The Contracting Authority is not obliged to upgrade to the New Versions.
82.4
If it has been agreed that the Contractor will install the Software, this obligation also applies to New Versions that the Contractor wishes to use.
82.5
If the Contractor decides to issue different Software rather than a New Version of the existing Software used by the Contracting Authority and to discontinue Innovative Maintenance of the existing Software, the Contracting Authority may either demand full performance of the Maintenance Contract or claim a License to the new Software under the conditions that apply to a New Version as recorded in the Contract. Migration of data to the new Software will be on the account of Contractor.
Terms & Conditions for the procurement of Goods
of Intravacc B.V., having its registered address at Antonie van Leeuwenhoeklaan 9, 3721 MA Bilthoven, trade register number: 73887757.
Article 1 General provisions
1.1
In these conditions, ‘the buyer’ refers to the Institute of Translational Vaccinology, established and having its office in Bilthoven, and ‘the seller’ refers to the party which has issued an offer to the buyer or with which the buyer has concluded a (purchase) agreement which is the written agreement between the buyer and the seller to which these General Terms & Conditions Goods are applicable, which also includes a Purchase Order sent out by Buyer.
Article 2 Applicability
2.1
These conditions apply to all legal relations with (future) suppliers, whereby the buyer acts as (aspiring) buyer and the other party as (aspiring) seller and/or supplier.
2.2
Any conditions of the seller, stated on his letter paper, order forms, order confirmations, invoices etc. are not binding on the buyer.
2.3
Where these conditions have been translated, the Dutch text is binding.
Article 3 Changes
3.1
Any changes in the purchase agreement and any derogation from these general conditions of purchase shall apply only where they have been confirmed by the buyer explicitly in writing.
3.2
Where there is no agreement on a change in the purchase price, there is a dispute between the parties, to which art. 22 of these general conditions of purchase applies.
Article 4 Quality / description and inspection
4.1
Having regard to the other provisions of the purchase agreement or order and to the provisions in the relevant technical specification, the goods to be supplied should:
a) be in accordance with what is stated in the order and assured by the seller in all respects, in particular as regards quantity, description and quality;
b) be manufactured from sound materials and be of a sound structure;
c) in all respects be the same as the samples or models made available or provided by the buyer and/or the seller;
d) perform (in terms of capacity, output, speed, workmanship, etc.) as described in the order;
e) be entirely suitable for the purpose as stated to the seller, and possess the qualities which the buyer might expect.
4.2
Where the buyer has provided a material or other specification to the seller, the material supplied should correspond to this specification.
4.3
At the buyer’s request, the product may be inspected by the buyer or a third party designated by the buyer on the seller’s premises prior to delivery. However, the buyer is not obliged to carry out such an inspection.
4.4
If the buyer wishes to inspect the product:
a. The seller will have the product ready for inspection at a time that allows the agreed delivery times to be met;
b. The seller will, upon request and at no cost to the buyer, cooperate with the inspection and provide the buyer with a suitable location and reasonable assistance in terms of staff and materials;
c. The inspection, if the seller so desires, will take place in its presence or in the presence of an expert designated by it. The associated costs will be borne by the seller.
4.5
If the buyer rejects the product to be supplied, the seller is obliged, without prejudice to all other rights or claims of the buyer, to provide without delay, at its own expense and risk, a missing, repaired or replacement product for a new inspection. The provisions of this article 4.5 apply in full. Rejection by the buyer during the first or previous inspection will not lead to the agreed delivery period being extended.
4.6
The approval of the product by or on behalf of the buyer does not entail any recognition that the product complies with the guarantees given in accordance with article 4.
Article 5 Offer and agreement
5.1
The buyer is free at all times to request from the seller that he produces an offer, on the basis of a technical specification, the quantities required, and the place and time of delivery as stated by the buyer, for the goods to be supplied by the seller to the buyer under an applicability statement for these General Terms & Conditions Goods.
5.2
The purchase agreement shall enter into force where the buyer places an order with the seller.
5.3
The buyer may prescribe to the seller the use of a specific form for the order confirmation, and a deadline within which this should be received back by the buyer.
5.4
Where or insofar as an order confirmation from a seller deviates in terms of price, model, composition, colour, quality, cohesion, pulling power, weight, quantity, width, finish, workmanship, delivery time, time of order and/or classification etc., the relevant deviation shall not be binding on the buyer, unless the buyer declares his agreement thereto explicitly in writing within 6 days of receipt of the order confirmation.
Article 6 Packing and dispatch
6.1
The goods should be properly packed (unless the nature of the goods renders this impossible) and be secured in such a way that they will reach their destination in good condition by normal transport. The seller shall insure himself adequately, to the buyer’s satisfaction, against any risks that might within reason be considered present during transport.
6.2
The goods shall be delivered by the seller or be dispatched for delivery to the place or places as agreed, and in the manner determined in the purchase agreement or order, or as agreed thereafter.
Article 7 Storage
7.1
Where, for whatever reason, the buyer is unable to take delivery of the goods at the time agreed and they are ready for dispatch, the seller, provided that he has sufficient storage facilities, shall store and secure the goods at the buyer’s request, and take any reasonable measures to prevent a deterioration in their quality until they have been delivered to the buyer.
7.2
The buyer is obliged to the seller to pay the storage costs at the seller’s normal rate or, in the absence thereof, at the normal rate applied by the sector, from the moment when the goods are ready for dispatch or, where this is a later time, from the delivery date agreed in the purchase agreement or order.
Article 8 Transfer of title and risk
8.1
Subject to the provisions in paragraph 2 of this article, the title to and risk in respect of the goods shall be transferred to the buyer on delivery.
8.2
Where the seller, at the buyer’s request and in accordance with the provisions of art. 7, postpones dispatch, the title to the goods shall be transferred to the buyer on the date as agreed between the two parties, and the seller shall store the goods separately from that date, as recognisable property of the buyer. Nevertheless, the goods shall remain at the seller’s risk, as holder of the goods, in this case, until the goods have been delivered to the buyer at the place or places referred to in art. 6 paragraph 2.
Article 9 On-Time Delivery, In-Full Delivery
9.1
Seller is not entitled to split deliveries (not in quantity and not in time), unless mutually agreed upon in advance.
9.2
The seller shall deliver the goods at the time as agreed.
9.3
All the delivery dates agreed are fixed dates on demand, i.e. the goods should be ready for dispatch on the delivery dates agreed. Subsequent delivery times, no matter how common these are with regard to the relevant goods, are ruled out and shall not be accepted by the buyer.
9.4
As soon as the seller knows or expects that it will not be possible to deliver the goods on time, he shall notify the buyer forthwith. The seller is liable for any damage suffered by the buyer as a result of the delay and as a result of late notification of the (anticipated) delay.
9.5
Where the seller does not deliver the goods on time, he shall be in default automatically – which means that no proof of default is required – and the buyer shall have the right to dissolve the agreement (or purchase order) unilaterally and immediately, without prejudice to his right to compensation for all damage.
9.6
Unless otherwise agreed explicitly in writing, the following regulation applies to an order on demand: the seller should dispatch the goods, where necessary making use of a reputable transport company, within 24 hours of receipt of the demand from the buyer.
9.7
Where the seller fails to dispatch the goods after the aforementioned demand within the period referred to above, the provision of paragraph 4 shall apply.
9.8
In the event of the dissolution of the purchase agreement, the buyer shall be authorised to return, at the seller’s expense and risk, those goods that had already been delivered on the basis of the same purchase agreement but can no longer be used effectively. He shall also have the right to reclaim any payments he has made for these goods.
9.9
In the event of the dissolution of the purchase agreement, the seller shall be obliged to pay to the buyer any further damage the buyer might suffer, e.g. through substitute purchase or loss of profit.
9.10
In the event of failure to deliver on time, the buyer shall also be entitled to claim compensation, to be fixed at 25% of the sale value of the goods (excl. VAT), which could have been produced from the material that has not been delivered on time, without prejudice to the right to claim full compensation.
Article 10 Warranty
10.1
The seller is liable for any damage to and caused by the goods, occurring during the warranty period stated in the purchase agreement or order or, failing which, during a reasonable period, unless the damage is the consequence of a design error made by the buyer or an error made by the buyer in the use and operation of the goods.
10.2
In order to comply with his liability obligations, the seller is obliged to repair the goods or the faulty parts thereof free of charge within a reasonable period of time, or to replace them. The seller remains liable for any further damage.
10.3
Sellers/suppliers remain liable for the goods supplied by them at all times, even where these goods are added to a new product as raw material, ingredient or semifinished product.
Article 11 Warranty statement
11.1
Where required by the buyer, the seller, on delivery of the product, should issue a (guarantee) statement about the safety of the product and/or the elements thereof. The seller is liable for any damage suffered or to be suffered by the buyer as a consequence of incomplete and/or incorrect statements on his part.
Article 12 Certificate of Origin
12.1
Insofar as legally required or required by the buyer, a Certificate of Origin is required for all deliveries. This certificate should be sent to the buyer at the same time as the relevant invoice and the packing list.
Article 13 Damage or loss as a result of or during transport
13.1
The seller shall repair or replace any goods that have been damaged or lost during transport free of charge, within a reasonable period of time, provided that the buyer has notified the seller thereof within a period which is such that the seller will be able to do so.
Article 14 Prices and payment conditions
14.1
Unless agreed to the contrary, the purchase price includes the price of the goods, the packing costs, transport and the costs of delivery to a place as indicated by the buyer.
14.2
Unless otherwise agreed in writing, invoices shall be paid within 1 month of receipt of the invoice.
14.3
Where payment is made by the buyer within 14 days of receipt of the invoice, a deduction of 4% from the invoice amount shall be applied.
14.4
Invoices should be sent to the buyer on the date of dispatch of the relevant goods. Two copies of the invoice and the packing list should be sent with the dispatch, unless otherwise indicated by the buyer.
Article 15 Advance
15.1
If it has been agreed that, for the purpose of performing a (purchase) agreement, the buyer should make one or more payments prior to the Delivery of the goods/or product, it may require the seller to issue the buyer with a ‘stand-by’ bank guarantee prior to making the payment(s) in question, to the value of the payment(s) in question. The ‘stand-by’ bank guarantee will be issued by a bank approved by the buyer. The buyer is not required to pay any of the cost of the guarantee.
15.2
If, on account of any failure on the part of the seller, a Product that complies with a (purchase) agreement is not delivered to the agreed address within the agreed period, the Seller is liable to pay the statutory interest on the advance for as long as the failure persists.
Article 16 Complaints
16.1
The following regulation applies with regard to complaints by the buyer, on the basis of the principle that:
a) the seller, by accepting the order, guarantees that the goods to be supplied shall be supplied in accordance with the samples, models etc. and the specifications regarding weight, composition, colour, measurements, etc. as stated on the order; and
b) the seller shall supply the goods ordered without any defects. Insofar as visible defects are concerned, he will be able to identify these sooner (and better) than the buyer. The seller is therefore deemed to have inspected the goods carefully before dispatch, so that they can be processed immediately after receipt. Nonetheless, the buyer shall accept them on the basis of a complaints period, provided that such a period has been established, so that the buyer, partly in connection with his business management, shall not be faced with any problems.
16.2
Visible defects are defects that can be noticed without difficulty with the naked eye, i.e. without manipulation, treatment or sampling. Insofar as such defects in the goods, as they have been prepared, are noticeable, a complaints period shall apply of 2 months following receipt of these goods, and a period of 4 months shall apply insofar as such defects can be observed only after breaking the packaging.
16.3
Concealed defects are any defects which are not immediately noticeable with the naked eye, but the observation of which requires a form of manipulation, research or sampling.
16.4
With regard to the assessment of a complaint based on concealed defects, the seller may not appeal to the fact that the relevant defects also occur (are thought to occur) in the model or purchase sample produced by him.
16.5
The buyer is not obliged to inspect any material for concealed defects.
16.6
The buyer may submit any complaints regarding concealed defects within 3 months of processing, and in any case within 2 years of delivery of the goods. The legal period of expiry of the right to claim is excluded.
16.7
In the event of a well-founded complaint, the buyer’s rights shall include the right to return the relevant goods at the seller’s expense and risk, and to demand full or partial faultless redelivery within a short fixed period to be determined by the buyer and/or to cancel the relevant agreement in whole or in part, including the part that has already been delivered. By submission of a complaint, the payment obligation of the buyer relating to the relevant goods shall be postponed, while retaining the payment discount as agreed.
Article 17 Relations between parties
17.1
Each Party will designate a contact to maintain contacts in relation to the performance of a (purchase) agreement. The Parties will notify each other in writing of the person they have appointed as their contact.
17.2
All notifications given by the parties on the basis of a (purchase) agreement must be in writing.
17.3
Oral communications, undertakings or agreements have no legal force unless confirmed in writing.
17.4
‘In writing’ is understood to include ‘electronically’, provided: a. the notification can be consulted by the addressee; b. the authenticity of the notification is sufficiently guaranteed; and c. the identity of the sender can be determined with sufficient certainty.
17.5
The seller will not divulge in any way any information that is provided by the buyer or that is made known to it or comes to its knowledge, which it knows or may reasonably suspect to be confidential, except in so far as it is compelled to divulge such information under a statutory regulation or court ruling.
17.6
The seller will impose the duty of confidentiality referred to in this article on all staff it engages in the performance of a (purchase) agreement and will ensure that this duty is observed.
17.7
The seller will not issue press releases or make other public statements about a (purchase) agreement except with the prior consent of the buyer.
17.8
If the seller breaches its duty of confidentiality, the buyer may impose a penalty, as laid down in these General Conditions. Payment of the penalty, which is payable forthwith, does not discharge the seller from its liability for indemnifying any loss caused by the breach.
Article 18 Legal requirements, vaccination policy and safety
18.1
The seller guarantees that the design, composition and quality of the goods, to be supplied on the basis of the order, shall comply with all the relevant applicable requirements, laid down in laws and/or other relevant regulations issued by the government, which are in force at the time when the agreement is concluded.
8.2
The provision of paragraph 1 also applies to the normal use of the goods.
18.3
Seller’s personnel (including subcontracted or hired personnel), to the extend involved in the performance of activities on Buyer’s premises, should observe all the access and safety procedures. If the respective member of staff has not fulfilled his obligations resulting from this, for instance the one with regard to the vaccination obligation and the possession of a valid proof of identity, the respective member of staff will be refused access. The costs and consequences resulting from this will be at the expense and risk of Seller. The vaccination obligation relates in principle to DTaP-IPV (diphtheria, tetanus, acellular pertussis, poliomyelitis), MMR (mumps, measles, rubella) and an annual check-up for TBC. With regard to activities in specific building sections the vaccination programme/schedule may be adjusted. If required by the applicable vaccination policy or rules, vaccination can take place on Buyer’s premises in which case vaccines will be provided by Buyer at no cost. Vaccination elsewhere will be on the account of Seller. If Seller (including its personnel) does not observe the vaccination policy and/or programme/schedule, Seller’s personnel may be refused access and Buyer will be compensated by Seller for the losses resulting from this. In addition, Seller will indemnify Buyer for losses resulting from Seller’s (including personnel) lack of compliance with the vaccination policy and/or programme/schedule.
Article 19 Product liability
19.1
With regard to the nature and purpose of the goods supplied, the seller guarantees explicitly that the goods supplied are safe and will not give rise to any claims based on liability for the safety of products or on product liability.
19.2
The seller is responsible for any defect in the products resulting from their design, construction, manufacture or inspection, or any other causes, with the exception of force majeure.
19.3
The seller shall assume full responsibility and liability from the buyer and the users with regard to any damage which is the consequence of a lack of safety or a defect in the product, irrespective of the nature of the damage, including any damage (with no limit) resulting from death or injury, loss of profit, loss of contracts, loss of interest or any other form of loss.
19.4
The buyer shall try to limit his liability towards his clients (principals), without altering the seller’s responsibility and liability, in particular as regards the liability resulting from EEC directives as regards product liability and product safety, and any national legislation about this matter, whether or not based on the relevant directive.
19.5
The seller shall take responsibility for the necessary insurance policies against product liability and, if required, have a statement included at the buyer’s request to the effect that any payments by the insurance company shall be made directly to the buyer or, at his choice, to the person who has actually suffered the damage.
19.6
At the buyer’s request, any documents serving as proof of adequate insurance or the payment of premium shall be presented to him.
Article 20 General liability
20.1
If the seller imputably fails to discharge its obligations the seller is liable to the buyer for any loss incurred by buyer.
Article 21 Infringements on patents etc.
21.1
The seller shall indemnify the buyer against any claims by third parties due to any infringement claimed by third parties on patents, models or other rights regarding intellectual property they are entitled to.
21.2
Where any patent or licence regarding the design for goods supplied falls to the seller, the buyer, when using or repairing these goods, or having these goods used or repaired, shall not be deemed to infringe on the patent or licence in any way. The seller guarantees this to the buyer.
Article 22 Dissolution
22.1
Without prejudice to the provisions of art. 9, 10, 13, 15 and 16, the purchase agreement shall be dissolved, without court intervention and without any proof of default being required, at the moment when the seller is declared bankrupt, applies for a moratorium, or loses his power of decision as regards his property or parts thereof through confiscation, a legal restraint or in any other way, unless the trustee or administrator recognises the obligations resulting from the purchase agreement as property debt and the buyer chooses to maintain the agreement.
22.2
As a result of dissolution, any existing claims shall become payable on demand on both sides. Art. 9 shall apply accordingly.
Article 23 Compensation
23.1
The seller shall fully indemnify the buyer against any damage to goods or persons that might affect the buyer, his personnel, any third parties brought in by him or his clients, as a result of or due to any actions that might be regarded as a form of default or an unlawful action carried out by the seller, his personnel or any other persons involved by the seller in the execution of the order.
23.2
The seller shall fully indemnify the buyer against any claims by third parties for damage compensation as referred to in paragraph 1. Where a third party submits a claim against the buyer in this respect, the buyer shall notify the seller forthwith, sending the relevant information.
Article 24 Force majeure
24.1
In the event of temporary force majeure, the seller will immediately notify the buyer in writing after the circumstances bringing about force majeure have occurred, stating the cause of the force majeure. The Buyer then has the right to choose between: a. allowing the seller to defer compliance with its obligations under a (purchase) agreement for a reasonable period of up to four weeks. If the seller is still unable to fulfil its obligations under a (purchase) agreement when this time limit expires, the buyer has the right to dissolve the (purchase) agreement with immediate effect out of court, without being obliged to pay compensation or any costs to the seller; or b. dissolution of the (purchase) agreement with immediate effect out of court, without being obliged to pay compensation or any costs to the seller.
24.2
In the event of long-term force majeure on the part of the seller, the seller will immediately notify the buyer and the buyer has the right to dissolve the (purchase) agreement with immediate effect out of court, without being obliged to pay compensation or any costs to the seller.
24.3
The term ‘force majeure’ is in any event understood not to include: staff shortages, strikes, staff illness, shortages of raw materials, transport problems, breach of obligations by sellers, failures in the sellers production process and liquidity or solvency problems on the part of the seller, or failures on the part of third parties engaged by the seller.
Article 25 Assignment of rights and obligations under a (purchase) agreement
25.1
Neither party is entitled to transfer rights and obligations arising from the purchase agreement to third parties without the written consent of the other party. The other party will not withhold its consent without reasonable grounds. It may attach conditions to its consent.
25.2
Notwithstanding section 25.1, buyer may assign this purchase agreement, without any prior written consent of seller, to an entity that acquires all or substantially all of its business or assets to which this purchase agreement pertains, whether by merger, reorganization, acquisition, sale or otherwise.
Article 26 Insurance
26.1
The seller has taken out and will retain adequate insurance cover for business liability, including liability, inter alia product liability, for damage caused to persons or the buyer’s property.
26.2
At the buyer’s request, the seller will immediately present either the original or a certified copy of the policies and proof of the payment of premium for the insurance referred to in paragraph 1, or a statement from the insurer to the effect that the insurance exists. The seller will not terminate or alter the insurance contract without the buyer’s prior written consent. The seller has no right to change the insured sum to the buyer’s disadvantage without the buyer’s prior written consent. The insurance premiums owed by the seller are deemed to be included in the agreed prices.
26.3
The seller assigns to the buyer in advance all rights to the payment of insurance proceeds as referred to in paragraph 1, in so far as such proceeds relate to damage for which the seller is liable to the buyer under the (purchase) agreement. The seller is obliged to notify its insurance company in writing of this assignment and to send a copy of this written notice to the buyer, without prejudice to the buyer’s right to notify the insurer itself. Any insurance proceeds paid directly by the insurer to the buyer seller is required to pay to the buyer in respect of the insured event.
Article 27 Bribery and conflicts of interest
27.1
The parties will not offer to each other or to third parties, or ask for, accept or obtain a promise of, from each other or third parties, whether for themselves or for any other party, any gift, reward, compensation or benefit of any form whatsoever if this could be construed as constituting an illicit practice. Such a practice may constitute grounds for dissolving the (purchase) agreement either in full or in part.
Article 28 Invalidity
28.1
If one or more provisions of these Purchasing Conditions or the (purchase) agreement are found to be invalid or are nullified by a court, the remaining provisions will retain their legal force. The parties will consult on the former provisions in order to make alternative arrangements. The alternative arrangements must not undermine the purport of these Purchasing Conditions or the Contract.
Article 29 Follow-up order
29.1
The Contract does not entitle the Supplier to any followup orders.
Article 30 Disputes and applicable law
30.1
All disputes arising out of or in connection with the Contract shall, at Contracting Authority’s sole discretion, be finally settled by the competent court in The Hague, the Netherlands or under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The language of arbitration will be English. The place of arbitration will be The Hague, the Netherlands. The Parties shall accept the arbitral award as final.
30.2
The Contract is governed by Dutch law.