GENERAL TERMS AND CONDITIONS MARK VERHIJDE ADVICE AND PROJECTS B.V.
VERSION FROM 1 AUGUST 2018, SUBMITTED AT THE CHAMBER OF COMMERCE
1 Identity of the business owner
Mark Verhijde Advice and Projects B.V.
Acting under the name: Mark Verhijde Advice and Projects B.V.
Statutory & visiting address: G. Westenbergstraat 8 in (7415 CP) Deventer
Telephone number: +31 6 52 65 30 05
Availability: Monday to Friday from 8:30 am to 5:00 pm
E-mail: firstname.lastname@example.org (in most cases, e-mails are also answered outside office hours)
Chamber of Commerce number: 71426833
VAT identification number: NL858711424B01
- These general terms and conditions apply to all agreements, offers and tenders to which Mark Verhijde Advice and Projects B.V., hereinafter referred to as “Business Owner”, commit to perform activities and / or provide services to a (legal) person, hereinafter referred to as “Client”.
- The provisions contained in these General Terms and Conditions were made on behalf of the directors and employees of the Business Owner and any other support staff potentially involved in the execution of an Agreement.
- The applicability of the general terms and conditions of the Client is explicitly rejected in advance by the Business Owner.
- The Business Owner shall have the right to amend these general terms and conditions. The Client shall be deemed to have accepted any amendments to the General Terms and Conditions if he has not notified the Business Owner of his objections in writing within seven days of the Business Owner’s notification of the amendment.
- Insofar as an Agreement contains provisions that are contrary to these general terms and conditions, the provisions of the Agreement shall prevail.
- Where in these general terms and conditions reference is made to “in writing”, this shall also be understood to mean “by e-mail”.
- Insofar as these general terms and conditions have been translated into a language other than Dutch, the Dutch text shall always prevail in the event of discrepancies.
Secondment means the Agreement whereby Business Owner places a natural person at the disposal of the Client to perform work under his control and supervision;
Services means the services offered by Business Owner, such as Secondment;
The seconded person means the natural person who is made available to the Client by the Business Owner in the context of the Secondment;
Business Owner means the private company with limited liability Mark Verhijde Advice and Projects B.V .;
Client means any natural person or legal entity who has entered into an Agreement with Business Owner or at least intends to do so;
Agreement means the written agreement between the Client and the Business Owner in which the specific conditions and circumstances, including the type of Services, under which the Business Owner will perform work for the Client are laid down.
4 Establishment and content of the Agreement
- All offers and quotations from Business Owner are without obligation and can be revoked by Business Owner at any time, even after the offer has been accepted by the Client.
- The Agreement between the Client and the Business Owner is established either by signing and returning by the Client of the quotation submitted by the Business Owner to the Client or by the Client signing and returning of the order confirmation sent by the Business Owner to the Client.
- In the event of Secondment, the Secondment extends to the Business Owner’s posting Seconded person for the Client to perform work under the direction, supervision and responsibility of the Client.
- The parties agree on the duration, the rate and further conditions in the Agreement and, in the case of Secondment, the necessary information about the person of Detachment.
5 Execution of the Agreement
- The Client is obliged to provide all necessary cooperation for the correct and timely execution of the Agreement. If applicable, the Client shall provide adequate system management, i.e. ensure that the system works properly and safely. The Client guarantees the correctness, completeness and reliability of the data provided by or on behalf of it. At the request of the Client, the Business Owner shall return the documents made available to the Client after execution of the Agreement.
- Business Owner executes the Agreement in accordance with applicable (professional) regulations and will carry out the work to the best of his ability and as a carefully acting service provider. The Business Owner reserves the right to have the work carried out by another party.
- In the case of Secondment, Business Owner will endeavor to deploy a Detached Employee who will carry out the work as well as possible. Business Owner has the right to change the Detached during the Agreement.
- In the case of Secondment, Detachee keeps track of the number of hours (and overtime) worked by him in the time registration system of the Client. If the Client does not have a time registration system, Detachee will keep track of the number of hours (and overtime) worked by him in the time registration system of Business Owner. For services other than Secondment, the Business Owner keeps track of the worked hours (and overtime) in the time registration system of Business Owner.
- An agreed delivery timescale shall always be regarded as a target and not as a deadline.
- All obligations on the part of the Business Owner towards the Client shall be regarded as an obligation to perform to the best of his ability. The Business Owner cannot guarantee the result of the obligation(s) he has fulfilled and/or will fulfill.
6 Price and payment
- Unless expressly agreed otherwise, the Client shall be liable to the Business Owner a fee that is based on the actual time spent by the Business Owner multiplied by the applicable rate. In addition, the Business Owner is entitled to charge the Client for expenses incurred during the execution of the Agreement. Rates shall be adjusted annually. All rates include VAT and any other levies. The hour registration of Business Owner is compelling proof of the time spent and invoiced by the Business Owner, counter-evidence by the Client is not possible. A copy of the registered hours will be attached by the Business Owner to the relevant invoice.
- In the case of Secondment, the Business Owner reserves the right to pass on any increase in wages, other employment conditions or expense allowances following from any applicable collective labor agreement or following from the collective labor agreement within the sector in which the seconded employee works or as a result of employment conditions agreed from the employment contract, to the Client and to increase the rates accordingly. Furthermore, the Business Owner reserves the right to increase the rates if there are amended legislation or pension obligations and / or social charges.
- The Client is obliged to pay the invoiced fee within 14 days of the invoice date without any deductions, discounts or setoffs. The Client cannot invoke suspension with respect to the obligation to pay the invoice. Client is, without any notice of default being required, in default by the mere expiry of the payment term, which counts as a fatal term. As soon as the payment term has expired, the Client will owe the statutory commercial interest and compensation for the extrajudicial collection costs, which will be at least 15% of the principal amount owed, with a minimum of € 200.00.
- The Business Owner is entitled to demand a guarantee from the Client for the fulfillment of (payment) obligations at all times. The Business Owner is at all times entitled to suspend his obligations arising from the Agreement until the guarantee required by the Business Owner is provided by the Client.
- The Client must immediately check the accuracy and completeness of the work performed and the documents or services received from the Business Owner and inform the Business Owner in writing of any complaints as soon as possible, but no later than within one month. Thereafter, the Client can no longer claim that the performance of the Business Owner constitutes a shortcoming in the fulfillment of the Agreement, and all his rights arising from the agreement shall be considered unenforceable, unless the Client can demonstrate that he could not have reasonably discovered the shortcoming earlier.
- Holding onto or paying invoices without complaint shall mean that the Client is content with the work done and the amount invoiced, including time spent, rates and expenses.
- If the Client has made a complaint known in a timely manner as described in subsection 1 of this section, the Business Owner and the Client shall consult with each other as soon as possible. Complaints do not put payment liability on hold.
8 Termination of the Agreement
- If the Client and the Business Owner have agreed to an Agreement for a definite period of time, this Agreement shall end automatically and the Client shall not be able to terminate the Agreement prematurely. If the Client and the Business Owner have agreed to an Agreement for an indefinite period of time, the Client may terminate the Agreement in writing at the end of the month with due observance of a notice period of three months. Without stating reasons, the Business Owner shall be entitled to terminate the Agreement in writing (prematurely) at the end of the month with due observance of a notice period of one month.
- The Agreement may be terminated with immediate effect by the Business Owner by means of a written statement to the Client if the he fails to comply with one or more of the provisions of the Agreement or these general terms and conditions, without prejudice to the Business Owner’s right to claim damages from the Client.
- The Agreement may also be terminated by the Business Owner with immediate effect by means of a written statement to the Client if:
- The client files for bankruptcy or is declared to be bankrupt;
- The Client applies for, or obtains, a suspension of payments;
- The debt rescheduling provisions pursuant to the Natural Persons Debt rescheduling Act (Wet Schuldsanering natuurlijke personen) is declared applicable to the Client;
- All or part of the Client’s goods have been seized;
- The client passes away;
- The Client goes into liquidation;
- The Client goes into receivership or administration;
- After entering into the Agreement, other circumstances become known to the Business Owner that give him good reason to believe that the Client will not fulfill his obligations;
all this without prejudice to the Business Owner’s right to claim damages from the Client.
9 Force Majeure
- Force majeure on the part of the Business Owner shall be deemed to exist if the Business Owner is prevented from fulfilling his obligations under the Agreement or the preparation thereof as a result of circumstances that he cannot reasonably influence. Force majeure shall in any event be understood to mean: (i) force majeure of suppliers of Business Owner, (ii) failure to properly fulfill obligations of suppliers prescribed by the Client to Business Owner, (iii) defectiveness of items, equipment, software or materials of third parties whose use is prescribed by the Client to Business Owner, (iv) government measures, (v) power failure, (vi) war, (vii) occupation, (viii) strike, (ix) general transport problems and (x) the unavailability of one or more employees of Business Owner for whatever reason.
- An agreed delivery term is extended by the period during which the Business Owner is prevented from fulfilling its obligations due to force majeure.
- If the delivery timescale is delayed by more than three months due to force majeure, both the Business Owner and the Client shall be entitled to partially terminate the Agreement in respect to the non-performance.
10 Intellectual property
- The intellectual property rights of the Business Owner to all that the Business Owner provides to the Client in the performance of the Agreement, including in any case drawings, illustrations, calculations, designs, processes and models, shall remain vested in the Business Owner and may only be used by the Client for the execution of the Agreement. At the end of the Agreement, the relevant documents and information will be returned to the Business Owner on first request.
- If intellectual property rights arise during the performance of the Agreement, then the intellectual property rights, including copyright, shall be vested in the Business Owner. Insofar as intellectual property rights are to be vested automatically in the Client, the Client shall transfer these intellectual property rights in advance to the Business Owner and, if necessary, the Client shall facilitate this transfer and shall furthermore grant the Business Owner a power of attorney in advance with which the Business Owner can do all that is necessary to ensure that intellectual property rights are vested in him. To the extent permitted by law, the Client shall waive any personality rights that remain vested in the other party.
- If the Business Owner grants the Client a right of use, this will always be on the basis of a non-exclusive and non-transferable license, which is limited to the agreed use.
- In case of violation of the provisions of subsection 1 and 2, the Client shall be liable to the Business Owner for a penalty of €50.000,00 without any warning or notice of default being required, without prejudice to the Business owner’s right to claim full damages with interest and costs. Penalties paid or owed shall not be deducted from any compensation due, and shall be paid together with interest and costs. The parties hereby expressly exclude the application of the provisions of Section 92, subsection 2, of Book 6 of the Dutch Civil Code.
- The Business Owner expressly excludes any liability and/or strict liability for direct damage, indirect damage, consequential damage, trading loss, loss of profit, lost savings, reduced goodwill, damage due to business interruption, obstruction or loss of data and all other forms of direct and/or indirect damage caused by the Business Owner and/or its subsidiaries and/or support staff engaged by the Business Owner, unless the damage is the result of intent or deliberate recklessness.
- If the exclusion of liability in subsection 1 fails to apply, the compensation thereof shall be limited to a maximum of the invoice amount of the Agreement (excluding VAT) from which the liability arises, at least for that part of the Agreement to which the liability relates. Compensation for damage shall in any case be limited to the amount that the Business Owner’s liability insurance pays out as the case may be, plus the amount of the deductible that must be paid by the Business Owner as a result of the applicable insurance agreement in question.
- The Client shall fully indemnify the Business Owner, on first request, against all third party claims against the Business Owner in respect of any event for which liability is excluded in these general terms and conditions.
11 Transfer of personnel
- During the term of the Agreement and for up to one year after termination thereof, the Client is prohibited from employing employees of the Business Owner and its affiliated companies or from having activities carried out in any other way, unless the Business Owner has given the Client written permission to do so. The Business Owner may attach conditions to this permission.
- In the event of violation of the provisions of subsection 1, the Client will be liable to the Business Owner for a penalty of €50,000.00, without any warning or notice of default being required, without prejudice to the Business Owner’s right to claim full compensation with interest and costs. Penalties paid or owed shall not be deducted from any compensation due, together with interest and costs. The parties hereby expressly exclude the application of the provisions of Section 92, subsection 2, of Book 6 of the Dutch Civil Code.
12 Protection against dangers
- The Client must at all times comply with the provisions of Article 658 of Book 7 of the Dutch Civil Code. The Client is liable to the Seconded Employee for damage suffered by the Seconded Employee during the performance of his duties. The Client will fully indemnify the Business Owner on first request for all claims in respect of the Seconded Employee.
- In the event that the Business Owner is held liable by the Seconded Employee for damage for which the Client is liable, and the Business Owner has paid compensation in that context, then he has a right of recourse against the Client for the entire amount (as well as the costs incurred).
13 Good clientship
- The Client shall behave towards the Seconded Party during his supervision and in respect to the performance of the work in the same careful manner as he is obliged to behave towards his own employees.
- The Client is not permitted to have the Seconded Employee carry out work under the control or supervision of a third party for the benefit of this third party. This is also not permitted if this third party belongs to a group of which the Client forms part, as referred to in Sections 24a and 24b of Book 2 of the Dutch Civil Code.
- The Client is obliged to have the Seconded Employee perform the agreed work. A deviation thereof must be agreed in writing between the Business Owner and the Client.
- The Client is not permitted to employ the Seconded Employee outside the Netherlands without the prior written consent of Business Owner.
- If, in carrying out the Agreement, personal data as referred to in the General Data Protection Regulation are processed by the Business Owner or the Client, the Business Owner and the Client shall agree in writing on a processing agreement that complies with the provisions of the General Data Protection Regulation.
- The Client indemnifies the Business Owner against any administrative sanctions, restorative sanctions and punitive sanctions imposed on the Business Owner in the context of data processing carried out by the Business Owner during the performance of the Agreement.
15 Rights and obligations
- The Client cannot transfer claims on the Business Owner, for whatever reason, to a third party. Such claims are expressly not transferable. This clause has a property law effect within the meaning of article 83, paragraph 2 of Book 3 of the Dutch Civil Code.
- The Client is not permitted to transfer any obligation from the Agreement and/or these general terms and conditions to a third party without the prior written approval of Business Owner.
16 Partial nullity or annullability
Should a provision in these general terms and conditions be void or voidable, this does not mean that these general terms and conditions are void or voidable in their entirety or that any other provision thereof is (partially) void or voidable. If a provision in these general terms and conditions should be void or voidable (and subsequently void), the Business Owner shall replace it with a valid provision that resembles the void or voidable provision as closely as possible.
17 Expiry of law, applicable law and choice of forum
- Insofar as these general terms and conditions do not provide otherwise, all rights of action of the Client against the Business Owner shall in any case expire one year after the day on which the service provided to which the claim relates is invoiced to the Client, unless the claim(s) are brought before a competent court within this period.
- All legal relationships between the Business Owner and the Client shall be governed exclusively by Dutch law.
- Any disputes that may arise between the Client and the Business Owner as a result of relations governed by these general terms and conditions shall be submitted exclusively to the District Court of Overijssel, in Zwolle.