General Terms and Conditions
1. In these general terms and conditions, the following terms are used in the following sense unless expressly stated otherwise.
User : the user of the general terms and conditions
Client : the other party of user
Agreement : the agreement to provide goods and/or services, such as research, consulting or training/education.
Article 2 General
1. These terms and conditions apply to every offer, quotation, advice and agreement between user and a client to which user has declared these terms and conditions applicable, insofar as these terms and conditions have not been expressly deviated from by the parties in writing.
2. The present terms and conditions shall also apply to all agreements with user, the execution of which requires the involvement of third parties.
3. Any deviations from these general terms and conditions shall be valid only if expressly agreed in writing.
4. The applicability of any purchase or other conditions of the client is expressly rejected.
5. If one or more of the provisions of these general terms and conditions are null and void or may be annulled, the other provisions of these general terms and conditions shall remain fully applicable. User and client will then consult in order to agree on new provisions to replace the void or nullified provisions, whereby if and to the extent possible the purpose and purport of the original provision will be observed.
6. Where in these general terms and conditions additions to articles are mentioned, these are literally additions intended for there named type of service. The articles and the paragraphs under all articles apply independently of these supplements to all types of service that User provides.
Article 3 Offers
1. All offers are without obligation. The offer is based on the data provided by the client.
2. Offers made by user are valid for 14 days unless otherwise indicated. User shall not be bound by the offer until the agreement accepted by client has been confirmed by user in writing.
3. The prices in the mentioned offers are exclusive of VAT and other government levies, as well as any costs to be incurred in the context of the agreement, including shipping and administrative costs, travel and accommodation costs, material costs, costs for catering and support facilities, etc., unless otherwise indicated.
4. A compound quotation shall not oblige user to perform part of the assignment at a corresponding part of the quoted price.
5. Offers do not automatically apply to future orders.
6. User has the right, if the order or execution of work is not granted to him, to charge client for all costs (including labor) incurred to provide the offer. The provisions of Art 8, 9 and 14 apply accordingly.
Article 4 Execution of the Agreement
1. User shall execute the agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship.
2. If and to the extent required for the proper execution of the agreement, user shall have the right to have certain work done by third parties for which a separate agreement shall be concluded between client and the third party.
3. The client shall ensure that all data and/or basic materials, which user indicates to be necessary or which the client must in all reasonableness understand to be necessary for the execution of the agreement, shall be provided to user in time, in the form and in the manner desired by user. If the data necessary for the execution of the agreement are not provided to user in time, user shall have the right to suspend the execution of the agreement and/or to charge client for the additional costs resulting from the delay according to the usual rates.
4. If it is agreed that the agreement will be executed in phases, user can change the
suspend implementation of those parts belonging to a subsequent phase until the
client has approved in writing the results of the preceding phase.
5. If user or third parties engaged by user within the scope of the assignment
work will be performed at the client’s location or a location specified by the client
designated location, the client shall provide, free of charge, the employees in
reasonably desired facilities.
Article 5 Modification of the agreement
1. If during the execution of the agreement it appears that for a proper execution it is necessary to change or supplement the work to be done, the parties will timely and in mutual consultation adjust the agreement accordingly.
2. If the parties agree to amend or supplement the agreement, the time of execution and/or commencement of certain phases of the assignment may be affected. User will notify the client as soon as possible.
3. If the change or supplement to the agreement shall have financial and/or qualitative consequences, user shall inform client thereof in advance.
4. If a fixed fee has been agreed upon, user shall indicate to what extent the change or supplement to the agreement will result in an increase of this fee.
Article 6 Contract duration; performance period
1. If the agreement between user and a client is entered into for a definite period of time, then upon its expiration that agreement shall have been renewed on the same terms and conditions, unless either party has given written notice of termination 3 months prior to its expiration.
2. If the agreement between user and a client is entered into for a certain number of hours, such agreement shall expire upon the expiration of such number of hours, in all cases the records of user being decisive. If services are continued after that, it will be under the same conditions.
3. If a deadline and/or frequency of work has been agreed upon within the term of the agreement for the completion of certain work, this shall never be a fatal deadline and/or frequency with respect to that work. Therefore, if the execution period is exceeded and/or if a certain desired frequency of work is not met, client must give user written notice of default.
Article 7 Compensation
1. The parties can agree on a fixed fee at the conclusion of the agreement or a fee based on actual hours spent, input realized.
2. The fee shall in no way depend on alleged expectations regarding intended effects resulting from the performance of the agreement.
3. User is entitled to agree with client on forms of performance remuneration in addition to the fixed agreed fee.
4. For the right to apply user’s know-how in client’s company, client shall owe user a license fee to be agreed upon.
5. The fee, license fee and any cost estimates are exclusive of VAT.
6. User shall be entitled to increase the amounts referred to in paragraph 5 annually.
7. Moreover, user shall be entitled to raise the amounts referred to in paragraph 5 prematurely if, during the execution of the work, it appears that the originally agreed or expected amount of work or the rates of e.g. materials, communication, mobility, certain facilities or otherwise, was underestimated to such an extent at the time of the conclusion of the agreement, and this is not attributable to user, that user cannot reasonably be expected to carry out the agreed work for the originally agreed amounts.
8. Client is entitled to terminate the agreement in the event of a price increase if the amounts referred to in paragraph 5 are increased within two months of entering into the agreement. After expiration of this period, the client is entitled to terminate the agreement if the increase exceeds 10%. Client is not entitled to terminate if the increase in the fee or rate results from a power under the law.
9. User shall notify the client in writing of the intention to increase the fee or rate. User will include the extent of and the date on which the increase will take effect.
10. If client wishes to exercise the right of termination referred to in paragraph 8, he must do so within seven working days of the notification referred to in paragraph 9 by the date stated in user’s notification on which the price or rate adjustment would take effect.
Article 8 Payment
1. User shall invoice each month during performance for expenses incurred, fees and license fees due.
2. User is entitled to invoice expenses to be incurred, the fee and license fees in advance.
3. Payment must be made within 14 days of the invoice date, in a manner to be indicated by user in the currency in which it was declared. Objections to the amount of declarations do not suspend the payment obligation and do not give the right to
4. User shall be entitled to demand a direct debit authorization from client, whereby client shall be obliged to ensure that the balance of the account in question is sufficient for collection in accordance with what has been agreed.
5. If client fails to make payment within the period of 14 days then the
client is in default by operation of law. Client shall then owe interest of 1% per month until full payment including interest and costs has been made.
6. In case of liquidation, bankruptcy, attachment or suspension of payment of the client, user’s claims against the client shall become due on demand and user shall be entitled to terminate the agreement in writing with immediate effect.
7. Without prejudice to the foregoing, user shall be entitled to retain all that has been obtained from client within the framework of the agreement until user has been paid in full.
Article 9 Collection costs
If the client is in default or omission in the (timely) fulfillment of its obligations, all costs to obtain satisfaction in and out of court shall be borne by the client.
Article 10 Claims
1. Any complaints by client regarding the amount of an invoice must be made known to user in writing within 5 days of the invoice date, failing which client shall be deemed to have approved the invoice. Incidentally, an advertisement does not suspend the payment obligation.
2. Client must notify user in writing of complaints about the work done within 48 hours of discovery and at the latest within 5 days of completion of the work concerned, failing which client shall be deemed to have approved the work done.
3. Complaints and ambiguities about data and/or advice provided must be reported in writing to user within 48 hours of their provision.
4. A complaint must contain as detailed a description as possible, so that user is able to respond adequately.
5. If a complaint is well-founded, user shall yet do the work as agreed upon, unless this has meanwhile become demonstrably useless to client. The latter must be made known by the client in writing at the same time as the complaint is filed.
6. If it is no longer possible or useful to still do the work agreed upon, user shall only be liable within the limits of article 14.
Article 11 Termination
1. If the agreement is terminated prematurely by client, user shall be entitled to compensation due to the resulting and plausible loss of capacity utilization, unless the termination is based on facts and circumstances attributable to user. Furthermore, the client shall then be bound to pay the invoices for work performed up to that time. The preliminary results of the work performed up to that point will therefore be made available to the client subject to reservation.
2. If the agreement is terminated prematurely by user, user shall see to it in consultation with client that the work still to be done be transferred to third parties, unless the termination is based on facts and circumstances which can be attributed to client.
3. If the transfer of the work involves additional costs for user, these shall be charged to client.
Article 12 Dissolution
1. User is authorized to dissolve the agreement or have it dissolved if Client – despite written notice of default – is in default of any obligation under the agreement,
circumstances arise which are of such a nature that fulfillment of the agreement is impossible or can no longer be required by standards of reasonableness and fairness, or circumstances otherwise arise which are of such a nature that unaltered maintenance of the agreement can no longer be reasonably expected.
2. If the agreement is dissolved, user’s claims against client shall be immediately due and payable.
3. User always retains the right to claim damages, under which damage is also understood to be profit to be gained.
Article 13. Return of items made available
1. If user has put goods at client’s disposal during the execution of the agreement, client shall be held to return the borrowed goods within 5 days (after completion of the work or upon suspension or termination of the agreement) in their original state, free of defects and in their entirety. If the client fails to fulfill this obligation, all resulting costs shall be borne by the client.
2. If, for any reason whatsoever, after a reminder to that effect, Client still fails to comply with the obligations under 1. said obligation, then client shall owe the resulting damages and costs and user shall be entitled to recover these costs from client, including the costs of replacement.
Article 14 Liability
1. User shall only be liable towards client for direct damage suffered by it as a direct result of culpable shortcomings if and insofar as such shortcomings could have been avoided under normal circumstances and with normal attentiveness, all this subject to the limitations stipulated in the present article.
2. If user is liable for damages, such liability shall be limited to a maximum of
once the fee charged for that portion of the assignment
to which the liability relates. If the assignment is primarily a continuing performance contract with a term of more than one year, liability shall be limited to the total of the stipulated fees (excluding VAT) for one year and that part of the assignment to which the liability relates. User’s liability for damages is to
limited at all times to a maximum of Euro 25,000.
3. Notwithstanding the provisions of paragraph 2 of this article, in the case of an assignment with a duration of more than two months, the liability is further limited to the amount for the last two months.
months fee due portion.
4. Direct damages shall mean only:
-reasonable costs to determine the cause and extent of the damage insofar as the determination relates to damage within the meaning of these terms and conditions.
-any reasonable costs incurred to have user’s defective performance conform to the agreement, unless they cannot be attributed to user.
-reasonable costs incurred to prevent or limit damage, to the extent that the client demonstrates that these costs resulted in limiting direct damage as referred to in these general terms and conditions.
5. Apart from the liability as mentioned in paragraphs 1-4, no liability rests with user
for damages, regardless of the ground on which an action for damages would be
based. Thus, user is therefore not liable:
– for damage, destruction or loss or failure to arrive (on time) of information and records during transportation (bicycle, car, walking, etc.) or during transmission by mail, e-mail or by any means and this is done by or on behalf of client, user or third parties
– for goods which user only resells to client
– for damage, of any nature whatsoever, resulting from the fact that user has relied on incorrect and/or incomplete data provided by client
– for damages, of any kind, resulting from the fact that the mutual communication, for whatever reason, is poorly established, is hindered and/or is interrupted for whatever (technical) reasons in the interim and for some time.
– in the event of any acts or omissions of the principal, contractors, suppliers or auxiliaries, directly or indirectly related to the /agreement or to the “damage thing,” or
– for indirect damage, including consequential damage due to business stagnation of user or client where the reason for the business stagnation is irrelevant.
6. User’s liability as referred to in paragraph 1 shall only arise if client gives user immediate and proper notice of default in writing. The notice of default must contain as detailed a description of the failure as possible, so that User is able to adequately remedy the failure.
Article 15 Indemnities
1. The client shall safeguard user and/or the persons engaged by him against claims which third parties might enforce against user, unless there is intent or gross negligence on the part of user and/or the persons engaged by him.
2. If client provides user with information carriers, electronic files or software etc., client shall guarantee that the information carriers, electronic files or software are free of viruses and defects.
16 Risk transition
1. The risk of loss of or damage to the items that are the subject of the agreement shall pass to the client at the time they are legally and/or actually handed over to the client and thereby brought under the control of the client or of and third parties to be designated by the client.
Article 17 Force majeure
1. In these general terms and conditions, force majeure shall be understood, in addition to its definition in the law and case law, to include all external causes, foreseen or unforeseen, over which user cannot exercise any control, but which prevent user from fulfilling his obligations. Business stagnation in User’s business with whatever cause shall be included.
2. User shall also be entitled to invoke force majeure if the circumstance preventing (further) fulfillment occurs after user should have fulfilled his obligations.
3. The parties may suspend obligations under the agreement during the period that the force majeure continues. If this period lasts longer than two months, either party is entitled to dissolve the agreement, without any obligation to compensate the other party for damages.
4. Insofar as user at the time of the occurrence of force majeure has already partially fulfilled his
fulfilled or will be able to fulfill its obligations under the agreement, and to the fulfilled
part already fulfilled or to be fulfilled respectively, user shall be entitled to invoice separately the part already fulfilled or to be fulfilled respectively. Client shall be required to pay this invoice as if it were a separate agreement.
Article 18 Confidentiality
1. Due care should be exercised by client and user in order to prevent unauthorized use and unauthorized disclosure of confidential information provided by both parties to each other during the execution of the assignment.
2. Both parties are obliged to maintain the confidentiality of all confidential information which they receive from each other or from other sources in the context of their agreement
obtained. Information is considered confidential if it is communicated by the other party or if it is
results from the nature of the information.
3 Each party shall bind its own personnel and other persons it engages to an obligation of confidentiality which shows that the knowledge acquired may not be used for the benefit of other companies. The parties shall be entitled to inspect the clauses agreed upon by each other in this context and to test the quality of such clauses.
4. If, on the basis of a statutory provision or a judicial decision, user is obliged
communicate confidential information to third parties designated by law or by the court of competent jurisdiction.
and user cannot invoke a statutory right or the right of the competent authority to do so.
court acknowledged or permitted right to be excused, then user is not obliged to pay damages or compensation and the other party is not entitled to dissolve the agreement on the grounds of any damage caused by this.
5. Neither client nor user shall bear responsibility for protection of information that is
(i) is publicly available, or
(ii) is already in the possession of the other party and not subject to obligation of confidentiality, or (iii) obtained by the other party from third parties without restriction on disclosure, or
(iv) designed by the other party independently without consultation of the confidential information.
6. If as a result of the client disclosing results of the investigation at
third parties -in the opinion of user- misunderstandings (may) arise, this releases user from the obligation of confidentiality, to the extent he reasonably needs to provide an explanation of the results to third parties.
Article 19 Intellectual property and copyrights
1. Without prejudice to the other provisions of these general terms and conditions, user reserves the rights and powers to which user is entitled under the Copyright Act and other intellectual property laws. Unless otherwise agreed, reports, drawings and other material items in which the assigned work results shall remain the property of User.
2. All documents provided by user, such as: budgets and planning accompanying an offer, reports, advice, recommendations, agreements, designs, sketches, data, syllabi, editions, presentations, workbooks, study materials, conceptual descriptions, reports, models and modules,’route guides’, drawings, films, videotapes, software (electronic) files , etc. are exclusively intended to be used by the client and may not be reproduced, made public, or brought to the notice of third parties without prior written permission from user,
3. User reserves the right to use the knowledge obtained by the execution of the work for itself and for other purposes, as long as no confidential information is brought to the knowledge of third parties.
Article 20 Samples, models, indications and fingerprints
1. If a sample or model has been shown or provided to the client, it is presumed to have been provided only as an indication, unless it is expressly agreed that the product to be delivered will correspond with it.
2. In the case of an order relating to immovable property, mention of the area or other dimensions and indications shall also be presumed to be intended only as an indication, without the product to be delivered having to correspond thereto.
3. Where user has mentioned or painted to client concrete and/or fictitious examples of: possible improvements in production results, possible specifically named and/or suggested cultivation-production (technical) improvements, conceivable and/or desirable improvements in the construction of crop models, optimizations in cultivation-related installations (facilities), conceivable cost savings in any sense whatsoever, even mathematical examples or otherwise examples, these are intended only as an indication and even challenging. The service to be provided and the results of the service provided need never be similar to examples and results previously outlined.
Article 21 Non-acquisition of personnel
Throughout the term of the agreement and for two years following termination thereof, client shall not in any way, except after proper businesslike consultation has taken place with user and an agreement has been reached accordingly, employ or otherwise, directly or indirectly, allow employees and/or advisors/parties of user or of companies that user has called upon in the execution of this agreement and that are (have been) involved in the execution of the agreement, to work for him.
Article 22 Disputes and applicable law
1. The court in the place of business of user is exclusively competent to take cognizance of disputes that may arise, unless user prefers to proceed according to the normal rules of competence.
2. Any agreement between user and client shall be governed by Dutch law.