Professional Services Terms and Conditions
Acceptance of the Terms
This agreement governs your purchase and receipt of our professional services. By accepting this agreement, either by clicking a box indicating your acceptance or by executing a statement of work (“sow”) that references this agreement, you agree to the terms of this agreement. You must be of legal age to enter into a binding agreement in order to accept the Terms. If you are entering into this agreement on behalf of a company or other legal entity, you acknowledge that you have the authority to bind such entity and its affiliates to these terms and conditions. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this agreement and may not receive the professional services.
You may not receive Professional Services if you are a direct Leadmark competitor, except with our prior written consent. In addition, you may not receive Professional Services for purposes of evaluating or monitoring their quality or performance, or for any other benchmarking or competitive purposes.
The agreement is effective between you and Leadmark as of the date of you accepting this Agreement.
“Agreement” means the agreement based on these terms and conditions between Leadmark and the Client for the Software and/or performance of the Services.
“Client” means the individual or the legal entity who purchases Services provided by Leadmark and assumes payment responsibility for the same vis-à-vis Leadmark.
“Company” means Leadmark b.v. which is entering into the Agreement.
“Default” means any breach of the obligations of either party (including but not limited to fundamental breach or breach of a fundamental term) and/or any actionable default, act, omission, negligence or mis-statement of either party, its employees, agents or sub-contractors in connection with or in relation to the subject of this Agreement and in respect of which such party is liable to the other.
“Intellectual Property Rights” means any and all design rights, utility models, patents, inventions, service marks, logos, business names, trademarks (whether registered or unregistered), internet domain names, copyright, rights in databases, data, source codes, reports, drawings, specifications, know-how, trade secrets, confidential information, software designs and/or other materials, semi-conductor rights, topography rights, rights in the nature of unfair competition and the right to sue for passing off and any other equivalent rights whether or not registered or capable of registration and whether subsisting in the United Kingdom or any other part of the world together with all or any related goodwill.
“Services” means the services provided by Leadmark to the Client including, but not limited to, management consultancy, training and advisory services.
Statement of Work” means the document setting out the Services and the rates for such work.
“Termination Date” means the date specified in the Statement of Work when this Agreement shall end unless terminated earlier.
The Client shall provide to Leadmark access to such resources during normal business hours and shall procure all licences as Leadmark shall require performing its obligations under the Agreement.
In consideration of payment of the fees set out in the Statement of Work, Leadmark shall provide the Services in accordance with the Statement of Work and these terms and conditions.
4. Payment of fees
Leadmark shall invoice the Client for payment of the fees and the Client shall pay them to Leadmark as specified and at the time stated in the Statement of Work or on the invoice. If no specific arrangements have been made, the Client shall effect payment within a 30 day period after the date of invoice to be determined by the Leadmark. The Client shall not be entitled to suspend any payments or to offset any amounts due.
5. VAT and payment
All sums payable under this Agreement are stated exclusive of NL Value Added Tax and/or equivalent taxes in other countries which will be added and payable by the Client at the applicable rate and all sums due shall be paid without set-off, counter claim or deduction.
6. Late payment
Where the payment of any invoice or any part of an invoice is not made in accordance with this Agreement by the Client, after receiving a demand or notice of default, Leadmark, without prejudice to its other rights under this Agreement or in law, shall be entitled to:
a) charge interest (both before and after judgement) on the outstanding amount at the rate of 1.5 per cent per month from the Due Date until the date of payment in full; and/or
b) suspend and/or withhold any services to be performed by Leadmark for the Client under this Agreement or any other arrangement; and/or
c) refer the debt collection, which case the Client is required to pay all legal fees and out-of-courtexpenses, including all costs charge by external experts, in addition to the total amount then due; and/or
e) terminate this Agreement.
In addition to the fees for Services the Client shall reimburse all expenses reasonably and properly incurred by Leadmark in the performance of the Services at any location including but not limited to travel, subsistence and accommodation expenses. Such expenses will be recharged at cost. Leadmark shall maintain adequate records of such expenses and, at the Client’s reasonable request, shall produce copies for inspection. These expenses may be invoiced monthly in arrears detailing the nature of the expense incurred and the person who incurred the expense. Leadmark will agree with the Client in advance the nature and scope of these expenses.
8.1 The fees set out in the Statement of Work shall either be stated as fixed or on a time and materials basis. In any case other than fixed fee arrangements all timetables for work and/or performance dates are estimates only, except where specified otherwise by Leadmark, and such work will be performed on an hourly or daily rate basis. The Client may under no circumstances derive any rights or expectations from any cost estimates of budgets issued by Leadmark. An available budget made known by the Client to Leadmark shall under no circumstances apply as a (fixed) price agreed between the parties for the service to be provided by Leadmark. Leadmark shall only be obliged to notify the Client that there is a risk that a cost estimate or budget issued by Leadmark will be exceeded if this has been agreed between the parties in writing.
8.2 If the Client is subject to a periodic payment obligation, Leadmark shall be entitled to adjust the applicable prices and rates in writing subject to advance notice of at least thirty (30) days. If the Client does not wish to agree to this change, the Client shall be entitled to terminate the agreement in writing with effect from the date on which the change is due to enter into force within thirty days following the date of notification. The Client shall not enjoy this right of termination, however, if the parties have agreed that the applicable prices and rates shall be adjusted subject to due observance of an index or other standard agreed between the parties.
9. Site regulations
Leadmark and the Client agree that when Leadmark’s staff including its agents and sub-contractors, are present on the Client’s premises they shall be fully appraised by the Client of all rules, regulations and policies relating to the health and safety of personnel and security on those premises and they shall comply with such rules, regulations, procedures and policies. The Client is entitled to deny access to the Site to any of Leadmark’s staff who in the Client’s reasonable opinion constitute a threat to the Client’s security or that of its Site, systems or equipment.
10.1 Leadmark shall use reasonable endeavours to retain personnel allocated to provide the Services but where it has no reasonable alternative but to replace such personnel, Leadmark shall give the Client reasonable prior written notice and will use reasonable endeavours to replace the personnel with personnel of similar experience and qualification and unless the replacement has occurred for reasons beyond the reasonable control of Leadmark, Leadmark shall bear the cost of training such replacement personnel.
10.2 The Client shall be entitled to request that the employee made available be replaced (i) if the employee made available demonstrably fails to meet the quality requirements explicitly agreed and the Client notifies Leadmark of this in writing, stating reasons, within three working days following commencement of the work, or (ii) if the employee made available suffers a long-term illness or leaves the employment of Leadmark. Leadmark shall respond to the request immediately and treat it as a priority. Leadmark shall not guarantee that it will always be possible to replace the employee. If it is not possible to provide a replacement or to provide a replacement immediately, the Client’s right to further compliance with the agreement and all rights enjoyed by the Client in relation to non-compliance with the agreement shall lapse. The Client’s payment obligations in respect of the work carried out shall continue to apply in full.
10.3 The working hours, rest periods and working week of the Leadmark employee made available shall be the same as the Client’s standard times and week, except where agreed otherwise. The Client shall guarantee that the working hours and rest periods and the working week of the employee made available comply with the relevant legislation and regulations.
10.4 The Client shall inform Leadmark as soon as possible with regard to the intended closure of its business or organisation during the term of the agreement. If the Client fails to inform Leadmark in good time, the agreed rate shall be payable in full by the Client for the period during which the business or organisation is closed.
Each of the Client and Leadmark agrees that for the period of the Agreement and until expiry of twelve months after termination of the Agreement it shall not without the prior written agreement of the other party knowingly employ or engage on any basis or offer employment or engagement to any staff of the other party who have been associated with the provision of the Services to the Client.
If either party breaches clause 10, the party in default shall be liable to pay the other party liquidated damages of an amount equal to the greater of (i) €50,000; and (ii) an amount equal to the person’s aggregate annual gross remuneration package (calculated as at the date of termination of that staff member’s employment with that other party) and the parties agree that this is a reasonable pre-estimate of the likely loss a party will suffer as a result of a breach of clause 11.
During the provision of the Services Leadmark shall provide periodic status reports setting out the progress of the Services at intervals agreed by the parties. The parties shall hold progress meetings if one of the parties requests this by giving at least one week’s prior written notice.
14. Scope of the Services
14.1 The nature and extent of the Services shall be set out in the Statement of Work but at any time prior to completion of the Services either party may request a change to them by notice in writing to the other party. Each party has the right to reject the change request but shall not do so unreasonably. Leadmark shall provide the Client with an estimate of the fees for the proposed changed Services and, in cases of change requests made by the Client, Leadmark reserves the right to charge the Client for costing the change request at its then hourly or daily rates. If the parties agree to implement the change, details of the change and the fees, timetable of work and/or delivery dates shall be set out in a further Statement of Work signed by both parties and shall then be deemed to be incorporated into the Agreement.
14.2 Where the Services result in the production of software, Leadmark shall make the computer programs specified in the agreement and the corresponding user documentation, hereinafter referred to as ‘the software’, available to the Client for use in support of its business processes specified in the Statement of Work.
14.3 Except where agreed otherwise in writing, Leadmark’s obligation is not to provide the Client’s with any software code or configuration files. The Client’s right of use shall not extend beyond the use of the software to support the business processes specified in the Statement of Work. The software source, configuration files and the technical documentation produced during the development of the software shall not be made available to the Client under any circumstances, even if the Client is prepared to pay financial compensation for this information.
14.4 Except where otherwise agreed in writing, Leadmark’s performance obligations shall not include the maintenance of the software and/or the provision of support to the users of the software. If, contrary to the foregoing, Leadmark is also required to provide such maintenance and/or support, Leadmark may require the Client to enter into a separate written agreement for this purpose.
14.5 This Agreement is limited to Professional Services and does not convey any right to use Online Services. Any use of Online Services by the Client will be governed by a separate agreement. The Client agree that your purchase of Professional Services is not contingent on the delivery of any future Online Service functionality or features, other than Deliverables, subject to the terms of the applicable SOW, or on any oral or written public comments by Us regarding future Online Service functionality or features.
Leadmark shall perform the Services with reasonable care and skill. The Client will promptly notify Leadmark of any breach of the warranties contained in the Agreement as soon as practicable upon becoming aware of it and use reasonable endeavours to do so within 14 days. Leadmark will be entitled and obliged to remedy such breach within a reasonable time from receipt of notification (which shall not be greater than 30 days unless otherwise agreed between the parties). This Clause 14 states Leadmark’s entire liability with regard to any breach of the warranties contained in the Agreement.
16. No implied terms
Except as expressly stated in these terms and conditions, all warranties, undertakings, duties, terms and conditions, whether express or implied by statute, common law or otherwise (including but not limited to fitness for purpose) are excluded to the fullest extent permitted by law.
17.1 All (delivery) periods and (delivery) dates agreed or specified by Leadmark shall be established to the best of Leadmark’s knowledge on the basis of the information available to it at the time of entering into the agreement. Interim (delivery) dates agreed between the parties or specified by Leadmark shall, unless agreed otherwise, in all cases be target dates, shall not have a binding effect on Leadmark and shall in all cases be merely indicative. Leadmark shall make every reasonable effort to observe final (delivery) periods and final (delivery) dates wherever possible. Leadmark shall not be bound by a (delivery) period or (delivery) date, final or otherwise, that can no longer be achieved as a result of circumstances outside of Leadmark’s control that occurred after the date on which the agreement was concluded. Leadmark shall also not be bound by a (delivery) date or (delivery) period, final or otherwise, if the parties have agreed on a change to the content or scope of the agreement (additional work, change in specifications etc.) or a change in the approach to the execution of the agreement. If there is a risk that a time period will be exceeded, Leadmark shall consult with the Client in order to discuss the implications of the overrun for the rest of the schedule.
17.2 The mere fact that a (delivery) period or (delivery) date, final or otherwise, specified by Leadmark or agreed between the parties has been exceeded, shall not mean that Leadmark is in default. In all cases – therefore also in the event that the parties have agreed a final (delivery) period or (delivery) date explicitly in writing – Leadmark shall not be in default as a result of the fact that a delivery period or date has been exceeded until such time as the Client has given written notice of default. The notice of default must contain as comprehensive and detailed a description of the breach as possible, in order to ensure that Leadmark has the opportunity to respond adequately.
17.3 Where the Services result in the production of reports, software or other materials (“Deliverables”) such Deliverables shall be submitted to the Client in draft form for the Client’s review and the Client shall provide Leadmark with written feedback on those Deliverables. Leadmark will incorporate agreed changes to the draft Deliverables and then issue them to the Client. If the Client does not provide a written feedback in relation to the Deliverables within fourteen days of issue, those Deliverables shall be deemed to be in final form. The Services shall be deemed to be completed upon the issue of all Deliverables in final form and/or upon the completion of all activity set out in the Statement of Work.
18. Client co-operation
The successful and timely performance by Leadmark of the Services is dependent upon the Client’s prompt performance of its obligations under the Agreement. The Client agrees to make available to Leadmark an authorised representative who will:
a) be authorised to make binding decisions for the Client with regard to the Agreement, including any
change to the Services;
b) review all documents, including the draft Deliverables, provided by Leadmark for review so that
corrections or changes may be made by Leadmark; and
c) provide Leadmark with all reasonable information and documentation concerning the Client’s operations and activities which may be required by Leadmark for the performance of the Services. The Client will be responsible and liable for all third party actions or omissions where such third party are under the control of the Client.
19. Client’s staff
Where participation by, or access by Leadmark to, the Client’s staff is necessary for the performance of the Services, the Client agrees that such staff will have the appropriate skill, qualifications and experience and will be available at the times agreed by the parties.
20. Rights in the Deliverables
To the extent that the Deliverables or any document, software, data or other material developed by Leadmark in the course of performing the Services constitutes an original work or includes or incorporates a pre-existing work or proprietary item of Leadmark all right, title and interest (including all Intellectual Property Rights) shall be and remain vested in Leadmark. Subject to payment of all fees due under the Agreement, Leadmark grants to the Client a non-exclusive licence to use the same to the extent necessary to enable the Client to possess and use the Deliverables for its internal business only.
21. Intellectual Property
The Client and Leadmark shall retain all right, title and interest (including all Intellectual Property Rights) in all documents, software, data or other materials which constitute the pre-existing works or proprietary items belonging to them respectively and which are provided for use in connection with the performance of the Services. The Client grants to Leadmark a non-exclusive royalty free licence to use these items belonging to the Client to perform the Services.
Upon termination of the Agreement Leadmark shall return to the Client or destroy, at the Client’s option, such documents, software, data or other materials, provided that if the Client does not notify Leadmark of its election within one (1) month following termination, Leadmark shall be entitled to dispose of those items in any reasonably appropriate manner.
22. Intellectual Property indemnity
Subject to the terms of this Agreement Leadmark shall indemnify the Client against any loss, claims, damages or expenses (including reasonable costs) that may be incurred or suffered by the Client in respect of any claim or action that the possession or use of the Deliverables by the Client in the manner envisaged by the Agreement infringes the Intellectual Property Rights of any third party (an “Intellectual Property Infringement”) provided that the Client:
a) gives notice to Leadmark of any Intellectual Property Infringement as soon as reasonably practicable on becoming aware of it;
c) gives Leadmark the conduct of the defence to and any settlement negotiations in relation to any claim or action in respect of any Intellectual Property Infringement and does not at any time admit liability or attempt to settle or compromise the claim or action without prior consultation with and writtenconsent of Leadmark which shall not be unreasonably withheld or delayed; and
Neither party excludes or limits liability to the other party for:
a) death or personal injury caused by its negligence or that of its subcontractors or agents;
b) fraud; or
c) breach of the implied terms as to title as set out in section 12 Sale of Goods Act 1979 or section 2 Supply of Goods and Services Act 1982.
24. Limitation of liability
24.1 Except where agreed otherwise in writing, the use made by the Client of advice issued by Leadmark shall in all cases be at the Client’s risk and expense.
24.2 Subject always to clause 22, the entire aggregate liability of Leadmark under or in connection with the Agreement, whether for tort (including negligence) misrepresentation, breach of contract, breach of common law or otherwise, shall not exceed one hundred percent (100%) of the fees paid to Leadmark by the Client in any twelve month period prior to the relevant claim arising.
24.3 A condition for the existence of any right to compensation shall in all cases be that the Client notifies Leadmark in writing of the loss or damage as soon as possible after it occurs. Any claims for damages against Leadmark shall expire by the mere passage of 3 months from the date on which the claim arose.
24.4 The parties acknowledge that active and constructive participation in an ICT-Mediation process is a reasonable and suitable measure for preventing or limiting the risk of damage or loss if this potential damage or loss is connected to failure by Leadmark to meet any contractual obligation or to meet such obligations properly and in good time. The Client therefore undertakes to actively, constructively and unconditionally participate in an ICT-Mediation process, at the Leadmark’s first written request, in accordance with the ICT-Mediation Regulations of the Foundation for the Settlement of Automation Disputes [Stichting Geschillenoplossing Automatisering], with its registered office in The Hague (see www.sgoa.org and www.sgoa.eu).
24.5 The Client shall defend and indemnify Leadmark against all claims by third parties due to product liability as a result of a fault in a product or system delivered by the Client to a third party and that partly consisted of hardware, software or other materials provided by Leadmark, unless and in so far as the Client is able to demonstrate that the damage or loss was caused by this hardware, software or other materials.
24.6 The provisions of this article and all other restrictions and exclusions of liability referred to in these general terms and conditions shall also apply in favour of all (legal) persons that Leadmark engages to execute the agreement.
Subject to clause 22 in no event shall Leadmark be liable for:
a) indirect, pure economic or consequential loss or damage; or
b) expenses or loss of profits; or
c) loss of revenue, loss of contracts or loss of opportunity; or
d) loss of or damage to goodwill; or
e) loss of anticipated savings or opportunity; or
f) loss of or loss of use of data and/or corruption of data; or
g) business interruption; or
h) aggravated, punitive, exemplary and/or special damages; or
i) loss or damage incurred by the Client as a result of third party claims; or
j) any loss or damage to the extent that it is caused by or results from any use of the Deliverables by the Client in any manner other than that for which they were provided.
If for any reason the exclusion of liability in clause 24 is void or unenforceable, in whole or in part, Leadmark’s total liability for all loss or damage under the Agreement shall be as provided in clause 23. Each of the limitations and exclusions in clauses 23 and 24 is a separate limitation or exclusion which shall apply and survive even if, for any reason, one or other of them is held inapplicable or unreasonable in any circumstances. The limitations and exclusions in this Agreement shall survive any termination or expiry of this Agreement.
Leadmark shall effect and maintain adequate insurance cover at its own cost with a reputable insurance company to cover the liability accepted by it under the terms of the Agreement and shall, at the Client’s reasonable request, produce reasonable evidence of the insurance policy.
The client shall be responsible for IT security in accordance with industry best practices including the ISO27000 Series in connection with the performance of its obligations.
Unless already known or in the public domain or required by law the parties undertake at all times to keep confidential and not to use or to disclose to any third party without the other party’s prior written consent any confidential information supplied by the other party or obtained as a result of the Agreement (or any discussions prior to execution of the Agreement) including all information (in whatever form) relating to the other party’s business, technology and customers and the terms of the Agreement. The parties shall procure that any third party or subcontractor to whom information is disclosed pursuant to the Agreement is made aware of and complies with obligations of confidentiality equivalent to those set out in these terms and conditions.
The parties agree that information is not to be regarded as confidential information and that the receiving party will have no obligation with respect to any information which that party can demonstrate:
a) was already known to it and at its free disposal prior to its receipt from the disclosing party;
b) was subsequently disclosed to it lawfully by a third party who did not obtain it (whether directly or indirectly) either from the disclosing party or under any obligation of confidence;
c) was in the public domain at the time of receipt by the receiving party or had subsequently entered into the public domain other than by reason of the breach of the provisions of this Clause or of any obligation of confidence;
d) is disclosed by the receiving party in compliance with a legal requirement of a Government agency or otherwise where disclosure is required by the operation of law, on condition that it gives the other party reasonable prior written notice of the proposed disclosure to allow that party to intervene.
31. Breach of confidence
Each party shall promptly inform the other if it becomes aware of any breach of confidence by any person and shall give the other party all reasonable assistance in connection with any proceedings which it may institute against such person.
32. Termination – Default
Either party may terminate the Agreement forthwith by notice in writing to the other party where the other Party has committed a material Default or where such Default is capable of remedy has failed to remedy such Default within thirty (30) days of receiving notice specifying the Default and requiring its remedy.
33. Termination – Insolvency
Either party may terminate the Agreement forthwith by notice in writing to the other party if the other party is unable to pay its debts as they fall due or if any action, application or proceeding is made with regard to it for:
a) a voluntary arrangement or composition or reconstruction of its debts;
b) it’s winding-up or dissolution;
c) the appointment of a liquidator, trustee, receiver, administrative receiver, administrator or similar officer;
d) any similar action, application or proceeding in any jurisdiction to which it is subject.
34.1 With respect to clauses 31 and 32, the Client shall under no circumstances be entitled to terminate an agreement regarding the provision of services that has been entered into for a fixed term before the end of the term.
34.2 If an agreement that by its nature and content is not brought to a close is entered into for an indefinite period of time, this may be terminated in writing by either party following consultation and stating reasons. If the parties have not agreed a notice period, a reasonable period of time must be observed on termination. The parties shall under no circumstances be obliged to pay any compensation as a result of termination of the agreement.
34.3 Unless terminated earlier the Agreement shall continue until the Services have been fully performed and all fees and expenses have been paid.
35. Consequences of termination
Termination of the Agreement shall not prejudice or affect any right of action or remedy which shall have accrued or shall accrue to either party and all provisions which are to survive this agreement or impliedly do so shall remain in force and in effect.
36. Force majeure
36.1 Neither party shall be liable for any delay or failure to perform its obligations under the Agreement where such delay or failure is due to circumstances beyond its control (“Force Majeure Event”) provided that as soon as reasonably possible after the start of the Force Majeure Event, the affected party notifies the other party of the Force Majeure Event, the date on which it started, its anticipated duration and the anticipated effect of the Force Majeure Event on the affected party’s ability to perform its obligations.
Force majeure shall include: (i) a situation of force majeure encountered by Leadmark’s own suppliers, (ii) failure by secondary suppliers engaged by Leadmark on the Client’s instructions to duly meet their obligations, (iii) the defectiveness of items, hardware, software or materials provided by third parties that Leadmark has been instructed to use by the Client, (iv) government measures, (v) electricity failure, (vi) faults affecting the internet, computer network or telecommunication facilities, (vii) war, (viii) workload, (ix) strike action, (x) general transport problems and (xi) the unavailability of one or more members of staff.
36.2 If a situation of force majeure lasts for longer than ninety (90) days, either of the parties shall be entitled to terminate the agreement in writing. The services already performed on the basis of the agreement shall in this case be settled on a pro rata basis, and the parties shall not owe one another any other amounts.
37. Data Protection
Each party undertakes to the other party to comply with the Data Protection Act 1998 and shall procure that its employees, agents and subcontractors shall observe the provisions of that Act.
38. Third Parties
A person who is not a party to the Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any term of the Agreement.
Any notice to be given under the Agreement must be in writing and delivered to the registered office address or principal place of business of the party to be served and shall be deemed served two days after despatch by first class post or immediately on delivery if hand delivered.
40. Variation and waiver
No failure, delay, relaxation or forbearance on the part of either party in exercising any power or right under the Agreement shall operate as a waiver of such power or right or of any other power or right. Any change to the Agreement shall only be valid if it is in writing and signed by the parties.
41. Personal Agreement
The Agreement is personal to the Client and the Client shall not assign the benefit of or any interest in or subcontract any obligation under the Agreement.
42. Entire Agreement
Except to the extent of any misrepresentation or breach of warranty which constitutes fraud, these terms and conditions and the Statement of Work together constitute the entire agreement between the parties relating to the subject matter of the Agreement.
43. Applicable law and disputes
43.1 The agreements between Leadmark and the Client shall be governed by Dutch law. The applicability of the Convention on Contracts for the International Sale of Goods 1980 is excluded.
43.2 Any dispute, controversy or claim that may arise between Leadmark and the Client on the basis of an agreement concluded between Leadmark and the Client or as a result of further agreements that arise from such an agreement, shall be settled through arbitration in accordance with the Arbitration Regulations of the Foundation for the Settlement of Automation Disputes, with its registered office in The Hague, without prejudice to the right of either of the parties to request an injunction in summary arbitral proceedings and without prejudice to the right of either of the parties to take precautionary legal measures (see www.sgoa.org).
43.3 Contrary to the provisions of Article 42.2, either of the parties shall be entitled, however not obliged, to bring the matter before the District Court, Subdistrict Sector, if the matter relates to a dispute that according to the statutory rules governing jurisdiction falls within the subject-matter jurisdiction of the District Court, Subdistrict Sector. This shall only be the case, however, where Leadmark and/or the Client has/have not already brought arbitral proceedings for the resolution of disputes arising on the basis of the agreement concluded between the parties or further agreements that arise from such an agreement before the Foundation for the Settlement of Automation Disputes in accordance with the Foundation’s Arbitration Regulations. If the matter is brought before the District Court, Subdistrict Sector, by one or more of the parties for processing and a decision, subject to due observance of the previous subclause, the District Court, Subdistrict Sector, shall have jurisdiction to process the matter and reach a decision.
43.4 Before instituting arbitral proceedings as referred to in Article 42.2, either of the parties shall commence ICT Mediation proceedings in accordance with the ICT Mediation Regulations of the Foundation for the Settlement of Automation Disputes in The Hague. ICTMediation proceedings in accordance with these regulations are aimed at mediation by one or more mediators. The other party shall undertake to actively participate in any ICT-Mediation proceedings that are instituted, and shall in any event be legally obliged to attend at least one joint meeting between the mediators and the parties, in order to ensure that this extrajudicial form of dispute resolution has a chance of success. Either of the parties shall be at liberty to terminate the ICT-Mediation proceedings at any time following an initial discussion between the mediators and the parties. The provisions of this subclause shall not prevent either of the parties from requesting an injunction in summary (arbitral) proceedings or from taking precautionary legal measures where they deem this to be necessary (see www.sgoa.org and www.sgoa.eu).
Version 2.0 November, 2017