ARTICLE 1. DEFINITIONS
In these general conditions the following terms have the following meanings:
Contracted party: The contracted party issuing the general conditions.
Client: Any natural person or legal entity with whom the contracted party
has entered into an agreement.
Agreement: The (maintenance) contract between the contracted party and a client
on the basis of which services are provided for the benefit of the client.
Products / Services: Anything and everything that is subject to the agreement.
ARTICLE 2. APPLICABILITY
2.1 These general conditions are applicable to all offers made or agreements entered into between the contracted party and a client to the extent that neither of the parties has explicitly deviated from these conditions in writing.
2.2 The applicable conditions are to be handed over to the client upon reaching agreement on the first assignment.
2.3 In the event of full or partial invalidity, for whatever reason, of one or more of the provisions of these general conditions,
the remaining provisions will remain fully applicable.
2.4 The contracted party is at all times entitled to amend these general conditions. An amendment to these general conditions is considered to be applicable as from one month after its written announcement. If a client does not approve of an amendment, that client, contrary to Article 4, paragraph 1, will be entitled – until the moment at which the amendment becomes applicable – to terminate the agreement as from the moment at which the amendment is effected. Any failure to terminate the agreement is considered to be an acceptance of the amendment in question.
ARTICLE 3. FORMATION OF AN ASSIGNMENT
3.1 All quotations and offers made by the contracted party are free of obligations and are valid for a period of 30 days, unless otherwise specified.
3.2 An agreement between the contracted party and a client is formed by the client’s acceptance of an offer by means of a statement of approval drawn up and signed by the client, or if and to the extent that the contracted party in response to the offer has accepted or confirmed an assignment issued by the client in writing.
3.3 All prices quoted in the offers referred to are excluding (Dutch) VAT, unless otherwise specified.
ARTICLE 4. TERM AND TERMINATION OF THE AGREEMENT
4.1 An agreement is always entered into for the term specified in that agreement. An agreement is each time automatically extended for the same term upon expiry of the first or as the case may be, preceding term. Both parties are entitled to unilaterally terminate the agreement. The termination of an agreement is subject to a notice period of 3 calendar months, commencing at the end of the agreed term. An agreement may only be terminated by means of a registered letter, with the proviso that the notice period only first commences on the date on which the termination has been correctly effected by registered letter.
4.2 If a client fails to fulfil any of the obligations arising from an agreement entered into with the contracted party, or fails to do so in a proper or timely manner, or if serious doubt arises as to whether the client is or will be able to fulfil his contractual obligations towards the contracted party, the contracted party will be entitled, without further notice or legal intervention being required, to either suspend the agreed service(s) or fully or partially terminate the agreement, such without prejudice to any other rights vested in the contracted party and without the contracted party being held liable for loss of any kind.
ARTICLE 5. PRICING / PAYMENT
5.1 The client is obliged to compensate the contracted party for the services he has provided. The contracted party is obliged to provide the client with a specification of that compensation in advance. Compensation in this respect consists of a fixed amount per period and/or an amount for the time spent on the provision of services in question. To the extent that the amount of compensation has not been communicated in advance, the contracted party will be entitled to apply his customary rates. The amount of compensation may be adjusted annually on the basis of the CBS (Dutch Central Bureau of Statistics) price index. All mentioned prices are excluding (Dutch) VAT and government levies.
5.2 The contracted party is at all times entitled to adjust the amount of compensation and other costs. The client is to be informed of such adjustments by the contracted party in writing by no later than one month prior to them being effected. Contrary to article 4.1, a client who does not approve of these adjustments will – until the moment at which such adjustments becomes applicable – be entitled to terminate the agreement as from the moment at which the adjustments are effected.
5.3 The contracted party maintains a payment term of 14 days as of the invoice date. The contracted party is entitled to invoice the client on an interim basis proportionally to the services he has provided and/or time he has spent.
5.4 The contracted party is entitled to set off all amounts owed by the client, even if those amounts are no longer due and payable.
5.5 The contracted party is entitled to discontinue, or at least suspend, the provision of services in the event of overdue payments until such time when these overdue payments have been settled in full.
5.6 If a client fails in the payment or timely payment of his financial obligations despite having been repeatedly notified, the client will be in default and will be obliged to pay the statutory interest on the full invoice amount. In that case, all reasonable costs incurred by the contracted party for the extrajudicial collection of debts will be at the client’s risk and expense. These costs amount to 15% of the total amount payable, with a minimum of € 75. The client is entitled to one attempt only to remedy his default within 10 days of receiving a written notice or demand for payment from the contracted party.
5.7 In the event of a dispute, the administration of the contracted party will be binding, subject to proof to the contrary.
ARTICLE 6. LIABILITY
6.1 The contracted party provides his services as an advisory body within the framework of a so-called best efforts obligation. The relationship between a client and the contracted party is therefore always subject to a mutual best-performance commitment. The client acts for his own responsibility and indemnifies the contracted party against all third party claims as meant by this article.
6.2 Neither the contracted party, nor any of his employees, nor any of the persons acting on his behalf can be held liable for or be obliged to compensate for damages of whatever kind due to the execution or omission of activities of whatever kind and/or the provision or omission of information of whatever kind, subject to the exclusion of this disclaimer by law.
6.3 Neither the contracted party, nor any of his employees, nor any of the persons acting on his behalf guarantee the correctness of data, administration or documents of whatever nature or any other information provided by him/them.
6.4 The contracted party cannot be held liable if and to the extent that he fails to fulfil his obligations due to circumstances of Force Majeure. A circumstance of Force Majeure is considered to include any foreign cause as well as any circumstance for which the contracted party cannot reasonably be expected to bear the consequences. A circumstance of Force Majeure cannot ever be reason for the client to cancel a current assignment. If, in the opinion of the contracted party, the contracted party is no longer, or in any case not adequately, able to perform due to a circumstance of Force Majeure, he is entitled to terminate the agreement without having to compensate for damages of any kind.
6.5 The contracted party can never be held liable for consequential loss. Any liability on the part of the contracted party is limited to the remedy of possible mistakes made on his part. Any liability on the part of the contracted party is equally limited to the invoice amount for the work done or services rendered by the contracted party in the year in question.
6.6 In all cases in which the contracted party, notwithstanding the provisions of Article 6, paragraphs 1 up to and including 5, is obliged to compensate for damages, this will never exceed the amount against which the service to which the damage in question pertains has been provided and actually paid for by the client in the same year as in which the damage has occurred.
6.7 The customer is presumed to have taken out adequate insurance against all operational risks within his company, such risks including the consequences of any possible shortcomings on the part of the contracted party both for the client himself and for the contracted party, and without recourse for the account of the contracted party.
6.8 If and to the extent that there exists a disclaimer of the contracted party, that indemnification or disclaimer is considered applicable to all employees of the contracted party, including the employees of the office sales department, field staff, the safety advisers appointed by the contracted party and all other persons or legal entities appointed by the contracted party.
ARTICLE 7. FORCE MAJEURE
7.1. Force Majeure in these general conditions is considered to be an occurrence which cannot be attributed to the debtor or for which neither by law, legal act or generally accepted standards the debtor can be held accountable.
7.2 The contracted party equally has the right to invoke Force Majeure if the circumstance preventing (further) compliance occurs after the contracted party was supposed to have fulfilled his obligation.
7.3 In the event of a circumstance of Force Majeure the obligations of the contracted party are suspended.. If the period during which a circumstance of Force Majeure prevents the contracted party from fulfilling his obligations exceeds 2 months, both parties are entitled to terminate the agreement without being accountable for damages of any kind.
7.4 If the contracted party in the event of a circumstance of Force Majeure has already partially fulfilled his obligations or is only able to fulfil part of his obligations, he will be entitled to separately invoice the finalised or feasible part of services provided or to be provided. In that case the other party will be obliged to pay the invoice as if pertaining to a separate agreement. The foregoing is not, however, applicable if the finalised or feasible part has no autonomous value.
ARTICLE 8. SECRECY
8.1 The contracted party will take the necessary measures to guarantee secrecy concerning all data and information made available to him, his employees and all persons and companies he employs by or on behalf of the client. The contracted party will not make any of those data or that information available to a third party without oral or written permission from the client.
8.2 The contracted party is obliged to retain all documents handed over to him by the client for the benefit of his provision of services for a maximum period of 5 years. Upon expiry of that period of 5 years the contracted party is relieved of the obligation to retain the document(s) in question, and he will be obliged to hand them over to the client. The client is then obliged to retain the document(s) at his own expense. The contracted party is at all times entitled to demand from the client that he retains the document(s) in question.
ARTICLE 9. INTELLECTUAL PROPERTY
9.1 The contracted party retains all industrial and intellectual property rights pertaining to the data, calculations, methods, materials and the like as well as all therein contained inventions, drawings, models and copyrighted work provided by him, all this in the broadest sense of the word. The client commits himself to unconditionally observe the rights of contracted party.
9.2 The copyright on a supplied product or service rendered is the property of the contracted party until such moment when a written agreement is entered into between the contracted party and the client for the purpose of transferring that copyright. The copyright equally remains the property of the contracted party if the knowhow or inventions involved are obtained during the course of activities performed for the client.
9.3 The client is obliged to immediately inform the contracted party of any third party claim concerning an infringement of an intellectual property right relating to the documents or services provided. If such a claim is made, the contracted party is the sole party authorised to advance a defence against that claim, commence legal action against or effect a settlement with that third party on behalf of the client. The client is obliged to refrain from such measures insofar as that can be reasonably expected from him. The client will in all cases render every possible assistance to the contracted party.
9.4 All documents, such as reports, advisory notes, manuals, designs, sketches, drawings and the like provided by the contracted party may only be used by the client and may not be reproduced or made public or available to a third party by the client without prior permission from the contracted party, subject to a penalty of € 12,500 for each time the client fails to observe this provision.
9.5 Upon termination of the agreement, the system documents will be returned to the client by the contracted party.
ARTICLE 10. DISPUTES AND GOVERNING LAW
10.1 All agreements are governed by Dutch law.
10.2 All disputes are to be settled by the competent court of the district in which the contracted party is registered, unless that competence is vested in the sub district court. The contracted party nevertheless has the right to summon the other party to appear at a legally entitled court.
ARTICLE 11. AMENDMENT OF THE GENERAL CONDITIONS
11.1 An agreement is always governed by the general conditions which are applicable at the time of establishing the assignment in question. These general conditions are available at the offices of the contracted party.