Terms and Conditions

Article 1 General Provisions

1. These terms and conditions apply to every offer, quotation, and agreement between Open Minded IT and a Client to which Open Minded IT has declared these terms and conditions applicable, unless the parties have expressly deviated from these terms and conditions in writing.
2. These terms and conditions also apply to agreements with Open Minded IT, the performance of which requires Open Minded IT to engage third parties.
3. The applicability of any purchasing or other terms and conditions of the Client is expressly rejected.
4. If one or more provisions of these General Terms and Conditions are at any time wholly or partially void or are set aside, the remaining provisions of these General Terms and Conditions shall remain in full force and effect. In such a case, Open Minded IT and the Client will consult with each other to agree on new provisions to replace the void or invalidated provisions, taking into account, as much as possible, the purpose and intent of the original provisions.
5. If there is any ambiguity regarding the interpretation of one or more provisions of these general terms and conditions, such provisions shall be interpreted “in the spirit” of these provisions.
6. If a situation arises between the parties that is not covered by these general terms and conditions, such situation shall be assessed in accordance with the spirit of these general terms and conditions.
7. If Open Minded IT does not always require strict compliance with these terms and conditions, this does not mean that the provisions thereof do not apply, or that Open Minded IT would in any way lose the right to require strict compliance with the provisions of these terms and conditions in other cases.

Article 2 Quotes and Offers

• All quotes and offers from Open Minded IT are non-binding, unless a deadline for acceptance is specified in the quote. If no deadline for acceptance is specified, no rights may be derived from the quote or offer in any way if the product to which the quote or offer relates is no longer available in the meantime.
• Open Minded IT cannot be held to its quotes or offers if the Client can reasonably understand that the quotes or offers, or any part thereof, contain an obvious error or typographical mistake.
• The prices stated in a quotation or offer do not include VAT or other government taxes, or any costs that may be incurred in connection with the agreement, including travel and accommodation expenses, shipping costs, and administrative fees, unless otherwise indicated.
• If the acceptance (whether or not on minor points) deviates from the offer included in the quotation or proposal, Open Minded IT is not bound by it. In that case, the agreement is not concluded in accordance with this deviating acceptance, unless Open Minded IT indicates otherwise.
• A composite quotation does not obligate Open Minded IT to perform any part of the assignment for a corresponding portion of the quoted price. Offers or quotations do not automatically apply to future orders.

Article 3: Contract Term; Performance Deadlines, Transfer of Risk, Performance and Amendment of the Agreement; Price Increase

1. The agreement between Open Minded IT and the Client is entered into for an indefinite period, unless the nature of the agreement provides otherwise or the parties expressly agree otherwise in writing.
2. If a deadline has been agreed upon or specified for the performance of certain work or the delivery of certain goods, such deadline shall never be considered a strict deadline. If a deadline is exceeded, the Client must therefore give Open Minded IT written notice of default. Open Minded IT must be granted a reasonable period of time to still fulfill the agreement.
3. Open Minded IT will perform the agreement to the best of its knowledge and ability and in accordance with the standards of good workmanship, based on the current state of the art.
4. Open Minded IT reserves the right to have certain work performed by third parties. The applicability of Articles 7:404, 7:407(2), and 7:409 of the Dutch Civil Code is expressly excluded.
5. If Open Minded IT or third parties engaged by Open Minded IT perform work at the Client’s location or a location designated by the Client as part of the assignment, the Client shall provide, free of charge, the facilities reasonably required by such employees.
6. Delivery shall take place ex works from Open Minded IT’s premises. The Client is obligated to accept the goods as soon as they are made available to the Client. If the Client refuses to accept the goods or fails to provide the information or instructions necessary for delivery, Open Minded IT is entitled to store the goods at the Client’s expense and risk. The risk of loss, damage, or depreciation passes to the Client at the moment the goods are made available to the Client.
7. Open Minded IT is entitled to perform the agreement in several phases and to invoice the portion completed in each phase separately.
8. If the agreement is carried out in phases, Open Minded IT may suspend the performance of those parts that belong to a subsequent phase until the Client has approved the results of the preceding phase in writing.
9. The Client shall ensure that all information that Open Minded IT indicates is necessary, or that the Client should reasonably understand to be necessary for the performance of the agreement, is provided to Open Minded IT in a timely manner. If the information required for the performance of the agreement is not provided to Open Minded IT in a timely manner, Open Minded IT has the right to suspend performance of the agreement and/or to charge the Client for any additional costs resulting from the delay in accordance with the rates in effect at that time. The performance period shall not commence until the Client has made the information available to Open Minded IT. Open Minded IT shall not be liable for any damages, of whatever nature, resulting from Open Minded IT relying on incorrect and/or incomplete information provided by the Client.
10. If, during the performance of the agreement, it becomes apparent that amending or supplementing the agreement is necessary for its proper performance, the parties shall amend the agreement in a timely manner and by mutual agreement. If the nature, scope, or content of the agreement is amended—whether or not at the request or direction of the Client, the competent authorities, etc.—and the agreement is thereby altered in qualitative and/or quantitative terms, this may have consequences for what was originally agreed upon. Consequently, the originally agreed-upon amount may also be increased or decreased. Open Minded IT will provide a price estimate for this in advance as much as possible. Furthermore, a change to the agreement may alter the originally specified completion deadline. The Client accepts the possibility of changes to the agreement, including changes to the price and completion deadline.
11. If the agreement is amended, including by way of an addendum, Open Minded IT is entitled to implement such amendment only after Open Minded IT has given its approval and the Client has agreed to the price and other terms specified for the implementation, including the time at which the amendment will be implemented, to be determined at that time. Failure to implement the amended agreement, or failure to do so immediately, does not constitute a breach of contract by Open Minded IT and does not constitute grounds for the Client to terminate or cancel the agreement.
12. Without being in default, Open Minded IT may refuse a request to amend the agreement if such an amendment could have qualitative and/or quantitative implications, for example, for the work to be performed or the goods to be delivered in that context.
13. If the Client fails to properly fulfill its obligations to Open Minded IT, the Client shall be liable for all damages incurred by Open Minded IT as a direct or indirect result thereof.
14. If Open Minded IT agrees with the Client on a fixed fee or fixed price, Open Minded IT is nevertheless entitled at all times to increase this fee or price without the Client being entitled, in such a case, to terminate the agreement for that reason, if the price increase results from an authority or obligation under laws or regulations, or is caused by an increase in the price of raw materials, wages, etc., or for other reasons that could not reasonably have been foreseen at the time the agreement was entered into.
15. If the price increase—other than as a result of an amendment to the agreement—exceeds 10% and occurs within three months of the conclusion of the agreement, only the Client, who is entitled to invoke Title 5, Section 3 of Book 6 of the Dutch Civil Code, is entitled to terminate the agreement by means of a written statement, unless Open Minded IT
    • is still willing to perform the agreement in accordance with the original terms;
    • if the price increase results from a right or an obligation imposed on Open Minded IT by law;
    • if it has been stipulated that delivery will take place more than three months after the conclusion of the agreement;
    • or, in the case of the delivery of goods, if it has been agreed that delivery will take place more than three months after the purchase.

Article 4 Suspension, Termination, and Early Termination of the Agreement

1. Open Minded IT is entitled to suspend performance of its obligations or to terminate the agreement immediately and with immediate effect if the Client fails to fulfill its obligations under the agreement, or fails to do so in full or on time; if circumstances that come to Open Minded IT’s attention after the conclusion of the agreement give it good reason to fear that the Client will not fulfill its obligations; if, upon conclusion of the agreement, the Client was requested to provide security for the fulfillment of its obligations under the agreement and such security is not provided or is insufficient, or if, due to a delay on the part of the Client, Open Minded IT can no longer be expected to fulfill the agreement under the originally agreed terms.
2. Furthermore, Open Minded IT is authorized to terminate the agreement if circumstances arise that are such that performance of the agreement is impossible, or if other circumstances arise that are such that Open Minded IT cannot reasonably be expected to continue the agreement unchanged.
3. If the agreement is terminated, Open Minded IT’s claims against the Client shall become immediately due and payable. If Open Minded IT suspends the performance of its obligations, it shall retain its rights under the law and the agreement.
4. If Open Minded IT proceeds with suspension or termination, it shall in no way be obligated to compensate for any damages or costs arising therefrom in any manner whatsoever.
5. If the termination is attributable to the Client, Open Minded IT is entitled to compensation for the damages, including the costs, incurred directly and indirectly as a result.
6. If the Client fails to fulfill its obligations under the agreement and such breach justifies termination, Open Minded IT is entitled to terminate the agreement immediately and with immediate effect without any obligation on its part to pay any damages or compensation, while the Client, by virtue of its breach of contract, is obligated to pay damages or compensation.
7. If the agreement is terminated early by Open Minded IT, Open Minded IT will, in consultation with the Client, arrange for the transfer of any remaining work to third parties. This does not apply if the termination is attributable to the Client. If the transfer of the work results in additional costs for Open Minded IT, these costs will be charged to the Client. The Client is obligated to pay these costs within the specified timeframe, unless Open Minded IT indicates otherwise.
8. In the event of liquidation, a petition for or grant of a stay of payments, bankruptcy, or attachment—if and to the extent that the attachment is not lifted within three months —at the Client’s expense—or in the event of debt restructuring or any other circumstance preventing the Client from freely disposing of its assets, Open Minded IT shall be free to terminate the agreement immediately and with immediate effect or to cancel the order or agreement, without any obligation on its part to pay any damages or compensation. In such a case, Open Minded IT’s claims against the Client shall become immediately due and payable.
9. If the Client cancels a placed order in whole or in part, the work that has been performed and the goods ordered or prepared for that purpose, plus any associated transportation, removal, and delivery costs, as well as the labor time reserved for the performance of the agreement, will be billed in full to the Client.

Article 5 Force Majeure

1. Open Minded IT is not obligated to fulfill any obligation toward the Client if it is prevented from doing so as a result of circumstances that are not attributable to its fault and for which it is not liable under the law, a legal act, or generally accepted business practices.
2. In these general terms and conditions, “force majeure” is defined as, in addition to what is understood by that term in law and case law, all external causes, whether foreseeable or unforeseeable, over which Open Minded IT has no control, but which prevent Open Minded IT from fulfilling its obligations. This includes strikes by third parties. Open Minded IT also has the right to invoke force majeure if the circumstance preventing (further) performance of the agreement arises after Open Minded IT was required to fulfill its obligation.
3. Open Minded IT may suspend its obligations under the agreement for the duration of the force majeure event. If this period lasts longer than two months, either party is entitled to terminate the agreement without being obligated to compensate the other party for damages.
4. To the extent that, at the time the force majeure event occurs, Open Minded IT has already partially fulfilled its obligations under the agreement or will be able to fulfill them, and the fulfilled or to-be-fulfilled portion has independent value, Open Minded IT is entitled to invoice the already fulfilled or to-be-fulfilled portion separately. The Client is obligated to pay this invoice as if it were a separate agreement.

Article 6 Payment and Collection Costs

1. Payment must always be made within 14 days of the invoice date, in the manner specified by Open Minded IT and in the currency in which the invoice is issued, unless otherwise specified in writing by Open Minded IT. Open Minded IT is entitled to issue invoices on a periodic basis.
2. If the Client fails to pay an invoice on time, the Client shall be deemed to be in default by operation of law. In that case, the Client shall owe interest at a rate of 2% per month, unless the statutory interest rate is higher, in which case the statutory interest rate shall apply. Interest on the amount due shall be calculated from the moment the Client is in default until the moment the full amount due has been paid.
3. Open Minded IT has the right to apply payments made by the Client first toward costs, then toward accrued interest, and finally toward the principal and current interest. Open Minded IT may, without thereby being in default, refuse an offer of payment if the Client specifies a different order for the allocation of the payment. Open Minded IT may refuse full repayment of the principal amount if the overdue and current interest, as well as collection costs, are not also paid.
4. The Client is never entitled to set off the amount it owes to Open Minded IT. Objections to the amount of an invoice do not suspend the obligation to pay. A Client who is not entitled to invoke Section 6.5.3 (Articles 231 through 247 of Book 6 of the Dutch Civil Code) is also not entitled to suspend payment of an invoice for any other reason.
5. If the Client is in default or fails to fulfill its obligations (in a timely manner), all reasonable costs incurred to obtain payment out of court shall be borne by the Client. The out-of-court costs are calculated based on standard practice in the Dutch debt collection industry, currently the calculation method set forth in the Voorwerk II Report. However, if Open Minded IT has incurred higher collection costs that were reasonably necessary, the actual costs incurred will be eligible for reimbursement. Any court and enforcement costs incurred will also be recovered from the Client. The Client is also liable to pay interest on the collection costs owed.

Article 7 Retention of Title

1. The goods and services delivered by Open Minded IT under the agreement shall remain the property of Open Minded IT until the Client has properly fulfilled all obligations under the agreement(s) entered into with Open Minded IT.
2. The goods delivered by Open Minded IT that are subject to retention of title pursuant to paragraph 1 may not be resold and may never be used as a means of payment. The Client is not authorized to pledge the goods subject to retention of title or to encumber them in any other way.
3. The Client must at all times do everything that may reasonably be expected of it to safeguard Open Minded IT’s ownership rights. If third parties seize the goods delivered under retention of title or seek to establish or assert rights thereto, the Client is obligated to notify Open Minded IT immediately. Furthermore, the Client undertakes to insure and keep insured the goods delivered under retention of title against fire, explosion, and water damage, as well as against theft, and to make the insurance policy available for inspection by Open Minded IT upon first request. In the event of an insurance payout, Open Minded IT is entitled to these proceeds. To the extent necessary, the Client hereby undertakes in advance to cooperate with Open Minded IT in all matters that may be (or prove to be) necessary or desirable in this regard.
4. In the event that Open Minded IT wishes to exercise the property rights referred to in this article, the Client hereby grants, in advance, unconditional and irrevocable permission to Open Minded IT and to third parties designated by Open Minded IT to enter any location where Open Minded IT’s property is located and to retrieve said property.

Article 8: Warranties, Inspections, and Claims; Statute of Limitations

1. The goods to be delivered by Open Minded IT meet the customary requirements and standards that can reasonably be expected at the time of delivery and for which they are intended under normal use in the Netherlands. The warranty referred to in this article applies to goods intended for use within the Netherlands. If used outside the Netherlands, the Client must verify for itself whether such use is suitable for the location in question and complies with the conditions set forth there. In that case, Open Minded IT may impose different warranty terms and other conditions regarding the goods to be delivered or the work to be performed.
2. The warranty referred to in paragraph 1 of this article applies for a period of 1 month after delivery, unless the nature of the goods delivered dictates otherwise or the parties have agreed otherwise. If the warranty provided by Open Minded IT relates to an item manufactured by a third party, the warranty is limited to that provided by the manufacturer of the item, unless otherwise stated.
3. Any warranty shall be void if a defect arises as a result of or stems from improper or inappropriate use of the product, use after the expiration date, or improper storage or maintenance by the Client and/or third parties; or if, without the written consent of Open Minded IT, the Client or third parties have made or attempted to make modifications to the item, attached other items to it that are not intended to be attached, or if the item was processed or modified in a manner other than that prescribed. Nor shall the Client be entitled to a warranty claim if the defect arose from or is the result of circumstances beyond Open Minded IT’s control, including weather conditions (such as, but not limited to, extreme rainfall or temperatures), etc.
4. The Client is obligated to inspect the delivered goods (or have them inspected) immediately upon the goods being made available to the Client or upon completion of the relevant work. In doing so, the Client must verify whether the quality and/or quantity of the delivered goods corresponds to what was agreed upon and meets the requirements agreed upon by the parties in this regard. Any visible defects must be reported to Open Minded IT in writing within seven days of delivery. Any non-visible defects must be reported to Open Minded IT in writing immediately, but in any case no later than fourteen days after their discovery. If the Client is a consumer, any defects (visible or invisible) must be reported to Open Minded IT in writing within two months of discovery. The report must include as detailed a description of the defect as possible, so that Open Minded IT is able to respond appropriately. The Client must give Open Minded IT the opportunity to investigate a complaint or have it investigated.
5. If the Client files a complaint in a timely manner, this does not suspend its payment obligation. In that case, the Client remains obligated to accept and pay for the other goods ordered and for the services it has commissioned from Open Minded IT.
6. If a defect is reported at a later date, the Client shall no longer be entitled to repair, replacement, or compensation.
7. If it is established that an item is defective and a complaint regarding this has been filed in a timely manner, Open Minded IT will, within a reasonable period after receiving the returned item, or, if return is not reasonably possible, upon written notification of the defect by the Client, at Open Minded IT’s discretion, replace the item, repair it, or provide the Client with compensation for it. In the event of a replacement, the Client is obligated to return the replaced item to Open Minded IT and transfer ownership thereof to Open Minded IT, unless Open Minded IT specifies otherwise.
8. If it is determined that a complaint is unfounded, the costs incurred as a result—including the costs of the investigation—incurred by Open Minded IT shall be borne in full by the Client.
9. After the warranty period expires, all costs for repair or replacement, including administrative, shipping, and service call fees, will be charged to the Client. If the Client is a consumer, this provision does not apply.
10. Notwithstanding the statutory limitation periods, the limitation period for all claims and defenses against Open Minded IT and any third parties involved by Open Minded IT in the performance of an agreement is one year. This provision does not apply if the Client is a consumer.

Article 9 Liability

1. If Open Minded IT is found to be liable, such liability shall be limited to the provisions set forth in this clause.
2. Open Minded IT is not liable for any damages, of any kind, arising from Open Minded IT’s reliance on incorrect and/or incomplete information provided by or on behalf of the Client.
3. If Open Minded IT is found liable for any damages, its liability shall be limited to a maximum of twice (or, if the Client is a consumer, three times) the invoice value of the order, or at least to that portion of the order to which the liability relates.
4. In any case, Open Minded IT’s liability is always limited to the amount paid out by its insurer, if applicable.
5. Open Minded IT is liable only for direct damages.
6. “Direct damages” shall be understood to mean exclusively the reasonable costs incurred in determining the cause and extent of the damage, to the extent that such determination relates to damage as defined in these terms and conditions, any reasonable costs incurred to bring Open Minded IT’s defective performance into compliance with the agreement, to the extent that such costs can be attributed to Open Minded IT; and reasonable costs incurred to prevent or limit damage, to the extent that the Client demonstrates that these costs have led to a reduction in direct damage as defined in these general terms and conditions. Open Minded IT is never liable for indirect damage, including consequential damage, lost profits, lost savings, and damage resulting from business interruption.
7. The limitations of liability set forth in this article do not apply if the damage is attributable to willful misconduct or gross negligence on the part of Open Minded IT.

Article 10 Indemnification

1. The Client shall indemnify Open Minded IT against any claims by third parties who suffer damage in connection with the performance of the agreement and where the cause of such damage is attributable to parties other than Open Minded IT. If Open Minded IT is held liable by third parties on that basis, the Client is obligated to assist Open Minded IT both in and out of court and to immediately take all actions that may reasonably be expected of the Client in such a case. Should the Client fail to take adequate measures, Open Minded IT shall be entitled, without notice of default, to take such measures itself. All costs and damages incurred by Open Minded IT and third parties as a result thereof shall be borne in full by the Client at its own risk.

Article 11 Governing Law and Disputes

1. All legal relationships to which Open Minded IT is a party shall be governed exclusively by Dutch law, even if an obligation is performed in whole or in part abroad or if a party to the legal relationship is domiciled there. The applicability of the Vienna Convention on Contracts for the International Sale of Goods is excluded.
2. The court in the city where Open Minded IT is headquartered has exclusive jurisdiction to hear disputes, unless mandatory provisions of law provide otherwise. Nevertheless, Open Minded IT has the right to bring the dispute before the court that has jurisdiction under the law.
3. The parties will not bring a matter before the court until they have made every effort to resolve the dispute through mutual agreement.

Article 12: Where to Find and Amend the Terms and Conditions

1. These terms and conditions are available on our website.
2. The most recently filed version, or the version in effect at the time the legal relationship with Open Minded IT was established, shall always apply.
3. The Dutch text of the general terms and conditions shall always prevail in determining their interpretation.

Article 13 Data Processor Agreement

This Data Processing Agreement—along with the general terms and conditions—forms an integral part of every agreement regarding services between Open Minded IT BV, with its registered office in Tilburg and registered with the Chamber of Commerce under number: 62430807 (hereinafter: “Open Minded IT”) and the other party. For the purposes of this Data Processing Agreement, Open Minded IT is designated as the “Processor” and the other party (the client) as the “Data Controller.”

Taking into account that

• The Data Controller has entered into an agreement with its customers and wishes to engage the Processor to fulfill that agreement;
• The Data Controller and the Data Processor have entered into an Agreement for the purposes described above;
• In certain cases, a processor involved in the performance of the Agreement may be considered a processor within the meaning of Article 1(e) of the General Data Protection Regulation (hereinafter: “GDPR”);
• The data controller is deemed to be a data controller within the meaning of Article 4.7 of the GDPR;
• where this Data Processing Agreement refers to personal data, it means personal data as defined in Article 4.7 of the GDPR;
• The processor is willing to comply with obligations regarding security and other aspects of the GDPR, to the extent that this is within its power;
• The GDPR imposes an obligation on the Data Controller to ensure that the Data Processor implements adequate organizational and technical security measures with respect to the processing operations to be carried out;
• In addition, the GDPR requires the data controller to ensure compliance with those measures;
• The Parties, taking into account the requirement set forth in Article 28.3 of the GDPR, wish to set forth their rights and obligations in writing through this Data Processing Agreement (hereinafter: “Data Processing Agreement”); where terms from the GDPR or General Data Protection Regulation (GDPR) are used in this Data Processing Agreement, they refer to the corresponding terms in the GDPR or GDPR;
• Where this Data Processing Agreement refers to the GDPR, as of May 25, 2018, it refers to (the corresponding provisions of) the GDPR.

have agreed as follows

Article 13.1. Purposes of Processing

1. The Processor undertakes, under the terms of this Data Processing Agreement, to process personal data on behalf of the Data Controller. Processing will take place exclusively within the scope of the Data Processing Agreement—under which, among other things, the Controller’s data is hosted and services are provided to the Controller—and for those purposes that are reasonably related thereto or have been specified in the Agreement with further consent.
2. The Processor shall not process the personal data for any purpose other than those specified by the Controller. The Controller shall inform the Processor of the purposes of processing to the extent that they are not already specified in this Data Processing Agreement.
3. The processor has no control over the purpose and means of processing personal data. The processor does not make decisions regarding the receipt and use of personal data, the disclosure of personal data to third parties, or the duration of the storage of personal data.
4. The Data Controller warrants that, as of May 25, 2018, when the GDPR takes effect, it will maintain a record of the processing activities governed by this Data Processing Agreement.
   The Data Controller indemnifies the Data Processor against all claims and demands arising from failure to properly comply with this record-keeping obligation.

Article 13.2. Obligations of the Processor

1. With regard to the processing operations referred to in Article 1, the Processor will ensure compliance with the conditions set forth in the GDPR for the processing of personal data.
2. The Processor shall, at the request of the Controller and within a reasonable period of time, inform the Controller of the measures it has taken regarding its obligations under this Data Processing Agreement.
3. The Processor’s obligations under this Data Processing Agreement also apply to those who process personal data under the Processor’s authority.
4. The Processor shall notify the Controller if, in its opinion, an instruction from the Controller violates relevant privacy laws and regulations.
5. The Processor shall provide the Controller with the necessary cooperation should a data protection impact assessment or prior consultation with the supervisory authority be required in connection with the processing.

Article 13.3. Transfer of Personal Data

1. The Processor may process personal data in countries within the European Union. The Controller hereby also grants the Processor permission, where applicable, to process personal data in countries outside the European Union, in compliance with the relevant laws and regulations.
2. The Processor shall, at the request of the Controller, inform the Controller of the country or countries in question.

Article 13.4. Division of Responsibilities

1. The parties shall ensure compliance with applicable privacy laws and regulations.
2. The permitted processing operations will be carried out by the Processor in an automated environment.
3. The Processor is solely responsible for the processing of personal data under this Data Processing Agreement, in accordance with the instructions of the Controller and under the explicit (ultimate) responsibility of the Controller. The Processor is not responsible for any other processing of personal data, including, but not limited to, the collection of personal data by the Controller, processing for purposes not notified by the Controller to the Processor, processing by third parties, and/or processing for other purposes. Responsibility for these processing activities rests solely with the Data Controller.
4. The Data Controller warrants that the content, use, and instructions regarding the processing of personal data, as referred to in this Data Processing Agreement, are not unlawful and do not infringe upon any rights of third parties, and indemnifies the Data Processor against all claims and demands related thereto.

Article 13.5. Engagement of Third Parties or Subcontractors

1. The Data Controller hereby authorizes the Data Processor to engage third parties (subprocessors) in the processing.
2. At the request of the Data Controller, the Data Processor shall inform the Data Controller as soon as possible of any subprocessors it has engaged. The Data Controller has the right to object to the engagement of a subprocessor. Such an objection must be submitted in writing within two weeks and supported by reasons.
3. The Processor shall unconditionally ensure that these third parties undertake in writing the same obligations as those agreed upon between the Controller and the Processor. The Processor guarantees that these third parties will properly comply with these obligations.

Article 13.6. Security

1. The Processor shall endeavor to take appropriate technical and organizational measures with respect to the processing of personal data to be carried out, to prevent loss or any form of unlawful processing (such as unauthorized access, damage, alteration, or disclosure of the personal data). At the request of the Controller, the Processor shall provide information regarding the security measures taken.
2. The Processor does not guarantee that the security measures will be effective under all circumstances. The Processor will make every effort to ensure that the security measures meet a level that is not unreasonable, taking into account the state of the art, the sensitivity of the personal data, and the costs associated with implementing the security measures.
3. The Data Controller shall only make personal data available to the Processor for processing if the Data Controller has ensured that the necessary security measures have been implemented.
4. The data controller is responsible for ensuring compliance with the measures agreed upon by the Parties.

Article 13.7. Reporting Requirement

1. In the event of a security breach and/or a data breach (defined as: a breach of the security of personal data that results in a significant risk of adverse consequences, or that has adverse consequences, for the protection of personal data, as referred to in Article 33.1 of the GDPR), the Processor shall use its best efforts to notify the Controller within 48 hours, following which the Controller shall assess whether or not to notify the supervisory authorities and/or the data subjects. The Processor shall use its best efforts to ensure that the information provided is complete, correct, and accurate.
2. If required by law and/or regulations, the Processor will cooperate in notifying the relevant authorities and any affected parties. The Controller is responsible for reporting to the relevant authorities.
3. The reporting requirement includes, at a minimum, reporting the fact that a data breach has occurred, as well as:
   • What is the (alleged) cause of the leak;
   • What is the (currently known and/or expected) consequence;
   • What is the (proposed) solution?;
   • What measures have already been taken;
   • Contact information for follow-up on the report;
   • Anyone who has been informed (such as the data subject, the data controller, or the supervisory authority).
4. Complaint Regarding the Processing of Your Personal Data. If you have a complaint regarding the processing of your personal data, please do not hesitate to let us know. If you are unable to resolve the matter with Open Minded IT, you have the right to file a complaint with the privacy regulator, the Dutch Data Protection Authority.

Article 13.8. Handling Requests from Data Subjects

1. If a data subject submits a request regarding their personal data to the Processor, the Processor will forward the request to the Data Controller and notify the data subject accordingly. The Data Controller will then handle the request independently. If it turns out that the Data Controller requires assistance from the Processor to fulfill a data subject’s request, the Processor will cooperate and may charge a fee for such assistance.

Article 13.9. Confidentiality

1. All personal data that the Processor receives from the Controller and/or collects itself under this Data Processing Agreement is subject to a duty of confidentiality with respect to third parties. The Processor shall not use this information for any purpose other than that for which it was obtained, unless it has been anonymized to the extent that it cannot be traced back to the data subjects.
2. This confidentiality obligation does not apply:
   • to the extent that the Data Controller has given explicit consent to provide the information to third parties; or
   • if the disclosure of the information to third parties is reasonably necessary for the performance of the Main Agreement or this Data Processing Agreement; and
   • if there is a legal obligation to disclose the information to a third party.

Article 13.10. Audit

1. The Data Controller has the right to have audits conducted by an independent IT expert who is bound by a confidentiality agreement to verify compliance with all provisions of this Data Processing Agreement.
2. This audit will take place only after the Data Controller has inquired with the Data Processor whether similar audit reports are available and, if so, has requested and reviewed the available audit reports and presented reasonable arguments justifying an audit initiated by the Data Controller. Such an audit is justified when the similar audit reports available from the Processor provide no or insufficient clarity regarding the Processor’s compliance with this Data Processing Agreement. The audit initiated by the Data Controller shall take place once a year, two weeks after prior notice by the Data Controller.
3. The Processor shall cooperate with the audit and make available all information reasonably relevant to the audit—including supporting data such as system logs—and employees as soon as possible and within a reasonable timeframe, whereby a period of up to two weeks is reasonable unless an urgent interest precludes this.
4. The findings resulting from the audit will be reviewed by the Parties in mutual consultation and, based on that review, may or may not be implemented by one of the Parties or by both Parties jointly.
5. The reasonable costs of the audit shall be borne by the Data Controller, provided that the costs of the IT expert to be hired shall always be borne by the Data Controller.

Article 13.11. Term and Termination

1. The Data Processing Agreement is entered into for the term specified in the Agreement between the Parties and, in the absence thereof, in any event for the duration of the collaboration.
2. The Data Processing Agreement cannot be terminated before its expiration date.
3. The parties may amend this Data Processing Agreement only by mutual agreement.
4. Upon termination of the Data Processing Agreement, the Processor shall destroy the personal data received from the Controller after one (1) calendar month, unless the parties agree otherwise.

Article 13.12. Miscellaneous Provisions

1. The Data Processing Agreement and its performance are governed by
2. Dutch law.
3. Any disputes that may arise between the Parties in connection with the Data Processing Agreement shall be submitted to the competent court in the judicial district where the Processor is located.
4. If privacy laws change, the parties will cooperate to amend this Data Processing Agreement in order to ensure (continued) compliance with such laws.
5. Logs and measurements taken by the Processor shall constitute conclusive evidence, unless the Controller provides evidence to the contrary.
6. In the event of a conflict between different documents or their attachments, the following order of precedence applies:
   • the Agreement;
   • this Data Processing Agreement;
   • Service Level Agreement and any attachments;
   • the Terms and Conditions;
   • any additional conditions.

You can also download these terms and conditions byclicking this link.