General Terms and Conditions (2021)

General Terms and Conditions 2021

Introduction

In front of you are the General Terms and Conditions of BlueMonks. BlueMonks aims to be a reliable, service-oriented and transparent company. That is why we, to the best of our ability, seek to take into account all the interests of our clients, employees and other parties concerned. In order to achieve this, these General Terms and Conditions have been compiled with the utmost care.

Article 1. Definitions

1) Agreement/assignment: the Agreement between the Client and BlueMonks that describes the business relationship between both parties. The letter details the scope of the Agreement, its terms and costs in accordance with the provisions of the Agreement and/or confirmation of the assignment.

2) BlueMonks BV: the contracted party having its registered office and place of business at Larikslaan 14, 3833AM in Leusden, The Netherlands, registered with the Chamber of Commerce under number 78071666

3) Client: the party which enters into the Agreement with BlueMonks.

4) General Terms and Conditions: the General Terms and Conditions set out in this document.

5) Personal Data: any information relating to an identified or identifiable natural person.

6) Work: all Work for which an assignment has been given or which is carried out by BlueMonks on any other account in relation to the Agreement or quotation.

7) Quotation: the formal statement setting out the estimated cost for a particular assignment between BlueMonks and the Client .

Article 2. Applicability

a) These General Terms and Conditions apply to the website, all Agreements and quotations under which BlueMonks will perform services of whatever nature for the Client, even if these services are not further described in these terms and conditions.

b) These General Terms and Conditions are valid from 13-07-2020.

c) The present General Terms and Conditions also apply to Agreements with BlueMonks for the execution of which BlueMonks must involve third parties.

d) Deviations from these General Terms and Conditions are only valid if they have been expressly agreed in writing. Any General Terms and Conditions or other terms or other conditions of the Client are not valid. The applicability thereof is expressly rejected by BlueMonks.

e) If any provision of these General Terms and Conditions is invalid or voided, the remaining provisions of these General Terms and Conditions will remain in full force and BlueMonks and the Client will consult in order to agree new provisions to replace the invalid or voided provisions, taking into account as much as possible the purpose and intent of the invalid or voided provision. In the event of any lack of clarity regarding the interpretation or content of one or more provisions of these General Terms and Conditions, the rules should be interpreted in the spirit of these General Terms and Conditions. Situations that are not regulated in these General Terms and Conditions must be assessed in the spirit of these General Terms and Conditions.

f) If BlueMonks does not always require strict compliance with these General Terms and Conditions, this does not mean that the provisions of these General Terms and Conditions do not apply, or that BlueMonks would lose the right to require strict compliance with the provisions of these General Terms and Conditions in other cases.

g) BlueMonks shall be entitled to amend or supplement these General Terms and Conditions. Changes of minor importance may be made at any time. Major substantive changes will be discussed with the Client in advance.

h) The Agreement will be concluded as soon as the acceptance of the offer by the Client has reached BlueMonks. By accepting the offer, the Client declares that it agrees with the applicable statement of these General Terms and Conditions and, if necessary, waives an applicable statement of its own General Terms and Conditions. Agreements will ultimately be laid down in writing.

i) In the event that any changes are made to the offer in the acceptance, the Agreement will only be concluded, contrary to the provisions of the previous paragraph, if BlueMonks has notified the Client that it agrees to these deviations from the offer.

Article 3. Activities

a) BlueMonks is an International Financial and Economic crime boutique based in the Netherlands with a focus on all aspects of the Know Your Customer (KYC) and Anti Money Laundering (AML) standards. This includes money laundering, funding of terrorism, tax evasion and other forms of FEC (Financial Economic Crime). Supervisory bodies expect financial institutions to take measures in order to prevent FEC and BlueMonks helps financial institutions to find the best approach to do so.

BlueMonks operates in the following areas and offers services that are related to:

  • Systematic Integrity Risk Analysis (SIRA)
  • Know Your Customer (KYC)
  • Customer Due Diligence (CDD)
  • Ongoing Due DiligenceClient Activity Monitoring
  • Transaction filtering and monitoring, Client filtering
  • Onboarding specialists

Article 4. Quotations and offers
a) An offer or quotation sent shall be valid for 14 days after its date, unless BlueMonks indicates otherwise.

b) If no acceptance period has been set, no rights whatsoever can be derived from the offer.

c) If the Client accepts an offer, BlueMonks retains the right to revoke the offer within 2 (two) Working days after acceptance.

d) BlueMonks cannot be bound by its offers if the Client can reasonably understand that the offer, or part thereof, contains an obvious mistake or error.

e) A compound quotation does not oblige BlueMonks to carry out part of the assignment for a corresponding part of the quoted price.

f) If the acceptance of the quotation deviates from the offer included in the quotation, BlueMonks will not be bound by it. In that case, the Agreement will not be concluded in accordance with this deviating acceptance, unless BlueMonks indicates otherwise.

g) Offers made in the past are, in principle, price indications and do not automatically apply to future orders.

h) The prices stated in a quotation or offer are exclusive of VAT and other government levies, any costs to be incurred in the context of the Agreement, including national/local travel and accommodation costs, unless stated otherwise. International travel expenses are not included.

Article 5. Contract term; execution time, transfer of risk, performance
a) The Agreement between BlueMonks and the Client is entered into either per assignment or for a specific period of time. The following applies to the assignment: as long as the assignment is not completed, or as long as one of the parties has not given notice to dissolve the Agreement, it is assumed that the Agreement is in force. For contracts entered into for a certain period of time, the Agreement must be fully fulfilled, with the exception of the legal possibilities for dissolution.

b) If the Agreement has been entered into for a certain period of time, the period of time must be explicitly stated in the Agreement.

c) If the Agreement has been entered into for a certain period of time, that period has expired and no written notice has been given by the Client up to 2 (two) months before the expiry of the period he wishes to terminate, the Agreement will be extended for the same period of time.

d) The notice period is two months for both the Client and BlueMonks, unless a fixed project period has been agreed between the parties.

e) The Agreement must be terminated in writing by registered letter or by (scanned) e-mail.

f) In the case of an assignment Agreement in which no specific period has been agreed upon, the Client cannot terminate the Agreement, unless the explicit consent of BlueMonks has been obtained.

g) If a term has been agreed or given for the execution of certain activities, this is never a deadline. If a term is exceeded, the Client must therefore give BlueMonks notice of default in writing. BlueMonks should be offered a reasonable term to still execute the Agreement.

h) BlueMonks will execute the Agreement to the best of his knowledge and ability and in accordance with the requirements of good craftsmanship. All this on the basis of the state of knowledge known at that time.

i) BlueMonks has the right to have certain activities carried out by third parties. The applicability of Sections 7:404, 7:407(2) and 7:409 of the Dutch Civil Code is expressly excluded.

j) If BlueMonks or third parties engaged by BlueMonks within the framework of the assignment perform Work at the Client’s location or at a location designated by the Client, the Client will provide the facilities reasonably desired by those employees free of charge.

k) BlueMonks is entitled to recall personnel during the performance Agreement for educational purposes.

l) BlueMonks is entitled to execute the Agreement in various phases and to invoice the part thus executed separately.

m) If the Agreement is executed in phases, BlueMonks can suspend the execution of those parts belonging to a subsequent phase until the Client has approved the results of the preceding phase in writing.

n) The Client sees to it that all information, of which BlueMonks indicates that it is necessary or of which the Client should reasonably understand that it is necessary for the execution of the Agreement, is provided to BlueMonks in a timely manner. If the information required for the execution of the Agreement is not provided to BlueMonks on time, BlueMonks has the right to suspend the execution of the Agreement and/or to charge the Client for the extra costs resulting from the delay according to the usual rates at that time. The execution period does not commence until after the Client has made the data available to BlueMonks. BlueMonks is not liable for damage, of whatever nature, when BlueMonks has assumed incorrect and/or incomplete information provided by the Client.

Article 6. Conclusion of the Agreement
a) The Agreement is concluded at the moment that the Client accepts the offer and agrees to the General Terms and Conditions of BlueMonks.

b) Agreements between BlueMonks and the Client will be concluded via the internet (e-mail) or by means of a written confirmation (letter).

c) If the Client cancels the order or dissolves the Agreement without good reason, he will be liable for damages in accordance with these General Terms and Conditions.

d) BlueMonks retains the right, without giving reasons, to reject an assignment.

e) BlueMonks shall not be bound by verbal Agreements if these have not been confirmed in writing by BlueMonks.

f) In the event of the continuation of an assignment with a fixed schedule and fixed daily costs, BlueMonks will be entitled to collect these costs from the Client on the last day of each month.

Article 7. Amendment of the Agreement
a) If, during the execution of the Agreement, it becomes apparent that it is necessary to amend or supplement the Agreement in order to ensure its proper execution, the parties will amend the Agreement in good time and in mutual consultation. If the nature, scope or content of the Agreement, whether or not at the request or indication of the Client, of the competent authorities etcetera, is changed and the Agreement is thereby changed qualitatively and/or quantitatively, this may have consequences for what was originally agreed. As a result, the originally agreed amount can also be increased or decreased. BlueMonks will as much as possible give a quotation in advance. Furthermore, by amending the Agreement, the originally stated term of execution can be changed. The Client accepts the possibility of changing the Agreement, including the change in price and term of execution.

b) If the Agreement is amended, BlueMonks is entitled to execute the Agreement only after the authorized person within BlueMonks has agreed to this and the Client has agreed to the price and other terms and conditions stated for the execution. Not or not immediately executing the amended Agreement does not constitute a breach of contract on the part of BlueMonks and is no ground for the Client to terminate or cancel the Agreement.

c) If the Agreement is amended or supplemented, the time of completion of the execution may be affected. In that case BlueMonks will inform the Client of this as soon as possible.

d) If the amendment or supplement to the Agreement has financial and/or qualitative consequences, BlueMonks will inform the Client of this in advance.

e) Without being in default, BlueMonks can refuse a request to amend the Agreement, if this could have consequences in terms of quality and/or quantity for the activities to be carried out within that framework.

f) If the Client should be in default in the proper fulfilment of what he is obliged to do towards BlueMonks, then the Client is liable for all damage caused directly or indirectly as a result on the part of BlueMonks.

g) If BlueMonks agrees on a fixed fee or price with the Client, BlueMonks is nevertheless at all times entitled to increase this fee or price without the Client being entitled to dissolve the Agreement for that reason, if the increase of the price results from an authority or obligation under the law or regulations or is caused by other circumstances which could not reasonably have been foreseen at the time the Agreement was entered into.

h) If the price increase, other than as a result of an amendment of the Agreement, amounts to more than 10% and takes place within three months after the conclusion of the Agreement, then only the Client who is entitled to appeal to Title 5, Section 3 of Book 6 of the Dutch Civil

Code is entitled to dissolve the Agreement by means of a written statement, unless BlueMonks:
• is then still willing to execute the Agreement on the basis of what was originally agreed;
• if the price increase results from an authority or an obligation incumbent on BlueMonks under the law;
• if it has been stipulated that delivery will take place more than three months after the conclusion of the Agreement.

i) BlueMonks shall not charge any additional costs If the amendment or supplement to the Agreement is the result of circumstances attributable to BlueMonks.

Article 8. Suspension, dissolution and premature termination of the Agreement
a) BlueMonks is entitled to suspend the fulfilment of the obligations or to dissolve the Agreement:

  • if the Client does not fulfil the obligations from the Agreement;
  • if the Client does not fulfil the obligations on time;
  • if circumstances, come to the knowledge of BlueMonks after the Agreement has been concluded, give BlueMonks good reason to fear that the Client will not fulfil the obligations;
  • if the Client was asked to provide security for the fulfilment of his obligations from the Agreement when the Agreement was concluded and this security is not provided or insufficient;
  • if, due to the delay on the part of the Client, BlueMonks can no longer be expected to fulfil the Agreement at the originally agreed conditions.

b) Furthermore, BlueMonks is entitled to dissolve the Agreement if circumstances arise of such a nature that fulfilment of the Agreement is impossible or if other circumstances arise of such a nature that unaltered maintenance of the Agreement cannot reasonably be demanded of BlueMonks.

c) If the Agreement is dissolved, claims of BlueMonks against the Client are immediately due and payable. If BlueMonks suspends the fulfilment of his obligations, he retains his claims under the law and the Agreement.

d) If BlueMonks suspends or dissolves the Agreement, BlueMonks is in no way obliged to compensate damage and costs caused by this in any way whatsoever.

e) If the dissolution is imputable to the Client, BlueMonks is entitled to compensation of the damage, including costs, directly and indirectly caused by this.

f) If the Client does not fulfil his obligations ensuing from the Agreement and justifies this non-fulfilment, BlueMonks is entitled to dissolve the Agreement immediately and with immediate effect, without any obligation on his part to pay any damages or compensation, while the Client, on account of breach of contract, is obliged to pay damages or compensation.

g) If the Agreement is terminated prematurely by BlueMonks, BlueMonks will, in consultation with the Client, arrange for the transfer of Work still to be performed to third parties. This unless the termination is attributable to the Client. If the transfer of the activities entails additional costs for BlueMonks, these will be charged to the Client. The Client is obliged to pay these costs within the aforementioned term, unless BlueMonks indicates otherwise.

h) In case of liquidation, (application for) suspension of payment or bankruptcy, attachment – if and insofar as the attachment has not been lifted within three months – at the expense of the Client, debt rescheduling or any other circumstance as a result of which the Client can no longer freely dispose of his assets, BlueMonks is free to terminate the Agreement immediately without court intervention and with immediate effect or to cancel the order or Agreement, without any obligation on his part to pay any compensation or indemnification. In that case, the claims against the Client are immediately due and payable.

i) In the event of reasonable doubt on the part of BlueMonks regarding the Client’s ability to pay, BlueMonks will be entitled to postpone the performance of the Work until the Client has provided security for payment. The Client will be liable for the direct and indirect damage suffered by BlueMonks as a result of this delayed delivery.

j) If the Client cancels an order placed in whole or in part, then the activities carried out and increased by the possible supply and delivery costs thereof and the working time reserved for the execution of the Agreement, will be charged in full to the Client.

Article. 9 Execution and delivery of orders
a) BlueMonks shall be liable for any delay in the provision of services, unless there is force majeure on the part of BlueMonks. This liability is limited to a maximum of the fixed invoice value. If a term is exceeded, the Client must therefore notify BlueMonks in writing of its default. BlueMonks must be given a reasonable period of time in which to perform the Agreement after all.

Article. 10 Force majeure
a) BlueMonks is not obliged to fulfil any obligation towards the Client if he is hindered to do so as a result of a circumstance that is not due to his fault, and is not for his account by virtue of the law, a legal act or generally accepted views.

b) In these General Terms and Conditions, force majeure, in addition to what is understood in this respect in the law and jurisprudence, is understood to mean all external causes, foreseen or unforeseen, on which BlueMonks cannot exert any influence, but as a result of which BlueMonks is unable to fulfil his obligations. Including strikes in the company of BlueMonks or third parties, pandemic diseases and quarantine measures. BlueMonks also has the right to invoke force majeure if the circumstance preventing (further) compliance with the Agreement occurs after BlueMonks should have complied with its obligation.

c) In the event of force majeure, the Client shall immediately inform BlueMonks in writing, stating the cause of the force majeure.

d) BlueMonks may suspend its obligations under the Agreement during the period that the force majeure continues. If this period lasts longer than two months, either party will be entitled to dissolve the Agreement, without any obligation to compensate the other party for damages.

e) The Client will have the right to cancel the order in writing after being informed that force majeure has occurred on the part of BlueMonks. Insofar as, at the time when force majeure commences, BlueMonks has already partially fulfilled his obligations under the Agreement or will be able to fulfil them, and insofar as independent value can be attributed to the part already fulfilled or to be fulfilled respectively, BlueMonks will be entitled to invoice the part already fulfilled or to be fulfilled respectively separately. The Client is obliged to pay this invoice as if it were a separate Agreement.

Article 11. Payment and collection costs
a) Unless expressly agreed otherwise, payment must be made in arrears by means of an invoice sent or by bank transfer. The payment term is thirty (30) days. The payment must be made in the currency in which the invoice was made, unless otherwise indicated in writing by the BlueMonks. BlueMonks is entitled to invoice periodically. BlueMonks may stipulate that the Client must pay an advance of at least 30% before BlueMonks commences performance of the Agreement. Any additional Work (after consultation and written confirmation) will be invoiced afterwards, for which a payment term of 30 days also applies.

b) If the Client remains in default of timely payment of an invoice, then the Client is legally in default. The Client will then owe an interest of 1% per month, unless the statutory interest rate is higher, in which case the statutory interest rate is owed. The interest on the amount due and payable shall be calculated from the moment the Client is in default until the moment of payment of the amount due in full.

c) BlueMonks has the right to have the payments made by the Client go first of all to reduce the costs, then to reduce the interest that has fallen due and finally to reduce the principal sum and the accrued interest. BlueMonks can, without being in default as a result, refuse an offer of payment, if the Client designates a different order for the allocation of the payment. BlueMonks can refuse full repayment of the principal sum, if the outstanding and current interest and collection costs are not paid as well.

d) The Client is never entitled to set off the amount he owes to BlueMonks. Objections against the amount of an invoice do not suspend the payment obligation. The Client, who is not entitled to appeal to section 6.5.3 (articles 231 up to and including 247 Book 6 of the Dutch Civil Code) is also not entitled to suspend the payment of an invoice for any other reason.

e) If the Client is in default or default in the (timely) fulfilment of its obligations, all reasonable costs incurred to obtain extrajudicial satisfaction shall be for the account of the Client. The extrajudicial costs will be calculated on the basis of what is customary in Dutch collection practice, currently the calculation method according to “Besluit vergoeding buitenrechtelijke incassokosten (2012)”. However, if BlueMonks has incurred higher costs for collection that were reasonably necessary, the actual costs incurred are eligible for reimbursement. Any judicial and execution costs incurred will also be recovered from the Client. The Client also owes interest on the collection costs owed.

Article 12. Liability
a) The liability of BlueMonks shall be limited to the damage that can be regarded as an immediate and obvious consequence of the non-performance or defective performance.

b) If BlueMonks is liable, such liability shall be limited to what is described in this article.

c) If BlueMonks is liable for any damage, such liability shall be limited to a maximum of the invoice value of the assignment, or at least to that part of the assignment from which the liability arose directly.

d) In the case of long-term assignments, liability shall be limited to a maximum of the invoice value for a period of 2 (two) calendar months.

e) The liability of BlueMonks shall in any event never exceed the amount paid out by its insurer, increased by the own risk of BlueMonks.

f) BlueMonks is only liable for direct loss or damage and shall never be liable for indirect loss or damage. Indirect loss or damage shall be understood to mean: consequential loss or damage; loss of profit; missed savings; loss or damage due to business or other stagnation.

g) BlueMonks is not liable for damage, of whatever nature, caused by the fact that BlueMonks has assumed incorrect and/or incomplete information provided by or on behalf of the Client.

h) BlueMonks will never be liable for damage as a result of failure to perform Work performed by third parties or goods supplied by third parties.

i) The limitations of liability included in these terms and conditions do not apply if the damage is due to intent or gross negligence on the part of BlueMonks and/or its subordinates.

j) The Client is obliged to report the damage to BlueMonks within 3 (three) months of becoming aware of it.

k) As far as the Work is concerned, there is an obligation to perform to the best of one’s abilities and not an obligation to achieve a result.

Article 13. Intellectual property
a) BlueMonks shall retain the rights and powers vested in it by virtue of the Copyright Act and other intellectual property laws and regulations. BlueMonks shall be entitled to use the knowledge gained through the performance of an Agreement for other purposes, insofar as no strictly confidential information of the Client is disclosed to third parties.

Article 14. Takeover of personnel
a) In the event that the Client wishes to employ employees posted by BlueMonks outside the Agreement with BlueMonks or when the Client wishes to have Work carried out in any other way, the Client must submit a written request to this effect to BlueMonks. In that case, an amount to be paid by the Client to BlueMonks can be determined in consultation after which BlueMonks will give written permission to both the Client and the employee in question.

b) In the situation as described in art. 14a arises, the Client will pay BlueMonks the amount equal to the consultation rate of three months, based on a 40-hour working week.

c) The Client is obliged to pay at least the recruitment costs that BlueMonks must incur to recruit a replacement employee.

Article 15. Data protection
a) BlueMonks works in accordance with the General Data Protection Regulation (GDPR) and only collects the Personal Data for which it has a basis for processing. Both BlueMonks and the Client shall comply with applicable data protection laws and regulations when processing Personal data. Parties acknowledge that Personal Data may be processed by BlueMonks as a controller for the purpose of or in connection with:
• the provision of services;
• applicable legal of regulatory requirements;
• request and communications from competent authorities;
• administrative or financial accounting risk analyses and client relationship purposes.
For more specific data protection provisions BlueMonks had drawn up a privacy statement which can be consulted online on the website.

Article 16. Confidentiality and secrecy
a) BlueMonks and the Client will ensure that all information, know-how, (personal) data or specifications related to the implementation of the Agreement and/or the company of the other party, will be treated confidentially and shall not disclose them to third parties, unless the party of who the information originates from has given his written permission. The same applies to the content of the Agreement.

b) This confidentiality obligation shall not apply to information that has become publicly known without a breach of a confidentiality clause. In addition, the confidentiality obligation does not apply if disclosure is required by virtue of the law, or a binding decision of the court or due to another public body.

c) Employees and all other third parties who work for BlueMonks and the Client will also be bound by this confidentiality obligation.

Article 17. Complaints
a) Complaints about the Work carried out by BlueMonks must be made known to the BlueMonks by e-mail or telephone, stating the reasons, within thirty (30) days after the complaint arose or within fourteen (14) days after completion of the Work.

b) If a complaint is well-founded, BlueMonks shall have the opportunity to investigate and remedy the defect. If this is not possible, BlueMonks will provide a suitable solution.

Article 18. Applicable law
a) Unless expressly agreed otherwise, disputes arising from the Agreement are subject to Dutch law.

b) Without prejudice to BlueMonks right to submit a dispute to the competent court in accordance with the law, disputes between the parties will in the first instance be submitted to the competent court in the location of BlueMonks registered office, unless the law prescribes otherwise.

Please download the General Terms and Conditions as a PDF file here..

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