Itonomy BV


  ARTICLE 1:Parties ARTICLE 2: Scope ARTICLE 3: Prices ARTICLE 4: Invoicing and modes of payment ARTICLE 5: Execution deadlines ARTICLE 6: Execution of the agreement on the clients’ premises ARTICLE 7: Complaints ARTICLE 8: Representation of Itonomy ARTICLE 9: Liability ARTICLE 10: Intellectual property ARTICLE 11: Privacy of information ARTICLE 12: Confidentiality ARTICLE 13: Non- solicitation ARTICLE 14: Force majeure ARTICLE 15: (Early) termination of the agreement ARTICLE 16: Applicable law and place of jurisdiction  
ARTICLE 1: Parties
A. Itonomy BV, registered address: Orteliuslaan 25, 3528 BA Utrecht, the Netherlands, registered under the laws of the Netherlands, company registration number KVK: 65821882 hereinafter referred to as ‘Itonomy’ B. ‘The Client’, identified via registered address, company registration number. Each a Party, together being referred to herein as the Parties.
ARTICLE 2: Scope
· 2.1 The following conditions are applicable to purchasing products, all quotations, assignments and order confirmations, and to any modifications of – or to the assignment, as well as to all deliveries, invoices and all agreements undertaken by Itonomy, unless Itonomy has declared its express, unambiguous and advance agreement to a different provision in writing. · 2.2 With the exception of special provisions, the information shown in the product offering, quotations (including presentations, brochures, etc.) of Itonomy, is solely indicative in nature, and is given merely for the purpose of further finalization in consultation with the client, with the aim to come to a final agreement. · 2.4 The final assignment and order will be confirmed by Itonomy in an order confirmation. An order confirmation will consist of (i) a description of the product, (ii) a description of the assignment, (iii) if applicable, the various phases and, if the case may be, an indication of the periods of time within which the assignment/phases of the assignment must be executed, and; (iv) the price of the order/for each phase, including any price adjustments for long-term assignments, and any costs that would not be included in the price. The order confirmation will be valid for thirty (30) calendar days from the date on which it is made. · 2.5 The order confirmation for services will contain the entire assignment, as it will be executed against the price agreed between the parties; the modalities listed in the order confirmation are, together with these general conditions and any annexes, fully applicable to the assignment. The signature of the order confirmation by the Client will constitute a valid agreement between the parties regarding the order confirmation, its annexes and these general terms and conditions, the latter being fully applicable to the order confirmation and its annexes. If no agreement is reached within thirty (30) calendar days from the date of the order confirmation, the order confirmation cease to be valid, and Itonomy will no longer be bound to what is provided therein. The client expressly waives any existing terms and conditions of his own, even if these should be defined as the only applicable conditions and/or had been presented in other communication between the parties. Any change or amendment to the present general terms and conditions must be expressly agreed in writing. · 2.6 If the Client has had knowledge of the present terms and conditions in relation to a written quotation or an order confirmation, he will not be able to challenge the applicability of these in relation to any verbally given quotations and /or order confirmations of a later date. · 2.7 Cancellation of an assignment, or part of an assignment, must take place in writing, and must be expressly accepted by Itonomy. Every cancellation of an assignment, whether accepted or not and for whatever reason, will in all circumstances entitle Itonomy to claim full payment of the agreed fees for the services that have already been executed, with a minimum of one half of the sum of the agreed advance payment(s), as well as full payment of all the extra costs and indemnities that are due by Itonomy to third parties, for the commitments and obligations that it already entered into in the framework of the assignment and/or subsequent to its cancellation. · 2.8 Any annexe(s), which has/have been added to the order confirmation, will be an integral part of this agreement. The annexe(s) will list, amongst others, the characteristics of the project that Itonomy will execute for the client.
ARTICLE 3: Prices
· 3.1 All the prices and costs that are given will be exclusive of BTW/TVA/VAT, unless stated otherwise · 3.2 In accordance with Article 2.2 of these general terms and conditions, all prices, including any price adjustments for long-term assignments and costs, which are stated in our quotations, are indicative and not binding for Itonomy. · 3.3 All prices, including any price adjustments for long-term assignments, and all costs documented in an order confirmation, will be valid for a term that is determined in the order confirmation. If no term is shown in the order confirmation, the prices stated will be valid for thirty (30) calendar days, from the date of the order confirmation. · 3.4 Unless expressly provided otherwise in the order confirmation, all internal costs and costs of subcontractors are included in the shown prices. Unless expressly provided otherwise in the order confirmation, none of the transfer and travel costs in The Netherlands and abroad or/and any of the communication and accommodation costs outside The Netherlands, are included in the shown prices. · 3.5. Changes to the agreed prices, in consequence of an extension or modification of the agreed assignment, or for any other reason, can only be implemented by express written agreement. Itonomy reserves the right not to commence the extended or modified part of the assignment- or, if the case may be, to defer it – as long as no express agreement exists concerning the price of the extension or modification. · 3.6. If discounts are granted to a client, these will apply exclusively to that specific assignment or the relevant part of the assignment, for which they are granted. Under no circumstances, not even where such discounts are granted repeatedly will they create a right for the client to similar discounts on later orders. · 3.7. For prices that are expressed as a daily rate, the “daily rate” is deemed to apply to an average day’s activity of 8 performed working hours equaling 40 hours per week. If more than 40 working hours are to be performed, the following rate increase shall be charged (not combined): -Hours worked > 40 hours/week: + 50% -Hours worked between 10 PM and 7 AM: + 100% -Hours worked on Saturdays: +50% -Hours worked on Sundays or legal public holidays: + 100% A worksheet is to be signed by the Customer for approval, using the appropriate working hours account forms.
ARTICLE 4: Invoicing and payment
· 4.1 Assignments that have been agreed with the client will be executed in phases, as set out in the order confirmation. Concurrently with the confirmation of his agreement with the order confirmation, the client must present all necessary information and, in particular, his references (PO number, etc..), so that Itonomy can invoice the client. · 4.2 With respect to on-line product purchases full pre-payment is mandatory. With respect to services Itonomy will invoice its rendered services in mutual agreement between parties, at the end of each phase of a given assignment/project, or at the end of each month. The invoice will show the prices for the services that have been provided and, if the case may be, any discounts that have been granted as well as the prices for the extension or modification of the assignment in accordance with Article 3.5, and any costs that have not been included in the prices as set out in Article 3.4. · 4.3 Itonomy retains the right to claim a higher amount for damages if it can provide evidence for any higher damages it has actually suffered. If, at the sole discretion of Itonomy, the Client’s solvency situation causes more than a reasonable doubt, Itonomy is entitled to ask the Client, even after the Agreement has been closed, to provide the collateral as requested by Itonomy for the payment of any Services still to be carried out, and Itonomy has the right to postpone the execution of these Services as long as the requested collateral has not been provided. · 4.4 A non-payment, or a partial non-payment of any invoice on its due date, constitutes gross negligence as referred to in Article 15.2, and entitles Itonomy to defer (further) execution in full or in part, including works that were already initiated, until full payment has been made of the invoice, without prejudice to the right for Itonomy to claim an additional indemnity and/or to adjust the deadlines that have been agreed in accordance with Article 5.2 and/or to terminate the agreement in accordance with Article 15. · 4.5 When an order confirmation or a modification of an assignment is signed by an independent intermediary, who present themselves as a person authorized by the client to enter into the agreement with Itonomy on behalf of the client, this intermediary will be held jointly and severally liable with the client for the payment of the invoices, including any interest on arrears and costs that are payable, as well as for any other indemnity to which Itonomy is entitled, as a consequence of the non-payment of the invoices. · 4.6 An invoice can only be validly challenged, if this is notified to Itonomy within a period of seven (7) days by registered letter with return receipt.
ARTICLE 5: Execution deadlines
· 5.1 The execution deadlines will be set by Itonomy. Failure to meet the execution deadline for whatever reason, with the exception of gross negligence or premeditation on the part of Itonomy, will not give the client any right to an indemnity, nor will it allow him to cancel or annul the agreement, or not to meet any obligation that may be imposed upon him in virtue of this agreement or in virtue of any other agreement between the client and Itonomy. · 5.2 Itonomy has the right to unilaterally alter or extend the defined deadlines, or to postpone them, in case the client does not provide Itonomy in time with the components that it requires for completion of its task, and/or if the client does not provide in time the approvals/confirmations that Itonomy might require from the client in order to execute the assignment. In such case, Itonomy will provide the client as soon as is reasonably possible with a new planning after receiving the relevant components and/or consents; in any case, the time periods will be extended with a term that is at least equal to the term of the delay that has occurred in the supplying of the components and/or approvals/confirmations.
ARTICLE 6: Execution of the agreement on the clients’ premises
· 6.1 When the execution of the instruction requires the presence of Itonomy’s staff at the client’s premises, the latter will be obliged to provide all the facilities that are needed in order for the agreed services to be executed in favorable circumstances. These facilities will consist amongst others – but not exclusively – of: Easy access to the premises where the assignments are to be executed; Provision of a workplace and the material resources that are necessary for the execution of the agreed services; Provision of a work environment that enables Itonomy to meet its obligations, amongst others those relating to health and safety with respect to its employees, as also – but not exclusively – provided for in the Dutch Employment Contracts Act. · 6.2 The employees and other staff of Itonomy will receive their instructions solely from Itonomy, under whose supervision, management and control they will carry out their tasks. The client can only give them instructions in connection with his obligations regarding health and safety at work.
ARTICLE 7: Complaints
In order for it to be valid, notification of every complaint or refusal connected with an item or the provision of services must be given to Itonomy by registered letter with return receipt, such notification to be made within seven (7) days after the goods or services in question have been supplied.
ARTICLE 8: Representation of Itonomy
Intermediaries or partners of Itonomy do not have any right to make commitments on behalf of Itonomy. Their order confirmations or undertakings must consequently be confirmed by those persons, who have been authorized to make commitments on behalf of Itonomy. Itonomy reserves the right to relinquish any assignment or a part of an assignment or to suspend the same if and for as long as such confirmation is not given.
ARTICLE 9: Liability
· 9.1 Itonomy will carry out the assignments with which it has been entrusted to the best of its ability and in accordance with the professional standards relating to research and consulting. · 9.2 The Client is solely responsible for setting up procedures, which allow the Client at any time to reconstruct lost or altered files, data or programs, regardless of the cause of loss or alteration. The Client shall keep the necessary back-up copies of its computer programs, data and files on a daily basis. In the event of loss of data, Itonomy will only be held liable for the data which were lost between the time of the most recent daily back-up and the time that the proven defect in the delivered software was detected. · 9.3 Itonomy will only indemnify the client for material damage and/or bodily injury, which has been caused directly by proven gross negligence or premeditation on the part of Itonomy, in the provision of the services as described in the order confirmation and/or any later express agreement regarding any modification or adjustment of the assignment. Itonomy will only be liable for direct damages suffered by the client with whom Itonomy has entered into an agreement, to the exclusion of all other damages such as, amongst others, financial losses, commercial damages, loss of profit and/or loss of income, damages caused by the loss of information, etc. · 9.4 The liability of Itonomy will be limited to refunding an amount corresponding to that part of the service only that is not compliant with the assignment, the amount of the indemnity being in any case limited to the lowest amount that is arrived at on the basis of: (i) actual proven damages; or (ii) the total for all the invoices presented to the client in relation to the specific assignment during the last twelve months; or (iii) fifty thousand Euros (€ 50,000); · 9.5 Itonomy cannot be held liable for any failure in the execution of an order by a third party if the latter has intervened with the express approval or at the request of the client. · 9.6 Itonomy has taken all reasonable steps to protect all data that it stores and processes. However, unless expressly agreed otherwise, Itonomy cannot be held liable for any loss, theft or abuse by third parties, of any data transferred by the client to Itonomy and stored within the premises of Itonomy. · 9.7 The products, services and consultancy services that have been ordered will be provided at the client’s risk. Itonomy cannot be held liable for any loss that might occur during – or as a result of – the transfer of confidential or secret information to and from the client. · 9.8 The client will hold Itonomy harmless of any claim or complaint by third parties, concerning works, documents, information or resources that are supplied to Itonomy by, on behalf of – or via the client. Itonomy cannot be held liable under any circumstances for the client’s failure to comply with the statutory obligations that are applicable to him, or any other obligations that are imposed on him by an administrative or judicial body or authority, or a deontological rule, professional rule or relevant custom.
ARTICLE 10: Intellectual property
· 10.1 The goods, services and consulting services that are sold, whether or not already supplied, will remain the property of Itonomy until they have been paid for in full by the client. The client has a non-exclusive and non-transferable right of use in relation to the results of the research, restricted to internal use at the premises of the client who has ordered the research, by the employees and permanent staff of the client, for those purposes for which notification is given at the time of the order confirmation and/or any express agreement concluded in connection with the modification/adjustment of the assignment. This right of use is expressly restricted to these objectives and without Itonomy’s prior consent, the client shall not make the results of the research public nor reproduce them, notify third parties or companies or suppliers of the client of the research and the results of it. · 10.2 All proprietary rights remain with Itonomy , including intellectual property rights (including copyrights) to all components, tangible and/or intangible, that are realized by Itonomy itself, or on behalf of Itonomy by its subcontractors, within the context of the assignments for the client, also with regard to the know how study models, research methods, surveys, applied methodology, statistical techniques, software, etc., used or applied by Itonomy. In a separate written agreement, Itonomy can either transfer specific intellectual property rights to the supplied services, or grant a right of use in connection with them, according to specific modalities (such as duration, territory, methods of exploitation…). The client can thus not under any circumstances use/alter the whole of or part of the abovementioned components, or grant third parties any rights to them without Itonomy’s prior and express written consent. · 10.3 The client expressly gives Itonomy its consent to reproduce and publicize its trading name, company name, trademarks and logos on its website and in company presentations, so that Itonomy’s activities can be promoted amongst – and explained to – its clients and prospects. The client may use Itonomy’s trading name, company name, trademarks and logos unless expressly prohibited by Itonomy.
ARTICLE 11: Privacy of information
· 11.1 The client agrees that Itonomy and its business units may input and store information relating to the contact persons within the client’s company, including their names, telephone numbers and e-mail addresses, in all the countries in which Itonomy operates. This information will be processed and used within the context of the commercial relations between Itonomy and the client, amongst others, for the sending of information concerning Itonomy’s activities and services. The latter will only apply insofar as the client has not disallowed such types of use. The client and his employees are entitled, free of charge and at all times, to request access to the information that Itonomy has stored in connection with him/her, and to request that it be corrected or eliminated. The request to eliminate such information cannot be granted while the assignment is being carried out, in relation to the information that Itonomy requires for the execution of its assignment and for administration and invoicing. · 11.2 The consent to use the information for marketing purposes can be revoked at any time, by means of a request to be sent to Itonomy. · 11.3 The client gives its express agreement that personal information relating to respondents will not be transferred under any circumstances. Itonomy and the client undertake to comply with the ICC/ESOMAR international Codes and Guidelines ( in this regard. · 11.4 Insofar as the client transfers personal information or makes it available to Itonomy, he must bear sole responsibility for this. Itonomy undertakes to adhere to the client’s instructions in the matter, but will not be liable in any way whatsoever to the persons in question as concerns the storage, safety and use of the information relating to them. The client guarantees that he will comply with the applicable legislation in the matter, amongst others that which is related to the protection and processing of personal information, and in this regard it holds Itonomy harmless with respect to any such complaint or demand on the part of persons, whose information has been transferred or made available, and as concerns any such intervention on the part of the authorities that have been empowered in this matter.
ARTICLE 12: Confidentiality
· 12.1 Confidential information refers to all information, regardless its type and category (oral, written, graphic, digital, …), which is or has been exchanged between the Parties in accordance with and with respect to the present Agreement. The Parties and their employees are required to treat any confidential information which they have received from the other Party with regard to the execution of the present Agreement as confidential. Furthermore, the Parties shall only use this confidential information in accordance with the present Agreement. The Parties are not allowed to disclose this confidential information to any third parties without the prior and written approval of the other Party. This obligation of confidentiality shall remain in force during a period of 1 year following the end of the present Agreement, regardless of the reason why the Agreement was terminated. The following information shall not be considered to be confidential: -any information received in a legal way from any third party which is not bound by any obligation of confidentiality or secrecy -any information already known to a Party before this information was submitted to the Party in accordance with the execution of the present Agreement -any information which a Party has generated itself without breaching the conditions of the present Agreement -any information which is considered to be public domain without the intervention of or an error committed by the Party which has received this information -any information which is instructed to be made public due to a court order Itonomy is also entitled to include the Customer in its reference list of customers, to publish a summarized description of the assignment, and to use the name and the brand name of the Customer for advertisement purposes and public relations incentives.
ARTICLE 13: Non- solicitation
· 13.1 The Parties agree not to actively approach each other’s personnel, self-employed staff, consultants or other persons directly or individually involved with the project with a view to engage those persons, starting from the beginning of the execution of the Services mentioned in a Specific Order until 12 months after the end date of the project mentioned in a Specific Order, unless the Parties agree otherwise in writing. · 13.2 In the event that one Party recruits an employee of the other Party or makes use of the services of that employee and/or self-employed consultant, that Party shall pay an amount equivalent to 6 months of salary or payment of that employee/self-employed consultant on the date that the employee/self-employed consultant is first employed or use is made of his services.
ARTICLE 14: Force majeure
· 14.1 “Force majeure” is taken to be any situation that renders the execution of the assignment impossible or so difficult that its execution would be detrimental to the party subject to force majeure, or would be entirely disproportionate to the value of the agreement that has been entered into, such as, amongst others, natural disasters, war, strikes, lock-outs, a lack of raw materials and energy, electricity power cuts, technical malfunctions of server systems or internet traffic, the disruption of trade or business, fire, breaking and entering, water damage and explosions, and any other similar or unforeseeable event. · 14.2 If Itonomy is prevented by force majeure from meeting its obligations to the client, then it will be entitled, without judicial interventions and at its own discretion, either to defer the execution of the agreement or to consider the agreement to have been dissolved in full or in part, without the possibility of being obliged to pay indemnity for this. The client will also be entitled to cancel the agreement without any right to indemnity if the force majeure lasts longer than six (6) months, or if the client can demonstrate that the force majeure affecting Itonomy has the consequence that the assignment entrusted to Itonomy becomes entirely obsolete. In all instances, the client is obliged to pay for the services rendered by Itonomy.
ARTICLE 15: (Early) termination of the agreement
· 15.1 The agreement will terminate upon full payment of the last invoice from Itonomy, which relates to or that follows the completion of the assignment, on the understanding that its provisions will continue to be in effect with regard to any dispute and/or the consequences of each event, action or circumstance that has come into being or has emanated from the agreement or its execution, and with the exception of what is provided for in Article 12 concerning the confidentiality obligation. · 15.2 This agreement can be immediately terminated by a party before its term for gross negligence or premeditation of the other party, upon notification to the defaulting party by registered letter to which no response has been received for ten (10) days. · 15.3 A party can immediately terminate the agreement upon notification by registered letter to the other party, in the case of force majeure in accordance with the conditions provided for in Article 14.2, as well as in the case of obvious insolvency, petition for bankruptcy or bankruptcy of the latter party.
ARTICLE 16: Applicable law and place of jurisdiction
· 16.1 All issues, questions, disputes concerning the validity, interpretation, enforcement, performance and termination of this EULA shall be governed by and construed in accordance with Dutch law, with exclusion of the Vienna Sales Convention of 1984 (CISG). No effect shall be given to other choice-of-law or conflict-of-laws rules or provisions (Dutch, foreign or international), that would cause the laws of any other jurisdiction to be applicable. · 16.2 Any dispute concerning the validity, interpretation, enforcement, performance and termination of this EULA shall be submitted to the exclusive jurisdiction of the Utrecht (The Netherlands) courts.