General terms and conditions for delivery of products and services by Kadaster as filed on 29 November 2016 with the court registry of the Gelderland District Court (Zutphen location) under number 51/2016.
- Kadaster: the legal personality Office of the Cadastre and the Public Registers, as referred to in Article 2 of the Land Registry (Organisation) Act;
- Customer: natural or legal person who purchases and/or (re)uses products from Kadaster, or instructs Kadaster to provide or to perform services;
- Consumer: a Customer who is a natural person and does not act in the pursuit of a profession or business;
- Products: products from Kadaster, such as information, data, web service or data set, described in the offer and/or the agreement between Kadaster and Customer or on the Kadaster website;
- Services: activities undertaken by Kadaster, in particular, regarding the analysis and advise on spatial planning issues and location-related matters and regarding advising on and combining of real estate, mortgage and map data and Geographic Information System (GIS) technologies;
- Provision of service: all services to be agreed between Kadaster and Customer.
2. Applicability and modification of terms and conditions
- These general terms and conditions apply to all offers and agreements between Kadaster and Customer that regard the products provided and/or the services performed by Kadaster, with the exception of products covered by the so-called “open data” regime of Kadaster. For the latter products, other terms and conditions may apply.
- The applicability of Customer’s purchasing or other terms and conditions is explicitly rejected. Other or different terms and conditions are only valid if they have been accepted in writing by Kadaster. Customer cannot derive any rights for future agreements with Kadaster from any deviations agreed upon in these general terms and conditions.
- The nullity or voidability of any provision of these general terms and conditions shall not affect the other provisions of these general terms and conditions. Customer and Kadaster will then consult in order to agree on new provisions to replace the null or void provisions, where the objective and the intent of the null or void provision is taken into consideration as much as possible.
- Kadaster is entitled to amend these general terms and conditions. The changes take effect from the time of written or electronic notification or on such a date as stated in the notification.
- Customer will be given the opportunity to take note of the amended general terms and conditions and to accept them. If Customer does not accept the amended general terms and conditions, he must inform Kadaster in writing within 30 days. In that case, Kadaster and Customer are entitled to terminate the agreement and dissolve it. Dissolution must occur within 14 days after the notification specified in the second sentence of this paragraph.
3. Establishment of the agreement; provision; acceptance
- When Kadaster offers a product and/or service by means of an offer, this offer is non-binding, unless stated otherwise. Upon acceptance of the offer, an agreement will be entered into between Kadaster and Customer to which these general terms and conditions apply.
- A request sent or order issued to Kadaster is recorded in a written agreement and contains the purpose for which the product is provided and/or the service is performed.
- Customer is not entitled to electronically dissolve an agreement with Kadaster if Kadaster has not confirmed electronically the receipt of the acceptance by Customer of an offer made by Kadaster. An offer made electronically by Customer in response to an invitation to make an offer from Kadaster, is not rejected if Kadaster did not confirm the receipt of this offer electronically. The provisions of this paragraph do not apply if Customer is a Consumer.
- The provision of products and/or the provision of services takes place in the manner agreed with Customer.
- All (delivery) terms specified by Kadaster have been determined to the best of their knowledge on the basis of the information that was known to Kadaster at the time of assignment to Kadaster, and are observed as much as possible. The (delivery) terms are not strict deadlines. The mere exceeding of a specified (delivery) term does not constitute a default on the part of Kadaster. Kadaster will consult with Customer when there is a deviation in the specified (delivery) terms.
- The product provided by Kadaster and/or the service performed by Kadaster, is considered accepted by Customer, unless Customer has made a complaint in writing to Kadaster within ten working days after the provision or execution, or within ten working days after the discovery of the defect, if Customer demonstrates that he could not have reasonably discovered the defect earlier. If a defect can be attributed to Kadaster, Kadaster is only obligated to immediately, and without charge, provide a non-defective version of the product and/or service.
- Customer agrees that Kadaster will communicate electronically with him and third parties.
4. Performance of the agreement
- Kadaster will perform the agreement, which should be seen as an an obligation to use best endeavours, to the best of its knowledge and ability and in accordance with good workmanship. Kadaster does not guarantee the achievement of the intended result.
- Kadaster is entitled to have the agreement, or part thereof, carried out by persons designated by him, including third parties. The applicability of Articles 7:404 and 7:407 paragraph 2 Netherlands Civil Code is excluded.
- Kadaster is bound to keep all Customer information confidential, provided that this information is disclosed to Kadaster as confidential, unless Kadaster is obligated to provide information by virtue of a statutory provision.
- In the agreed provision of service, Kadaster, in addition to its own data, may also use third party data for the intended result. The different data may vary in reliability. Kadaster will inform Customer as soon as possible about the degree of reliability of the data used.
- Without consent of Kadaster, the services may not be used by Customer for a purpose other than for which they were performed.
- Kadaster reserves the right to use the knowledge acquired by the provision of services for other purposes, insofar as no confidential information is disclosed to third parties outside Kadaster.
- Kadaster is not liable for any damage, of whatever nature, arising from the assumption of incorrect and/or incomplete data provided by Customer. Customer will indemnify Kadaster for third party claims in this regard.
5. Rates and payment
- Rates charged by Kadaster are always in Euros and no value-added tax (VAT) and/or other governmental fees are levied on these amounts. The rates are established in accordance with the Kadaster rate schedule (please refer to www.kadaster.nl). This schedule also specifies the time at which amended rates apply.
- Payment of products and/or services occurs in accordance with the manner specified by Kadaster and within 21 days after the invoice date, unless a different payment period has been agreed.
- If Customer does not pay the due amounts within the payment period, Customer is in default, without requiring any formal notice of default, and is obliged to pay the default interest on the outstanding amount equal to the legal interest rate applicable to the agreement between Kadaster and Customer. If the Customer remains in default after the notice of default, the claim can be passed on for collection. Customer is then also held to compensate the full reasonably incurred expenses for out-of-court and (if a judicial or arbitral procedure is conducted and a court or arbitration decision has the force of res judicata by which Customer is fully or predominantly ruled against) court or arbitration costs. The out-of-court costs amount to at least 10% of the outstanding amount.
- Payment must be made without discount or settlement.
- If the assignment to Kadaster was issued by more than one Customer, each Customer is jointly and severally liable for compliance with the (payment) obligations from the agreement entered into with Kadaster.
- Payments made by Customer shall be applied first against all interest and costs due, and secondly against whichever invoice that has been open the longest, even if the Customer specifies its application to a later invoice.
- Kadaster may require that, to the satisfaction of Kadaster, the Customer provides a guarantee to ensure payment.
6. Right of use
- Kadaster grants to Customer a non-exclusive and non-transferable right of use regarding the products provided.
- The products provided may be used and processed for the purpose as established in the agreement concluded with Customer. If it has been agreed that Customer supplies or sells the product unmodified to third parties, explicit terms and conditions will apply.
- Personal data provided by Kadaster may not be used by Customer in derived products or services with a commercial (profit-oriented) purpose.
- Kadaster can obligate Customer to include a source listing, including date/year, upon publication of a (part of a) product.
- Customer may only replicate the product for use within its own application and for backup and security purposes.
- Customer may not, without consent from Kadaster, present itself as an intermediary of Kadaster or create the appearance that he acts for or on behalf of Kadaster, which may cause confusion to the public, for example, by incorporating (parts of) the corporate design used by Kadaster.
7. Personal data
- Personal data as specified in the Personal Data Protection Act are processed by Kadaster for the purposes set out in the Land Registry Act. Processing of personal data by Customer must be compatible with these purposes and, in addition, be legitimate.
- In any case, unlawful processing by Customer occurs when the data provided are used for direct marketing activities. Direct marketing means, in any case, direct mail and telemarketing.
8. Intellectual and industrial property
- All intellectual and industrial property rights, including copyright and database right, regarding the products, services and/or Kadaster websites to be delivered, belong to Kadaster, unless otherwise agreed in writing.
- References of the intellectual and industrial property rights and of the name, trade name “kadaster”, Kadaster logo(s) or trademark(s) may not be used in any manner whatsoever without prior consent from Kadaster.
- Customer will immediately inform Kadaster of any third party claim regarding an alleged infringement on a (property) right, including intellectual and industrial property rights, regarding the products and/or services provided by Kadaster to Customer.
- Upon request, Customer will grant all cooperation to Kadaster at no charge in order to take measures against third parties for the purpose of enforcing and defending intellectual and industrial property rights.
- Without prejudice to the provisions of this Article, Kadaster is only liable to Customer for damage that is the direct consequence of a failure to comply with obligations under the agreement to be attributed to Kadaster and if and insofar as the damage could have been avoided with normal professional knowledge and experience and with due observance of normal attention and a reasonable manner of professional practice.
- If Kadaster is liable, its liability, insofar as it is covered by its liability insurance, is limited to the amount of the benefit paid by the insurer.
- In any case, if Kadaster’s insurer does not pay a benefit, or the damage is not covered by the insurance, Kadaster’s liability is limited to ten times the amount charged by Kadaster to Customer in the context of the agreement, with a maximum of € 50,000.00.
- When Kadaster calls in third parties and uses equipment, software, data files, registers or other items, Kadaster will always take due care. However, Kadaster is not liable for any failures by these third parties or for the improper functioning of equipment, software, data files, registers or other items used by Kadaster in the performance of the agreement.
- In any case, if an appeal by Kadaster against the provisions of paragraph 4 of this Article is rejected by court, the liability is restricted as described in paragraph 1, 2, 3 and 6 of this Article.
- Kadaster is not liable for consequential damages, such as loss of profits and other indirect damages.
- Customer will indemnify Kadaster against third party claims regarding damages to (a) third party/parties for which Kadaster would not have been liable if this third party/parties had been Customer.
- The restrictions of liability in these general terms and conditions also apply to third parties hired by Kadaster in the performance of the agreement.
- The restrictions of liability included in these terms and conditions are not applicable if the damage can be attributed to intent or wilful recklessness by Kadaster or its executive subordinates.
10. Suspension and termination
- Kadaster is entitled to suspend or terminate the provision of service to Customer and the Customer’s right of use regarding a product with immediate effect and/or to wholly or partially dissolve the agreement, if (but not limited to) Customer violates the obligations under the agreement or these general terms and conditions. Kadaster informs Customer of this fact in writing, substantiated with reasons.
- Immediately after suspension or termination of the right of use, Customer will discontinue use and upon termination, return to Kadaster the provided product and also remove all installed versions of the product from its systems and destroy copies.
- Kadaster’s claims on Customer are immediately due and payable in the following cases:
- if, after concluding the agreement, Kadaster becomes aware of circumstances that give proper cause to fear that Customer will not meet its obligations;
- if Kadaster has requested that Customer provide security for compliance and this security has not been provided or is insufficient;
- in the event of Customer bankruptcy, suspension of payment, debt restructuring or liquidation;
- if Customer is otherwise in default and does not fulfil its obligations under the agreement.
In such cases, Kadaster is authorised to suspend the further performance of the agreement and/or to wholly or partially dissolve the agreement, all of which are subject to Customer’s obligation to compensate the corresponding damage suffered by Kadaster and without prejudice to the rights to which Kadaster is otherwise entitled (including the right to terminate the provision of service and/or the right of use regarding a product with immediate effect).
11. Force majeure
- Force majeure is defined as: conditions that prevent compliance with the agreement and that cannot be attributed to Kadaster. Kadaster’s obligations are suspended during force majeure.
- In the event of force majeure, parties are not obligated to comply with the obligations arising from the agreement concluded between them. The party invoking force majeure must inform the other party as soon as possible. In any case, force majeure includes (but is not limited to): excessive absenteeism due to illness, for example, as a consequence of epidemics which makes it impossible for a substantial part of the staff of one of the parties to perform work, general power failures and/or malfunctions in cable or Internet connections, the situation when Kadaster does not receive, not timely receive or does not properly receive a performance that is of importance in connection with the performance to be delivered, and government regulations prevent Kadaster from fulfilling its obligations in a timely and/or sound manner.
- If the (situation of) force majeure lasts more than thirty days after the notification referred to in the second paragraph, both parties are authorised to dissolve the agreement.
- Kadaster is also entitled to invoke force majeure if the circumstance that impedes (further) compliance occurs after Kadaster has been obliged to fulfil its obligation.
- If Kadaster, at the start of the force majeure, has already partially fulfilled its obligations or can only partially fulfil its obligations, it is entitled to invoice the already executed and/or executable part separately and Customer is obligated to pay this invoice as if it were a separate contract.
- In the event of force majeure, parties are not obligated to compensate for any damage that arises or arose as a consequence of such force majeure and/or the dissolution of the agreement.
Article 12. Remote agreement
- The provisions of this Article only apply if Customer is a Consumer and there is a remote agreement referred to in Article 6:230g paragraph 1 subcomponent e of the Netherlands Civil Code.
- Each instruction to and order from Kadaster can be cancelled by Customer within 24 hours after Customer placed the order, provided that the product has not yet been shipped/delivered. Cancellation does not require any statement of reason. When the order has been delivered/shipped by Kadaster, cancellation is no longer possible. Cancellation must occur by following the procedure established for this purpose on www.kadaster.nl.
- After receiving the products, Customer has a right of withdrawal for a period of fourteen calendar days. Pursuant to this right of withdrawal, Customer is entitled to revoke (dissolve) the agreement. In the event of a rightful revocation, Customer receives full restitution of the amount paid.
- To use the right of withdrawal, Customer must follow the procedure established for this purpose on www.kadaster.nl.
- After recourse to the right of withdrawal, Customer undertakes to return the ordered item(s) within fourteen calendar days.
- The amount paid by Customer to Kadaster for the ordered item(s), if it is a justified revocation, will be paid back by Kadaster as quickly as possible, but no later than fourteen calendar days after receipt by Kadaster of the statement to dissolve issued by Customer in the context of the revocation, provided that the ordered item(s) have been received by Kadaster or Kadaster has received proof of the return shipment.
- Customer can only claim the right of withdrawal and dissolution if the ordered item(s) is/are returned to Kadaster properly packed, in the original packaging, complete, undamaged and in unused condition, including the original shipping documents and other accompanying documentation. The costs of the return shipment will be borne by Customer.
- Customer cannot appeal to a right of withdrawal and dissolution in the events stated in Article 6:230p of the Netherlands Civil Code. This applies in particular to:
- an agreement whereby Customer has specifically requested Kadaster a service visit in to perform urgent repairs or maintenance, with the exception of additional services that Customer has not explicitly requested and delivery of items other than those necessary for maintenance or repairs;
- an agreement to perform services, after compliance with the agreement, if compliance has begun with explicit prior consent from Customer and Customer waived its right of dissolution as soon as Kadaster has complied with the agreement;
- a Consumer purchase relating to the provision of audio and video recordings and computer software whose seal has been broken after delivery;
- the delivery of digital content that was not delivered on a tangible carrier, provided that compliance has begun with explicit prior consent from Customer and Customer has stated to waive its right of dissolution.
- Rights and/or obligations of the Customer arising from the agreement concluded between Kadaster and Customer, can only be transferred to or assigned to a third party with the consent of Kadaster.
- Dutch law applies to every agreement concluded with Kadaster.
- By way of derogation from the statutory rules for the jurisdiction of the civil court, any dispute between Kadaster and Customer, in the event the court is competent, will in first instance be settled exclusively by the Gelderland District Court (Zutphen location). Kadaster is always entitled to submit a dispute to the competent court according to the law or the applicable international treaty.