General Terms and Conditions
(version July 1, 2022)
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General Terms and Conditions of Pragma Netherlands B.V. and Contracting Maintenance Services B.V.
In these General Terms and Conditions, the below-mentioned terms shall be defined as follows:
- Client: the party requesting the provision by Pragma of Professional Services, including its legal successors;
- Pragma: (a) Pragma Netherlands B.V., a private company duly incorporated and organised under the laws of the Netherlands, having its registration address at De Grote Beer 47, 5215 MR ’s-Hertogenbosch with trade registration number 67261701, or (b) Contracting Maintenance Services B.V., a private company duly incorporated and organised under the laws of the Netherlands, having its registration address at De Grote Beer 47, 5215 MR ’s-Hertogenbosch with trade registration number 17155857, as the case may be and as the context requires, and any of their affiliates and legal successors;
- ”Intellectual Property Rights” means intellectual property rights, including but not limited to, know how, copyrights, patents and trademarks, together with all related source codes, inventions, trade secrets, rights to confidential information and all other rights of a similar character whether registered or capable of registration and all applications and rights to apply for protection of any of the same;
- “License and Support Agreement” means the agreement between Pragma or any of its affiliates and the Client for the use of the Pragma On Key services and other IT, software and related services, pursuant to the license provided to the Client subject to the terms and conditions of such agreement;
- “Master AC Services Agreement” means a master services agreement and any annexures hereto, including any associated Proposals and any associated SLA’s;
- Contract: a legally binding agreement between Pragma and the Client, governed and supplemented by these General Terms and Conditions, in which Pragma undertakes towards the Client to provide Professional Services;
- “Professional Services” means any asset management services provided pursuant to the Contract and any Proposal and associated SLA’s, including training, technical support, development, implementation and consulting services;
- “Proposal” means a written proposal by Pragma for the supply of Professional Services, signed by Pragma and duly accepted and signed by the Client in accordance with the terms thereof (including any associated SLA’s);
- ”SLA” means the Service Level Agreement concluded between Pragma and the Client in respect of a Proposal, if any, further detailing the Professional Services and the service levels to be provided and responsibilities of the parties under such Proposal;
- “On Key” means the Pragma On Key asset management software system made accessible to Client, inclusive of the data file structures provided in connection therewith, including all configurations, upgrades, updates, modifications and enhancements to any of the aforesaid.
2.1 These General Terms and Conditions shall apply to any and all services provided by Pragma to the Client, whether such services are described in any Proposal or otherwise agreed and whether the work is performed by Pragma or by third parties, except to the extent these General Terms and Conditions are deviated from in writing in any Proposal and provided these General Terms and Conditions shall not apply to such services if the Client has agreed a Master AC Services Agreement with Pragma (which agreement shall govern the rights and obligations of the parties).
2.2 The scope of the Professional Services and the duties and responsibilities of each of the Parties in respect of such Professional Services will be as outlined in the relevant Proposal (including the associated SLA’s) and in these General Terms and Conditions. These General Terms and Conditions shall exclusively apply to and govern any Proposal or other offer of Pragma, with the explicit exclusion of any general terms and conditions applied by the Client, unless agreed otherwise. Acceptance by the Client of Pragma’s Proposal or other offer or commencement of the Professional Services by Pragma will be deemed acceptance by the Client of these General Terms and Conditions.
2.3 Any On Key services and other IT, software and related services provided by Pragma to the Client shall be governed by a separate License and Support Agreement between the parties, and not by these General Terms and Conditions.
3. Offers and conclusion of the Contract
3.1 All Proposals and other offers of Pragma shall be without obligation on the part of Pragma and shall be valid and capable for acceptance for a period of 2 (two) months from the date of the Proposal or offer, unless stated otherwise in the Proposal or offer.
3.2 A legally binding agreement shall be constituted by the Proposal or other written offer, together with these General Terms and Conditions and shall be concluded (and obligations of both parties become effective) upon acceptance by the Client, evidenced by Pragma’s receipt of the Proposal or other written offer that is duly signed by the Client. Until receipt, Pragma shall reserve the right to deploy its (staff) capacity elsewhere. Pragma shall furthermore have the right to cancel any Proposal or other written offer within 10 (ten) business days after receipt. All Proposals or other offers shall be based on the information provided by the Client to Pragma. The signed Proposal or other offer shall be deemed to reflect the Contract correctly and completely, and any acceptance of Proposal or other offer by the Client that contains deviations from such Proposal or other offer shall be non-binding on Pragma, unless it expressly indicates otherwise in writing.
3.3 Each Contract and Proposal shall commence on the commencement date thereof and shall continue to be of force and effect until (a) the Professional Services contemplated thereby are completed, (b) it expires, or (c) it is terminated in accordance with the terms and conditions of such Proposal or these General Terms and Conditions, whichever occurs first.
4. Cooperation by the Client
4.1 The Client shall ensure that Pragma is provided in due time and in the form required with all complete and accurate data, information and documents that Pragma has requested from the Client or which the Client should reasonably understand are necessary for the execution of the Contract, and meet and liaise regularly with Pragma and it staff.
4.2 The Client shall ensure that Pragma is informed without delay of any facts and circumstances that may be of importance in connection with the execution of the Contract.
4.3 The Client agrees to fulfil its duties as may be specified in the relevant Proposal (including the associated SLA’s), and to provide on-going assistance, support and co-operation, and it shall ensure that Pragma is provided with the necessary access to its sites and office space, working furniture, IT services and all other facilities that in the opinion of Pragma are necessary or useful for execution of the Contract, and that satisfy all health, safety and other policies and requirements of Pragma and applicable law.
4.4 Unless agreed otherwise, the Client shall deploy the staff or have the staff deployed that is considered necessary by Pragma to enable Pragma to perform the work agreed. If specific staff is required, this shall be agreed upon in the Proposal or other written offer. The Client shall ensure that all its staff deployed has the appropriate skills and knowledge to perform the work and shall be available in due time.
4.5 If cooperation required from the Client for the execution of the Contract has not been granted in due time, Pragma shall be entitled to suspend the execution of the Contract and to charge to the Client the additional fees and costs resulting from the delay in accordance with article 6.
4.6 Any complaints of the Client regarding the Professional Services, should be communicated by the Client in writing within 2 (two) weeks after the relevant invoice date, and ultimately within 3 (three) weeks after the relevant services have been provided. The complaint notice shall be as detailed as possible in the description of the shortcoming, to enable Pragma to respond adequately. In the event a complaint is justified, Pragma shall yet provide the services as agreed unless it is clear that providing those services would be meaningless for the Client (the latter shall notified by Pragma to the Client). In any such event, article 8 will apply.
5. Execution of the Contract
5.1 All work agreed and performed by Pragma shall be done to the best of its knowledge and ability and in accordance with the requirements of good workmanship (“inspanningsverbintenis”). As the outcome of the work agreed depends on many circumstances outside the control of Pragma, it will not provide any guarantee (“geen resultaatsverbintenis”) with respect to the actual results of the Professional Services. The Client will remain responsible for decisions, orders or purchases that are based on the advice of Pragma.
5.2 Pragma shall determine the manner in which the Contract is executed and shall take the Client’s instructions as much as possible into account (which shall be non-binding on Pragma). Pragma shall ensure that the conduct of its staff is in accordance with the work and company rules of the Client, which shall be brought to Pragma’s knowledge prior to the work being performed.
5.3 Pragma shall be entitled to replace staff listed in the Proposal until commencement of the work agreed and after such date be entitled after consultation with the Client, to change the composition of its staff working for the Client whilst maintaining the continuity of the work and the required expertise of the team. All dedicated staff made available to the Client by Pragma are entitled to take (holiday) leave by law, in accordance with their employment agreements with Pragma, and unless otherwise agreed, no dedicated replacements will be made available by Pragma for such staff during such periods of leave, but their functions will temporarily be performed by other staff of Pragma.
5.4 Either Pragma or the Client shall start consultations with the other party in due time if it appears necessary for adequate execution of the Contract to change or supplement the nature, scope or delivery of the Professional Services or the work agreed. In these consultations, the reasons for such change and all consequences for the existing Proposal or new Proposal (including those in respect of compensation and planning) of such change shall be discussed in sufficient detail and, if necessary, laid down in an amended Proposal.
5.5 To the extent required for proper execution of the Contract, after prior consultation with the Client, Pragma may have specific work performed by third parties, which shall be for the account and at the risk of the Client.
5.6 As the duration of the Contract may be affected by many factors, the term within which the work must be completed shall always be indicative and only be considered fixed if a clear term has been expressly agreed in writing. Unless it is obvious that execution is no longer possible, the Contract shall not be capable of being dissolved by the Client on account of late completion. If any fixed term agreed in the Contract or any Proposal is exceeded, the Client is required to send written notice of default to Pragma, stating such breach and providing Pragma with a reasonable term to remedy such breach (and any such term shall never be considered as being fatal).
6.1 Pragma shall calculate the fees for the Professional Services based on rates as stated in the Proposal, time units spent and the number of deployed staff, and failing such agreement, on the Pragma’s standard prevailing rates. Any pre-calculation or budget provided by Pragma to the Client shall be non-binding, unless otherwise agreed. The fees shall be exclusive of international travel and accommodation expenses and other Contract-related costs and expenses, which shall be calculated separately to the extent they have not been included in the Proposal. All rates and costs and expenses shall be exclusive of value added tax and other taxes and levies, all of which shall be payable by the Client to Pragma or directly to the appropriate tax authority, in addition to the fees for Professional Services and costs and expenses. Pragma shall be entitled to adjust the rates from time to time by giving at least 1 (one) month prior notice thereof to the Client. The Client shall reimburse the costs and expenses included in the Proposal or approved by it in advance, incurred and invoiced by Pragma.
6.2 The amounts due to Pragma for Professional Services and costs and expenses shall be invoiced monthly in arrears. The Client will make payment of all amounts and all pro-rata parts of amounts as and when due, provided such amounts are not disputed by Client in good faith. Within 15 (fifteen) calendar days from receipt by the Client of any such invoice, the Client may, by written notice, dispute amounts reflected in such invoice on reasonable grounds. The Client will be liable to pay interest in relation to any amounts disputed that are not paid by it, and are finally determined to have been due and payable when invoiced.
6.3 Further to article 5.4, any change in the nature, scope or delivery of the Professional Services or the work agreed, or request for additional and/or supplementary work may result in increased fees and/or costs connected with the Contract and Pragma will be entitled to charge such fees and costs in the event of any additional work resulting from any such change.
6.4 After conclusion of the Contract, working days agreed that are cancelled by the Client less than 24 hours in advance may be invoiced at 100% and agreed working days cancelled otherwise may be invoiced at 50%, provided that Pragma shall endeavour to find a solution with the Client for shifting working days in a manner that does not harm the interests of both parties. Working hours in excess of 8 (eight) hours per day will be separately invoiced at 125% of the hourly rate for the first 2 (two) hours and at 150% of the hourly rate for further excess hours. Work performed on Saturdays will be invoiced at 150% of the hourly rate and on Sundays and official holidays at 200% of the hourly rate. Fees and costs of work performed by third parties shall be invoiced by Pragma at actual cost plus 10% and be substantiated by such third parties’ invoices.
7.1 All invoices shall be paid by the Client within 30 (thirty) calendar days from the date of invoice, by electronic transfer, into Pragma’s bank account as indicated on the invoice, without any deduction or set-off. Where payment of any amount due is not made on the due date, Pragma may, without prejudice to any other right or remedy and without any further notice or action being required, (a) charge interest on the outstanding amount at a rate of the higher of the interest rate provided under statutory law or 1.5% (one and a half percent) per month, capitalised monthly, commencing on the date that payment was due up to the day that any and all outstanding amounts have been fully paid, and (b) unless such amount is the subject of an unresolved dispute, suspend providing the Professional Services or such portion thereof as Pragma may choose, until all payments due have been made in full. Costs incurred by Pragma with a view to fulfilment of payment obligations of the Client, including extrajudicial costs that are fixed at 15% of the principal sum, shall be borne by the Client and shall be immediately payable to Pragma. Any late payments may be applied by Pragma first to satisfy any such costs, second to any interest accrued and third to principal amounts.
7.2 All amounts invoiced by Pragma shall be paid by the Client in the currency stated in the Proposal and the relevant invoice.
7.3 Pragma reserves the right to demand payment or advance payment from the Client, whilst fulfilment of any obligation of Pragma may be suspended until payment has taken place.
8.1 Pragma and the Client shall be entitled to terminate the Contract and any Proposal at any time (including before the Contract has been executed) by means of a registered letter to the other party, with a period of notice of 1 (one) calendar month.
8.2 Either party shall be entitled, without prejudice to any other rights it may have under law, to terminate the Contract and any Proposal to which any of the following event relates, at its sole discretion, by registered letter without due observance of a notice period in case the other party (a) commits a material breach of the Contract or any Proposal which is capable of remedy, and fails to remedy such breach within 30 (thirty) calendar days of having been requested in writing by the other party to do so, (b) subject to article 6.2, fails to pay any amount due that is more than 90 (ninety) calendar days outstanding, (c) is not able to settle its debts or is wound up, liquidated, whether provisionally or final, placed in business rescue or ceases to conduct business. If, pursuant to this article 8.2, Pragma has terminated the Contract or any Proposal, Pragma shall not be obliged to pay any damages and/or costs to the Client.
8.3 The termination of the Contract and/or the expiry or termination of any Proposal shall be without prejudice to any rights of the parties accrued, including rights to payment of fees and costs and expenses, under the Contract and such Proposal(s) prior to the date of such expiry or termination, and Pragma’s right to payment of costs of Pragma resulting from a transfer of work by Pragma to a third party and Pragma’s right to claim damages. The termination or expiry of any one Proposal will not affect the validity of any other Proposal or the Contract, each of which will remain in full force and effect. Upon termination of any and all Contracts and Proposals, the Client shall cease to use the Professional Services as well as any and all confidential information of Pragma made available in connection with the Contract or any Proposal, and it shall promptly destroy or return to Pragma any and all records thereof and return to Pragma any other Pragma items in its possession or under its control (whether containing confidential information or not) and upon request it shall certify the same to Pragma.
8.4 If the Client has terminated the Contract or any Proposal, Pragma shall be entitled to compensation of the foreseeable loss involved with deployment of employees, third parties and time and resources arisen on its side, and additional costs that it had to incur as a result of the early termination of the Contract, unless such termination was based on facts and circumstances that are attributable to Pragma.
8.5 In case of a non-attributable failure of Pragma to fulfil its obligations under the Contract or any Proposal on time, Pragma shall be entitled to execute the Contract at a later time or, if fulfilment within a reasonable period of time is no longer possible, to dissolve the Contract or the Proposal entirely or partially, without the Client being entitled to claim any compensation for damages or costs from Pragma. Pragma may also suspend the Professional Services and/or dissolve the Contract or any Proposal if the Client does not comply with any of its obligations, or if Pragma, on the basis of circumstances that have to come to its knowledge, has reasonable grounds to believe that the Client will not comply with its obligations under the Contract or any Proposal or if under such circumstances providing the Professional Services can no longer be reasonably expected from it, Pragma shall have the right to dissolve the Contract or the relevant Proposal entirely or partially. In such event, Client’s payment obligations shall become due immediately.
8.6 If either party is prevented by force majeure from fulfilling its obligations in accordance with article 12.6 for a continuous period in excess of 60 (sixty) business days, the other party may terminate the Contract and any Proposal forthwith by written notice to the party so prevented, in which case neither party shall have any liability to the other party, except for rights and liabilities accrued prior to such termination.
8.7 Termination or expiry of the Contract or any Proposal shall not affect the enforceability of the provisions thereof which have been specified or are by their nature required to operate after such expiry or termination, including without limitation, the following provisions: article 2 (Applicability), article 4 (Cooperation by the Client), article 6 (Fees), article 7 (Payment), this article 8 (Termination), article 9 (Intellectual property), article 10 (Liability and indemnity), article 11 (Confidentiality), article 12 (Miscellaneous) and article 13 (Applicable law and disputes).
9. Intellectual property
9.1 Pragma reserves all rights not expressly granted to the Client in the Contract or any Proposal and, in particular, shall obtain and be solely entitled to all intellectual property rights represented by, or incorporated in, work products, including but not limited to procedures, know-how, advice, products, services and computerized information systems that arise from the execution of the Contract, either directly or indirectly.
9.2 Any documents and electronical files provided by Pragma in execution of the Contract, such as memo’s, reports, advice, agreements, designs, sketches, drawings, software, models, etc. shall remain the property of Pragma and shall exclusively be intended for use by the Client for the objectives of the Contract. Publication or disclosure outside of the organisation of the Client and/or the use of (parts of) the aforementioned documents shall only be allowed after written permission of Pragma.
9.3 Pragma hereby grants to the Client the right and license to use aforementioned work products for its own and its affiliates’ business operations. Unless otherwise agreed under a Proposal, the Client shall not use, or permit the use of, the work products by any third party. To the extent that Pragma utilises any of its or its affiliates’ know how in connection with providing the Professional Services, such know how shall remain the property of Pragma and the Client shall acquire no right or interest, directly or indirectly, in such know how.
10. Liability and Indemnity
10.1 Save and to the extent that such limitation may not permitted by applicable law, Pragma’s total aggregate liability for all claims made against it in connection with the Contract or any Proposal during any calendar year, whether based on contract, tort, statutory law or otherwise, shall not exceed the total amount of Professional Services Fees paid to Pragma under such Contract or Proposal during such calendar year.
With respect to Contracts with a completion time exceeding 6 (six) months, a further limitation of the aforementioned liability shall apply, to a maximum of the invoice amount over the past 6 (six) months. The aforementioned limitations shall apply mutatis mutandis to any of Pragma’s employees, representatives and agents and third parties deployed by Pragma. Any liability of Pragma shall never exceed the amount that is paid under its professional and other liability insurance policies.
10.2 Pragma shall never be liable for any damages other than direct damages. Direct damages shall be limited to:
(a) the reasonable costs that the Client must incur to assure that the performance of the Client complies with the Contract or Proposal;
(b) reasonable costs incurred to establish the cause and the scope of the damages;
(c) reasonable costs incurred to prevent or limit direct damages, in so far as the Client can demonstrate that these costs have led to limitation of the direct damages.
10.3 Save and to the extent that such limitation may not permitted by applicable law, neither Party nor any of its Personnel shall be liable for any indirect, incidental, special or consequential damages or losses of any kind arising in connection with the Contract or any Proposal, whether based on contract, tort, statutory law or otherwise. Pragma shall never be liable for any damage, of whatever nature, that results from exceeding any term agreed in the Contract or any Proposal (and any such term shall never be considered as being fatal) or from an error in execution of the Contract or any Proposal resulting from the Client providing Pragma incorrect or incomplete data, information and documents.
10.4 Any liability and responsibility of Pragma in connection with the Contract or any Proposal shall only arise after the Client has sent Pragma a written notice of default without delay, in which Pragma receives a reasonable term within which Pragma must fulfil its obligations and Pragma has still not fulfilled its obligations within that term. The notice of default shall be as detailed as possible in the description of the shortcoming, to enable Pragma to respond adequately. Any claims or notices from the Client in connection with the Contract or any Proposal must have been submitted in writing within 3 (three) months after discovery of the default or damages and not later than 6 (six) months after completion of the Contract, failing which the Client shall have forfeited any and all of its rights.
10.5 The Client shall indemnify and hold harmless Pragma and its respective employees, representatives or agents from and against any claim, liability, damage, deficiency, loss or obligation of any kind or nature by third parties, based upon, arising out of, or otherwise relating to the Contract or any Proposal, including without limitation, any cause of action relating to infringement of intellectual property rights of third parties. The Client shall, at its own expense, provide attorneys reasonably acceptable to Pragma to defend against any actions or claims brought or filed against Pragma and its respective employees, representatives or agents hereunder with respect to the subject of indemnity contained herein, whether or not such actions are rightfully brought.
11.1 Each party (the receiving party) shall treat and hold as confidential all confidential information that it may receive from the other party (the disclosing party), or that becomes known to it during the term of the Contract or any Proposal. The receiving party agrees that in order to protect the proprietary interests of the disclosing party in the disclosing party’s confidential information, unless the disclosing party has expressly agreed otherwise in writing, the receiving party shall not, and it will ensure that its employees, representatives or agents shall not, at any time, whether during the term of the Contract or any Proposal or thereafter, use, or disclose any confidential information of the disclosing party to any third party, other than as allowed in accordance with the Contract and any Proposal.The parties shall impose a similar obligation of confidentiality to its employees, representatives or agents and any involved third parties.
11.2 The obligations of the receiving party pursuant to this article 11 shall not apply to any information which (a) is lawfully in the public domain at the time of disclosure, or subsequently lawfully becomes part of the public domain by publication or otherwise, (b) is already lawfully known to the receiving party prior to the time of disclosure, or is independently developed by the receiving party, (c) subsequently becomes available to the receiving party from a source other than the disclosing party, which source is entitled to disclose such information, or (d) is disclosed pursuant to a requirement or request by operation of law.
11.3 Notwithstanding the obligation of confidentiality of article 11.1, Pragma shall be entitled to mention to (potential) clients of Pragma and only with the purpose to indicate the experience of Pragma as well as for general publicity and advertising purposes, (a) the Client’s name and a general description of the Professional Services pursuant to the Contract or any Proposal, including general information regarding number of assets, employees and other factors relevant to providing the Professional Services, (b) general information derived from the information contained in any Proposal regarding objectives, benefits and solutions offered by Pragma to the Client, and (c) general information related to the Client’s use of the Professional Services.
12.1 These General Terms and Conditions and any and all Proposals and any associated SLA’s constitute the entire agreement between the parties in respect of the Contract, and no agreements, representations or warranties between the parties other than those set out therein are valid and binding upon the parties.
12.2 No amendment or modification to Contract or any Proposal or any associated SLA shall be effective unless made in writing and signed by duly authorised signatories of both parties.
12.3 In case these General Terms and Conditions and the relevant Proposal contain contradictory terms and conditions, those included in the Proposal shall prevail and apply to the extent of such conflict. Save where expressly provided to the contrary, the terms and conditions of any one Proposal shall not apply to any other Proposal. Insofar as any term in an associated SLA conflicts with the terms and conditions of these General Terms and Conditions or any Proposal, the relevant Proposal and these General Terms and Conditions shall prevail to the extent of such conflict.
12.4 In case any part of any provision of these General Terms and Conditions or any Proposal or an associated SLA is void or voidable by either party, or unenforceable or illegal, the whole or that part (as the case may be) of that provision, shall be severed an immediately be replaced in consultation by the parties by a provision that corresponds as much as possible to the meaning of the original provision, and the remainder of these General Terms and Conditions and the relevant Proposal(s) shall continue to have full force and effect.
12.5 The Client shall during the term of the Contract or any Proposal and for a period of 12 (twelve) calendar months following the termination or expiry thereof, directly or indirectly, contract, employ or offer employment to any employee of Pragma involved in the Professional Services. For purposes of this article 12.5, a general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions, including on the internet, shall not be construed as recruitment or solicitation, and the hiring of any employee of Pragma who freely responds thereto shall not be a breach of this clause by the Client.
12.6 If either party is prevented from fulfilling its obligations pursuant to the Contract or any Proposal due to circumstances of force majeure (i.e. labour strikes, lock-outs, acts of God, fire, war or warlike acts, civil insurrection, government interference or restrictions, or, without limiting the generality of the foregoing, other circumstances reasonably beyond the control of such party and for which such party is not responsible), that party shall be relieved of performance of its obligations, to the extent that it is so prevented from doing so, for the duration of the relevant circumstance. The party wishing to claim relief on the grounds of circumstances of force majeure shall notify the other party in writing without delay on the occurrence and on the cessation thereof. The party so prevented from fulfilling its obligations shall use all reasonable endeavours to remove or avoid such impediment to fulfilling its obligations as soon as possible.
13. Applicable law and disputes
13.1 The law of the Netherlands shall govern all Contracts, these General Terms and Conditions, any Proposals and associated SLA and any and all other rights and obligations and matters between Pragma and the Client.
13.2 Any disputes concerning or arising out of any such Contracts, General Terms and Conditions, any Proposal or an associated SLA any and all other rights and obligations and matters between Pragma and the Client shall be resolved by the courts of Utrecht/Midden Nederland, the Netherlands.
We also refer you to the privacy statement (in Dutch).