Disclaimer: This document is a translation of the original Dutch “Algemene Voorwaarden” of Cobra CRM. This translation is provided for convenience purposes only. In the event of any discrepancy, ambiguity or conflict between this English translation and the original Dutch version, the Dutch version shall prevail. No rights can be derived from this translation.
Article 1. General
These general terms and conditions apply to and form an integral part of all offers (quotations), assignments and agreements between Cobra CRM and a client to which Cobra CRM has declared these terms and conditions applicable, insofar as the parties have not expressly deviated from these terms and conditions.
If any provision of these general terms and conditions is void or is annulled, the remaining provisions of these general terms and conditions shall remain in full force and the parties shall consult in order to agree on new provisions to replace the void or annulled provisions, taking into account the purpose and scope of the void or annulled provision as much as possible.
If an offer, quotation or agreement expressly deviates in writing from any provision of these general terms and conditions, the remaining provisions of these general terms and conditions shall continue to apply in full.
Article 2. Quotations and formation of the agreement
All quotations or offers from Cobra CRM are without obligation, unless a term for acceptance has been set in the quotation. The prices stated in a quotation are exclusive of VAT, unless otherwise indicated.
Quotations from Cobra CRM are based on information provided by the client, on the basis of which the best possible estimate of the nature, duration and complexity of the assignment is made.
Agreements are formed at the time of receipt of a signed quotation and/or order confirmation, or when Cobra CRM has commenced the execution of the assignment. Agreements replace and supersede any prior correspondence, arrangements, documentation and/or other information.
Article 3. Execution of the agreement
Cobra CRM shall execute the agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship.
If and insofar as the proper execution of the agreement so requires, Cobra CRM shall have the right to have certain work performed by third parties.
The client shall ensure that all data which Cobra CRM indicates are necessary, or which the client should reasonably understand to be necessary for the execution of the agreement, are provided to Cobra CRM in a timely manner. If the data required for the execution of the agreement are not provided to Cobra CRM in a timely manner, Cobra CRM shall have the right to suspend the execution of the agreement and/or to charge the client for the additional costs resulting from the delay at the prevailing rates.
If it has been agreed that the agreement shall be executed in phases, Cobra CRM may suspend the execution of those parts belonging to a subsequent phase until the client has approved the results of the preceding phase in writing.
Article 4. Contract duration; execution period
The agreement is entered into for an indefinite period, unless the parties expressly agree otherwise.
If a term has been agreed within the duration of the agreement for the completion of certain work, this shall not be a strict deadline, unless expressly agreed otherwise. In the event of an overrun of the execution period, the client must give Cobra CRM written notice of default.
Article 5. Amendment of the agreement
If during the execution of the agreement it becomes apparent that it is necessary to amend or supplement the work to be performed for proper execution, the parties shall amend the agreement accordingly in a timely manner and by mutual consultation.
If the parties agree that the agreement is to be amended or supplemented, this may affect the time of completion of the execution. Cobra CRM shall inform the client of this as soon as possible.
If the amendment or supplement to the agreement has financial and/or qualitative consequences, Cobra CRM shall inform the client thereof in advance. If a fixed fee has been agreed, Cobra CRM shall indicate the extent to which the amendment or supplement to the agreement will result in an overrun of this fee.
Notwithstanding paragraph 3, Cobra CRM shall not be able to charge additional costs if the amendment or supplement is the result of circumstances attributable to Cobra CRM.
If you wish to cancel the scheduled work within 15 working days prior to commencement, we shall be obliged to charge you 50% of the reserved time. These invoices fall outside any fixed price arrangements.
If you wish to cancel the scheduled work within 5 working days prior to commencement, we shall be obliged to charge you 100% of the reserved time. These invoices fall outside any fixed price arrangements.
Article 6. Duration and termination of the agreement
The agreement shall terminate by operation of law upon the expiry of the duration of the agreement. The agreement may be extended with the written consent of both parties under the terms and conditions set out in the agreement, or under other terms and conditions in consultation with Cobra CRM.
Either party may terminate the agreement in writing at any time. In that case, the parties must observe a notice period of at least three months.
Article 7. Fee
For offers and agreements in which a fixed fee is offered or agreed, paragraphs 2, 4, 5 and 6 of this article shall apply. If no fixed fee is agreed, paragraphs 3, 4, 5 and 6 of this article shall apply.
The parties may agree on a fixed fee when entering into the agreement. The fixed fee is exclusive of VAT.
If no fixed fee is agreed, the fee shall be determined on the basis of hours actually spent. The fee shall be calculated in accordance with the hourly rates of Cobra CRM set out in the agreement. The rates are exclusive of VAT, unless otherwise indicated. For assignments with a duration of more than 1 month, the costs due shall be invoiced every 2 weeks.
If Cobra CRM agrees a fixed fee or hourly rate with the client, Cobra CRM shall nevertheless be entitled to increase this fee or rate. Cobra CRM may pass on increases in wages and prices. Such an increase may only be charged to the client if it has been communicated to the client before the effective date.
If the increase exceeds 10%, the client shall have the right to terminate the agreement with immediate effect.
Article 8. Payment
Payment must be made within fourteen days of the invoice date, by transfer of the amount due to the bank account of Cobra CRM at ING bank, account number NL69 INGB 0006 4244 46 in the name of Cobra CRM in Zwolle.
If the client fails to make timely payment of an invoice, the client shall be in default by operation of law. The client shall owe interest of 1% per month, unless the statutory interest rate is higher, in which case the statutory interest rate shall be due. The interest on the amount due shall be calculated from the moment the client is in default until the moment of full payment.
In the event of liquidation, bankruptcy or suspension of payment of the client, the obligations of the client shall become immediately due and payable.
Payments made by the client shall always first be applied to settle all interest and costs due, and secondly to settle the oldest outstanding invoices, even if the client states that the payment relates to a later invoice.
Payment must be made without discount or set-off.
Article 9. Acceptance
If the parties have not agreed on an acceptance test, the client shall accept the custom software and modifications in the condition in which they are at the time of delivery (‘as is, where is’), including all visible and invisible defects and shortcomings. In the aforementioned case, the custom software and modifications shall be deemed accepted by the client upon completion of the installation.
If an acceptance test has been agreed between the parties, the provisions of articles 9.3 to 9.10 shall apply.
Where these general terms and conditions refer to ‘defects’, this is understood to mean the substantial non-compliance of the custom software and modifications with the functional or technical specifications expressly agreed in writing by Cobra CRM. A defect only exists if the client can demonstrate it and it is also reproducible. The client is obliged to report defects without delay. Cobra CRM has no obligation with respect to defects in or to the custom software and modifications other than defects within the meaning of these general terms and conditions.
If an acceptance test has been agreed, the test period shall be fourteen days after delivery or, if an installation to be performed by Cobra CRM has been agreed in writing, fourteen days after completion of the installation. During the test period, the client shall not be entitled to use the custom software and modifications for productive or operational purposes. The client shall carry out the agreed acceptance test with qualified personnel and with sufficient scope and depth.
If an acceptance test has been agreed, the client shall be obliged to test whether the delivered custom software and modifications meet the functional or technical specifications expressly agreed in writing by Cobra CRM.
The custom software and modifications shall be deemed accepted between the parties: (a) if the parties have agreed on an acceptance test: on the first day after the test period; or (b) if Cobra CRM receives a test report as referred to in article 9.7 before the end of the period: at the time the defects mentioned in that test report have been rectified, without prejudice to the presence of defects that do not preclude acceptance in accordance with article 9.8; or (c) if the client makes any use of the custom software and modifications for productive and/or operational purposes: at the time of such use.
If it becomes apparent during the agreed acceptance test that the custom software and modifications contain defects, the client shall report the test results to Cobra CRM in writing, in a clear, detailed and comprehensible manner, no later than the last day of the test period. Cobra CRM shall use its best efforts to rectify the said defects within a reasonable period, whereby Cobra CRM shall be entitled to implement temporary solutions, programme workarounds or problem-avoiding restrictions.
The client may not withhold acceptance of the custom software and modifications for reasons unrelated to the specifications expressly agreed in writing between the parties, nor on the grounds of the existence of minor defects, being defects that do not reasonably prevent the operational or productive use of the custom software and modifications, without prejudice to the obligation of Cobra CRM to rectify such minor defects. Acceptance may furthermore not be withheld on account of aspects of the custom software and modifications that can only be assessed subjectively, such as aesthetic aspects of user interfaces.
If the custom software and modifications are delivered and tested in phases and/or parts, the non-acceptance of a particular phase and/or part shall not affect the acceptance of an earlier phase and/or another part.
Acceptance of the custom software and modifications in any of the manners referred to in this article shall have the effect that Cobra CRM is discharged from the fulfilment of its obligations regarding the provision and delivery of the custom software and modifications and, if installation by Cobra CRM has also been agreed, from its obligations regarding the installation. Acceptance of the custom software and modifications shall not affect the rights of the client under article 9.8.
Article 10. Defects; complaints period
Complaints about the work performed must be reported by the client to Cobra CRM in writing within fourteen days of discovery, but no later than fourteen days after completion of the work in question.
If a complaint is well-founded, Cobra CRM shall still perform the work as agreed, unless this has since become pointless for the client. The latter must be communicated by the client in writing. If performing the agreed services is no longer possible or meaningful, Cobra CRM shall only be liable within the limits of article 12 (Liability).
Even if the client complains in a timely manner, the obligation to pay shall remain.
Article 11. Collection costs
If the client is in default or in breach of the (timely) fulfilment of its obligations, all reasonable costs of obtaining satisfaction out of court shall be borne by the client. The extrajudicial costs shall be calculated on the basis of what is customary in Dutch collection practice. However, if Cobra CRM has incurred higher collection costs that were reasonably necessary, the actual costs incurred shall be eligible for compensation. Any court and enforcement costs shall also be recovered from the client. The client shall also owe interest on the collection costs due.
The client shall owe to Cobra CRM the court costs incurred by Cobra CRM in all instances, unless the client demonstrates that these are unreasonably high. This shall only apply if Cobra CRM and the client conduct legal proceedings in respect of an agreement to which these general terms and conditions apply and a court ruling becomes final and conclusive in which the client is found to be entirely or predominantly in the wrong.
Article 12. Liability
Cobra CRM shall not be liable for damage of any kind resulting from Cobra CRM having relied on incorrect and/or incomplete data provided by the client, unless such inaccuracy or incompleteness should have been known to Cobra CRM.
The liability of Cobra CRM, insofar as covered by its liability insurance, shall be limited to the amount paid out by the insurer.
If the insurer does not pay out in any case, or the damage is not covered by the insurance, the liability of Cobra CRM shall be limited to the maximum of the fee due. For assignments with a duration of more than four months, a further limitation of liability shall apply to the maximum of the invoiced amount over the last three months.
The limitations of liability set out in these terms and conditions shall not apply if the damage is attributable to intent or gross negligence on the part of Cobra CRM.
In the event of liability of Cobra CRM as referred to in the preceding paragraphs of this article, Cobra CRM shall exclusively be liable for substitute damages, i.e. compensation for the value of the performance that has fallen short. In the event of phased execution of the agreement as referred to in article 3, the substitute damages shall be limited to the replacement value of the performance that has fallen short in the phase in which the results were not approved.
The liability of the parties for an attributable failure to perform an agreement shall only arise if the one party gives the other party prompt and proper written notice of default, setting a reasonable period for the remedy of the failure. The notice of default must contain as detailed a description of the failures as possible, so that the parties are able to respond adequately.
Article 13. Force majeure
The parties shall not be obliged to fulfil any obligation towards the other if they are prevented from doing so as a result of a circumstance that is not attributable to fault and is not for their account by virtue of the law, a legal act or generally accepted standards. Force majeure in these general terms and conditions is understood to mean, in addition to what is understood in this regard in the law and case law, all external causes, foreseen or unforeseen, over which Cobra CRM has no influence, but which prevent Cobra CRM from fulfilling its obligations. Cobra CRM shall also have the right to invoke force majeure if the circumstance preventing (further) performance of the agreement arises after Cobra CRM should have fulfilled its obligation.
During the period in which the force majeure continues, the parties may suspend the obligations under the agreement. If this period lasts longer than two months, either party shall be entitled to dissolve the agreement, without any obligation to compensate the other party for damage. Insofar as Cobra CRM has already partially fulfilled its obligations under the agreement at the time of the occurrence of the force majeure, or will be able to fulfil them, and the fulfilled or yet to be fulfilled part has independent value, Cobra CRM shall be entitled to invoice the already fulfilled or yet to be fulfilled part separately. The client shall be obliged to pay this invoice as if it were a separate agreement.
Article 14. Indemnification
The client shall indemnify Cobra CRM against any claims by third parties who suffer damage in connection with the execution of the agreement and the cause of which is attributable to parties other than Cobra CRM. If Cobra CRM is approached by third parties on this basis, the client shall be obliged to assist Cobra CRM both in and out of court and to do without delay everything that may be expected of the client in that case. If the client fails to take adequate measures, Cobra CRM shall be entitled, without notice of default, to take such measures itself. All costs and damage on the part of Cobra CRM and third parties resulting therefrom shall be entirely for the account and risk of the client.
Article 15. Dissolution of the agreement
The claims of Cobra CRM against the client shall be immediately due and payable in the following cases:
In the cases referred to in paragraph 1 of this article, Cobra CRM shall be authorised to suspend the further execution of the agreement or to dissolve the agreement, without prejudice to the right of Cobra CRM to claim damages.
If circumstances arise with regard to persons and/or materials used or customarily used by Cobra CRM in the execution of the agreement, which are of such a nature that the execution of the agreement becomes impossible or so onerous and/or disproportionately costly that compliance with the agreement can no longer reasonably be required, Cobra CRM shall be authorised to dissolve the agreement.
Article 16. Privacy, security, confidentiality and non-disclosure
The parties are obliged to provide each other with all reasonable cooperation in order to enable the other party to fulfil its obligations under the applicable privacy legislation. The Regulation on the General Data Protection Regulation of Cobra CRM shall apply to the services provided by Cobra CRM, which regulation shall be provided free of charge at the first request of the client. When a client invokes its rights, Cobra CRM shall have some time to comply with the request.
The parties shall treat all information, know-how, (personal) data or specifications related to the execution of this agreement and/or the business of the other party as confidential and shall not disclose these to third parties, unless the party from whom the information originates has given written consent to do so. The same applies to the content of the agreement.
Both parties are obliged to maintain the confidentiality of all confidential information obtained from each other or from other sources in the context of their agreement. Information shall be considered confidential if this has been communicated by the other party or if this follows from the nature of the information.
Cobra has an information security policy that is reviewed annually and focuses on the following subjects: measures to comply with the General Data Protection Regulation (GDPR), password policy and the process in the event of security incidents or data breaches. Additional arrangements regarding information security policy may be agreed between both parties.
Article 17. Intellectual property
Without prejudice to the provisions of article 15 (Non-Disclosure) of these terms and conditions, Cobra CRM reserves the rights and powers to which it is entitled under the Copyright Act.
All documents provided by Cobra CRM, such as reports, advice, designs, sketches, drawings, software, methods, (model) contracts and other intellectual products of Cobra CRM in the broadest sense of the word, are intended exclusively for use by the client and may not be reproduced, published or brought to the attention of third parties by the client, whether or not through the engagement of third parties, without the prior consent of Cobra CRM.
Cobra CRM also retains the right to use the knowledge gained through the execution of the work for other purposes, provided that no confidential information is disclosed to third parties.
Article 18. Applicable law
Dutch law shall apply to every agreement between Cobra CRM and the client.
Supplementary Conditions for Training Programmes Cobra CRM
Article 19. Registration and formation of the agreement
Registration is complete when the participant has received a confirmation of registration by email.
Each training programme has a maximum capacity. Upon reaching the maximum capacity, the participant will be placed on a waiting list and will receive written confirmation thereof.
Article 20. Fee and payment
Participation in a training programme requires full advance payment. The invoice shall be sent upon receipt of the confirmation of registration.
Payment must be made within 14 days of the invoice date, but no later than 5 working days before the start of the training programme, by transfer of the amount due to the bank account of Cobra CRM at ING bank, account number NL69 INGB 0006 4244 46 in the name of Cobra CRM in Zwolle.
In the event of late payment, Cobra CRM reserves the right to exclude the participant from participation.
All stated prices are exclusive of VAT, unless otherwise indicated.
If the client fails to make timely payment of an invoice, the client shall be in default by operation of law and shall owe interest of 1% per month, unless the statutory interest rate is higher. The provisions of articles 8 and 11 of these general terms and conditions shall apply accordingly.
Article 21. Cancellation by the client and no-show
Cancellation must be made in writing via academy@cobracrm.nl.
In the event of cancellation up to 14 days before the start of the training programme, the full amount shall be credited.
In the event of cancellation within 14 days before the start, the full training fee shall be due. A refund is not possible in this case.
If the participant is not present at the training programme (no-show) or reports sick, no refund of the training fee shall be made. As compensation, in the event of a no-show or sick report, Cobra CRM shall offer the participant a one-time opportunity to attend the next scheduled edition of the same training programme at no additional cost. Registration for this shall be made again via the registration form; availability is not guaranteed.
Article 22. Amendment or cancellation by Cobra CRM
Cobra CRM reserves the right to reschedule, change the location of or cancel a training programme, for example in the event of insufficient participation or force majeure as referred to in article 13 of these general terms and conditions.
In the event of cancellation by Cobra CRM, participants shall be informed as soon as possible and the full training fee shall be refunded.
Cobra CRM shall not be liable for any ancillary costs incurred by the client or participant, such as travel or accommodation costs.
Article 23. Liability for training programmes
Cobra CRM shall not be liable for damage resulting from the use of training materials or the application of knowledge acquired by the participant.
The liability of Cobra CRM shall in all cases be limited to the training fee paid by the client. The provisions of article 12 of these general terms and conditions shall apply accordingly.
Article 24. Intellectual property relating to training programmes
All training materials, presentations and documents are the property of Cobra CRM. The provisions of article 17 of these general terms and conditions shall apply accordingly.
Without the prior written consent of Cobra CRM, it is not permitted to reproduce, publish or make training materials available to third parties.
Article 25. Personal data
Cobra CRM processes the personal data of participants in accordance with the General Data Protection Regulation (GDPR) and the provisions of article 16 of these general terms and conditions.
Data shall only be used for the execution of the agreement, communication about training programmes and, if consent has been given, marketing communications.
The privacy statement of Cobra CRM is available at www.cobracrm.nl/privacy.
Article 26. Applicable law and disputes
Dutch law shall apply to all agreements relating to the training programmes, in accordance with article 18 of these general terms and conditions.
Disputes shall preferably be resolved by mutual consultation. If this is not possible, disputes shall be submitted to the competent court in the district in which Cobra CRM is estab
