Algemene Voorwaarden

Tingk

General terms and conditions

Version: March 2022

1 General provisions

In these General Terms and Conditions, the following definitions apply:

tingk.: tingk., located at Spinnekop 2 (1444 GN) in Purmerend and registered with the Chamber of Commerce under number 75241897;
Client: the natural or legal person for whom tingk. provides services.
the Agreement: the service agreement between tingk. and Client.
Parties: tingk. and Client
Data Processing Agreement: an additional agreement between the Parties, which specifies how tingk., in its capacity as a processor within the meaning of the General Data Protection Regulation (AVG), will handle personal data.

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2 Applicability

Unless otherwise agreed in writing between the Parties, these General Terms and Conditions apply to all quotes and Agreements made by tingk, including any subsequent agreement, Processor Agreement and/or amended or additional agreement, as well as to all legal relationships resulting from or in connection therewith.
Deviations from and additions to these General Terms and Conditions are only valid if they have been agreed in writing between the Parties. For the same reason, the Client's purchase or other terms and conditions do not apply and are therefore expressly rejected by tingk.
If a provision of these General Terms and Conditions is null and void or annulled, the other provisions will remain in effect. tingk. and the Client will then consult on new or replacement provisions.
These General Terms and Conditions and the Agreement (s) between tingk. and Client are governed exclusively by Dutch law as set out in the Civil Code.

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3 Prices

All prices do not include sales tax (VAT) and other government levies. Unless otherwise agreed, all prices are always in euros and the Client must pay all payments in euros.
Unless the Parties have agreed otherwise in writing, all estimates or budgets issued by tingk. are without obligation. The Client can never derive any rights or expectations from this. An available budget made known to tingk. by the Client will never be considered a (fixed) price agreed between the Parties, unless otherwise expressly agreed in writing.
If, according to the Agreement concluded between the Parties, the Client consists of several natural persons and/or legal entities, each of those (legal) persons is jointly and severally bound to comply with the Agreement against tingk.
The data from tingk.'s administration provides evidence of the services performed by tingk. and the amounts owed by the Client for this purpose and are therefore leading. The Client is free to provide evidence to the contrary.
Unless the Parties have agreed otherwise in writing, the payment of invoices must take place within 30 days of the invoice date. Objections to the amount of an invoice do not suspend the payment obligation.
tingk. is at all times entitled to require prepayment, cash payment or security for the Client's compliance with its obligations under the Agreement. If the Client does not comply with such a request, tingk. is not liable for any damage that occurs as a result of the termination or suspension of work by tingk.
Settlement of an invoice with a claim by the Client against tingk. is only possible if the relevant claim has been acknowledged in writing by tingk.
The payment period referred to in paragraph 5 of this article is to be regarded as a deadline. If the Client fails to fulfil one or more payment obligations, not timely or fully, tingk. is entitled to charge interest from the expiration of the due date until the date of full payment. This interest rate is equal to the statutory commercial interest rate.
If, after a reminder or notice of default, the Client continues to fail to pay an invoice or other payment obligation, tingk. will hand over the claim. In addition, the resulting extrajudicial and judicial costs will be borne by the Client with a minimum of €500. These costs also include all costs incurred by external experts.
If the execution of an Agreement is delayed due to the absence of the commitment, cooperation or performance of tasks on the part of the Client described in the relevant Agreement, or is otherwise caused by the Client, the costs associated with the delay will be borne by the Client.
tingk. can retain the data, documents, software and/or data files received or realized under the Agreement, despite an existing obligation to issue or transfer, until the Client has paid all amounts due to tingk.
All services, deliveries and activities that tingk. has performed at the request or with the prior consent of the Client, that fall outside the content or scope of the agreed services, will be reimbursed by the Client in accordance with the agreed rates. In case no rates have been agreed, tingk.. tingk.'s usual rates apply. tingk. is not obliged to comply with such a request and may require that a separate written Agreement be concluded for this purpose.
In case a fixed price has been agreed for the performance, tingk will. Inform the Client in writing about the financial consequences of the additional services, deliveries and activities as referred to in this article, when requested by the Client.

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4 Rates

If there is a periodic payment obligation on the part of the Client, tingk. is entitled to make an annual price increase equal to the change in the prior billing period of the “Business and ICT Services Index”, as published by CBS. tingk. must announce such a price increase to the Client at least three (3) months in advance. The Client may not terminate the Agreement if it does not agree with this price change.
In addition to the indexation referred to in paragraph 1 of this article, tingk. has the right to change prices and rates in the interim in the event of reasonably increased operating costs, including but not limited to:

2.1 Increased wage costs due to tightness in the labor market or if suppliers' products and services have become more expensive. Regardless of whether the change occurs as a result of circumstances that were (foreseeable) at the start of the Agreement, tingk. is entitled to change prices and rates. tingk. must announce and explain such a price change to the Client at least three (3) months in advance, unless this price increase is the result of an increase in suppliers' prices.

2.2 When payment is made as a result of (exact) use, also known as pay-per-use suppliers' pricing models, tingk. settles the price increases or price reductions directly in the next invoice.

If the price increase referred to here exceeds ten percent, the Client has the right to terminate the agreement within 8 days (eight) after announcing the price increase by tingk, with the exception of article 2.2.

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5 Privacy and personal data

If the General Data Protection Regulation (AVG) applies to (part of) the activities, Parties will conclude an additional Processing Agreement as part of the execution of the Agreement. Here, tingk. between the Parties is regarded as a processor and the Client as controller within the meaning of the General Data Protection Regulation (AVG).

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6 Risk and Security

The risk of loss, theft, misappropriation or damage to items, data (including: usernames, codes and passwords), documents, software or data files that are manufactured, delivered or used in the context of the execution of the Agreement passes to the Client when they are placed under the actual control of the Client or an assistant of the Client.
The access or identification codes and certificates provided to the Client by or on behalf of tingk. are confidential and will be treated in this way by the Client and made known only to authorized staff members of its own organization. tingk. has the right to change assigned access or identification codes and certificates.

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7 Acceptance of the delivered goods

When the Parties have entered into a service agreement, it contains for tingk. only an obligation to make an effort and no obligation to achieve results.
The Client may not refuse acceptance for reasons that are not related to the specifications expressly agreed in writing between the Parties, nor due to the existence of minor errors that do not reasonably prevent operational or productive commissioning. Furthermore, acceptance should not be refused due to aspects that can only be assessed subjectively, such as aesthetic aspects of user interfaces. Acceptance means that it is established between the Parties that tingk. has adequately fulfilled its obligations to provide and deliver the Performance (s) as described in the Agreement.

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8 Intellectual Property

All goods delivered to the Client remain the property of tingk, unless it has been agreed in writing that the ownership will lie with the Client. Transfer of ownership is only the case as soon as all amounts owed by the Client to tingk. under the Agreement have been paid in full to tingk. and the delivered goods have been accepted in accordance with chapter 7 of these General Terms and Conditions.
Agreements to transfer intellectual property rights are only valid if they have been entered into in writing. If tingk. transfers intellectual property rights, this does not affect tingk.'s right or ability to use and/or exploit the components, general principles, ideas, designs, algorithms, documentation, works, programming languages, protocols, standards, etc., for other purposes, whether for itself or for third parties, without limitation. In the event of the transfer of an intellectual property right, tingk. has the right to continue to make developments for itself or a third party that are similar or derived from those that have been or are being done on behalf of the Client.
All intellectual property rights to works developed or made available to the Client under the Agreement, such as software, solutions, databases, training material, analyses, designs, documentation, reports, offers, advice, as well as preparatory material thereof, are owned exclusively by tingk, its licensors or its suppliers. The Client obtains the rights of use that are expressly granted by these General Terms and Conditions, the Agreement (s) and the law. A right to use vested in the Client is non-exclusive, non-transferable, non-pledgeable and non-sublicensable.
The Client will not remove or (have) changed any indication (s) concerning the confidential nature or concerning copyrights, brands, trade names or any other intellectual property right from the works.
Even if the Agreement does not expressly provide for this, tingk. is always allowed to make technical provisions to protect materials that are subject to intellectual property rights in connection with an agreed limitation in the content or the duration of the right to use these materials. The Client will not remove such technical provision (s) or allow it to be circumvented.

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9 Delivery

All (delivery) terms mentioned or agreed by tingk. have been determined to the best of its knowledge on the basis of the information known to it when entering into the agreement. tingk. makes every effort to observe agreed (delivery) terms as much as possible. In all cases, including if the parties have expressly agreed on a deadline in writing, tingk. will only be in default due to overtime after the client has given it notice of default in writing. tingk. is not bound by any (delivery) deadlines that cannot be met due to circumstances beyond its control that occurred after entering into the agreement. Nor is tingk. bound by a delivery period, whether or not a deadline, if the parties have agreed to change the content or scope of the agreement (additional work, change in specifications, etc.). If there is a risk of exceeding any period, tingk. and the client will consult as soon as possible.

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10 More and less work

Parties can agree on more and less work, both orally and in writing.
Additional work is considered to be: everything that is supplied and/or performed by tingk. either at the request or by order of the client, or by order of third parties engaged by the client in excess of the agreed amount of products and services to be supplied.
tingk. has the right to charge for additional work.

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11 Unforeseen circumstances and force majeure

When unforeseen circumstances occur, tingk. will notify the client as soon as possible.
Any additional costs that Tingk. must incur in connection with unforeseen circumstances that require immediate action will be reimbursed by the client.
If the unforeseen circumstances do not require immediate action, the client can order more and less work.
tingk. is never liable for damage to services or products supplied or delays in execution, in the event of unforeseen circumstances and force majeure. Tingk. is also not liable for damage whose cause is attributable to tingk suppliers.
In the event of force majeure, tingk. is entitled to terminate the agreement for the part that has not been executed, without being obliged to pay compensation for damage and claims from the client and/or third parties.
In the event of force majeure, tingk. is entitled to suspend compliance with the agreement for the duration of the force majeure.
If the force majeure situation lasts 3 months or longer, the parties have the right to terminate the agreement in whole or in part in writing, insofar as the force majeure situation justifies this.

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12 Modified version

If, during the execution of the assignment, it appears that the order or part of it can only be executed in a modified way, the party that first becomes aware of this circumstance will consult with the other party. tingk. hereby draws the client to the financial consequences. An agreed modified performance will be counted as more and less work.

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13 Suspension, dissolution and early termination of the agreement

tingk. is authorized to suspend compliance with the obligations or to terminate the agreement if the client does not fulfill the obligations under the agreement, does not fully or not timely, or if, due to the delay on the part of the client, tingk. can no longer be required to fulfill the agreement under the originally agreed conditions.
In addition, tingk. is authorized to terminate the agreement if circumstances occur that are of such a nature that fulfillment of the agreement is impossible or if circumstances otherwise occur that are of such a nature that unaltered maintenance of the agreement cannot reasonably be expected.
If the agreement is dissolved, tingk.'s claims against the client are immediately due and payable. If tingk. suspends compliance with the obligations, he reserves his claims under the law and agreement.
If tingk. suspends or dissolves, he is in no way obliged to pay compensation for damage and costs resulting from this in any way.
If the termination is attributable to the client, tingk. is entitled to compensation for the damage, including the costs and lost profit that arise directly and indirectly as a result.
Should one of the parties apply for suspension of payments or go bankrupt, be placed under guardianship or otherwise lose the power to dispose of its assets or parts thereof, the other party has the right to declare the concluded agreement (s) dissolved by written notice, or (at its option) to suspend compliance with its obligations. All payments due to the party entitled to terminate will then become immediately due and payable. In addition, the rights in the event of non-compliance with obligations are fully reserved by the party concerned.
If, at the time of termination as referred to in 13.1, the client has already received products and services to implement the agreement, this and the related payment obligation will not be the subject of cancellation, unless the client proves that tingk. is in default with regard to those products or services. Amounts that tingk. has invoiced before termination in connection with what he has already properly performed or delivered in execution of the agreement remain due in full, subject to the provisions of the previous sentence and become immediately due and payable at the time of termination.

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14 Liability and Indemnification

After delivery in accordance with the provisions of articles 7 and 9, tingk. is not liable for shortcomings in the products or services.
If it is demonstrably and explicitly agreed with the client that tingk.'s service has led to an attributable shortcoming, tingk.'s total liability does not include more than the payments made by the client for the service provided. Under no circumstances will the total compensation exceed the coverage of tingk's insurance, or up to a maximum of the amount to be received by tingk. under the Agreement in the event of compliance, with a maximum of €10,000.00 (ten thousand).
Tingk.'s liability for indirect damage, consequential damage, lost profit, missed savings, reduced goodwill, damage due to business interruption, damage resulting from claims by the client's customers, mutilation or loss of data, damage related to the use of third-party goods, materials, products or software prescribed by the client, damage related to the use of suppliers prescribed by the client to tingk. and all other forms of damage than mentioned, for whatever reason also, is excluded.
The client indemnifies tingk. against all third-party claims due to product liability as a result of a defect in a product or service that was supplied by the client to a third party and that also consisted of products or services supplied by tingk.

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15 Client liability

The client bears the risk of damage caused by inaccuracies in the assigned work, structures and working methods required by the client, defects in or unsuitability of products or services made available by the client.
The Client guarantees the reliability and suitability of the products or services provided, required or prescribed by him and for the accuracy of the information provided by him.
If the client cancels and/or changes the order issued, the client is obliged to pay tingk. for the resulting damage, including loss of profit, to tingk. at tingk.'s first request.
The Client is only in default if the Client has received a written notice of default by tingk., giving the Client another reasonable period of time to fulfil its obligations and failure to comply with them within this period.

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16 Confidentiality

tingk. undertakes to take care and complete confidentiality with regard to the information obtained both during and after the execution of the work for the benefit of the Client.

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17 Transfer of rights and obligations

The client is not entitled to transfer its rights and/or obligations towards tingk. to third parties without tingk's prior written consent.

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18 Other provisions

All disputes arising from agreements with the Client will initially be submitted to the competent court in Amsterdam.

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