PART I: GENERAL PROVISIONS
0. DEFINITIONS
For the interpretation and execution of the Agreement, the words stated below on the left side, regardless of whether they are used in the singular or plural, shall have the meanings stated thereafter, insofar as a different meaning is not expressly assigned to it in these general terms and conditions or in the Agreement:
ZestForWork: the private limited company with limited liability Zest For Work B.V; registered in the Trade Registry of the Dutch Chamber of Commerce of the Netherlands under number 82384401, registered in The Netherlands, Eindhoven, and having its office in (5616 LZ) Eindhoven at the address Kastanjelaan no. 400.
Other Party: the party – a legal entity or natural person – who concludes an Agreement with ZestForWork, to whom ZestForWork has submitted a quotation or who has any other legal relationship with ZestForWork.
Parties: ZestForWork and the Other Party together.
Party: ZestForWork or the Other Party individually.
Services: all activities that ZestForWork performs and/or delivers in the execution of the Agreement, including (but not limited to) the training, coaching and HR-consultancy given by ZestForWork.
Agreement: any verbal or written agreement concluded between ZestForWork and the Other Party, any change thereto or supplement thereto, and all (legal) acts in preparation and execution of that agreement.
1. APPLICABILITY OF THESE TERMS AND CONTIONS
1.1 These general terms and conditions (hereinafter: “general conditions”) apply to all offers, tenders and quotations of ZestForWork, and to all Agreements concluded between ZestForWork and the Other Party.
1.2 The applicability of any general conditions of the Other Party is hereby expressly rejected. Deviations from and/or additions to these general conditions will only be binding if and to the extent expressly confirmed in writing by ZestForWork, and relate only to (the part of) the Agreement in respect of which such acceptance has taken place.
1.3 If at any time one or more provisions of these general conditions become void or voidable, whether in part or in full, the rest of these general conditions remain in force. In this event, ZestForWork and the Other Party will agree on the replacement of the void or voidable provisions by new provisions, while retaining the purpose and scope of the original provisions as much as possible.
1.4 If ZestForWork does not always insist on the strict observance of these general conditions, this does not mean that the provisions concerned have become inapplicable or that, in other cases, ZestForWork has in any way relinquished the right to insist on the strict observance of the provisions of these general conditions.
2. QUOTATIONS AND OFFERS (“OFFERS”)
2.1 The nature and scope of the Agreement is determined by the description of the work included in the offer.
2.2 All offers of ZestForWork are without obligation, unless an acceptance period has been stipulated in the offer. This means that ZestForWork has the right to change the conditions of the offer. The Other Party can therefore not derive any rights from the offer. If the offered products or services are no longer available, the offer will be canceled.
2.3 ZestForWork cannot be held to its offer, if that offer or a part of it, contains an obvious mistake or clerical error.
2.4 Previously submitted offers do not automatically apply to future Agreements.
2.5 A compound price statement or quotation does not oblige ZestForWork to perform part of the activities at a corresponding proportion of the stated price. ZestForWork is at all times entitled to increase the agreed price without the Other Party being entitled to terminate the Agreement for that reason, if that price increase arises from a power or obligation under the law or regulations or is the result of a price increase in the product/services or other grounds that were not reasonably foreseeable when entering into the Agreement. Price increase can be related to increase of personnel costs, increase due to (raw) material prices, including but not limited to higher fuel prices
2.6 ZestForWork has the right to increase the prices each subsequent year by the price index figure for the Service Price Index adopted by Statistics Netherlands (CPI, 2015=100).
Unless expressly stated otherwise, all quoted amounts are exclusive VAT and other government-imposed product or service-specific levies,. Unless expressly stated otherwise all amounts quoted are in euros.
3. AGREEMENT
3.1 An Agreement between the Parties (or amendments and/or adjustments) is only concluded if (I) the Other Party unconditionally accepts an offer from ZestForWork, or (II) if ZestForWork confirms the Agreement in writing, or (III) if ZestForWork has already fully or partially executed the Agreement.
3.2 All agreements, commitments and/or changes to the Agreement made by or on behalf of ZestForWork after the conclusion of the Agreement are only binding if this has been confirmed in writing by ZestForWork or if ZestForWork has already started with the implementation thereof.
3.3 ZestForWork is entitled – upon or after entering into the Agreement and before (further) execution of the Agreement – to demand sufficient security from the Other Party that both the payment obligation and any other obligations will be complied with. ZestForWork can therefore request a down payment on the invoice amount before it starts the execution of the Agreement. Refusal by the Other Party to provide the required security gives ZestForWork the right to refuse the execution of the Agreement.
4. OBLIGATIONS OF THE OTHER PARTY
4.1 The Other Party must ensure that all data and documents, of which ZestForWork has indicated that these are necessary for the correct and timely execution of the agreed work, or of which the Other Party should understand that these are necessary for the correct execution of the work, will be made available to ZestForWork in time.
4.2 The Other Party is responsible for the correctness, completeness and reliability of the data and documents made available to ZestForWork, even if these come from or via third parties.
4.3 If the Other Party has not, not timely or not adequately fulfilled its obligations as referred to in this article, then ZestForWork is entitled to suspend the performance of the Agreement until the moment the Other Party fulfils its obligations as stated in this article. If ZestForWork has to incur costs as a result, these costs will be borne by the Other Party. In that case, these costs will be charged by ZestForWork to the Other Party on the basis of actual costs.
5. EXECUTION OF THE AGREEMENT
5.1 All work performed by ZestForWork in the execution of the Agreement is performed to the best of its knowledge and ability. ZestForWork's obligation relates to a best efforts obligation. ZestForWork therefore offers no guarantee for any results or expectations.
5.2 ZestForWork determines the manner in which the Agreement is executed, while taking into account the requirements that the Other Party has made. ZestForWork has the right to engage (and have work done by) third parties and reserves the right to replace persons and/or employees involved in the execution of the Agreement.
5.3 ZestForWork aims to meet the specified deadline for the execution of the Agreement or the delivery of goods. Nevertheless, these specified deadlines for the execution of the Agreement or for the delivery of certain items are indicative and are never strict deadlines. If a term is exceeded, the Other Party must give ZestForWork notice of default in writing.
5.4 Unless agreed otherwise in writing, the work of ZestForWork never includes (I) performing tests, applying for permits and assessing whether the Other Party's instructions comply with legal standards; (II) conduction research into the existence of intellectual property rights, including patent rights, trademark rights, drawing or design rights, copyrights or portrait rights of third parties; (III) investigating the possibility of the possible forms of protection referred to in the previous point for the Other Party; (IV) checking the correctness, completeness and reliability of the data and information supplied by the Other Party.
5.5 The Other Party acknowledges that the work performed by ZestForWork is based on the information provided by the Other Party and that the Other Party is and remains responsible for the correctness, completeness and reliability thereof.
5.6 If ZestForWork provides the Other Party on its request with a provisional budget for services of third parties, this provisional budget is always indicative.
5.7 If during the execution of the Agreement it appears that the work to be done must be amended or supplemented in order to ensure the proper execution of the Agreement, Parties will timely and in mutual consultation amend the Agreement accordingly.
5.8 If Parties agree on an amendment of supplement to the Agreement, the time of delivery may be affected as a result. If the amendment or supplement to the Agreement has financial and/or qualitative consequences or affects the time of completion of the Agreement, ZestForWork will inform the Other Party accordingly.
5.9 ZestForWork determines the way the Agreement is executed, while considering the requirements that the Other Party has made to this. ZestForWork reserves the right to replace persons and/or employees involved in the execution of the Agreement.
5.10 ZestForWork has the right to engage (and have work done by) third parties.
5.11 If the Other Party requests for a Service in a language that is not yet available, ZestForWork will charge the Other Party for the startup costs related to additional language. ZestForWork will always announce in advance whether a language is available. Parties will agree in writing as regards to this charge in relation to the requested language.
6. TERMINATION, SUSPENSION AND DISSOLUTION
6.1 Continuing performance agreements (such as subscriptions) can be terminated by each Party at any time by the end of the calendar month with due observance of a notice period of one (1) month.
6.2 ZestForWork is authorized to suspend its obligations or to dissolve the Agreement without any obligation to pay any damages, loss or costs, if:
By virtue of default, the Other Party shall be held to pay damages or compensation to ZestForWork and is liable for any damages (including costs) arising directly or indirectly on the part of ZestForWork as a result.
6.3 ZestForWork is always entitled to refuse or terminate an Agreement, or an amendment thereof, if the Agreement is in conflict with a statutory provision or regulation. ZestForWork may also refuse or terminate an Agreement if, in its opinion, the Agreement could damage the interests or reputation of its business.
6.4 In case of dissolution, any outstanding invoices or claims in the name of the Other Party shall be immediately due and payable.
6.5 In case of liquidation, (application for) suspension of payment or bankruptcy, seizure on behalf of the Other Party, debt restructuring or any other circumstances that prevents the Other Party to freely dispose of his/her capital, ZestForWork is entitled to terminate or cancel the Agreement with immediate effect, without any obligation for ZestForWork to pay any damages or compensation.
7. CANCELLATION AND RESCHEDULING
7.1 Full or partial cancellation of the Agreement by the Other Party is only possible by mutual consent.
7.2 If the Other Party (fully or partially) cancels an Agreement one (1) week or less than one (1) week before the coaching session, ZestForWork is entitled to cancel this session in its entirety. The Other Party is no longer entitled to reschedule this coaching session.
7.3 If the Other Party (fully or partially) cancels an Agreement, ZestForWork is entitled to charge the following costs to the Other Party:
7.4 If the Other Party (fully or partially) cancels an Agreement, the Other Party will not receive any refund of the down payment paid by this Other Party to ZestForWork. In addition, ZestForWork is entitled to charge a cancellation fee as mentioned under article 7.3 paragraph (a) up to (d). The Other Party acknowledges and understands that ZestForWork must incur costs for the purpose of preparing Services.
7.5 In case of early termination of the Agreement by the Other Party in which ZestForWork was requested to provide the Services in a language other than stated under article 5.11 of these terms, the Other Party is obliged to compensate ZestForWork 100% for all costs incurred by ZestForWork regardless of whether the Services started. Cost including (but not limited to) language courses taken by the trainers/coaches, translations of course materials etc.
7.6 A Service can only be rescheduled once, in consultation and after prior permission from ZestForWork. In that case, the new date of the Service must be agreed within 2 weeks upon the reschedule proposal and needs to be scheduled within 3 (three) months after the original Service date, and ZestForWork is entitled to charge the following costs in addition to the total agreed costs:
7.7 If the Other Party (fully or partially) cancels any other Agreement, not being training or coaching, ZestForWork has the right to charge the total costs for the hours ZestForWork spent on the performance of the Agreement against its hourly rate from conclusion of the Agreement until the cancellation date, plus the total costs for products ordered in the performance of the Agreement.
7.8 ZestForWork is always entitled to claim compensation in so far the cancellation costs as set out in this Article are not sufficient.
7.9 The cancellation date is the date on which ZestForWork received the written cancellation from the Other Party.
7.10 The administration of ZestForWork is leading for the determination of the costs incurred and the corresponding cancellation date.
8. FORCE MAJEURE
8.1 ZestForWork is not obliged to fulfill any obligation to the Other Party in case it is being hampered due to a circumstance that is not due to gross negligence, and neither shall be for the account of ZestForWork under the law, a legal act or general acceptance, hereinafter referred to as “force majeure” (Article 6:75 of the Dutch Civil Code).
8.2 In addition to what is included in law and jurisprudence, force majeure shall mean all external causes either foreseen or unforeseen, which ZestForWork cannot influence however which prevents ZestForWork to meet its obligations under the Agreement. Such situations include any strikes within ZestForWork or third parties, as well as the situation that a performance of a supplier of ZestForWork is not, not timely or not sufficient delivered to ZestForWork. ZestForWork is also entitled to invoke force majeure if the circumstance preventing (further) compliance occurs after ZestForWork should have met its obligations.
8.3 ZestForWork is entitled to suspend its contractual obligations during the period of force majeure. If the period of force majeure lasts for longer than three (3) months, either party shall be entitled to dissolve the Agreement without being obliged to pay any compensation for damages to the other party.
8.4 Insofar ZestForWork, at the time the force majeure commences, has meanwhile partly fulfilled its obligations by virtue of the Agreement, or shall be able to do so, and the fulfilled part and/or the part to be fulfilled represents independent value, ZestForWork is entitled to separately invoice the part that has already been fulfilled and/or is yet to be fulfilled. The Other Party is obliged to pay that invoice as though it were for a separate agreement.
9. COMPENSATION AND PAYMENT
9.1 Unless otherwise expressly agreed in writing, payment must be done within 30 days from the invoice date.
9.2 Fees are specified in the Agreement. Unless otherwise agreed, Parties agree the following in relation to payments:
9.3 In the event of a joint assignment, each Other Party is jointly and severally liable for the payment of ZestForWork’s fee, regardless the name on the invoice.
9.4 If the Other Party fails to make (timely) payment, the Other Party shall be immediately in default as from due date without prior notice or summons from ZestForWork. Without prejudice to its other obligations, the Other Party owes interest on the outstanding amount (including collection costs) as from due date of the invoice until the date of payment in full on an annual basis equal to the statutory commercial interest rate ex Section 6:119a of the Dutch Civil Code. All reasonable judicial and extrajudicial costs made by ZestForWork to obtain payment shall be borne by the Other Party.
9.5 ZestForWork shall be entitled to use the payments made by the Other Party first to cover the costs, then to cover any interest that has fallen due and finally to cover the principal sum and accrued interest. Payments made by the Other Party will be used by ZestForWork in settlement of the oldest due claims.
9.6 The Other Party is never entitled to set off the amount owed by it to ZestForWork.
9.7 Objections to the invoiced amount or any other objection(s) shall never suspend the payment obligation of the Other Party.
10. LIABILITY
10.1 Any liability of ZestForWork remains at all times limited to the provisions as stated in these general conditions.
10.2 ZestForWork, and the third parties engaged by ZestForWork, are not liable for damage of any nature whatsoever that has arisen due to:
10.3 Participation in ZestForWork activities, including (but not limited to) training, gym and coaching sessions, is at all times for the Other Party’s own risk. ZestForWork is not liable for damages, of whatever nature, that the participant(s) or Other Party suffers as a result of the participation. ZestForWork is also not liable for any loss, theft or damage to property of participant(s) or the Other Party.
10.4 ZestForWork offers no guarantee with regard to the results of the work it has performed. ZestForWork therefore accepts no liability.
10.5 The liability of ZestForWork shall never exceeds the amount that its insurer pays in that case, or if no payment of the insurance takes place, up to a maximum of the invoiced amount to the Other Party over the last two calendar months in respect of the part of the Agreement to which the liability relates.
10.6 In the event that liability is assumed, ZestForWork is only liable for direct damage. This includes: (1) the reasonable costs to determine the cause and extent of the damage; (2) if applicable, the reasonable costs incurred to resolve the defective performance of ZestForWork, insofar as this is attributable to ZestForWork, and (3) the reasonable costs incurred to prevent or limit the damage. The Other Party must be able to demonstrate that these costs have actually led to a limitation of the direct damage.
10.7 ZestForWork is never liable for indirect damage. This includes, among other things: consequential damage or loss, lost profit and damage or loss as a result of business stagnation.
10.8 The limitation of liability as set out in these general conditions shall not apply if the damage is due to intent or gross negligence on the part of ZestForWork.
11. INDEMNITY
11.1 The Other Party indemnifies ZestForWork, and third parties engaged by ZestForWork, from any liability towards third parties who suffer damage as a result of the performance of the Agreement. This indemnification also applies in respect of intellectual property rights regarding the materials and data provided by the Other Party that are used by ZestForWork in the performance of the Agreement.
11.2 The Other Party guarantees to ZestForWork that the information carriers, electronic files, software and other similar files are free of viruses and defects, and indemnifies ZestForWork for any liability for damage resulting from the use of these information carriers, electronic files, software and other similar files.
11.3 If the Other Party uses or applies any result obtained from ZestForWork, or gives third parties the opportunity to use or apply these results, the Other Party indemnifies ZestForWork for any liability as a result of damage claimed by the Other Party and/or third parties.
12. INTELLECTUAL PROPERTY RIGHTS
12.1 ZestForWork reserves the rights and powers that belong to ZestForWork on the basis of the Dutch Copyright Act and the Neighbouring Rights Act (“Auteurswet en de Wet op de naburige rechten”). ZestForWork therefore reserves at all times all rights to its plans, documents, training, education, images, drawings, animations, websites, video’s and/or related information and “know-how” made by ZestForWork, even if costs have been charged or improvements have been made after the sale, whether or not at the request of the Other Party. Insofar as such an intellectual property right can only be obtained by deposit or registration, only ZestForWork is authorized to do so, unless otherwise agreed.
12.2 All intellectual property rights that arise during the performance of the Agreement belong to ZestForWork and may not be used or reproduced without prior permission from ZestForWork, unless expressly otherwise agreed. The Other Party may not make it available other than for the purpose for which it was provided by ZestForWork.
12.3 ZestForWork reserves the right to use the results that have arisen in the performance of the Agreement for other purposes, insofar no confidential information is brought to the knowledge of third parties. The products created, produced and developed during the implementation project will be used by ZestForWork for the further development of ZestforWork BV's existing solutions and products, without any restriction by the Other Party.
12.4 The Other Party is not permitted to remove or change any designation concerning copyrights, brands, trade names or other intellectual property rights from the materials supplied.
13. COMPLAINTS
13.1 ZestForWork attaches great importance to the successful execution of the Agreement. If the Other Party nevertheless finds a shortcoming or improvement, this must be reported within 7 days after execution of the Agreement. No rights can be derived from a submitted complaint or improvement.
13.2 For the application of this article, each partial delivery must be regarded as a separate delivery.
13.3 The Other Party needs to provide ZestForWork with the opportunity to investigate a complaint.
13.4 The submission of complaints will never release the Other Party from its purchase and payment obligation towards ZestForWork.
13.5 In the event of late notification of the complaint, the Other Party will no longer be entitled to repair, replacement or any other compensation.
13.6 The limitation period for all claims and defenses against ZestForWork and third parties engaged by ZestForWork in the execution of an Agreement, that do not fall within the scope of the duty to complain, is one year.
14. PRIVACY
14.1 ZestForWork is familiar with the General Data Protection Regulation (GDPR) and takes this into account when processing the (personal) data of the Other Party and/or participants. No (personal) data is shared with third parties, unless (i) this is necessary for the proper execution of the Agreement; or (ii) ZestForWork has a legal obligation to share the (personal) data; or (iii) ZestForWork has received explicit permission from the Other Party or participant(s) for this; or (iv) if one of the other legal grounds for the processing of personal data applies. If the Other Party decides to provide third-party personal data to ZestForWork, the Other Party must ensure an appropriate processor agreement that meets the requirements as set out in the GDPR.
15. USE OF AI BY ZESTFORWORK
15.1 The Other Party is hereby informed that ZestForWork may use tools that rely on artificial intelligence, including generative and analytical AI tools, in the performance of the Agreement. These tools are used solely to support the provision of the Services and do not make autonomous decisions.
15.2 ZestForWork ensures that the use of AI tools is carried out in accordance with the applicable privacy and security obligations set out in Article 14 of these general conditions. ZestForWork only uses third-party AI tools that apply appropriate technical and organizational security measures and that can reasonably be considered safe to use.
15.3 ZestForWork will not use any (personal) data provided by the Other Party to train, develop, or improve AI models without the Other Party’s prior written consent. If AI tools process such data, this will take place only within the functional scope of the agreed Services and in compliance with data minimization principles.
15.4 The use of AI does not affect the confidentiality obligations of ZestForWork. ZestForWork does not share confidential or commercially sensitive information of the Other Party with any AI tool that uses such information for model training, unless the data has been anonymized or pseudonymized in a manner that prevents re-identification.
15.5 All methodologies, templates, analyses, insights, recommendations, or other deliverables produced by ZestForWork, including any outputs generated with the support of AI tools, shall be the exclusive property of ZestForWork, unless explicitly agreed otherwise in writing. This includes any derivative works or intellectual output created by or through AI tools in the performance of the Services.
15.6 The Other Party does not obtain any intellectual property rights, licenses, or other entitlements to AI-generated or AI-assisted output, except for the limited right to use the deliverables for its internal business purposes as required to benefit from the Services under the Agreement.
15.7 Any data or information provided by the Other Party remains the property of the Other Party. ZestForWork acquires no rights to such data other than the limited right to process it as necessary for the performance of the Agreement.
16. GOVERNING LAW AND JURISDICTION, DISPUTES
16.1 Dutch law is applicable to each and every Agreement and any other legal relationships with ZestForWork.
16.2 Any dispute about these general conditions and/or the Agreement is subject to the judgment of the competent Dutch court in the residence of ZestForWork, unless otherwise prescribed by mandatory law.
16.3 The Parties initiate court proceedings only if they have done their utmost to resolve the dispute by mutual consultation.
PART II: DATA PROTECTION AND DATA PROCESSING
In addition to the provisions set out in Part I: General Provisions, the articles of Part II: Data Protection and Data Processing shall apply to any Agreement under which ZestForWork, in the context of its services, processes or exchanges Personal Data with the Counterparty. In the event of any conflict, the provisions of Part II shall prevail over any other provisions.
17. DEFINITIONS
GDPR: the General Data Protection Regulation (Regulation EU 2016/679).
Personal Data: any information relating to an identified or identifiable natural person as defined in the GDPR.
Processing / Processed: any operation performed on Personal Data, including collection, storage, use, disclosure or deletion.
Controller: the party that determines the purposes and means of the Processing of Personal Data.
Processor: the party that Processes Personal Data on behalf of the Controller.
Subprocessor: any third party engaged by the Processor to perform Processing activities.
Data Breach: a Personal Data breach within the meaning of the GDPR.
18. GENERAL
18.1 ZestForWork processes Personal Data on behalf of the Other Party in accordance with the written instructions provided by the Other Party.
18.2 The Other Party is the Controller within the meaning of the GDPR, has control over the processing of the Personal Data and has determined the purpose and means of the processing.
18.3 ZestForWork is the Processor within the meaning of the GDPR and therefore has no control over the purpose and means of the Processing of Personal Data. ZestForWork does not make decisions regarding the use of the Personal Data.
18.4 ZestForWork implements the GDPR as set out in this Article and in the Agreement. It is the responsibility of the Other Party to assess, based on this information, whether ZestForWork provides adequate guarantees for applying appropriate technical and organisational measures so that the Processing meets the requirements of the GDPR and the protection of the rights of data subjects is sufficiently ensured.
18.5 The Other Party warrants to ZestForWork that it acts in accordance with the GDPR, that it adequately secures its systems and infrastructure at all times, and that the content, use and Processing of the Personal Data are not unlawful and do not infringe any third-party rights.
18.6 The Other Party is not entitled, on any legal basis whatsoever, to recover administrative fines imposed on the Other Party by the supervisory authority from ZestForWork. “Supervisory authority” has the meaning described in the GDPR.
19. SECURITY MEASURES
19.1 ZestForWork implements the technical and organisational security measures described in the Agreement. When applying these measures, ZestForWork has taken into account the state of the art, the costs of implementation, the nature, scope and context of the processing, the nature of its products and services, the Processing risks and the varying risks to the rights and freedoms of data subjects that ZestForWork could reasonably foresee given the intended use of its products and services.
19.2 Unless the Agreement explicitly states otherwise, the Services are not designed for the Processing of special categories of Personal Data or data relating to criminal convictions or offences.
19.3 ZestForWork strives to ensure that the implemented security measures are appropriate for the intended use of the product or service by ZestForWork.
19.4 ZestForWork may modify the implemented security measures if it considers such modification necessary to maintain an appropriate level of security. ZestForWork will document material changes and, where relevant, notify the Other Party.
19.5 The Other Party may request that ZestForWork implement additional security measures. ZestForWork is not obliged to implement such measures. ZestForWork may charge the Other Party for costs associated with implementing additional measures at the Other Party’s request. Additional measures shall only be implemented once agreed upon in writing.
20. PERSONAL DATA BREACHES
20.1 ZestForWork does not guarantee that the implemented security measures are effective under all circumstances.
20.2 If ZestForWork becomes aware of a Personal Data Breach, ZestForWork will notify the Other Party without undue delay.
20.3 It is the responsibility of the Controller (the Other Party) to determine whether the Personal Data Breach that ZestForWork has reported must be notified to the supervisory authority or to data subjects. Reporting Personal Data Breaches is always the responsibility of the Controller. ZestForWork is not obliged to report breaches to supervisory authorities or data subjects.
20.4 ZestForWork will, where required, provide additional information about the Personal Data Breach and will cooperate in providing the information necessary for the Other Party to notify the supervisory authority or the data subject.
20.5 ZestForWork may charge reasonable costs incurred in this context at its applicable rates.
21. OBLIGATIONS UPON TERMINATION
21.1 Upon termination of the processing activities, ZestForWork will remove all Personal Data received from the Other Party within the period specified in the Agreement in such a way that these can no longer be used and are no longer accessible, or, if agreed, return the Personal Data to the Other Party in a machine-readable format.
21.2 ZestForWork may charge the Other Party for reasonable costs incurred in this context.
21.3 Paragraph 1 of this Article does not apply if statutory provisions prevent ZestForWork from removing or returning the Personal Data in whole or in part. In that case, ZestForWork will continue Processing only to the extent necessary due to its statutory obligations. Paragraph 1 of this Article does not apply if ZestForWork qualifies as a Controller for the Personal Data within the meaning of the GDPR.
22. RIGHTS OF DATA SUBJECTS, DPIA AND AUDIT FILES
22.1 ZestForWork will, where possible, cooperate with reasonable requests from the Other Party related to the exercise of rights by data subjects. If ZestForWork is contacted directly by a data subject, ZestForWork will, where possible, refer the data subject to the Other Party.
22.2 If the Other Party is required to conduct a Data Protection Impact Assessment (DPIA) under the GDPR, ZestForWork will, upon reasonable request, cooperate with the DPIA or any subsequent prior consultation.
22.3 ZestForWork will make available all information reasonably necessary to demonstrate compliance with the processing obligations contained in the Agreement, for example through a valid Data Pro Certificate or equivalent certification, an audit report prepared by an independent expert engaged by ZestForWork, or other information provided by ZestForWork.
22.4 If the Other Party still has reason to believe that the Processing is not in accordance with the Agreement, the Other Party may, at most once per calendar year and at its own expense, have an audit carried out by an independent, certified external expert with demonstrable experience in Processing activities of this nature.
22.5 ZestForWork has the right to refuse an expert proposed by the Other Party if this person, in ZestForWork’s reasonable opinion, does not meet the requirements or if the audit poses a risk to the security measures or confidentiality of the data of ZestForWork or its other customers.
22.6 The audit shall be limited to verifying compliance with the obligations under this Article and must not unnecessarily disrupt the operational processes of ZestForWork. The expert will maintain confidentiality.
22.7 ZestForWork may charge the Other Party for reasonable costs associated with cooperating with the audit, unless the audit reveals material non-compliance attributable to ZestForWork.
23. SUBPROCESSORS
23.1 ZestForWork is permitted to engage Subprocessors for Processing Personal Data.
23.2 ZestForWork ensures that Subprocessors are contractually bound to data protection obligations that are no less protective than those set out in this Article.
23.3 ZestForWork will inform the Other Party of intended changes concerning Subprocessors, allowing the Other Party to object on reasonable grounds.
24. LIABILITY
24.1 The liability of ZestForWork, acting as Processor, for damage arising out of or in connection with this Data Processing conditions shall be limited to the amount paid out by ZestForWork’s liability insurer in the relevant case, increased by the applicable deductible under that insurance. If no payment is made under the insurance policy, ZestForWork’s liability shall be limited to the total amount paid by the Controller to ZestForWork for the performance of the Agreement during the two (2) months preceding the event giving rise to the damage.
24.2 ZestForWork shall only be liable for damage that is the direct result of an attributable failure to comply with its obligations under this Data Processing conditions and shall not be liable for any indirect or consequential damage, including but not limited to consequential loss, loss of profit, loss of revenue, or reputational damage.
24.3 Without prejudice to the provisions of paragraph 24.1, ZestForWork shall only be liable for damage caused by Processing where such damage results from ZestForWork’s failure to comply with its obligations under the GDPR acting on its own initiative, or where ZestForWork has otherwise attributable failed to comply with this Data Processing conditions.
24.4 The limitations of liability set out in this Article shall not apply in the event of wilful misconduct or gross negligence (intent or deliberate recklessness) on the part of ZestForWork or its executive management.
The Dutch version of these general conditions prevails at all times in case of disputes with regard to the interpretation and purpose of these general conditions.