GENERAL TERMS AND CONDITIONS OF:
Tjalp, having its registered office in Amsterdam and having its principal place of business in postcode 1094KP Amsterdam, at Eerste Atjehstraat 58-A, also acting under the names Koekepeer, Koekepeer Producties and Tjalp.com, is listed in the commercial register under number 69392307.
Hereafter referred to as the user
Article 1 Definitions
- In these general terms and conditions, the following terms have the meanings referred to unless explicitly stated otherwise.
User: the user of the general terms and conditions.
Client: the counterparty of the user.
Agreement: the agreement to provide services.
Article 2 General
- These general terms and conditions apply to every offer, estimate, and agreement between the user and a client which the user has declared is subject to these terms and conditions and all resulting or related legal acts by the user, insofar as the parties do not deviate from these terms and conditions explicitly and in writing.
- The present terms and conditions also apply to all agreements with the user for the execution of which third parties have to be engaged.
- Any deviations from these general terms and conditions only apply if explicitly 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 become invalid or null and void, the remaining provisions of these general terms and conditions will continue to apply in full. The user and the client will then consult to agree to new provisions to replace the invalid or null and void provisions, with maximum observance, if and insofar as possible, of the purpose and the purport of the original provisions.
Article 3 Offers and quotations
- All offers, quotations, and price quotes are without engagement unless explicitly indicated otherwise in writing in the proposition.
- Quotations made by the user are without engagement and are valid for 30 days unless stipulated otherwise. The quotation only bounds the user if their acceptance by the counterparty is confirmed in writing within 30 days unless indicated otherwise.
- The prices in the offers and quotations exclude VAT and other government levies, as well as any costs incurred within the framework of the agreement, including forwarding and administration costs unless indicated otherwise.
- If the conditions of acceptance deviate (even in secondary matters) from the proposition included in the quotation, the user will not be subject to any obligation. In that case, no agreement per these conditions of acceptance will be affected, unless the user indicates otherwise.
- A compound price quote does not oblige the user to perform part of the assignment for a proportional 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 its insight and capacity and per the requirements of good workmanship, such based on the level of knowledge at that point in time.
- If and insofar as required for the proper execution of the agreement, the user is entitled to have some work performed by third parties.
- The client will ensure that any details which the user has indicated as being essential, or about which the client reasonably ought to understand are essential for the execution of the agreement, are provided to the user in good time. If the details required for the execution of the agreement are not issued to the user on time, the user will be entitled to suspend execution of the agreement and or to charge the client the extra costs resulting from the delay in accordance with standard rates.
- The user is not liable for loss or damage, of whatever nature, due to the user having used inaccurate and or incomplete data issued by the client unless the user should have been aware of said inaccuracy or incompleteness.
- If it has been agreed that the agreement is to be carried out in phases, the user can suspend the execution of those parts which belong to a subsequent phase until the client has given its written approval of the results of the preceding phase.
- If work is carried out by the user or third parties engaged by the user within the framework of the assignment at the client’s location or a location designated by the client, the client will provide the facilities reasonably desired by the employees involved free of charge.
- The client indemnifies the user against any claims by third parties that suffer loss or damage in connection with the execution of the agreement, which is attributable to the client.
Article 5 Changes to the agreement
- If it transpires during the execution of the agreement that proper execution must change or supplement the work to be performed, the parties will amend the agreement accordingly in good time and based on mutual consultation.
- If the parties agree that the agreement is to be changed or supplemented, the deadline by which execution has to have been completed may be affected. The user will inform the client of this effect at the earliest opportunity.
- If the change or supplement to the agreement has financial and or qualitative consequences, the user will inform the client of this effect in advance.
- If a fixed fee has been agreed, the user will also indicate to what extent the change or supplement to the agreement will result in this fee being exceeded.
- Price increases resulting from supplementing and or changing the assignment will be for the client’s account.
- Contrary to paragraph 3, the user will be unable to charge additional costs if the change or supplement is the consequence of circumstances which are beyond its control.
Article 6 Contract term; implementation deadline
- The agreement between the user and a client is entered into for an indefinite period unless the nature of the agreement determines otherwise, or the parties explicitly agree otherwise in writing.
- If a deadline has been agreed upon for completion of particular work during the term of the agreement, this will never be a binding deadline. If the implementation deadline is missed, the client must, therefore, declare the user to be in default in writing.
Article 7 Fee
- Offers and agreements in which a fixed fee is offered or agreed are subject to paragraphs 2, 5, and 6 to 11 of this article. If no fixed fee is agreed, paragraphs 3 to 11 of this article will apply.
- When the agreement is formed, the parties can agree to a fixed fee.
- If no fixed fee is agreed, the price will be determined based on hours worked. The fee will be calculated per the user’s usual hourly rates, which apply for the period in which the work is performed unless a different hourly rate is agreed.
- The fee and any cost estimates will not include VAT.
- The payable costs will be charged monthly.
- If the user has agreed to a fixed fee or hourly rate with the client, the user will nevertheless be entitled to increase this fee or rate.
- The user is entitled to charge on price increases if the user can demonstrate that the rates relating to, for example, wages have significantly increased between the time of the offer and the time of delivery.
- The user can also increase the fee if, during the execution of the work, it transpires that the originally agreed or expected quantity of work was insufficiently estimated, when the agreement was concluded, in such a way that, in all reasonableness, the user cannot be expected to perform the agreed work for the initially agreed fee and if such is not attributable to the user.
- In the event of a price increase, the client is entitled to dissolve the agreement if the fee or rate is increased within three months after agreeing. At the end of this period, the client will be entitled to terminate the agreement if the increase is more than 10%. The client is not entitled to dissolve if the increase in the fee or rate is authorized by law.
- The user will inform the client in writing of the intention to increase the fee or rate. When doing so, the user will state the extent of the increase and the date on which it will commence.
- If the client does not wish to accept the increase in the fee or rate as communicated by the user, the client will be entitled, within seven working days after the notification in question, to cancel the agreement in writing, or to annul the assignment by the date referred to in the user’s notification on which the price or rate change was going to take effect.
Article 8 Payment
- Payment must take place within 14 days after the invoice date in a manner indicated by the user in the currency of the invoice. Objections to the amount of the invoices will not constitute grounds for a suspension of the payment obligation.
- If the client remains in default as regards payment by the 14-day deadline, the client will be legally in default. The client will then owe interest of 1% per month unless the statutory interest is higher, in which case the statutory interest will apply. The interest on the due amount will be calculated from the moment that the client is in default until the moment the full amount is paid.
- In the event of liquidation, bankruptcy, attachment, or suspension of payments on the part of the client, the user’s claims vis-à-vis the client will become immediately due and payable.
- The user is entitled to apply payments made by the client in the first instance in a reduction of the costs, then in reduction of the payable interest, and lastly, in the reduction of the principal sum and the current interest. The user can, without being in default, as a result, refuse an offer of payment if the client designates a different sequence of allocation.
The user can refuse full payment of the principal sum if the due and current interest and costs are not paid at the same time.
Article 9 Retention of title
- All items delivered by the user, possibly including designs, sketches, drawings, films, software, (electronic) files, etc., will continue to be owned by the user until the client has fulfilled all obligations resulting from all agreements entered into with the user.
- The client is not authorized to pledge items covered by the retention of title, nor to encumber them in any other way.
- If third parties seize the items delivered subject to retention of title, or wish to establish or exercise any rights thereon in respect of the goods provided subject to retention of title, the client will be obliged to inform the user as soon as can be reasonably expected.
- The client undertakes to insure the goods delivered subject to retention of title against fire, explosion and water damage, and theft and keep said goods so insured and to allow inspection of the insurance policy at the first request.
- Items delivered by the user, which are covered by the retention of title pursuant to the provisions under 1 of this article may only be sold on within the framework of normal operations and may never be used as a means of payment.
- If the user wishes to exercise the proprietary rights referred to in this article, the client hereby grants unconditional and irrevocable permission to the user or third parties designated by the user, to access all those places at which the user’s property is located and to recover those items.
Article 10 Collection costs
- If the client is in default as regards the (punctual) fulfillment of its obligations, all reasonable extrajudicial costs relating to obtaining payment will be for the client’s account. In any case, the client will owe the collection costs in the event of a monetary claim. The collection costs are to be calculated per the collection rate advised by the Dutch Law Society [Nederlandse Orde van Advocaten].
- If the user has incurred higher costs, which were reasonably necessary, these will also be eligible for reimbursement.
- Any reasonably incurred legal and execution costs will also be for the client’s account.
Article 11 Inspection, claims
- Complaints about the work performed must be communicated in writing by the client to the user within eight days after discovery, but no later than within 14 days after completion of the work in question. The notice of default must give as detailed a description as possible of the failure so that the user can respond adequately.
- If a complaint is justified, the user will still perform the work as agreed, unless this has, in the meantime, become demonstrably pointless for the client. The latter must be communicated in writing by the client.
- If it is no longer possible or sensible to perform the agreed work, the user will only be liable within the limits of Article 15.
Article 12 Cancellation
- Both parties can cancel the agreement in writing at any time.
- If the client cancels the agreement before the work is started, the user will be entitled to compensation due to the demonstrable capacity loss, which arises as a result. In this context, a minimum compensation will apply for 50% of the actual or estimated project costs.
- If the agreement is canceled prematurely by the client, the user will be entitled to compensation due to the demonstrable capacity loss which arises as a result, as stipulated in paragraph 2 of this article, unless the cancellation is based on facts and circumstances which are attributable to the user. The client will then still be obliged to pay the invoices for work performed up to that moment. The provisional results of the work carried out up to that moment will then be made available to the client, subject to approval.
- If the agreement is canceled prematurely by the user, the user will, at the request of and in consultation with the client, arrange the handover of work to be performed to third parties, unless the cancellation is based on facts and circumstances which are attributable to the client.
- If the handover of the work implies extra costs for the user, these will be charged to the client.
Article 13 Suspension and dissolution
- The user is authorized to suspend fulfillment of its obligations or dissolve the agreement, without prior written notice of default, if:
– The client fails to fulfill the obligations resulting from the agreement or fails to do so adequately.
– Circumstances come to the user’s attention after the agreement has been entered into, which provides reasonable grounds to fear that the client will not fulfill the obligations. If there is good reason to fear that the client will only partially fulfill its obligations, or will not do so correctly, the suspension will only be allowed insofar as the failure justifies such.
– The client is asked when the agreement is entered into to provide surety for the fulfillment of its obligations resulting from the agreement, and this surety fails to materialize or is insufficient.
The user is never liable for compensation vis-à-vis the client as a consequence of a suspension or dissolution on the grounds of this article.
- The user is also authorized to dissolve the agreement or have it dissolved, without prior written notice of default and without being liable for compensation vis-à-vis the client if circumstances occur which are of such a nature that fulfillment of the agreement is impossible or can no longer be demanded of it based on criteria of reasonableness and fairness, or if any other circumstances occur which are of such a nature that continuous perpetuation of the agreement cannot reasonably be expected.
- If the agreement is dissolved, the work delivered and or completed by the user will not be undone. Amounts which the user invoiced before the dissolution in connection with that which it has already and adequately carried out or delivered for the execution of the agreement will continue to be payable, with due regard for the provisions of the previous sentence, and will become immediately due and payable at the moment of dissolution. If the user suspends fulfillment of the obligations, it will retain its claims based on the law and the agreement.
- The user will always be entitled to claim compensation.
Article 14 Return of items made available
- If the user has made items available to the client in conjunction with the execution of the agreement, the client will be obliged to return the items delivered within 14 days in their original state, free of defects, and complete. If the client fails to fulfill this obligation, all the resulting costs will be for its account.
- If the client, for whatever reason, after a demand to that effect, remains in default as regards the obligation referred to under 1., the user will be entitled to recover the resulting loss or damage and costs, including the costs of replacement, from the client.
Article 15 Liability
- The user only accepts liability insofar as evidenced by this article.
- In the event of any notice of liability by the client vis-à-vis the user, the burden of proof will lie with the client, and the client accepts this burden of proof.
- Insofar as the user could be liable, for whatever reason, this liability will always be limited to the payment of the direct damage and will not exceed:
- The amount of a single month’s invoice, calculated as the rate laid down in the agreement multiplied by the amount of work per time period as laid down in the agreement, allocated to a single month; or
- If the agreement is primarily a continuing performance contract with a turnover of more than three months, the liability will be limited to no more than the amount of the agreed price, excluding turnover tax, for three months; or
- If the agreement is a fixed-price agreement, the liability will be limited to no more than the amount of this agreed price, excluding turnover tax, divided by the turnaround time laid down in the agreement, from the start of the activities until completion, calculated in months.
- However, on no account will the total liability of the user for direct damage, on whatever account, exceed € 20,000.00.
- The term ‘direct damage’ exclusively means:
- The reasonable costs which the client ought to incur to ensure that the user’s performance fulfills the agreement. However, this damage will not be compensated if the client has dissolved the agreement;
- The costs the client has incurred for having to keep old systems or systems and related provisions operational for longer due to the user not having delivered on the delivery date which is binding to it, less any savings which are the consequence of the delayed delivery;
- Reasonable costs incurred when determining the course and the extent of the damage, insofar as the determination relates to direct damage within the meaning of these terms and conditions.
- Reasonable costs incurred to prevent or limit damage, insofar as the client demonstrates that these costs have led to a limitation of direct damage within the meaning of these terms and conditions.
- The user is never liable for indirect damage, which includes consequential damage, lost profit, missed savings, and damage due to operational delays.
- The restrictions of the user’s liability included in these terms and conditions do not apply if the loss or damage is attributable to intent or gross negligence on the part of the user or its subordinates.
- The user will only be liable due to attributable failure in the fulfillment of an agreement if the client places the user in default immediately and adequately in writing while setting a reasonable deadline for rectifying the fault and the user continues to fail attributable in the fulfillment of its obligation after that deadline as well. The notice of default must give as detailed a description as possible of the failure so that the user can respond adequately.
- A condition for the creation of any right to compensation is always that the client reports the damage to the user in writing as quickly as possible after it has occurred. Any claim for compensation against the user will cease to exist simply by the passage of 12 months after the claim arose.
- The user is not responsible or liable for the consequences of details or instructions from the client or third parties, which are acting on the direction of, or on behalf of, the client. The same applies to actions or omissions by the user’s suppliers, their subordinates, and other people put to work by, or on behalf of, the user.
- The client indemnifies the user against all claims by third parties due to product liability as a consequence of a defect in the product or system that the client has delivered to a third party, and that consisted partly of equipment, software or other materials provided by the user, except if and insofar as the client proves that the damage was caused by said equipment, software or other materials.
- The user is never liable for costs, damage, and interests, which might arise as a direct or indirect consequence of a violation of patents, licenses, other industrial property rights, or other rights of third parties. The client indemnifies the user against all claims by third parties which result from a violation of the rights referred to above.
Article 16 Insurance
- The client can ask the user to take out insurance for the client’s account, which covers the risks for which the user is not liable. However, the user is only obliged to take out insurance, as referred to above, if and insofar as such has been explicitly agreed in writing between the parties.
Article 17 Indemnifications
- The client indemnifies the user against claims by third parties relating to individual property rights to materials or data issued by the client, which are used in conjunction with the execution of the agreement.
- If the client issues information carriers, electronic files or software, etc. to the user, the former guarantees that the information carriers, electronic files, or software are free of viruses and other defects.
Article 18 Risk transfer
- The risk of loss or damage of the items which are the subject of the agreement will transfer to the client at the moment at which these are delivered legally and or actually to the client and are thereby brought under the control of the client or of a third party designated by the client.
Article 19 Force majeure
- The parties are not obliged to fulfill any obligation if they are prevented from doing so as a consequence of a circumstance which is not attributable to a fault, and which is not for their account according to the law, a legal act or generally accepted views.
- In these general terms and conditions, force majeure not only means that which is referred to as such in the law and jurisprudence, but all externally originating causes, whether foreseen or unforeseen, on which the user cannot exert any influence but, as a result of which, the user is unable to fulfill its obligations. This includes industrial action at the user’s company.
- The user is also entitled to invoke force majeure if the circumstance which hampers (continued) fulfillment occurs after the user should have fulfilled its obligations.
- During the period of force majeure, the parties can suspend the obligations resulting from the agreement. If this period lasts for longer than two months, each of the parties will be entitled to dissolve the agreement without being obliged to pay compensation to the other party.
- Insofar as the user has partially fulfilled, or is going to fulfill, its obligations resulting from the agreement at the time that the force majeure commences and the partial obligations (to be) fulfilled have acquired independent value, and the user will be entitled to invoice the partial obligations (to be) fulfilled separately. The client is obliged to pay this invoice as if it were a separate agreement.
Article 20 Confidentiality
- Both parties are obliged to observe secrecy concerning all confidential information that they have acquired from each other or another source within the framework of their agreement. Information is deemed confidential if the other party has communicated this, or if this follows from the nature of the information.
- If on the grounds of the statutory provision or legal judgment, the user is obliged to issue confidential information to third parties designated by law or a competent court, and the user is unable in this respect to invoking a right of non-disclosure laid down in law or recognized or permitted by a competent court, the user will not be obliged to pay compensation or damages and the counterparty will not be entitled to dissolve the agreement on the grounds of any resulting loss or damage.
Article 21 Intellectual property rights and copyrights
- Unless agreed otherwise, all intellectual property rights resulting from the agreement, including but not limited to patent rights, model rights, and copyrights, will accrue to the user. Insofar as such a right can only be acquired through a filing or registration, only the user is authorized to do so.
- Unless the result of the agreement does not lend itself, the user is always entitled to state his/her name on the work, or delete his/her name from work, or to arrange such, and the client is not permitted, without prior permission, to publicize or copy the work without stating the user’s name.
- If the client fully fulfills its obligations under the agreement with the user, it will acquire an exclusive license to use the result of the agreement, insofar as this concerns the right of usage under the agreed purpose. If no agreements have been made regarding the purpose, the granting of the license will be limited to that use of the result of the agreement for which set intentions existed at the moment the contract was entered into. These intentions must be demonstrably communicated to the user before the agreement is concluded.
- Without written permission from the user, the client is not entitled to use, or have used, the result of the agreement more broadly, or differently, than has been agreed. In the event of broader or different use which has not been approved, including changing, disfigurement or impairment of the provisional or definitive result of the assignment, the user is entitled to a payment due to violation of his/her rights of at least twice the agreed fee or at least an amount which is reasonably and reasonably proportional to the violation perpetrated, without prejudice to the user’s right to claim payment for the damage suffered.
- The client is not any longer permitted to use the results made available, and each license issued to the client will lapse:
- from the moment that the client does not fulfill (in full) its (payment) obligations on account of the agreement, or is otherwise in default unless the failure by the client is of secondary importance in the light of the agreement as a whole;
- if the agreement is terminated prematurely, for whatever reason, unless the consequences of this are contrary to criteria of reasonableness and fairness.
- The parties can make more detailed agreements at any time about the (partial) transfer of intellectual property rights to the works created by the user.
- The user reserves the right to use the know-how acquired through the execution of the work for other purposes insofar as, by doing so, no confidential information is brought to the attention of third parties.
- After any transfer of rights, as referred to in the previous paragraph, the user is entitled (with due regard for the rights of third parties) to use the result of the agreement for its publicity or promotion.
Article 22 Obligation not to take over staff
During the term of the agreement and one year after its termination, the client will, in no way, except after proper consultation on the matter has taken place with the user, recruit employees of the user or of businesses which the user has engaged in the execution of this agreement and which are/have been involved in the execution of the agreement, or have them work for it in any other way, directly or indirectly.
Article 23 Acquisition
After the conclusion of an agreement between the user and the client, the user will be entitled to include the client’s company name on its list of clients. The user is also entitled, subject to the stipulations of Article 20, to make a brief description of the projects carried out and may use this description to acquire new clients.
Article 24 Disputes
- The court in the user’s place of domicile has exclusive jurisdiction to hear disputes unless the subdistrict court has authority. Nevertheless, the user is entitled to submit the dispute to a court that has authority according to the law.
- The parties will only submit a dispute to the court after they have made every effort to settle the dispute based on mutual consultation.
Article 25 Applicable law
- Any agreement between the user and the client is governed by Dutch law.
Article 26 Amendment and location of the terms and conditions
- These terms and conditions were filed at the office of the Chamber of Commerce in Amsterdam. The applicable version will always be the last version submitted or the version which applied at the time the agreement was drawn up.
Tjalp. by koekepeer
Eerste Atjehstraat 58-A
1094 KP Amsterdam