General Delivery and Payment Terms
General delivery and payment terms of 2DAYSMOOD BV, Europalaan 100, 3526 KS in UTRECHT-The Netherlands. To be referred to below as: user. The last deposited version or the version that applied at the time of the conclusion of the agreement is always applicable.
Article 1 Definitions
- In these general terms and conditions, the following terms are used in the following meaning, unless explicitly stated otherwise.
User: the user of the general conditions.
Client: the other party of the user.
Agreement: the service agreement.
Article 2 General
- These terms and conditions apply to every offer, quotation and agreement between the user and a client to which the user has declared these terms and conditions applicable, insofar as the parties have not expressly deviated from these conditions in writing.
- The present conditions also apply to all agreements with the user, for the execution of which third parties must be involved.
- Any deviations from these general terms and conditions are only valid if expressly agreed in writing.
- The applicability of any purchase or other conditions of the client is explicitly rejected.
- If one or more of the provisions in these general terms and conditions are null and void or become void, the other provisions of these general terms and conditions remain fully applicable. The user and client will then enter into consultation in order to agree to new provisions to replace the null and void or nullified provisions, whereby if and as far as possible the purpose and intent of the original provision will be taken into account.
Article 3 Offers and quotations
- All offers are without obligation, unless a term for acceptance is mentioned in the offer.
- The quotations made by the user are without obligation; they are valid for 14 days, unless stated otherwise. The user is only bound to the offers if the acceptance thereof is confirmed in writing by the other party within 14 days, unless stated otherwise.
- The prices in the aforementioned offers and quotations are exclusive of VAT and other government levies, as well as any costs to be incurred within the framework of the agreement, including shipping and handling costs, unless stated otherwise.
- If the acceptance deviates (on minor points) from the offer included in the quotation, the user is not bound by it. The agreement will then not be concluded in accordance with this deviating acceptance, unless the user indicates otherwise.
- A composite quotation does not oblige the user to perform part of the assignment against a corresponding part of the stated price.
- Offers or quotations do not automatically apply to future assignments.
Article 4 Execution of the agreement
- The user will execute the agreement to the best of his knowledge and ability and in accordance with the requirements of good workmanship. All this on the basis of the current state of knowledge at that time.
- If and in so far required for the proper execution of the agreement, the user has the right to have certain work carried out by third parties.
- The client ensures that all data which the user has said to be necessary or which the client reasonably understands to be necessary for the execution of the agreement, will be provided to the user. If data required to bring the implementation of the agreement to a close are not provided in time to the user, the user has the right to suspend and/or charge the additional costs resulting from the delay at the usual rates to the client’s account.
- The user shall not be liable for damages of any kind, because the user worked with incorrect and/or incomplete data provided by the client, unless such inaccuracy or incompleteness should have been known by the user.
- If it has been agreed that the agreement will be executed in phases, the user can suspend the execution of those parts belonging to a following phase until the client has approved the results of the preceding phase in writing.
- If the user or third parties called in by the user perform work under the contract on the client’s site or a site designated by the client, client shall ensure free of charge facilities which are reasonably required.
- The client indemnifies the user against any claims from third parties that suffer damage in connection with the execution of the agreement and which is attributable to the client.
Article 5 Modifying the agreement
- If it becomes apparent during the execution of the agreement that it is necessary for a proper execution to change or supplement the work to be performed, the parties shall adjust the agreement accordingly in good time and in mutual consultation.
- If the parties agree that the agreement will be amended or supplemented, the time of completion of the execution may be affected. The user will inform the client as soon as possible.
- If the change or supplement to the agreement will have financial and/or qualitative consequences, the user will inform the client in advance.
- If a fixed fee has been agreed, the user will indicate to what extent the change or supplement to the agreement will result in an exceeding of this fee.
- Notwithstanding paragraph 3, the user will not be able to charge additional costs if the change or addition is the result of circumstances that can be attributed to the user.
Article 6 Contract duration; execution period
- The agreement between the user and a client is entered into for at least 6 months, unless the nature of the agreement dictates otherwise or the parties expressly agree otherwise in writing.
- If a duration has been agreed within the term of the agreement for the completion of certain activities, this is never a conclusive deadline. In the event that the execution period is exceeded, the client must therefore give the user written notice of default.
Article 7 Fee
- For offers and agreements in which a fixed fee is offered or agreed, paragraphs 2., 5. and 6. through 11. of this article apply. If no fixed fee is agreed, paragraphs 3 up to and including 11 of this article apply.
- The parties can agree on a fixed fee when the agreement is concluded.
- If no fixed fee is agreed, the fee will be determined on the basis of:
– actual spent hours. The fee is calculated according to the user’s usual hourly rates, applicable for the period in which the work is performed, unless a deviating hourly rate has been agreed upon;
– an alternative remuneration form agreed in writing between parties with mutual consent;
- The fee as well as any cost estimates are exclusive of VAT.
- For orders with a duration of more than 1 week, the costs owed per week will be charged.
- If the user agrees a fixed fee or hourly rate with the client, the user is nevertheless entitled to increase this fee or rate.
- The user is entitled to pass on price increases if the user can demonstrate that between the time of the offer and delivery, the rates with regard to, for example, wages have increased considerably.
- Moreover, the user may increase the fee if, during the execution of the work, it appears that the originally agreed or expected amount of work was insufficiently assessed at the conclusion of the agreement, and thus is not attributable to the user, then in all reasonableness the user may not be expected to perform the agreed work at the originally agreed fee.
- In the event of a price increase, the client is entitled to dissolve the agreement if the fee or rate is increased within two months after the conclusion of the agreement. After the expiration of this period, the client is entitled to dissolve the agreement if the increase amounts to more than 10%. The Client is not entitled to dissolution if the increase of the fee or rate arises from a power pursuant to the law.
- The user will notify the client of the intention to increase the fee or rate in writing. The User will state the extent of and the date on which the increase will take effect.
- If the client does not wish to accept the increase of the fee or rate made known by the user, the client is entitled to terminate the agreement in writing within seven working days after the said notification, or to cancel the order at the date on which the price or tariff adjustment would take effect.
Article 8 Payment
- Payment must be made within 30 days of the invoice date, in a manner to be indicated by the user in the currency in which it is declared. Objections against the amount of the invoices do not suspend the payment obligation.
- If the client fails to pay within the 30-day period, the client is legally in default. Client will then owe interest of 1% per month, unless the statutory interest rate is higher, in which case the statutory interest rate applies. The interest on the due and payable amount will be calculated from the moment that the client is in default until the moment of payment of the full amount.
- In the event of liquidation, bankruptcy, attachment or suspension of payment of the client, the claims of the user against the client shall be immediately due and payable.
- The user shall be entitled to have the payments made by the client go first of all to reduce the costs, subsequently to reduce the interest still due and finally to reduce the principal sum and the current interest.
The user can, without being in default, refuse an offer of payment if the client designates a different order for the allocation.
The user can refuse full payment of the principal sum if the outstanding and accrued interest as well as the costs are not paid.
Article 9 Reservation of ownership
- Survey data, being all answers – in whatever form – as given by employees of the client, remain the property of the user at all times.
- All items delivered by the user, including designs, sketches, drawings, films, software, (electronic) files, presentations, etc., remain the property of the user until the client has fulfilled all the following obligations from all agreements concluded with the user.
- The client is not authorized to pledge the items falling under the reservation of ownership or to encumber them in any other way.
- If third parties seize the goods delivered under reservation of ownership or want to establish or assert rights thereon, the client is obliged to notify the user as soon as reasonably may be expected.
- The client undertakes to ensure the goods delivered subject to reservation of ownership and to keep them insured against fire, explosion and water damage as well as against theft and to make the policy of this insurance available for inspection on first request.
- Goods delivered by the user, which are covered by the reservation of ownership pursuant to 1. of this article, may only be sold within the framework of normal business operations and may never be used as a means of payment.
- In the event that the user wishes to exercise his property rights as referred to in this article, the client now gives unconditional and non-revocable permission to the user or third parties to be designated to enter all those places where the properties of the user are located which to be taken back.
Article 10 Collection fees
- If the client is in default or omission in the (timely) fulfillment of his obligations, then all reasonable costs incurred in obtaining payment out of court are on behalf of the client. In any case, the client owes collection fees in the event of a monetary claim. The collection fees are calculated in accordance with the collection fees as advised by the Netherlands Bar Association in collection cases.
- If the user has incurred higher costs, which were reasonably necessary, these will also qualify for reimbursement.
- Any reasonable legal and execution costs incurred will also be charged to the client.
Article 11 Complaints
- Complaints about the work performed must be reported in writing by the client to the user within 8 days of discovery, but no later than 14 days after completion of the work in question. The notice of default must contain as detailed a description as possible of the shortcoming, so that the user is able to respond adequately.
- If a complaint is well-founded, the user will still perform the work as agreed, unless this has become demonstrably pointless for the client. The latter must be made known by the client in writing.
- If the performance of the agreed work is no longer possible or useful, the user will only be liable within the limits of Article 15.
Article 12 Termination
- The contract may be terminated unilaterally by the client with due observance of a notice period of 1 calendar month, commencing on the first day of the new month. If the previously agreed contract duration has not been met, the costs will be corresponding with the contract. No refund will be granted on remaining months.
- If the agreement is terminated prematurely by the client, the user shall be entitled to compensation because of the resulting loss of occupancy resulting from this in accordance with paragraph 1, unless there are facts and circumstances on which the termination is attributable to the user. Furthermore, the client is then obliged to pay the invoices for work done up to that time. The preliminary results of the work carried out until then will therefore be made available to the client with reservation.
- If the agreement is terminated prematurely by the user, the user shall, in consultation with the client, ensure the transfer of work still to be performed to third parties, unless there are facts and circumstances underlying the cancellation that are attributable to the client.
- If the transfer of the work involves additional costs for the user, these will be charged to the client.
Article 13 Opschorting en ontbinding
- User is entitled to suspend the fulfillment of the obligations or to dissolve the agreement if:
– the client does not or not fully comply with the obligations from the agreement.
– after concluding the agreement, the user becomes aware of circumstances that give good grounds to fear that the client will not fulfill the obligations. In the event that there is good reason to fear that the client will only partially or improperly fulfill its obligations, the suspension is only permitted insofar as the shortcoming justifies it.
– client has been asked at the conclusion of the agreement to provide certainty for the fulfillment of his obligations under the agreement.
- Furthermore, the user is authorized to dissolve the agreement (or have it dissolved) if circumstances arise which are of such a nature that fulfillment of the agreement is impossible or, according to standards of reasonableness and fairness, can no longer be required or if other circumstances arise which demand that unaltered maintenance of the agreement cannot reasonably be expected.
- If the agreement is dissolved, the user’s claims against the client are immediately due and payable. If the user suspends fulfillment of the obligations, he retains his rights under the law and agreement.
- The user always reserves the right to claim compensation.
Article 14 Returning goods made available
- If the user has made goods available to the client during the execution of the agreement, the client is obliged to return the delivered goods within 14 days in their original state, free of defects and in full. If the client does not comply with this obligation, all resulting costs are for his account.
- If the client, for whatever reason, after being warned to do so, still remains in default with the obligation mentioned under 1., the user has the right to recover the resulting damage and costs, including the costs of replacement, from the client.
Article 15 Liability
- If user is liable, then this liability is limited to what is regulated in this provision.
- If the user is liable for direct damage, this liability is limited to a maximum of the amount of the payment to be made by the insurer of the user, at least up to twice the amount of the invoice, at least that part of the assignment to which the liability relates. The user’s liability for direct damage is at all times limited to a maximum of the fee that the user receives under the agreement for services rendered.
- Contrary to what has been stipulated under 2. of this article, in the case of an assignment with a term of more than six months, the liability is further limited to the part of the fee due over the last six months.
- Direct damage is exclusively understood to mean:
– the reasonable costs for determining the cause and extent of the damage, insofar as the determination relates to damage within the meaning of these conditions;
– any reasonable costs incurred to have the faulty performance of the user comply with the agreement, unless these can not be attributed to the user;
– reasonable costs incurred to prevent or limit damage, insofar as the client demonstrates that these costs have led to the limitation of direct damage as referred to in these general terms and conditions.
- The user is never liable for indirect damage, including consequential damage, lost profit, missed savings and damage due to business stagnation.
- The limitations of liability for direct damage included in these conditions do not apply if the damage is due to intent or gross negligence of the user or his subordinates.
Article 16 Indemnities
- The client indemnifies the user against claims of third parties with regard to intellectual property rights on materials or data provided by the client, which are used in the execution of the agreement.
- If the client provides the user with information carriers, electronic files or software etc., the latter guarantees that the information carriers, electronic files or software are free of viruses and defects.
Article 17 Risk transition
- The risk of loss or damage to the items that are the object of the agreement passes to the client at the moment at which they are delivered to the client legally and / or factually and thus in the power of the client or of a by the client. third parties are brought.
Article 18 Force Majeure
- The parties are not obliged to comply with any obligation if they are prevented from doing so as a result of a circumstance that is not due to fault, and not under the law, a legal act or generally accepted for their account.
- Force majeure is understood in these general terms and conditions in addition to what is understood in the law and jurisprudence, all external causes, foreseen or unforeseen, on which the user can not exert influence, but as a result of which the user is unable to fulfill the obligations. Work strikes in the user’s company are included.
- The user also has the right to invoke force majeure if the circumstance that prevents (further) performance occurs after user should have fulfilled his obligations.
- During the period that the force majeure continues, the parties can suspend the obligations under the agreement. If this period lasts longer than two months, each of the parties is entitled to dissolve the agreement, without any obligation to compensate the other party for damage.
- For as much the user at the time of the occurrence of force majeure meanwhile partially fulfilled his obligations under the agreement or will be able to fulfill them, and the part to which the fulfilled or to be fulfilled belongs, the user is entitled to declare the already fulfilled or to be fulfilled part. The client is obliged to pay this invoice as if it were a separate agreement.
Article 19 Confidentiality
- Both parties are obliged to keep confidential all confidential information that they have obtained from each other or from another source within the framework of their agreement. Information is considered confidential if this has been communicated by the other party or if this results from the nature of the information. The parties also impose this obligation on their employees as well as on third parties engaged by them to execute the agreement.
- This obligation also continues after termination of the agreement for whatever reason, and for as long as the providing party can reasonably claim the confidential nature of the information.
- If, on the basis of a statutory provision or court order, the user is obliged to provide confidential information to third parties designated by the law or the competent court, and the user cannot rely on a legal or competent authority in this matter, then the user is not obliged to compensation and the other party is not entitled to dissolution of the agreement on the basis of any damage caused by this.
Article 20 Intellectual property and copyright
- Without prejudice to the other provisions in these general terms and conditions, the user reserves the rights and powers for the user pursuant to the Copyright Act.
- All documents provided by the user, such as reports, advice, agreements, designs, sketches, drawings, software, etc., are exclusively intended for use by the client and may not be reproduced by him without prior consent of the user, may not be made public, or brought to the notice of third parties, unless otherwise comes forward from the nature of the documents provided.
- The user reserves the right to use the knowledge gained due to the execution of the work for other purposes, insofar as no confidential information is brought to the notice of third parties.
Article 21 Samples and models
- If a sample or (theoretical) model has been shown or provided to the client, then it is presumed to have been provided as an indication only, unless it is explicitly agreed that the product to be delivered should be in conformity therewith.
Article 22 Not acquiring personnel
- During the term of the agreement, as well as one year after its termination, the client will in no way, except after proper business consultation has taken place with the user, hire employees of the user or of companies on which the user has invoked the execution of this agreement and who are or have been involved in the execution of the agreement, take on the service or otherwise, directly or indirectly, let them work for themselves.
Article 23 Disputes
- The judge in the place of business of the user is exclusively authorized to take cognizance of disputes, unless the cantonal judge is competent. Nevertheless, the user has the right to submit the dispute to the competent court according to the law.
- The parties will first appeal to the court after they have made every effort to settle a dispute in mutual consultation.
Article 24 Applicable law
- Dutch law applies to every agreement between the user and the client.