ARTICLE 1. DEFINITIONS
In these general terms and conditions, the following terms, also in conjugation of plural or singular, are used in the following meaning, in so far as the nature or scope of the provisions does not otherwise follow.
- OAN: Online Assessments Nederland, the user of these general terms and conditions, located at Pedro de Medinalaan 102, 1086XP in Amsterdam.
- Client: any legal person, or natural person acting in the exercise of a profession or business, with whom OAN has concluded or intends to conclude an agreement.
- Parties: OAN and the client jointly.
- Agreement: every agreement concluded between OAN and the client, with which OAN has committed itself to providing services to the client.
- Services / services: the services to be provided within the framework of the agreement by or on behalf of OAN, including the provision of online tests (including questionnaires included), to be taken by employees of the client and advice to the client on the occasion of of these tests.
- Participant: every natural person working at the client who conducts an online test.
- Software: the software as used by OAN in the context of service provision to participants for the online purchase of tests.
- Written: communication in writing, communication by e-mail or any other means of communication that can be equated with this in view of the state of the art and the views prevailing in society.
ARTICLE 2. GENERAL PROVISIONS
- These general terms and conditions apply to every offer from OAN and every agreement that has been concluded.
- These general terms and conditions also apply to contracts for the execution of which third parties are involved by OAN.
- The applicability of the possible general terms and conditions of the client, under whatever name is indicated, is explicitly rejected.
- The provisions in these general terms and conditions can only be deviated from explicitly and in writing, such as through the OAN tender signed by the client. If and to the extent that the parties have expressly agreed in writing, deviates from the provisions of these general terms and conditions, the parties have explicitly agreed in writing.
- Destruction or invalidity of one or more of the provisions of these general terms and conditions or the agreement as such does not affect the validity of the other stipulations. In a given case, the parties are obliged to enter into mutual consultation in order to make a replacement arrangement with regard to the affected stipulation. In doing so, the purpose and intent of the original provision will be taken into account as much as possible.
ARTICLE 3. OFFERS AND COMPLETION OF THE AGREEMENT
- Every quotation from OAN is without obligation, even if a period of acceptance is stated. A quotation from OAN can be revoked by OAN immediately, at least as soon as possible after acceptance by the client.
- The client can not derive any rights from a quotation from OAN that contains a manifest error or error, as well as an offer from OAN that is based on incorrect or incomplete information provided by the client.
- Without prejudice to the provisions in paragraph 1, each agreement is concluded at the time that the client has signed OAN’s quotation again in the possession of OAN. Offers from OAN can only be fully accepted by the client.
- If the client concludes the agreement on behalf of another natural or legal person, he declares that he is authorized to do so by entering into the agreement. In addition to this (legal) person, the client is jointly and severally liable for the fulfillment of all obligations arising from that agreement.
ARTICLE 4. | OBLIGATIONS OF THE CLIENT & EXECUTION OF THE AGREEMENT
- The client always guarantees that all information that is reasonably relevant for the design and execution of the agreement, as soon as possible as required for that design or implementation, fully and in the manner prescribed by OAN, to OAN is available. The client guarantees the correctness of all information made available to OAN.
- The client must furthermore provide OAN with all the cooperation required for the execution of the agreement, including the provision of all powers and authorizations necessary for the execution of the agreement. The client takes all reasonable measures to optimize the execution of the agreement.
- The tests used in the context of assessments must be taken online by the participants. If and insofar as the participants do this at the location of the client, the client must provide the participants with undisturbed opportunity to do so and provide all facilities required for this purpose.
- The client must inform the participants in advance about the purpose of the online tests.
- In the context of the service, OAN, as well as any external psychologists involved in the execution of the services, will contact the participants. The client guarantees that he has received permission from all participants that OAN and the external psychologists referred to contact the participants.
ARTICLE 5. | USING THE PROGRAM
- The online tests are conducted by the participants using the software made available by OAN. The client guarantees that the participants only use the software for conducting the online tests and not for improper purposes. Use of the software by the participants is therefore also under the responsibility of the client. All actions performed by the participants through the software are allocated to the client. OAN is entitled to take effective measures to avoid or limit unauthorized use of the software. OAN offers the participants a limited, non-exclusive, non-transferable and non-sublicensible user right with respect to the software. This right of use applies only to persons who have been registered with OAN as a participant in the context of the service provision. The intended right of use is canceled by the termination of the agreement.
- The client shall ensure that his systems on which the software is possibly approached by the participants is adequately protected against viruses, malware and data leaks.
- It is prohibited to attempt to decompile or copy the software used in connection with the software, to manipulate it in any other way or to develop software that infringes the software used by OAN and / or the software used by OAN. related intellectual property rights as referred to in Article 14.
- It is prohibited to use the software for unlawful actions, for acts that are contrary to the generally applicable standards and for the commission of criminal offenses. This includes the infringement of the (intellectual) property rights of OAN or its licensor, the uploading of secret or confidential information and unlawful infringements of the systems on which the services of OAN are dependent, including the spreading of viruses, worms and so on.
- The participants determine which data are stored and / or generated via the software. The client is therefore responsible for ensuring that these data are lawful and do not infringe the rights of third parties. OAN does not accept any liability for the data stored and / or generated by or on behalf of the participants with the aid of the software. The client indemnifies OAN against all third-party claims that are based on the statement that the data stored and / or generated by or on behalf of the client with the aid of the software is unlawful or infringes the rights of third parties.
- If, in the opinion of OAN or third parties whose services OAN uses to execute the agreement, a danger arises for the functioning of the software or computer systems or the network of OAN or third parties, OAN is entitled to take all measures ( do) that are reasonably necessary to avert or prevent this danger.
ARTICLE 6. | THIRD PARTIES
- OAN is at all times authorized to involve third parties in the service. The applicability of article 7: 404, 7: 407 paragraph 2 and 7: 409 of the Dutch Civil Code is excluded.
- These general terms and conditions are also stipulated for the benefit of any third parties that OAN involves in the execution of the agreement. Therefore, insofar as the right to fulfillment of the stipulations by their nature or purport can not be exclusively reserved to OAN, these third parties can invoke the provisions included in these general terms and conditions as if they themselves were party to the agreement.
- Except insofar as the law prohibits this in the circumstances under the circumstances of the case, OAN shall never be liable for damage as a result of errors or shortcomings of the third parties possibly involved by him in the execution of the agreement, with the proviso that OAN will, insofar as this can reasonably be required of him, make every effort to claim restoration from these third parties of any errors or shortcomings attributable to them.
- It is possible that the third parties that may be involved by OAN in the execution of the agreement wish to limit their liability in this respect. OAN assumes, and if necessary stipulates, that all agreements concluded with him contain the authority to accept such a limitation of liability also on behalf of the client.
ARTICLE 7. DURATION AND INTERMEDIATE CANCELLATION OF THE AGREEMENT
- The agreement ends by operation of law by completion of the service. If it does not follow from the nature or scope of the agreement that it ends by completion, the agreement shall be deemed to have been concluded for an indefinite period. If it does not follow from the nature or scope of the agreement that it ends by completion and an end date has been agreed, the agreement shall have been concluded for a definite period of time.
- If the agreement has been entered into for a definite period and does not end by completion, the agreement will expire by law as of the expiry of that specific period.
- In the event that the agreement has been entered into for an indefinite period and does not end by completion, the agreement ends by means of written cancellation with due observance of a notice period of one month.
- If the client cancels all or part of the agreement prematurely or does not comply with the applicable notice period, OAN is entitled to claim compensation for loss of profit, as well as for the other damage resulting from the cancellation for OAN.
ARTICLE 8. | TERMS
OAN endeavors to comply with the execution and / or delivery periods agreed between the parties, but these periods never concern deadlines. OAN’s default will not take effect until the client has given OAN written notice of default, in which notice a reasonable term has been specified within which OAN can still fulfill the relevant obligation and OAN will still comply with the performance of the latter after the expiry of the last term. is defective.
ARTICLE 9. | FORCE MAJEURE
- OAN is not obliged to fulfill any obligation under the agreement if and for as long as it is prevented from doing so by a circumstance that can not be attributed to it pursuant to the law, a legal act or the views prevailing in society.
- If the force majeure situation makes the fulfillment of the agreement permanently impossible, the parties are entitled to dissolve the agreement with immediate effect.
- If OAN has already partially fulfilled its obligations on the occurrence of the force majeure situation, or can still partly fulfill its obligations, it shall, unless it does not have an independent value for the client, be entitled to the already executed part or workable part of the agreement, to invoice the agreement separately as if it were an independent agreement.
- Damage as a result of force majeure is, without prejudice to the application of the previous paragraph, never eligible for compensation.
ARTICLE 10. | SUSPENSION AND DISSOLUTION
- If the circumstances of the case reasonably justify, OAN is entitled to suspend the execution of the agreement or to dissolve the agreement with immediate effect in whole or in part, if and insofar as the principal does not fulfill its obligations under the agreement, timely or incomplete fulfillment, or after the conclusion of the agreement OAN come to the knowledge of circumstances giving good ground to fear that the client will not fulfill his obligations. If the fulfillment of the obligations of the client in respect of which he falls short or threatens to fall short, is not permanently impossible, the authority to terminate only arises after the client has been given notice of default in writing, in which notice a reasonable period is stated within which the client can fulfill his obligations (yet) and the fulfillment after the expiry of the last term has still not been fulfilled.
- If the client is in a state of bankruptcy, has requested (provisional) suspension of payment, any attachment has been imposed on his goods or in cases in which the client can not otherwise freely dispose of his assets, OAN is entitled to the agreement with immediate effect. to dissolve, unless the client has already provided sufficient security for the amounts owed to OAN by virtue of the agreement.
- The client is never entitled to any form of compensation in connection with the suspension or termination right exercised by OAN on the basis of this article.
- The client is obliged to compensate the damage that OAN suffers as a result of the suspension or dissolution of the agreement.
- If OAN dissolves the agreement pursuant to this article, all claims against the client shall be immediately due and payable.
ARTICLE 11. | PRICES, COSTS AND PAYMENTS
- OAN’s offer shall state as accurately as possible the price and any additional costs. All amounts stated by OAN and payable by the client are exclusive of VAT, unless explicitly stated otherwise in writing.
- OAN is entitled to demand full or partial prepayment of the agreed price and / or costs. If the agreement does not end by completing the service and thus has a longer lead time, OAN is entitled to periodically invoice the client.
- Payments must be made by means of a transfer within the period stated on the relevant invoice.
- OAN is entitled to make the invoices due to the client exclusively available to him by e-mail.
- For as long as the client is in default towards OAN with the satisfaction of a payment obligation that is due and payable to it, OAN is not obliged to (further) execute the agreement.
- If the client is in a state of bankruptcy, any attachment has been placed on his goods, has requested (provisional) suspension of payment or otherwise can not freely dispose of his assets, the claims against the client are immediately due and payable.
- If timely payment is not made, the default of the client will take effect by operation of law. From the day that the client’s default takes effect, the client owes an interest of 2% per month on the outstanding amount, whereby a part of a month is regarded as a full month.
- All costs, such as judicial, extrajudicial and execution costs incurred to obtain the amounts owed by the client, are at the expense of the client.
ARTICLE 12. | LIABILITY AND INDEMNITY
- Online tests are co-designed in accordance with the information that the client has communicated about the team, the organization and / or job profiles of the participants to OAN. The advice given on this basis also depends on this information. OAN is never liable for damage arising because it is based on inaccurate or incomplete information provided by the client. Furthermore, OAN is never liable for damage caused because it is based on inaccurate or incomplete data provided by participants through the online tests.
- OAN does not bear any liability for damage resulting from an act or omission on the part of the client as a result of knowledge and / or insights gained through the service provided by him. With regard to the production and provision of advice, OAN only undertakes an obligation of best effort.
- OAN will make every effort to realize an uninterrupted availability of the software, but OAN can not always guarantee this. OAN therefore accepts no liability in this matter.
- The participants who make use of the software are themselves responsible for the use and the correct interpretation of the information made available to them by means of the software. OAN does not accept any liability in this matter.
- Errors (bugs) in the software can occur at any time and will be remedied as soon as possible after OAN has been informed of this. OAN can not reasonably be held liable for the presence of bugs in the software, whatever liability is rejected.
- OAN is never liable for indirect damage, including loss, lost profit and damage as a result of business interruption. OAN is, without prejudice to the provisions of the other of these general terms and conditions and in particular the provisions of paragraph 8 of this article, only liable to the client for direct damage that the client suffers as a result of an attributable shortcoming of OAN in the performance of service. An attributable shortcoming must be understood as a shortcoming which a good and diligent colleague can and should avoid, all this with due observance of normal attention and the professional knowledge and resources required for the execution of the services. Direct damage is exclusively understood as:
– the reasonable costs for determining the cause and extent of the damage, insofar as the determination relates to damage that qualifies for compensation within the meaning of these general terms and conditions;
– any reasonable costs incurred to have the defective performance of OAN conform to the agreement, in so far as these can be attributed to OAN;
– reasonable costs incurred to prevent or limit damage, insofar as the client demonstrates that these costs have led to a limitation of the direct damage within the meaning of these general terms and conditions.
- If OAN is liable for any damage, then OAN is entitled at all times to repair this damage. The client must give OAN the opportunity to do so, failing which any liability of OAN will lapse in this matter.
- OAN’s liability is limited to at most the invoice value of the agreement, at least to that part of the agreement to which the liability of OAN relates. In case the agreement has a longer turnaround time than three months, for the determination of the invoice value as referred to in the previous sentence, only the invoice value with regard to the last three months of the agreement shall be taken into account.
- The limitation period of all legal claims against OAN is one year after it becomes known, or at least it can reasonably be known with the claim by the client.
- The client indemnifies OAN against any claims from third parties (including participants) that suffer damage in connection with the execution of the agreement and the cause of which is attributable to others than OAN. If OAN may be called to account by third parties on that basis, then the client is obliged to assist OAN both in and out of court and to do everything that can reasonably be expected of him in that case. Should the client fail to take adequate measures, then OAN, without notice of default, is entitled to proceed accordingly. All costs and damage on the part of OAN and third parties thereby arise, are fully for the account and risk of the client.
- The liability limitations from these general terms and conditions do not apply if the damage is caused by intent or deliberate recklessness of OAN.
ARTICLE 13. | PRIVACY PARTICIPANTS
The assessment results of participants are only shared with the client if and to the extent that they have explicitly granted permission to OAN. OAN can also obtain this permission via the client, in which case the client guarantees that the permission has actually been granted. The client indemnifies OAN of all its claims in connection with the possible circumstance that one or more participants do not grant the said permission. Furthermore, the client indemnifies OAN of all claims of participants in connection with the statement that OAN wrongfully assumed, due to the fault of the client, that one or more participants have granted the said permission to the client. Article 12.10 applies accordingly.
ARTICLE 14. | INTELLECTUAL OWNERSHIP
- All copyrights and other intellectual property rights to the advice and reports provided by OAN, as well as to the software and its components, including the design and operation of the software and images shown by the software, belong to OAN than but his licensor. Without the prior written consent of OAN or its licensor, it is prohibited to reproduce, reproduce, distribute, exploit or make derivative works of the material on which the rights of OAN and / or its licensor rest, in any way. With regard to advice and reports provided, the foregoing applies except for the normal purposes for which the advice and reports are made available to the client or participants.
- A violation of the provisions of paragraph 1 gives OAN or its licensor the right to demand immediate cancellation of the infringement, as well as any compensation to be determined on the basis of the nature and scope of the infringement.
ARTICLE 15. | FINAL PROVISIONS
- Dutch law is exclusively applicable to every agreement and all legal relationships arising from it.
- The parties will not appeal to the court before they have done their best to settle the dispute in mutual consultation.
- Only the competent judge in the district of OAN’s place of business is appointed to take note of any legal disputes.