Of: Communicativ B.V. having its registered office and principal place of business in Almere, Transistorstraat 24.
Registered with the Chamber of Commerce number 34380070 in Amsterdam.
Hereafter referred to as: user
Article 1 Definitions
1. In these general terms and conditions, subsequent terms are used in the following sense, unless expressly stated otherwise.
User: the user of the general terms and conditions. Client: the other party to the user. Agreement: the agreement to provide services.
Article 2 General
1. These conditions apply to all offers, quotations and agreements
between user and client to which the user has declared these terms and conditions applicable, insofar as the parties have not explicitly deviated from these terms and conditions in writing.
2. The present terms and conditions shall also apply to all agreements with the user, the execution of which calls for the involvement of third parties.
3. Any deviations from these general terms and conditions shall only be valid if they have been explicitly agreed in writing.
4. The applicability of purchase conditions or any other conditions of the client is explicitly rejected.
5. If one or more of the provisions in these general terms and conditions are invalid or annulled at any time, the remaining provisions of these general terms and conditions shall remain fully applicable. User and client shall then consult to agree on new provisions to replace the invalid or annulled provisions, whereby the purpose and tenor of the original provision shall be taken into account as far as possible. (See: Commentary on articles under 1.)
Article 3 Offers and quotations
1. All offers are without obligation, unless a period for acceptance is specified in the offer.
2. The offers made by user are without obligation; they are valid for 30 days, unless specified otherwise. User shall only be bound by the offers if the acceptance thereof by the other party is confirmed in writing within 30 days, unless specified otherwise.
3. The prices in the said offers and quotations are exclusive of VAT and other government levies, as well as any costs to be incurred within the framework of the agreement, including shipping and administrative costs, unless specified otherwise.
4. If the acceptance deviates (on subordinate points) from the offer included in the tender, user shall not be bound by it. In that case, the agreement shall not be concluded in accordance with such deviating acceptance, unless user specifies otherwise.
5. A compound quotation shall not oblige user to execute part of the assignment at a corresponding part of the quoted price.
6. Offers or quotations do not automatically apply to future orders. (See: Commentary on articles under 2.)
Article 4 Execution of the agreement
1. User shall perform the agreement to the best of its knowledge and ability and in accordance with the requirements of good craftsmanship. All this based on the current state of knowledge.
2. If and in so far as required for the proper execution of the agreement, user shall be entitled to have certain work done by third parties.
3. The client shall ensure that user is provided in due time with all information which user indicates is necessary or which the client should reasonably understand is necessary for the performance of the agreement. If the information necessary for the execution of the agreement is not provided to user in time, user shall be entitled to suspend execution of the agreement and/or to charge the client for the additional costs arising from the delay in accordance with its usual rates.
4. User shall not be liable for damage of any kind whatsoever resulting from the fact that user worked on the basis of incorrect and/or incomplete information provided by client, unless user should have been aware of said incorrectness or incompleteness.
5. If it is agreed that the agreement will be performed in stages, user may suspend performance of those parts belonging to a subsequent stage until the client has approved in writing the results of the preceding stage.
6. In the event that work is performed by user or by third parties engaged by user within the framework of the assignment at the client’s premises or at a location designated by the client, the client shall provide the employees with the facilities they may reasonably require free of charge.
7. Client shall safeguard user against possible claims filed by third parties who may sustain damage attributable to client in connection with the execution of the agreement. (See: Commentary on articles under 3.)
Article 5 Amendment of the agreement
1. If, during the execution of the agreement, it appears that for a proper execution it is necessary to amend or supplement the work to be carried out, the parties shall adapt the agreement accordingly in good time and in mutual consultation.
2. If the parties agree that the agreement will be amended or supplemented, this may influence the time of completion of the execution. User shall inform the client about such developments as soon as possible.
3. Should the change or supplement to the agreement have any financial and/or qualitative consequences, user shall inform the client in advance.
4. If a fixed fee has been agreed, user shall indicate the extent to which the change or supplement to the agreement will result in an increase of said fee.
5. Contrary to paragraph 3, user shall not be able to charge additional costs if the change or supplement is the result of circumstances attributable to user. (See: Commentary on articles under 3.)
Article 6 Duration of contract; term of execution
1. The agreement between user and client shall be entered into for an indefinite period of time, unless the nature of the agreement dictates otherwise or if parties have explicitly agreed otherwise in writing.
2. If a term has been agreed for completing certain work within the term of the agreement, that term shall never be an absolute deadline. If the term of execution is exceeded, the client must therefore give user notice of default in writing. (See: Commentary on articles under 3.)
Article 7 Remuneration
1. Paragraphs 2, 5 and 6 of this article apply to offers and agreements in which a fixed fee is offered or agreed upon. If no fixed fee is agreed upon, sections 3 to 6 of this article shall apply.
2. Parties can agree on a fixed fee when concluding the agreement.
3. If no fixed fee is agreed upon, the fee will be determined on the basis of the number of hours that were actually spent. The fee shall be calculated in accordance with user’s usual hourly rates, valid for the period in which the work is being done, unless a different hourly rate has been agreed upon.
4. The fee and any cost estimates are exclusive of VAT.
5. For orders with a duration of more than 3 months, the costs owed will be charged at the end of each month.
6. For orders with a duration of less than 3 months, the costs owed shall be charged per 2 weeks.
7. Where user and client agree upon a fixed fee or hourly rate, user shall nevertheless be entitled to increase this fee or rate. User shall be allowed to pass on price increases, if user can demonstrate that significant price changes have occurred between the time of offer and the time of delivery with respect to, e.g., salaries. In addition, used shall be entitled to increase the fee if, during the execution of the work, the volume of work originally agreed upon or expected when the agreement was concluded proves to be
underestimated to such an extent, through no fault of the user, that user cannot reasonably be expected to perform the work agreed upon for the fee initially agreed upon.
8. User shall notify the client in writing of its intention to increase the fee or rate. User shall mention the scope of and the date on which the increase will take effect.
9. If client does not wish to accept the increase in fee or rate communicated by user, client shall be entitled to terminate the agreement in writing within seven working days following said notification, or to cancel the assignment by the date specified in user’s notification on which the price or rate adjustment would take effect. (See: Commentary on articles under 4.)
Article 8 Payment
1. Payment must be made within 30 days from the date of invoice, in a manner to be indicated by user and in the currency of the invoice. Objections to the amounts on said invoices do not suspend the payment obligation.
2. If the client fails to make payment within the period of 30 days, the client shall be in default by operation of law. Client shall then owe an interest of 1% per month, unless the statutory interest rate is higher, in which case the statutory interest rate shall apply. The interest on the amount due and payable shall be calculated from the moment that client is in default until the moment of payment of the full amount.
3. In the event of client’s liquidation, bankruptcy, attachment or suspension of payment, user’s claims shall become immediately due and payable.
4. User shall be entitled to have the payments made by the client go first of all to reduce the costs, then to reduce the interest still due and finally to reduce the principal sum and the current interest. User may, without falling into default, refuse an offer
of payment, if client designates a different sequence of attribution. User shall be entitled to refuse full payment of the principal sum, if the interest still due, the current interest and the costs are not paid as well.
5. If payment is made within 7 days of the invoice date, there will be no surcharge.
6. If payment is made after 7 days, client shall owe a surcharge of 2%, unless parties agree otherwise in writing. (See: Commentary on articles under 5.)
Article 9 Collection costs
1. If client is in default or breach of contract in the (timely) fulfilment of its obligations, all reasonable costs incurred in obtaining satisfaction out of court shall be borne by the client. In any case, client shall owe collection costs in the event of a monetary claim. The collection costs are calculated in accordance with the collection rate recommended by the Nederlandse Orde van Advocaten (Dutch Bar Association) in collection cases.
2. If user has incurred higher expenses, which were reasonably required, said expenses shall also qualify for reimbursement.
3. Any reasonable judicial and execution costs incurred shall also be borne by the client. (See: Commentary on articles under 6.)
Article 10 Examination, complaints
1. The client must notify user in writing of any complaints about the work performed within 8 days of their discovery, but no later than within 14 days of their completion. The notice of default must give as detailed a description as possible of the shortcoming, so that user is in a position to respond adequately.
2. If a complaint is well-founded, user will complete the work as agreed upon, unless such has become demonstrably useless to the client in the meantime. If the latter applies, the client shall communicate this in writing.
3. If it is no longer possible or useful to render the agreed service, user shall only be liable within the limits of article 13. (See: Commentary on articles under 7.)
Article 11 Cancellation
1. Both parties may terminate the agreement in writing at any time.
2. If the agreement is terminated prematurely by the client, the user shall be entitled to compensation for the resulting loss of capacity utilisation, which must be made
plausible, unless the termination is based on facts and circumstances for which the user can be held responsible. In that event, client shall furthermore be held to pay the statement of expenses for the work done up to that moment. The provisional results of the work carried out up to that point shall therefore be made available to the client with reservation.
3. In the event that the agreement is terminated prematurely by user, user shall, in consultation with client, arrange for the transfer of work still to be done to third parties, unless the termination is based on facts and circumstances attributable to client.
4. Should the transfer of the work entail extra costs for the user, such costs shall be charged to client. (See: Commentary on articles under 8.)
Article 12 Suspension and dissolution
1. User shall be authorized to suspend the fulfilment of the obligation or to dissolve the agreement, if
– the client does not fulfil or does not fully fulfil the obligations under the agreement,
– circumstances become known to the user after the agreement has been concluded which give him good reason to fear that the client will not fulfil his obligations. If there is good reason to fear that the purchase will only be partially or improperly fulfilled, suspension shall only be allowed in so far as the shortcoming justifies such action.
– when the agreement was concluded, the client was requested to provide security for the fulfilment of his obligations under the agreement and this security
is not provided or is insufficient. Once security has been provided, the authority to suspend performance lapses, unless this has unreasonably delayed performance.
2. User shall furthermore be authorized to dissolve the agreement (have the agreement dissolved) if circumstances arise of such a nature that fulfilment of the agreement becomes impossible or can no longer be demanded in accordance with the requirements of reasonableness and fairness, or if other circumstances arise of such a nature that the unaltered maintenance of the agreement can no longer be reasonably demanded.
3. If the agreement is dissolved, the user’s claims against the client shall become immediately due and payable. If the user suspends compliance with his obligations, claims under the law and the agreement will remain in force.
4. The user reserves the right to claim damages at all times. (See: Commentary on articles under 9.)
Article 13 Liability
1. Should the user be liable, said liability shall be limited to the provisions of this clause.
2. If user is liable for direct damage, then said liability shall be limited to a maximum of the amount of the statement of expenses, or that part of the assignment to which the liability relates. The liability of user for direct damage shall at all times be limited to a maximum of the amount of the price stipulated in the agreement (excluding VAT). If the agreement is primarily a continuing performance contract with a term of more than one year or equal to one year, the stipulated price shall be set at the total of the fee (excluding VAT) stipulated for 3 months.
3. In the event of an agreement with a duration of more than three months, the liability shall furthermore be limited to the part of the fee still due for the last three months, contrary to what is stipulated under point 2 (13.2) of this article.
4. Direct damage is exclusively understood as:
– the reasonable costs of determining the cause and extent of the damage, insofar as such determination relates to damage within the meaning of these terms and conditions;
– any reasonable costs incurred to correct the defective performance in order to fulfill the agreement, unless such costs cannot be attributed to user;
– reasonable costs incurred to prevent or limit damage, in so far client demonstrates that said costs have led to the limitation of direct damage as meant in the present general terms and conditions.
5. User shall never be liable for indirect damage, including consequential damage, loss of profit, lost savings and damage due to business interruption.
6. The limitations of liability for direct damage contained in these terms and conditions shall not apply if the damage is due to intentional act or omission or gross negligence on the part of the user or its subordinates. (See: Commentary on articles under 10.)
Article 14 Transfer of risk
1. The risk of loss or damage to the products that are the subject of this agreement shall pass to the client at the time at which they are legally and/or actually delivered to the client and thus come under the control of the client or a third party designated by the client. (See: Commentary on articles under 11.)
Article 15 Force Majeure
1. Parties are not obliged to comply with any obligation if they are prevented from doing so as a result of a circumstance that is not due to fault, and for which they cannot be held accountable by virtue of the law, a juristic act or generally accepted practice.
2. In addition to the provisions of the law and case law in this respect, force majeure shall furthermore be understood in the present general terms and conditions to be any external circumstance, anticipated or not, over which the user cannot exercise any control, but which prevents the user from fulfilling its obligations. This shall include strikes at the user’s company.
3. User shall also be entitled to invoke force majeure if the circumstance preventing (further) performance arises after user should have performed its obligation.
4. Parties may suspend their obligations under the agreement during the period of force majeure. If this period lasts longer than two months, either party shall be entitled to dissolve the agreement without any obligation to pay the other party damages.
5. Insofar as user has already partially fulfilled his obligations arising from the agreement at the time when the situation of force majeure commenced, or shall be able to fulfil them, and insofar as independent value can be attributed to the part already fulfilled or still to be fulfilled, user shall be entitled to submit a separate statement of expenses for the completed work. Client is obliged to pay this invoice as if it were a separate agreement. (See: Commentary on articles under 12.)
Article 16 Confidentiality
1. Both parties are obliged to keep secret all confidential information that they have obtained from each other or from another source within the framework of their agreement. Information is considered confidential if the other party has indicated this or if this results from the nature of the information.
2. If user is required to convey confidential information to third parties designated by law or by the competent court on the basis of a statutory provision or a judicial decision, and user cannot for that purpose invoke a legal right to refuse to give evidence or such a right acknowledged or allowed by the competent court, user shall not be held to pay damages or compensation and the other party shall not be entitled to dissolve the agreement on the ground of any damage resulting from said circumstance.
Article 17 Intellectual property and copyrights
1. Without prejudice to the other provisions of these general terms and conditions, user shall reserve the rights and powers vested in user pursuant to the Copyright Act.
2. All documents provided by user, such as reports, advice, agreements, designs, sketches, drawings, software, etc., are exclusively intended to be used by client and may not be reproduced, made public or brought to the notice of third parties by client without prior consent from user, unless the nature of the documents provided dictates otherwise.
3. User reserves the right to use the knowledge gained by the execution of the work for other purposes, to the extent that no confidential information is brought to the attention of third parties.
Article 18 Samples, models and designs
1. If a sample, model or design has been shown or provided to the client, it shall be presumed to have been provided only as an indication, unless it is expressly agreed that the product to be delivered shall correspond to it.
2. In the case of an order for the processing of real estate, the surface area shall also be presumed to be merely indicative, without the product to be delivered having to correspond to it.
Article 19 Non-acquisition of staff
1. During the term of the agreement and for one year following termination thereof, client shall not in any way, except after proper businesslike consultation on the matter has taken place and in accordance with the requirements of reasonableness and fairness, employ or otherwise, directly or indirectly, have employed employees of user or of companies engaged by user for the performance of this agreement who are or have been involved in the performance of the agreement.
Article 20 Processing of personal data
1. Pursuant to the legislation on processing personal data (such as the General Data Protection Regulation), client has obligations towards third parties, including the obligation to provide information, to allow inspection and to restrict, rectify and delete personal data of those involved, as well as to transfer these personal data to another data controller.
2. The parties agree that with regard to the processing of personal data the Supplier is a ‘processor’ in the sense of the General Data Protection Regulation and that the responsibility for fulfilling these obligations when processing personal data or otherwise lies solely with the Client. In this context, the provisions in the Appendix shall apply to the processing of personal data.
3. Client guarantees towards Supplier that the processing of personal data is carried out lawfully and that the rights of third parties are not infringed. Client shall indemnify Supplier against any legal claim from third parties, on any account whatsoever, if such a claim is related to the processing of personal data and also against any fines imposed on Client by the Authority for the Protection of Personal Data or other competent supervisory authorities.
Article 21 Disputes
1. The court in the user’s place of business shall have exclusive jurisdiction to hear disputes, unless the subdistrict court has jurisdiction. Nevertheless, user will be entitled to submit the dispute to the competent court according to the law.
2. Parties will only appeal to the court after they have made every effort to settle a dispute in mutual consultation.
(See: Commentary on articles under 13.)
Article 22 Applicable law
1. Any agreement between user and client shall be governed by Dutch law.
Article 23 Amendment and location of conditions
1. These conditions have been deposited at the office of the Chamber of Commerce in Amsterdam.
The most recently filed version or the version valid at the time of the conclusion of the agreement shall always apply.
APPENDIX 1: PROCESSING OF PERSONAL DATA
If, in the execution of the Agreement, the Supplier processes personal data on behalf of the Client, the conditions below apply in addition to the General Terms and Conditions. The applicability of processing agreements of the Client is explicitly rejected.
Article 1. General
1. The terms defined in this Appendix in the General Data Protection Regulation (hereinafter: “AVG”) shall have the meaning assigned to them in the AVG. This Appendix qualifies as a processing agreement as referred to in Article 28 of the AVG.
2. The Supplier offers the Client the possibility of purchasing the Service, whereby Supplier can process personal data for and on behalf of Client during the provision of the service. In this processing of personal data, Client can be designated as Processing Controller, or if Client processes the personal data on behalf of a third party, as Processing Agent. The Supplier will perform this service in the role of processor or subprocessor (depending on the capacity in which the Client processes personal data).
Article 2. Purposes of processing
1. The Supplier undertakes to process personal data on behalf of the Client under the conditions of the agreement. Processing will take place only in the context of performing the agreement and for the duration thereof, plus those purposes reasonably related thereto or determined by further agreement.
2. The Supplier shall not process personal data for any purposes other than determined by the Client. The Client shall inform the Supplier of the processing purposes insofar as these are not already mentioned in this Appendix.
3. The Supplier has no control over the purposes and means of the processing of personal data. The Supplier shall not make independent decisions about the receipt and use of the personal data, the disclosure to third parties and the duration of storage of personal data.
4. By order of the Client, the Supplier processes personal data on the understanding that this does not include special personal data, citizen service numbers or data concerning criminal convictions or offences, such as the following standard categories:
- details on names and addresses;
- telephone numbers;
- email adresses;
- and other possible categories of non-special personal data.
This personal data relates to the categories of data subjects defined in this paragraph. The subjects are defined as:
- individuals using the Service;
- visitors to the web site;
- individuals who receive e-mail from or send e-mail to the Client;
- individuals who are included in the email address book of the Client within thewebmail environment made available by the Supplier;
- individuals who enter personal data in a contact form;
- individuals who make personal data available for processing by the Client;
- and other possible categories of data subjects whose personal data are processedthrough the service.
Article 3. Obligations of the Supplier
1. With regard to the processing referred to in article 2 of this Annex, Supplier shall ensure compliance with the conditions which, pursuant to the AVG, are set for the processing of personal data by Supplier resulting from its role.
2. The Supplier shall process personal data and other data that will be provided to the Supplier by or on behalf of the Client and on the basis of written instructions from the Client.
3. The Supplier shall inform the Client, upon request and within a reasonable time, about the measures taken by him regarding his obligations under this Appendix.
4. The obligations of the Supplier arising from this Appendix also apply to those who process personal data under the authority of the Supplier.
5. The Supplier shall notify the Client if, in its opinion, an instruction from the Client is in conflict with relevant privacy legislation and regulations.
6. Upon request, the Supplier shall provide the Client with the necessary cooperation in fulfilling its obligations in accordance with the AVG, including but not limited to its security obligation, the notification obligation for data leaks, the performance of a data protection impact assessment and a prior consultation with the supervisory authority in the event of processing that involves a high risk. The costs reasonably incurred or to be incurred by the Supplier in connection with the aforementioned cooperation shall be reimbursed by the Client.
Article 4. Transfer of personal data
1. The Supplier processes personal data in countries within the European Union. The Client also gives the Supplier permission to process personal data in countries outside the European Union, in compliance with the applicable laws and regulations.
2. Upon request, the Supplier shall notify the Client which country or countries are involved.
Article 5. Allocation of responsibility
1. Parties will ensure compliance with applicable privacy laws and regulations. The permitted processing will be carried out by the Supplier within a (semi-)automated environment.
2. The Supplier is solely responsible for the processing of the personal data under this Appendix, in accordance with the Client’s instructions and under the explicit (final) responsibility of the Client.
3. The Supplier is not responsible for all other processing of personal data, including in any event but not limited to the collection of personal data by the Client, processing for purposes not reported to the Supplier by the Client, processing by third parties and/or for other purposes The responsibility for the processing of personal data rests exclusively with the Client. The client guarantees the lawfulness of these processing activities, and that its systems and infrastructure are adequately secured at all times.
4. It is up to the Client to assess whether the Supplier offers sufficient guarantees regarding the application of appropriate technical and organisational measures so that processing will meet the requirements of the AVG and/or any other applicable laws and regulations, and if the protection of the rights of data subjects is sufficiently guaranteed.
5. The Client guarantees at all times that the content, use and instructions to process personal data, as referred to in this Appendix, are not unlawful and does not infringe on any rights of third parties.
6. The Client guarantees at all times that when using the services, no special personal data, citizen service numbers or data concerning criminal convictions or offences are being processed, except in the event of written agreements to the contrary.
7. Without prejudice to any other rights of the Supplier, the Client shall indemnify the Supplier against any damage, claims of third parties and fines imposed by supervisory authorities, if the Client acts in conflict with this Appendix and/or the AVG and/or any other applicable legislation and regulations.
Article 6. Use of third parties or subcontractors
1. The Client hereby grants the Supplier a general permission to engage third parties (sub-processors) for the purposes of processing of personal data. At the Client’s request, Supplier shall inform client as soon as possible about the sub-processors it has engaged.
2. The Supplier is entitled to make changes regarding the addition or replacement of sub-processors. The Supplier shall inform the Client of the intended changes regarding the addition or replacement of sub-processors, and the Client shall be offered the opportunity to object to these changes. This objection must be made in writing, within two weeks and supported by arguments. If the Client does not raise an objection within the aforementioned period of two weeks, the Client shall be deemed to have agreed.
3. If the Client objects within the term referred to in the previous paragraph, both parties shall make every effort to reach a reasonable solution in proper consultation. If the parties cannot agree on the user’s intention, the Supplier shall be entitled to engage the relevant new sub-processor and the Client shall be entitled to terminate the agreement by the date on which the new sub-processor is engaged.
4. The Supplier unconditionally ensures that these third parties take on the same obligations in writing as those agreed upon between the Client and the Supplier. The Supplier guarantees correct compliance with these obligations by these third parties.
Article 7. Security
1. Supplier shall make every effort to take appropriate technical and organizational measures with regard to the processing of personal data to be carried out, particularly as a result of the destruction, loss, alteration or unauthorized disclosure of or access to data transmitted, stored or otherwise processed.
2. Supplier shall take the technical and organizational security measures as deriving from the most recent version of the Information Security Policy as published on https://www.antagonist.nl/downloads/informatiebeveiligingsbeleid.
3. Supplier may make changes to the security measures taken if, in its opinion, this is necessary in order to continue to offer an appropriate security level.
4. Supplier does not guarantee that the security is effective under all circumstances.
Supplier shall make every effort to ensure that the security meets a level that is not unreasonable, given the state of the art, the implementation costs of the security measures, the nature, scope and context of the processing, the purposes and intended use of the service, the processing risks and the risks, in terms of probability and severity, to the rights and freedoms of data subjects that they could expect in view of the intended use of the service.
5. In the opinion of the Client, the security measures described offer a level of security appropriate to the risk involved in processing the personal data used or provided, taking into account the factors mentioned in paragraph 3 of this article.
6. The Client shall only make personal data available to Supplier for processing if Client has ascertained that the required security measures have been taken. The Client is responsible for compliance with the measures agreed by the parties.
Article 8. Notification requirement
1. In the event of a security breach and/or a data leak (which is understood to mean: a breach of security that accidentally or unlawfully results in the destruction, loss, alteration or unauthorised provision of or access to transmitted, stored or otherwise processed data), the Supplier will make every effort to inform the Client as quickly as possible; the Client will then decide whether or not to inform the supervisory authorities and/or data subjects. Supplier shall make every effort to ensure that the information provided is complete, correct and accurate.
2. If required by law and/or regulations, the Supplier shall cooperate in informing the relevant authorities and any data subjects. The Client is responsible for notifying the relevant authorities.
3. For the Supplier, the notification requirement firstly includes informing the Client of the fact that a leak has occurred, and also:
- what the (alleged) cause of the leak is;
- what the (known and/or expected) consequences are;
- what the (proposed) solution is;
- what measures have already been taken;
- which contact details should be used to follow up the report;• who has been informed (such as the person involved, the Client, the supervisory authority). Article 9. Handling requests from data subjects
1. In the event that a data subject makes a request about his personal data to Supplier, Supplier shall forward the request to Client and inform the data subject accordingly. The Client will then handle the request independently. If the Client requires the Supplier’s assistance in executing a request from a data subject, the Supplier shall cooperate and may charge costs for this. Article 10. Non-disclosure and confidentiality
1. All personal data processed by Supplier for the Client as a result of this Appendix are subject to a duty of confidentiality imposed by the Supplier on third parties. The Supplier shall not use this information for any purpose other than that for which it was obtained, unless it is in such a form that it cannot be traced back to data subjects.
2. This duty of confidentiality does not apply:
- to the extent that Client has given express consent to disclose the information to third parties; or
- if providing the information to third parties is logically necessary for the performance of the Agreement or this Appendix; or
- if there is a statutory obligation and/or a court order to provide the information to a third party; or
- in respect of third parties to whom – in compliance with the provisions of article 6 – personal data are provided in their capacity as sub-processors. Article 11. Audit
1. The Client is entitled to have audits performed by an independent ICT expert, who is bound to secrecy, to verify compliance with all points in this Appendix.2. This audit will only take place after the Client has requested similar audit reports present at Supplier, has assessed them and has come up with reasonable arguments that justify an audit initiated by the Client. Such an audit will be justified if the similar audit reports present at Supplier’s do not or do not sufficiently provide conclusive information about Supplier’s compliance with this Appendix. The audit initiated by the Client shall take place once a year, two weeks after prior announcement by the Client.3. Supplier shall cooperate with the audit and make all information reasonably relevant for the audit, including supporting data such as system logs and employees, available as soon as possible and within a reasonable period, whereby a period of no more than two weeks is reasonable unless an urgent interest dictates otherwise.
4. The findings of the audit will be evaluated by the Parties in mutual consultation and, as a result, may or may not be implemented by one or both Parties jointly.
5. The reasonable costs of the audit shall be borne by the Client, on the understanding that the costs of the ICT expert to be hired shall always be borne by the Client.