General Terms and Conditions

These General Terms and Conditions apply to every proposal, statement of work, order confirmation and service agreement issued by ESBL and to every party accepting such document as Client. Together with the signed proposal or statement of work, they form the entire agreement between the parties for the services described.

Where a signed proposal or statement of work explicitly deviates from a provision in these terms, that specific deviation prevails. Any general purchase or procurement conditions of the Client are expressly rejected.

ESBL delivers the services described in the signed proposal or statement of work. Each proposal or statement of work sets out the scope, the price or price model, the planning and the deliverables.

The Client may request additional work (out of scope) or ask to omit part of the agreed scope. Any such change is confirmed in writing before it is carried out and, where relevant, includes a revised estimate of price and planning.

ESBL decides which personnel deliver the services, provided the personnel are qualified and experienced. Where a specific person is named in the proposal, ESBL will use reasonable efforts to keep that person on the work.

The Client provides ESBL with the access, information and decisions needed to perform the services on time, including a contact person authorised to make binding decisions for the Client.

Fees follow the proposal or statement of work. Fixed-price work is invoiced as stated in the proposal. Sprint-based or time-and-materials work is invoiced in advance per sprint or monthly in arrears, as agreed. Extra work outside the fixed price is invoiced separately.

All fees are exclusive of VAT and of third-party costs such as hosting, cloud consumption, paid APIs, licences and travel.

Invoices are payable within 14 days of the invoice date by bank transfer. Any dispute of an invoice must be raised in writing within 7 days of receipt, failing which the invoice is considered accepted.

On late payment, statutory commercial interest under the governing law applies from the due date, together with reasonable collection costs.

The agreement takes effect on the date the Client signs the proposal or statement of work and continues until the services are delivered or until the agreement is otherwise ended in accordance with this article.

Either party may terminate the agreement for convenience with 14 days written notice. On termination for convenience, the Client pays ESBL for all work performed up to the effective date of termination, including sprints already started.

Either party may terminate the agreement with immediate effect in writing if the other party is in material breach and has not remedied that breach within 10 business days of receiving a written notice specifying the breach, or if the other party is declared bankrupt, is granted a suspension of payments, or ceases business.

Articles 5 (Deliverables and IP), 7 (Liability), 8 (Confidentiality), 9 (Non-solicitation) and 14 (Governing law) survive termination.

Once the Client has paid all fees due for a deliverable, the intellectual property rights in the source code, designs, documents and other work products created specifically for the Client under the proposal (the “Client Deliverables”) transfer to the Client.

Frameworks, libraries, tools, methods, generic components and any third-party open-source code used to build the Client Deliverables (the “Background IP”) remain the property of ESBL or the third party respectively. ESBL grants the Client a perpetual, non-exclusive, worldwide, royalty-free licence to use the Background IP as embedded in the Client Deliverables, for the Client’s own business.

ESBL is free to reuse its Background IP and its general skills, experience and know-how in work for other clients.

Each party warrants that it is entitled to enter into the agreement and that entering into it does not conflict with any other obligation.

ESBL performs the services with reasonable skill and care, using qualified personnel, and in accordance with generally accepted industry standards.

Except as stated in this article, the services and deliverables are provided as is. ESBL does not warrant that the deliverables are error-free or that they meet all requirements of the Client beyond those explicitly agreed in the proposal or statement of work.

ESBL is liable only for direct damage caused by an attributable failure to perform, up to a maximum of the fees paid by the Client under the specific proposal or statement of work in the 12 months preceding the event giving rise to the liability.

ESBL is not liable for indirect, consequential, or special damages, including loss of profit, loss of revenue, loss of savings, loss of goodwill, loss of or damage to data, loss of use, or claims from third parties.

The limitations in this article do not apply in the event of damage caused by intent or wilful recklessness of the management of ESBL.

Each party treats the confidential information of the other party with the same care it uses for its own confidential information, and for at least two years after the information is disclosed. Confidential information includes technical data, source code, business plans, customer information, pricing, and any information marked or reasonably understood to be confidential.

Confidential information does not include information that is or becomes public without breach of this agreement, was already known to the receiving party without a duty of confidentiality, is independently developed without use of the confidential information, or must be disclosed under a legal obligation.

On termination of the agreement, each party returns or destroys the confidential information of the other party, except copies retained for legal, audit or archival purposes.

During the agreement and for a period of 24 months after it ends, the Client will not, directly or indirectly, and whether alone or through an affiliated legal or natural person:

1. hire, engage, employ, or contract with any developer, designer, project manager or other person who was involved in the delivery of the services on behalf of ESBL (or one of its subcontractors), whether as an employee, freelancer, consultant, board member, shareholder or in any other capacity, without ESBL's prior written consent; and
2. start, continue or extend a project, engagement or commercial relationship with such person on a subject matter related to or arising from the services, whether as a paid or unpaid arrangement, without ESBL's prior written consent.

This applies to every person the Client has come into contact with through the services, including subcontractor personnel introduced by ESBL. It does not restrict the Client from hiring a person who responds to a public vacancy that was not individually addressed to that person.

Contractual penalty (boetebeding)

Each breach of the previous paragraph obliges the Client to pay ESBL an immediately payable, non-reducible contractual penalty of EUR 50,000 per person and per breach, plus EUR 2,500 for each day the breach continues, without prior notice of default and without prejudice to ESBL's right to claim the actual damage suffered where that damage exceeds the penalty. The penalty is due in addition to (and not in place of) any damages. This clause is a boetebeding within the meaning of article 6:91 of the Dutch Civil Code, and article 6:92 paragraph 2 of the Dutch Civil Code is expressly excluded.

Change of control carve-out. The penalty in this article does not apply if the person concerned was, immediately before a change of control of the Client (including a merger, share transfer or acquisition of the Client), already lawfully employed or engaged by the acquiring party for at least twelve months, and the acquiring party did not act with the purpose of circumventing this article. The non-solicitation and non-circumvention obligations themselves continue to apply in a change of control; only the penalty is set aside in that specific situation.

The Client will ensure that any affiliated entity, representative or contact person of the Client acting in connection with the services is bound by the same obligations under this article, and the Client is liable for any breach by such person.

Where the services involve processing of personal data on behalf of the Client, the Client is the controller and ESBL is the processor within the meaning of applicable data protection law (including the GDPR where it applies). The parties will enter into a data processing agreement covering the processing.

Unless expressly agreed in the proposal or statement of work, the Client does not provide ESBL with personal data. If the Client does provide personal data, the Client bears the reasonable additional costs of the technical and organisational measures required to protect that data.

ESBL may engage subcontractors to deliver part of the services, provided the subcontractors are qualified and bound by confidentiality obligations no less strict than these terms. ESBL remains responsible for the work of its subcontractors as if it had performed the work itself.

Neither party is liable for a failure to perform caused by circumstances beyond its reasonable control, including but not limited to natural disasters, fire, flood, strikes, riots, acts of authority, failures of public networks or utilities, and failures of third-party services on which the affected party depends. The affected party will notify the other party in writing without undue delay and both parties will work in good faith to limit the impact.

Notices under the agreement are given in writing by email to the addresses in the proposal or statement of work. A notice by email is deemed received on the day of transmission provided no delivery failure is returned.

Changes to the agreement are only valid if agreed in writing (email is sufficient) between the parties.

If any provision of these terms is held to be invalid or unenforceable, the remaining provisions stay in full force, and the parties will replace the invalid provision with a valid one that reflects the original intent as closely as possible.

Neither party may assign the agreement to a third party without the other party’s prior written consent, which will not be unreasonably withheld. ESBL may assign the agreement to an affiliate or a legal successor.

The failure of either party to enforce any provision is not a waiver of the right to enforce it later.

The agreement is governed by Dutch law. Any dispute that cannot be resolved amicably is submitted to the competent court in Amsterdam, the Netherlands.