General terms & conditions

Article 1. Definitions

The following definitions are used in these delivery conditions:

1. Contractor: De Kleine Winckel B.V. and any subsidiaries affiliated with De Kleine Winckel B.V., such as Han Valk Consultancy B.V. and HVFC International B.V.

2. Client: natural or legal person who instructs the Contractor to perform work

3. Agreement: the agreement of assignment or signed quotation, in which the Contractor undertakes to perform certain work for the Client

4. Assignment: the assignment given by the Client to the Contractor to perform certain activities, as laid down in the Agreement.

Article 2. Applicability

1. These General Terms and Conditions apply to every offer, quotation and/or order to which the Contractor has declared these General Terms and Conditions to be applicable.

2. The Client can only appeal to provisions which deviate from these General Terms and Conditions if these were expressly accepted in writing by the Contractor.

3. No rights may be derived from the deviations referred to in paragraph 2 with respect to any agreements entered into at a later date.

4. The applicability of any purchasing or other conditions of the Client is explicitly rejected.

5. These General Terms and Conditions also apply to any agreements with the Contractor, for which the execution requires the involvement of third parties.

Article 3. Offers and quotations

1. All offers are free of obligation, unless the Contractor expressly indicates otherwise in his offer or quotation to the Client.

2. The quotations provided by the Contractor are free of obligation and have a limited period of validity. This period of validity will always be listed in the quotation.

3. The prices in the mentioned offers and quotations are exclusive of VAT and other government taxes, as well as any costs to be incurred in the framework of the assignment, unless otherwise indicated.

4. Offers and quotations do not automatically apply to future assignments.

Article 4. Realization of the agreement

1. The Agreement consists of these general terms and conditions together with the order confirmation and/or other agreements made via letter or email.

2. If the assignment was given verbally, the Assignment is deemed to have been concluded under the applicability of these general terms and conditions at the time when the Contractor begins carrying out the Assignment at the request of the Client.

3. The Agreement replaces all earlier proposals, correspondence, agreements or other communication, verbal or in writing.

4. The agreement is concluded for an indefinite period, unless the content, nature or purport of the granted Assignment leads to this agreement being concluded for a definite period.

Article 5. Cooperation on the part of the client

1. The Client must ensure that all data and documents which the Contractor in his opinion requires for the correct and timely execution of the Assignment, are made available to the Contractor in the form and manner desired by the Contractor, in a timely fashion.

2. The Client must ensure that the Contractor is immediately informed about facts and circumstances which could be of importance to the correct execution of the Assignment.

3. Unless the nature of the Assignment dictates otherwise, the Client is responsible for the correctness, completeness and reliability of the data and documents made available to the Contractor, even if these come from third parties.

4. The Client must ensure that the Contractor is provided with all facilities which, in the opinion of the Contractor, are necessary or useful for the performance of the Agreement and which meet all (legal) requirements.

5. Unless the nature of the Assignment dictates otherwise, the Client shall deploy the personnel deemed necessary by the Contractor or have them deployed in order to enable the Contractor to perform the work. If specific personnel is necessary, this will be agreed upon and recorded in the Order Confirmation and/or the other agreements made via letter or email. The Client must ensure that his personnel possesses the correct skills and experience necessary for carrying out the work.

6. The additional costs and extra fees arising from the delay in the performance of the Assignment as a result of the failure to make the requested information, documents, facilities and/or personnel available, or to make them available on time or properly, shall be borne by the Client.

Article 6. Execution of the assignment

1. All work carried out by the Contractor is carried out to the best of his knowledge and ability in accordance with the requirements of good craftsmanship. With regard to the intended work, the Contractor has an obligation to perform to the best of his abilities, unless expressly determined otherwise.

2. The Contractor determines the manner in which and by which employee(s) the Assignment will be carried out, while observing the requirements made known by the Client as much as possible. If the order confirmation and/or the other agreements made via letter or e-mail mention one or more employees by name, the Contractor shall make every effort to ensure that the employee(s) concerned remains available to perform the work throughout the term of the Assignment. Notwithstanding the above, the Contractor has the right to replace such employees following consultation with the Client.

3. The Contractor may first perform and charge the Client for more work than that for which the Assignment was issued, subject to the Client’s prior consent. However, if the Contractor is by virtue of his (statutory) duty of care obliged to perform additional work, he is entitled to charge this to the Client, even if the Client has not given his explicit prior consent for the performance of the additional work.

4. If the Client wishes to involve third parties in the execution of the Assignment, he will only do so after having reached agreement on this with the Contractor.

Article 7. Confidentiality

1. Unless any statutory provision, regulation or other (professional) rule obliges them to do so, the Contractor/parties employed by the Contractor are obliged to observe confidentiality vis-à-vis third parties with regard to confidential information obtained from the Client. The client may grant exemption in this respect.

2. Except with the Client’s written permission, the Contractor will not be entitled to use the confidential information made available to him by the Client for any purpose other than that for which it was obtained. However, an exception to this is made in the event that the Contractor acts on his own behalf in disciplinary, civil or criminal proceedings in which this may be of importance.

3. Unless there is any statutory provision, regulation or other (professional) rule that binds the Client to disclosure or the Contractor has given prior written permission for disclosure, the Client will not disclose the content of reports, advice or other statements made by the Contractor, written or otherwise, to third parties.

4. The Contractor and the Client shall impose their obligations under this article on third parties to be engaged by them.

5. If deemed not to be in breach of the provisions of Articles 6.1 and 6.2, the Contractor is entitled to state the main lines of the work performed to his (potential) customers and only as an indication of his experience.

Article 8. Intellectual property

1. The Contractor reserves all intellectual property rights relating to intellectual products which he uses or has used and/or develops and/or has developed in the context of the execution of the Assignment, and in respect of which it holds or can enforce copyrights or other intellectual property rights.

2. The Client is expressly forbidden from reproducing, disclosing or exploiting those products, including working methods, advice, (model) contracts and other intellectual products of the Contractor, in the broadest sense of the word, with or without the involvement of third parties. Reproduction and/or publication and/or exploitation will only be permitted after written permission has been obtained from the Contractor. The Client has the right to reproduce the written documents for use within his own organization, insofar as appropriate within the purpose of the Assignment. In case of premature termination of the Assignment, the above applies equally.

Article 9. Fee

1. If, after the conclusion of the Agreement, but before the Assignment has been fully executed, rate determining factors such as wages and/or prices change, the Contractor shall be entitled to adjust the previously agreed rate accordingly.

2. The Contractor’s fee is exclusive of the Contractor’s expenses and claims submitted by third parties employed by the Contractor, unless described otherwise in the contract of assignment or signed quotation.

3. All rates are exclusive of sales tax and other government taxes.

4. In the case of standing orders (without an end date), the Contractor shall be entitled to increase the rates by 2.5% at any time after a period of 12 months without the Client’s prior consent.

Article 10. Payment

1. Payment by the Client must be made, without deduction, discount or setoff, within 14 days of the invoice date. Payment must take place in the currency listed in the invoice, through a bank transfer to a bank account designated by the Contractor. Objections to the amounts of the invoices submitted do not suspend the Client’s payment obligation.

2. If the period listed under 10.1 is exceeded, the Client, after being reminded by the Contractor to pay within a reasonable period at least once, shall be in default by operation of law. In this case, the Client owes statutory interest over the amount due from the date on which the owed amount became claimable until the time of payment. In addition, all the costs related to collection, both judicial and extrajudicial, will be borne by the Client after the Client is in default. The extrajudicial costs are set at no less than 15% of the principal amount and interest, without prejudice to the Contractor’s right to claim the actual extrajudicial costs exceeding this amount. The judicial costs include the full costs incurred by the Contractor, even if they exceed the statutory liquidation rate.

3. If, in the opinion of the Contractor, the Client’s financial position and/or payment behavior gives cause to do so, the Contractor will be entitled to require the Client to immediately provide (additional) security in a form to be determined by the Contractor and/or to make an advance payment. If the Client fails to provide the requested security, the Contractor is justified, without prejudice to his other rights, to immediately suspend the further execution of the Assignment, and all that which the Client owes the Contractor for any reason is immediately claimable.

4. In the event of a jointly issued Assignment, Clients are jointly and severally liable for payment of the full invoice amount insofar as the work has been performed for the joint Clients.

Article 11. Complaints

1. Complaints relating to the work performed and/or the invoice amount must be made known in writing within five days of the date of dispatch of the documents or information about which the Client is complaining, or within five days of the discovery of the defect, if the Client proves that he could not reasonably have discovered the defect earlier.

2. Complaints as referred to in the first paragraph do not suspend the Client’s payment obligation. Under no circumstances is the Client entitled to postpone or refuse payment for other services provided by the Contractor to which the complaint does not relate on the basis of a complaint relating to a particular service.

3. In the event of a justified complaint, the Client shall have the choice between adjusting the fee charged, rectifying or re-performing the rejected work free of charge, or not (or no longer) performing the Assignment in whole or in part in exchange for a refund in proportion to the fee already paid by the Client.

Article 12. Delivery time

1. If the Client owes an advance payment or is required to make available information and/or materials necessary for the performance of the work, the period within which the work must be completed shall not commence until the payment has been received in full by the Contractor or the information and/or materials have been made available in full to the Contractor.

2. Because the duration of the Assignment may be influenced by all kinds of factors, such as the quality of the information provided by the Client and the cooperation that is provided, the periods within which the work must be completed shall only be regarded as firm dates if this has been agreed in writing.

3. Unless it has been established that performance is permanently impossible, the Agreement cannot be dissolved by the Client on account of an overdue deadline, unless the Contractor also fails to perform the Agreement, or fails to perform it in full, within a reasonable period notified to the Contractor in writing after the expiry of the agreed delivery period. Dissolution is then permitted in accordance with article 265 Book 6 of the Dutch Civil Code.

Article 13. Termination

1. The Client and the Contractor may terminate the Agreement (prematurely) at any time by registered letter with due observance of a reasonable notice period, unless reasonableness and fairness dictate otherwise.

2. The Agreement may be terminated (prematurely) by either party by registered letter without notice in the event that the other party is unable to pay its debts or if a curator, administrator or liquidator has been appointed, the other party enters into a debt rescheduling arrangement, or ceases its activities for any other reason, or if the other party reasonably believes that one of the above circumstances has arisen in one party or if a situation has arisen which justifies immediate termination in the interest of the terminating party.

3. If the Client terminates the Agreement (prematurely or otherwise), the Contractor will be entitled to compensation for the loss of occupancy on its part that has arisen and can be plausibly demonstrated, as well as additional costs that he reasonably has to incur as a result of the premature termination of the Agreement (such as, for example, costs relating to subcontracting), unless the termination is based on facts and circumstances that can be attributed to the Contractor. If the Contractor terminates the Agreement (prematurely), the Client will be entitled to cooperation from the Contractor in transferring the work to third parties, unless the termination is based on facts and circumstances that can be attributed to the Client. In all cases of (premature) termination, the Contractor retains the right to payment of the invoices for work carried out by him up to that point, and the Client will be provided with the provisional results of the work carried out up to that point, subject to reservation. To the extent that the transfer of the work involves additional costs for the Contractor, these will be charged to the Client.

4. Upon termination of the Agreement, each of the parties shall immediately hand over to the other party all goods, items and documents in its possession that are the property of the other party.

Article 14. Liability

1. For all loss or damage suffered by the Client, in any way related to or caused by the failure to execute the Assignment or to execute it on time or properly, the liability of the Contractor shall in any event be limited to a maximum of once the amount charged or to be charged for the period in which the work causing the loss or damage was carried out.

2. In the case of work lasting more than one year, liability shall in any event be limited to a maximum of once the amount charged or to be charged in connection
with the activities, which caused the damage, over the last calendar year in which the activities, which caused the damage, were carried out.

3. The Contractor will never be liable for any indirect loss or damage, including but not limited to loss of profit, stagnation in the regular course of business in the Client’s company, or other trading loss, in any way related to, or caused by, an error in the performance of the work by the Contractor.

4. The Contractor can never be held liable for damage directly or indirectly related to the delay or suspension as referred to in Article 9 or 12 paragraph 1. Furthermore, Article 14 shall apply in such a case.

5. The Contractor has and at all times retains the right, if and to the extent possible, to undo the Client’s loss or damage.

6. The Contractor can never be held liable for damage to or loss of the Client’s data and documents stored with him or third parties.

7. The Contractor shall not be liable for any damage to or destruction of data and/or documents during transport or during dispatch by mail or courier service, regardless of whether the transport or dispatch is carried out by or on behalf of the Client, the Contractor or third parties.

Article 15. Indemnification

1. The Client indemnifies the Contractor against all claims of third parties, which are directly or indirectly related to the performance of the Agreement.

2. The Client’s obligation to indemnify the Contractor will lapse if and insofar as the Client demonstrates that the loss or damage is the direct result of an attributable shortcoming on the part of the Contractor.

Article 16. Assignment of contract

1. The Client is not allowed to transfer (any obligation from) the Agreement to third parties, except to Kleine Valk B.V. subsidiaries, unless the Contractor explicitly agrees to this. The Contractor is entitled to attach conditions to this permission. The Client undertakes in any case to impose all relevant (payment) obligations from the Agreement in these General Terms and Conditions on the third party. In addition to this third party, the Client shall at all times remain liable for the obligations arising from the Agreement and the General Terms and Conditions, unless the parties explicitly agree otherwise.

2. In the event of assignment of contract, the Client indemnifies the Contractor against all claims by third parties that may arise as a result of the Client’s failure to fulfill, or incorrect fulfillment of, any obligation under the Agreement and/or these general terms and conditions, unless any mandatory (inter)national laws or regulations do not permit such a provision.

Article 17. Scope of conditions

If one or more provisions of the assignment or these delivery conditions prove not to be legally valid or cannot be legally applied, the assignment and the delivery conditions shall otherwise remain in force. The provisions which are not legally valid or cannot be applied legally shall be replaced by provisions which are as close as possible to the purport of the provisions to be replaced, in such a way that the replacement provisions are legally valid.

Article 18. Applicable law and choice of forum

1. The legal relationship between the Contractor and the Client is exclusively governed by Dutch law.

2. All disputes arising from or in connection with a legal relationship between parties to which these delivery conditions apply, shall be exclusively settled by the competent court of the district in which De Kleine Winckel B.V. has its registered office.