General Terms and Conditions
Article 1. Definitions
‍For the purposes of these terms and conditions, the definitions indicated in capital letters have the following meaning:
Administration practice: DKB-Finance B.V.;
Documents: All information or data provided by the Client to the Contractor, whether or not contained on (un) physical carriers including - but not limited to - paper, CD-ROMs, hard drives, e-mail and digital environments, whether or not housed with third parties, as well as all data created or collected by Contractor in the context of the execution of the Assignment/Agreement, whether or not contained on (un) material carriers including - but not limited to - included: paper, CD-ROMs, hard drives, e-mail and digital environments, whether or not housed with third parties, as well as all other information of any relevance to the execution or completion of the Assignment, whether or not contained on (im) material carriers;
Assignment/Agreement: The assignment agreement, where the Contractor undertakes to perform certain Activities towards the Client; Client: The natural person or legal person who has instructed the Contractor to perform Work;
Contractor: The Administration Practice that has accepted the Assignment. All Orders are accepted and executed exclusively by the Administration Practice, not by or on behalf of an individual Employee, regardless of whether the Client has expressly or implicitly granted the Assignment for the purpose of execution by a specific Employee or Staff. Articles 7:404, 7:407 paragraph 2 and 7:409 of the Dutch Civil Code are expressly excluded;
Employee: A natural person working at or associated with the Contractor, whether or not under an employment contract;
Activities: All activities to be carried out by the Contractor for the Client that have been ordered and that have been accepted by the Contractor, as well as all activities resulting therefrom for the Contractor.
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‍Article 2. Applicability
‍These general terms and conditions apply to: all offers, offers, orders, legal relationships and agreements, whatever name, where the Contractor undertakes or will undertake to perform Work for the Client, as well as to all Activities resulting therefrom for the Contractor.
Deviations from, and additions to, these general terms and conditions are only valid if they have been expressly agreed in writing in, for example, a (written) agreement or order confirmation. In the event that these general terms and conditions and the order confirmation contain conflicting terms and conditions, the terms included in the order confirmation apply. The Contractor expressly rejects the applicability of the Client's general terms and conditions.
The underlying Order/Agreement — together with these general terms and conditions — reflect the full agreements between Client and Contractor with regard to the Activities for which the Agreement has been concluded. All previous agreements or proposals made between the parties in this regard will expire.
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‍Article 3. Client information
‍The Client is obliged to make available to the Contractor all Documents that the Contractor considers necessary for the correct execution of the Assignment granted, (a) in the desired form, (b) in the desired manner and (c) in a timely manner. The Contractor determines what should be understood by the desired form, desired manner and in a timely manner. The Client guarantees the accuracy and reliability of the Documents provided by him, even if they come from third parties, unless the nature of the Assignment dictates otherwise.
The Contractor has the right to suspend the execution of the Assignment until the Client has fulfilled the obligations set out in paragraphs 1 and 2.
The Client indemnifies the Contractor against damage resulting from incorrect or incomplete Documents. The additional costs and extra hours incurred by the Contractor, as well as other damage, are at the expense and risk of the Client due to the Client's failure, timely or improper provision of Documents necessary for the performance of the Activities.
At the Client's first request, the Contractor will return the original Documents provided by the Client to the Client.
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‍Article 4. Execution of the order
‍Contractor executes the Assignment to the best of its ability and in compliance with applicable legal regulations. Contractor determines how the Assignment is executed and by which Employee (s) .Contractor has the right to have Work carried out by a third party to be appointed by the Contractor.
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‍Article 5. Regulations
‍The Client always fully cooperates with the obligations that arise for the Contractor from the applicable regulations. The Client is aware that the Contractor - including but not limited to - may be required by applicable laws and regulations to report certain transactions, described in those laws and regulations and become known during the execution of its Activities, to the authorities set up for that purpose by the government; under applicable laws and regulations in certain situations will have to do; under applicable laws and regulations, you may be required to investigate the (identity of) Client or the client. The Contractor excludes any liability for damage that occurs to the Client as a result of the Contractor complying with the laws and (professional) regulations applicable to him.
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‍Article 6. Intellectual Property
‍The execution of the Assignment by the Contractor does not involve the transfer of intellectual property rights that are owned by the Contractor. All intellectual property rights that arise during, or arise from, the execution of the Assignment belong to the Contractor.
The Client is expressly prohibited from reproducing, disclosing or exploiting the products containing the Contractor's intellectual property rights, or products that are subject to intellectual property rights with regard to the use of which the Contractor has acquired user rights - including, in this context, in any case, but not limited to: computer programs, system designs, working methods, advice, (model) contracts, templates, macros and other intellectual products.
The Client is not allowed to hand over the products mentioned in paragraph 2 to third parties without the Contractor's prior written consent, other than to obtain an expert opinion on the performance of the Activities by the Contractor. In that case, the Client will impose its obligations under this article on the third parties engaged by it.
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‍Article 7. Force majeure
‍If the parties are unable to fulfill the obligations under the agreement, not timely or properly as a result of force majeure within the meaning of art. 6:75 of the Dutch Civil Code, those obligations will be suspended until the parties are still able to fulfill them in the agreed manner. In the event that the situation referred to in paragraph 1 occurs, the parties have the right to terminate the agreement in writing, in whole or in part and with immediate effect, without the right to any compensation.
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‍Article 8. Fees
‍The work carried out by the Contractor will be charged to the Client on the basis of time spent and costs incurred. In addition to the fee, the expenses incurred by the Contractor and the invoices of third parties engaged by the Contractor will be charged to the Client.
Contractor has the right to request an advance payment from the Client. If fees or prices change after the conclusion of the Agreement, but before the Assignment is fully executed, the Contractor is entitled to adjust the agreed rate accordingly.
The fee, increased if necessary by advances and invoices from engaged third parties and expenses incurred, will be charged monthly. All amounts owed by the Client to the Contractor will be charged separately, if required by law.
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‍Article 9. Payment
‍Payment by the Client of the amounts due to the Contractor must be made within 14 days of the invoice date, unless otherwise agreed, without the Client being entitled to any deduction, discount or settlement. The day of payment is the day of crediting the amount due to the Contractor's account. If the Client has not paid within the period specified in paragraph 1, or another period agreed between the parties, the Client is in default by operation of law and the Contractor is entitled to charge the statutory (commercial) interest from that moment on.
If the Client has not paid within the period specified in paragraph 1, the Client is obliged to reimburse all judicial and extrajudicial (collection) costs incurred by the Contractor. The reimbursement of the costs incurred is not limited to any costs determined by the court. In the event of an Assignment given jointly, Clients are jointly and severally liable for payment of the invoice amount and the interest (s) and costs due, insofar as the Activities have been performed for the joint Clients.
If, in the Contractor's opinion, the financial position or payment behavior of the Client gives reason to do so, or if the Client fails to pay an advance or an invoice within the specified payment period, the Contractor is entitled to require the Client to provide (additional) security immediately in a form to be determined by the Contractor. If the Client fails to provide the requested security, the Contractor is entitled, without prejudice to its other rights, to immediately suspend further execution of the agreement and all that the Client owes to the Contractor for whatever reason is immediately due and payable.
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‍Article 10. Time limits
‍If a term/date has been agreed between Client and Contractor within which the Assignment must be executed and the Client fails to: (a) make an advance payment - if agreed - or (b) make the necessary Documents available in a timely, complete, form and manner, then Client and Contractor will consult about a new term/date within which the Assignment should be executed.
Terms within which the Activities must be completed can only be regarded as a deadline if this has been expressly agreed between Client and Contractor.
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‍Article 11. Liability and indemnities
‍The Contractor is not liable for damage suffered by the Client that occurs because the Client has provided incorrect or incomplete Documents to the Contractor.
The Contractor is not liable for any consequential, business loss or indirect damage resulting from the Contractor's failure, late or improper performance. The Contractor is only liable to the Client for damage that is the direct result of a (related series of) attributable shortcoming (s) in the execution of the Assignment. This liability is limited to the amount that, according to the Contractor's liability insurer, will be paid out for the relevant case, plus any deductible to be borne by the Contractor under the insurance.
If, for whatever reason, the liability insurer does not pay out, the Contractor's liability is limited to the amount of the fee charged for the execution of the Assignment. If the Assignment concerns a continuing performance agreement with a term of more than one year, the amount referred to above will be set at three times the amount of the fee that was charged to the Client in the twelve months prior to the occurrence of the damage. Under no circumstances will the total compensation for the damage under this article exceed €150,000 per event, where a series of related events counts as one event, unless — given the size of the assignment or the risks associated with the assignment — the parties see reason to deviate from this maximum when entering into the agreement.
The limitations of liability included in this article do not apply if and insofar as there is intent or deliberate recklessness on the part of the Contractor or its management. The Client is obliged to take damage control measures.
The Client indemnifies the Contractor against third-party claims for damage caused by the Client not providing any, incorrect or incomplete Documents to the Contractor. The Client indemnifies the Contractor against claims from third parties (including Contractor's employees and third parties engaged by Contractor) who suffer damage in connection with the execution of the Assignment resulting from the Client's acts or omissions or from unsafe situations in its company or organization.
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‍Article 12. Termination
‍Client and Contractor can terminate the agreement (prematurely) at any time without observing a notice period. If the agreement ends before the Assignment is completed, the Client owes the fee in accordance with the hours specified by the Contractor for Activities performed on behalf of the Client. Termination must be made in writing. If (interim) cancellation has been made by the Client, the Contractor is entitled to compensation for the loss of occupancy caused and plausible on its part, as well as to compensation for additional costs that the Contractor has already incurred and costs resulting from any cancellation of engaged third parties (such as - among other things - any costs related to subcontracting) .If the Contractor has made (interim) cancellation, the Client is entitled to cooperation from the Contractor in transferring work to third parties, unless there is intent or deliberate recklessness on the part of the Client, forcing the Contractor to terminate. The condition for the right to cooperation as set out in this paragraph is that the Client has paid all underlying outstanding advances or all invoices.
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‍Article 13. Right of suspension
‍After careful consideration of interests, the Contractor is authorized to suspend the fulfillment of all its obligations, including issuing Documents or other items to the Client or third parties, until all due and payable claims against the Client have been paid in full.
The first paragraph does not apply to Client Documents that have not (yet) been processed by the Contractor.
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‍Article 14. Expiration period
‍Unless otherwise provided in these general terms and conditions, the Client's rights of action and other powers for whatever reason against the Contractor in connection with the performance of Work by the Contractor expire, in any case after one year after the Client became aware or could reasonably be aware of the existence of these rights and powers. This period does not include the possibility to file a complaint with the appropriate complaint-handling authority (s) and/or the Disputes Board.
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‍Article 15. Electronic communication
‍During the execution of the Assignment, Client and Contractor may communicate with each other by electronic means at the request of the Client. Client and Contractor are not liable to each other for damage that may arise from one or any of them as a result of the use of electronic means of communication, including - but not limited to - damage resulting from non-delivery or delay in delivery of electronic communications, interception or manipulation of electronic communications communication by third parties or by software/equipment used for sending, receiving or processing electronic communication, transmission of viruses and the failure or improper functioning of the telecommunications network or other means of electronic communication, except insofar as the damage is the result of intent or gross negligence. Both Client and Contractor will do or fail to do anything reasonably expected of each of them to prevent the occurrence of the above risks. scrolls from the sender's computer systems provide compelling evidence of (the content of) the electronic communication sent by the sender until the recipient provides proof to the contrary.
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‍Article 16. Other provisions
‍If the Contractor performs Work at the Client's location, the Client will ensure a suitable workplace that meets the statutory health and safety standards and other applicable regulations with regard to working conditions. In that case, the Client must ensure that the Contractor is provided with office space and other facilities that, in the Contractor's opinion, are necessary or useful to execute the Agreement and that meet all (legal) requirements. With regard to (computer) facilities made available, the Client is obliged to ensure continuity, including through adequate backup, safety and virus control procedures. The Contractor will use virus control procedures when the Contractor makes use of the Client's facilities.The Client will not hire or approach any Employees involved in carrying out the Activities to join the Client, whether temporarily, directly or indirectly, or to work directly or indirectly for the Client, whether employed or not, during the term of the Agreement or any extension thereof and during the 12 months thereafter.
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‍Article 17. Applicable law and choice of forum
‍The Agreement is governed by Dutch law.
All disputes will be settled by the competent court in the district where the Contractor is located.
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‍Article 18. Repair clause nullities
‍If any provision of these terms and conditions or the underlying Engage/Agreement should be wholly or partially void and/or invalid and/or unenforceable, as a result of any legal provision, court order or otherwise, this will not affect the validity of all other provisions of these terms and conditions or the underlying Engagement/Agreement.If any provision of these terms and conditions or the underlying Engage/Agreement is not valid for any reason as intended in the previous paragraph, but would be valid if it were to have a more limited scope or scope, then this provision will - first of all - automatically apply with the most far-reaching or most extensive limited scope or scope with which or in which it is valid.
Without prejudice to the provisions of paragraph 2, the parties may, if they wish, consult in order to agree on new provisions to replace the invalid or annulled provisions. This will be in line with the purpose and scope of the invalid or annulled provisions as much as possible.