General Terms and Conditions
These general terms and conditions (‘Terms and Conditions’) are applicable to all services GPTW Nederland B.V. (‘GPTW’) offers to its customers. The order form (‘Order Form’), which GPTW has filled out together with the Customer, describes which specific services the Customer shall make use of. Besides these Terms and Conditions, the General Privacy Terms are applicable to all services provided by GPTW.
Agreement: the Order Form, these Terms and Conditions, the Certification Terms and the General Privacy Terms altogether.
Aggregated Data: means (a) Customer-specific information, data and content included in the reports that GPTW provides to the Customer pursuant to this Agreement, and (b) all other aggregated data which is derived from the Raw Data and which is provided to the Customer by GPTW pursuant to this Agreement. Aggregated Data does not include Customer Data or Raw Data.
Customer: the entity that is described as the Customer in the Order Form and as such has entered into an agreement with GPTW for the use of certain Services.
Customer Data: information owned by the Customer and provided by the Customer to GPTW to enable the provision of the Services, such as demographic information and company information necessary to enable the distribution of surveys (e-mail addresses and other personal information of employees). The definition of Customer Data does not include Aggregated Data or Raw Data.
Extended Subscription Term: the period(s) after the Initial Term, or the Extended Subscription Term in which the Customer obtains the Services from GPTW.
Fee: the price that the Customer owes in relation to the Services, which is described in the Order Form and which, as described in these Terms and Conditions, may be adjusted from time to time.
GPTW IP Rights: means (a) all works protected through copyright owned by GPTW (including, but not limited to, books, articles, brochures, research, questionnaires, Trust Index Surveys, Culture Audits, Culture Briefs, Trust Model and Methodology, the layout and structure of reports and other materials, tools and methods) regardless of whether this copyright is registered anywhere in the world or not, (b) all confidential information and material that belongs to GPTW, (c) all GPTW trademarks, trade names, logos and styles, (d) all techniques, algorithms and methods or rights thereto of which GPTW is an owner or of which GPTW is a licensee; (e) the Raw Data and the Aggregated Data; (f) the GPTW Services; and (g) all software of which GPTW is an owner or a licensee and which is used to provide the Services.
Initial Term: the first period in which the Customer makes use of the Services of GPTW as described in the Order Form.
Raw Data: means all confidential and anonymous answers and reactions GPTW receives from the Customer and employees of the Customer in relation to, among other things, the Trust Index Survey(s) organized by GPTW pursuant to the Agreement. The concept of Raw Data does not include Customer Data and/or Aggregated Data.
Services: the services that are described in the Order Form and which GPTW renders for the Customer under the Agreement.
2. Contents and scope of the Services
Scope of Services. The scope of the services provided by GPTW to the Client consists of at least an organization-wide employee survey (the 'Trust Index Survey'), related Certification, and Best Workplaces lists, and/or additional services as described in the Order Form. GPTW offers a portion of its Services as different packages from which the Client can choose. The Client's choice is specified in the Order Form. Throughout the duration of this Agreement, the Client is at all times permitted to expand the package and those additional services that the Client selects. In such a case, the remaining provisions of this Agreement, including the Contract Duration, shall remain in full force.
Target dates and best efforts obligations. Unless otherwise agreed upon, all terms and dates described in the Order Form, as well as all other terms and data communicated by GPTW to the Customer, are target dates and not firm dates. GPTW provides the Services based on a best effort obligation and GPTW has no obligation to obtain a specific result.
3. Obligations of the Customer
General. For a proper provision of service GPTW relies on the Customer. Conditions for the provision of the Services by GPTW are therefore:
that the Customer works together with GPTW in good faith and provides GPTW with access to all information, facilities and material which GPTW reasonably needs in order to provide the Services. This includes, among other things, that the Customer shall have to provide Customer Data to GPTW;
that the Customer shall provide all cooperation and assistance which GPTW may reasonably request; and
that the Customer will fulfill all obligations which the Customer has agreed upon with GPTW.
Consequences of non-compliance. If the Customer fails to ensure that GPTW timely receives the necessary documents and information for the delivery of the agreed-upon Services, if these documents and information are incomplete or contain inaccuracies, and this results in a delay in the execution of the Services, (i) GPTW is no longer obliged to focus its efforts on the deadlines and dates mentioned in the Order Form, and (ii) GPTW may pass on the costs incurred due to the delay to the Customer.
4. Alteration of Services
General. The Fees described in the Order Form are inseparably connected to the Services selected by the Customer and, among other things, the number of employees for whom the Customer makes use of the Services. In the event that the Customer wishes to alter the scope, nature and/or set-up of the Services during the term of the Agreement, parties shall determine in good faith the consequences for the Fees. GPTW is not obligated to accept alterations proposed by the Customer. If GPTW rejects a change proposal, it will provide clear justification and reason(s) for doing so.
Fees remail due and payable. If, due to the actions or at the request of the Client, no Trust Index Survey takes place during any contract year within the Contract Duration, there shall be no refund of the amounts paid by the Client in connection with that contract year to GPTW. If the Client has not yet paid these amounts, the Client is still obligated to make the payment.
Costs in Alteration of Services by GPTW. GPTW has the right to alter the contents of her Services at all times, without the need to request the consent of the Customer. A unilateral amendment by GPTW which has a material adverse effect on the Services rendered to the Customer, shall be communicated to the Customer at least 30 (thirty) days prior to the date on which such amendment will take effect. In the event the Customer does not wish to consent to the relevant amendment, the Customer is entitled to terminate the Agreement effective from the date on which the relevant amendment would take effect.
Stopping the provision of Services by GPTW. GPTW is entitled to completely stop providing a Service or a part of a Service. In such an event, GPTW shall pay the Customer a pro rata restitution of the Fees the Customer has paid for the relevant Service, or the relevant part of a Service.
General. The Customer shall pay the Fees agreed upon in the Order Form pursuant to the terms of payment described in the Order Form. Except to the extend agreed otherwise (see the Order Form), the following general terms of payment of GPTW apply:
GPTW shall invoice the Fees prior to the Services to which they pertain. Invoicing for the first year of the agreement takes place after signing the Agreement;
Invoices of GPTW must be paid within 30 (thirty) days after the invoice date;
If the Customer has a valid reason to disagree with a part of an invoice, the Customer must pay the uncontested part of the invoice within the applicable payment term. The Customer shall inform GPTW as soon as possible, but at the latest 5 (five) days after receiving the invoice, if the Customer disagrees with (a part of) the invoice. Subsequently, parties will decide in consultation what should happen to the invoice;
Payments are made in Euros; any transactions costs are for the account of the Customer;
All prices mentioned are excluding VAT and other taxes and duties, unless stated otherwise;
If the Customer uses an upgrade in the current agreement year, GPTW will send the Customer a pro rata invoice for the remaining term of the year of the Agreement regarding the price difference between the old and the new package;
GPTW is entitled to suspend the provision of her services in the event the Customer does not pay an uncontested invoice at all or not in a timely manner. If the provision of Services after a suspension is restarted, GPTW may charge reasonable additional costs.
Altering prices and Fees. GPTW is entitled to adjust its prices and Fees from time to time. GPTW shall not implement any price adjustments in the first 12 (twelve) months of the Agreement. In any event, after the passing of the first twelve months, even if this term does not coincide with a calendar year or contract term, GPTW is entitled to index its prices and Fees on the basis of an indexation number according to CBS Dienstenprijzen > Categorie N Administratieve en Ondersteunende Diensten. In the situation GPTW wishes to increase its prices with more than 2.5% above the inflation rate, it will inform the Customer thereof in writing at the latest three months before the desired price increase. The Customer is then entitled to terminate the Agreement in writing (whether during the term or not) by the effective date of the intended price alteration. This termination must be communicated to GPTW within 30 days after the price increase announced by GPTW.
Events. Tickets to events organized by GPTW, such as ‘Best Workplaces Events’ are not part of the Agreement and must be purchased separately by the Customer.
6. Property and use of data
Customer Data. The (intellectual) property rights to Customer Data (if any) are not transferred by the Customer to GPTW through this Agreement.
Use of Customer Data by GPTW. GPTW only uses Customer Data to provide the Services in accordance with the purpose for which the Customer Data is provided to GPTW, or in a manner for which GPTW has obtained the Customer’s consent after the provision. GPTW protects Customer Data to the extend it concerns personal data in the manner agreed upon in the General Privacy Terms.
Aggregated Data and Raw Data. Any (intellectual) property rights applicable to Aggregated Data and Raw Data (if any) belong to GPTW and are not transferred to the Customer through this Agreement.
Use of Aggregated Data and Raw Data by the Customer. The Raw Data shall not be provided to the Customer to ensure the confidentiality of this data in favor of the respondents of the Customer. The Customer may only use Aggregated Data in the manner described in article 7.
Use of Aggregated Data and Raw Data by GPTW. GPTW only uses Aggregated Data for her own purposes, including (but not limited to) benchmarks, creating best practices, certifying organizations as acknowledged places of work, creating lists of organizations for publications, making statistical analyses and other R&D purposes.
Protection of respondents. To ensure the confidentiality of the information provided by respondents, GPTW shall not report to the Customer regarding a survey when less than 5 (five) respondents in a demographic Customer group have participated in the survey.
7. Intellectual Property Rights
General. All intellectual property rights (including knowhow and trade secrets) that belonged to a party, sub-contractor or third party prior to this Agreement, or that were somehow created in relation to the Services provided by GPTW based on this Agreement, will remain with that party, sub-contractor or third party. These intellectual property rights are therefore not transferred to the other party by virtue of this Agreement. All improvements, adjustments and derivative works of or in relation to these intellectual property rights shall also belong to the owner of the relevant intellectual property rights.
GPTW IP Rights. No GPTW IP Rights shall be transferred to the Customer through this Agreement. The Customer does not obtain any right to the GPTW IP Rights. The Customer may use the GPTW IP Rights if and only to the extent described in this Agreement. The Customer requires written consent from GPTW for any other use of the GPTW IP Rights.
Use GPTW IP Rights by Customer. If the Customer wishes to use the GPTW IP Rights in another manner than through receiving the Services during the term of the Agreement (including another survey that is performed internally or by another party outside the scope of this Agreement) the Customer needs prior written consent from GPTW. GPTW may refuse to give such consent at its sole discretion. The Customer may distribute reports that the Customer receives from GPTW internally (within its own entity), but for external distribution the Customer needs prior written consent from GPTW. GPTW shall not refuse to give this consent on unreasonable grounds.
No abuse. None of the parties shall abuse the intellectual property rights of the other party or a third party in the execution of this Agreement.
No alteration. Both parties recognize that the intellectual property rights of the other party are valuable properties of the other party. Therefore, any party shall carefully protect material which is or could be subject to intellectual property rights of the other party. It is not allowed to adapt or alter the intellectual property rights of the other party, or have a third party do this, without prior written consent of the other party. For example: it is not permitted to adapt or alter a text, trademark or logo of the other party in any way. This example does not limit the meaning of this paragraph in any way.
Informing about (possible) infringement. In the event a party becomes aware of a (possible) infringement of intellectual property rights of the other party, the first party shall inform the other party thereof as soon as possible. If it (possibly) is the first party (or one or more of her employees or other parties related to her) that infringes on the intellectual property rights of the other party, the first party shall ensure that the (possible) infringement is immediately ceased and will not be resumed. If a third party infringes on intellectual property rights, parties shall give each other the assistance necessary to induce the third party to cease and desist the infringement.
General. All confidential information that a party provides to the other party in the context of the execution of this Agreement shall be handled confidentially, kept classified and will not be shared with third parties without the prior written consent of the providing party. Customer Data is confidential information of the Customer. Furthermore, prices and price lists, personal data, marketing plans, knowhow, trade secrets, customer lists and software code, among other things, are considered to be confidential information, regardless of whether they are marked as 'confidential'.
Exceptions. The confidentiality obligations as described in this article are not applicable to (confidential) information that
- is already or will become available in the public domain, other than through an act or omission of the receiving party,
- is received by the receiving party from a third party that has lawfully obtained this information and is not obligated to keep the information confidential,
- is developed independently by the receiving party, which can be proven with written documents; or
- is disclosed in a lawful (and as limited as possible) manner by the receiving party based on a legal obligation, a court order from a competent court or an order from a competent authority.
In the event of a disclosure as described in section (d) of this paragraph, the receiving party shall inform the disclosing party of the disclosure obligations as soon as possible - if possible, prior to the disclosure – in order to give the disclosing party an opportunity to contest or limit the disclosure. For the avoidance of doubt, the concept of 'disclosure' includes the (mere) sharing of confidential information with a single third party.
Duration of confidentiality obligations. The confidentiality obligations with regard to the confidential information of the disclosing party will continue to apply at least 5 (five) years after termination of the Agreement. Even after these 5 (five) years it is prohibited to disclose trade secrets of the disclosing party.
Limited distribution. The receiving party shall ensure that confidential information of the disclosing party is only viewed and used by those employees and/or sub-contractors that reasonably require this information in order to execute this Agreement. The receiving party shall also ensure that everyone to which access to the confidential information is granted is bound by a confidentiality agreement that is formulated at least as strictly as the clauses in this Agreement.
9. Privacy and data protection
GPTW has drafted separate terms with regard to the processing and protection of personal data which are described in the General Privacy Terms of GPTW. Furthermore, GPTW is certified according to NEN-ISO/IEC 27001:2013. The certificate can be accessed here.
General. GPTW shall provide the Services in a professional manner and at least in accordance with market practice, for which GPTW hires persons who possess the right skills, experience and expertise. GPTW also provides the Services in accordance with the Agreement and with the applicable law.
Software. To the extent GPTW provides software to the Customer as part of the Agreement, or gives the Customer access to certain software, GPTW provides this software 'as is, where is' without any warranties. However, GPTW shall make a commercially reasonable effort to ensure that such software can safely be used by the Customer and obligations pursuant to the General Privacy Terms shall apply to such software as well. GPTW can deny the Customer access to the software temporarily or indefinitely in the event the Customer makes use of the software in such a way that it may pose a risk to the availability of the software for GPTW and other customers of GPTW.
11. Term and termination
Commencement of the Agreement and service provision. The Agreement shall commence on the Start Date described in the Order Form and from that moment the rights and obligations arising from this Agreement apply to the parties. The service provision of GPTW commences on the Subscription Start Date as described in the Order Form.
Term. The Agreement is concluded for the period indicated on the Order Form as the Initial Subscription Term (which commences on the Subscription Start Date). If no Initial Subscription Term is included on the Order Form, the Initial Subscription Term is 36 (thirty six) months, commencing on the Subscription Start Date.
Termination for non-performance. A party may terminate this Agreement in writing (including via email) at any time if the other party materially breaches this Agreement and fails to remedy the breach within 30 (thirty) days after receiving a written notice from the first party. In other words, the party seeking termination must always have sent a sufficiently detailed notice of default to the defaulting party and grant the defaulting party a 30-day period to rectify the default(s). For termination due to non-payment of any fee, a shorter remedy period of 5 (five) days from the date of the notice of default applies. Termination of the Agreement will not have retroactive effect, and there will be no obligations to undo any actions resulting from the termination of this Agreement.
Termination for other reasons. Each party also has the right to terminate the Agreement with immediate effect in the event the other party is declared bankrupt, the other party is granted suspension of payment, or if the other party ceases its business.
Consequences of Agreement termination. Effective from the day following the end date of this Agreement (regardless of the reason for termination) the Customer no longer has the right to make use of the Services of GPTW (including the software provided by GPTW). The Customer shall at that moment immediately cease the use of the Services. The Aggregated Data included in Customer-specific reports are excluded from this obligation. The Customer may continue to make use of this data internally without a time limitation. Effective from the day following the end date, parties shall no longer make use of each other’s confidential information and shall return this information within 10 (ten) days after the final date to the providing party and destroy any copies made.
Provisions that remain applicable after termination of the Agreement. These Terms and Conditions contain several provisions that are intended to remain applicable after termination of the Agreement. These are at least (but not limited to) the agreements regarding confidentiality, intellectual property rights, data protection (as described in the General Privacy Terms), limitation of liability, the applicable law and the competent court.
Each party shall indemnify and hold the other party harmless against all claims, damages, liabilities, costs and expenses, including reasonable legal fees resulting from and/or relating to:
intent or gross negligence or a violation of the law by the party causing damage and/or its employees, executives, directors, representatives or entities relating to it;
an infringement or an alleged infringement of an intellectual property right of a third party related to the Services. This indemnification is intended in such a way that, when one party in the context of the execution of this Agreement lets the other party make use of, for example, a work (including software, trade name, logo, etc. to which intellectual property rights of a third party (possibly) applies, the first party must ensure that the use by the other party does not infringe the intellectual property rights of the third party concerned. A condition for this indemnification is that the other party uses the work, the trade name, the logo etc. in accordance with the Agreement and any other conditions that have been made known to the other party in writing.
13. Limitation of liability
General. The limitations of liability described in this article apply to the entire Agreement, including liabilities that may arise in connection with the General Privacy Terms.
Direct damages. The liability of each party for damages arising in connection with this Agreement (including damages resulting from a breach of the Agreement or damages resulting from an unlawful act) is limited to the compensation of actual direct damages suffered. Liability for indirect damages is excluded. Indirect damages include, but are not limited to: lost revenues, lost profits, missed savings, loss of goodwill, damage to reputation, and missed opportunities.
Maximum liability. The possible liability of each parties is limited to (i) the amount that the Customer has paid GPTW for the Services that form the cause of the claim for damages, or (ii) the total amount of Fees that the Customer has paid GPTW in the twelve months directly prior to the event causing the damages; whereby the lowest amount (i) or (ii) is the applicable maximum.
Exceptions. The limitations of liability described in this article are not applicable to liability arising from or in connection with:
- intent, gross negligence, fraud, a violation of the law or deliberately providing false information;
- the situations in which an indemnification obligation applies, such as described in article 12.
Waiver of rights. Parties agree that, when a party does not (timely) enforce compliance of the other party with an obligation that has not (yet) been carried out by the other party, this does not mean that the first party waives any rights.
Transfer of rights and obligations. Without written consent of the other party, it is not permitted to transfer a right and/or an obligation arising from this Agreement to a third party. However, this provision shall not prevent GPTW from being allowed to hire sub-contractors when providing the Services, such as freelancers. GPTW is responsible for the sub-contractors it hires, and GPTW will remain the first point of contact for the Customer.
Independent contractors. GPTW and the Customer are and remain independent of one each other and this Agreement is therefore not meant to, for example, establish a joint venture. Additionally, parties shall not submit to obligations on behalf of one another or in name of the other party.
Partial void or voidable. If it becomes apparent that a provision of this Agreement is void and/or voidable, parties shall in consultation determine a new provision which is valid and the meaning of which corresponds with the old provision as much as possible. If parties do not successfully come to an agreement about a new provision, it is assumed that the remaining provisions of the Agreement remain in effect, unless as a consequence of the invalid provision the Agreement is no longer reasonably commercially or economically profitable for a party. This may be the case when the profits arising from the Agreement are significantly reduced. The party affected by the invalid provision may terminate the Agreement at any time during the term while respecting a notice period of 30 (thirty) days.
Amendments to the Agreement. After signing this Agreement, this Agreement may only be amended in writing. This does not prevent GPTW from being entitled to make one-sided amendments to her Services and prices from time to time, as described in this Agreement.
Use of trademarks, trade names and logos. In the event that, by virtue of the Services, GPTW establishes that the Customer is eligible for it, the Customer may use the certification provided by GPTW for marketing purposes. The Customer shall do so only in the manner prescribed by GPTW and may not alter the certificate, trade names and logos. GPTW may use the Customer’s name on its customer lists (which may be published), unless the Customer informs GPTW in writing that GPTW if not allowed to do this.
Force majeure. None of the parties shall be liable to the other party in the event the first party is unable to meet its obligations arising from this Agreement due to force majeure. Force majeure means: situations beyond a party’s reasonable control such as strikes, disasters, wars, terrorism, pandemics, et cetera. A condition for a successful appeal to force majeure is that the affected party will make commercially reasonable efforts to limit the consequences of the force majeure situation for the execution of the Agreement as much as possible. In the event a force majeure situation persists for 90 (ninety) days or longer or persists in a period of six months with interruptions for a total of 90 (ninety) days, both parties are entitled to terminate the Agreement with immediate effect.
Applicable law and disputes. This Agreement is drafted in accordance with the law of the Netherlands and Dutch law is applicable to this Agreement. In the event that a dispute arises between parties that arises from or connects to this Agreement, parties shall – in the event they are unable to resolve the dispute in joint consultation – will present their dispute to the Court of Amsterdam, in the Netherlands. This court, to the exclusion of other courts, has jurisdiction in the first instance to rule on disputes between the parties.