FOR THE PROVISION OF SERVICES AND
THE DELIVERY OF GOODS
Of: Kasia van’t Schip – Giska Photography, with statutory seat in Vinkeveen, The Netherlands at Schakel 45 (3645SJ), Chamber of Commerce number 77634845. Hereinafter to be referred to as: user
Article 1 Definitions
- In the present general terms and conditions (hereinafter: the Terms), the following terms are used in the sense given below, unless explicitly indicated otherwise.
Client: user’s opposite party.
Agreement: the agreement concerning the provision of services and/or delivery of goods.
Article 2 General
- These Terms apply to each and every offer, tender and agreement between user and a client, insofar as parties have not explicitly deviated from these Terms in writing.
- These Terms shall also apply to all agreements with user, the execution of which calls for the services of third parties.
- Possible deviations from these Terms shall only be valid when they have been explicitly agreed upon in writing.
- The applicability of client’s possible purchase or other conditions is explicitly rejected.
- If one or more stipulations in these Terms should be null and void or declared null and void, then the other stipulations of these Terms shall remain fully applicable. The case ensuing, user and client shall enter into negotiations to agree upon new stipulations replacing the null and void stipulations, whereby the purpose and the meaning of the original stipulations shall be heeded as far as possible.
- Only the director(s) of user is/are competent to represent and bind user in and outside of court. Agreements or promises made by other employees of user than its director(s) only bind user after written consent of a competent director. Agreements or promises made by third parties, engaged by user to execute the agreement, never commit user.
Article 3 Offers and Tenders
- All offers shall not bind user, unless the offer contains an acceptance term.
- Offers without acceptance term shall not bind user unless the acceptance thereof is confirmed in writing by the opposite party within 30 days, unless user has indicated otherwise.
- The prices given in offers and tenders are exclusive of VAT and other government levies, as well as of all other possible expenses related to the execution of the agreement, including but not limited to shipment, forwarding and administration costs, unless user has indicated otherwise. If the delivery of goods or the provision of services is subject to a Withholding tax or similar tax that cannot be set off in the Netherlands, the agreed price is understood to be a net price. In such a case, client will have to pay a price that is raised to such an extent, that for user the effects of the said tax are compensated, unless user has indicated otherwise.
- If the acceptance deviates from user’s offer, user shall not be bound by it unless user explicitly indicates otherwise in writing. If user agrees with the deviating acceptance, user is entitled to change the price agreed upon with reasonableness and fairness.
- In case of tacit renewal user reserves itself the right to unilaterally adapt the prices.
- A compound quotation shall not oblige user to execute part of the assignment against the corresponding part of the given quotation.
- Offers, tenders or any offered price(s) shall not apply automatically to future assignments or deliveries.
Article 4 Execution of the Agreement
- User shall execute the agreement to the best of his knowledge and ability.
- If and in so far required for the proper execution of the agreement, user shall have the right to have certain work done by third parties.
- Client shall see to it that user shall timely be provided with all data which user has said to be necessary or which client must in all reasonableness understand to be necessary to the execution of the agreement. If user has not been timely provided with the data necessary to the execution of the agreement, 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 at the rates generally invoiced by user. Client guarantees the data to be correct, complete and reliable, also when these were obtained from third parties.
4.User shall not be liable for damage of whatever nature caused by the fact that user worked on the basis of incorrect and/or incomplete data provided by client.
- If parties have agreed that the agreement will be executed in stages, user can suspend the execution of the parts pertaining to a following stage until client has approved in writing the results of the stage prior to it.
- If user or third parties engaged by user within the scope of the assignment do work at client’s premises or at a site designated by client, client shall provide the employees having to work there free of charge with all facilities desired in all reasonableness by said employees.
- Client shall safeguard user and third parties engaged by user against possible claims filed by third parties who may sustain damage related to the execution of the agreement, except in case of an intentional act or gross misconduct of the part of user.
Article 5 Changes to the agreement
- If during the execution of the agreement it becomes clear that the work to be done needs to be changed and/or supplemented in order to ensure its proper execution, parties shall timely and after mutual consultation adapt the agreement accordingly These Terms shall also apply to the adapted agreement.
- If parties agree that the agreement needs to be changed or supplemented, this decision may influence the term of completion of the execution. This shall never constitute a reason for user to be in default.
- Should the change or supplement to the agreement have any financial and/or qualitative consequences, user shall inform client thereof in advance.
- If a fixed fee or a fixed price per unit has been agreed upon then user shall indicate the degree to which the change or supplement to the agreement will result in an increase of said fee.
- Contrary to the conditions of paragraph 5.3, user shall not be able to charge additional costs if the change or supplement is the result of circumstances attributable to user.
Article 6 Duration of the Contract; Term of Execution
- The agreement between user and client shall be entered into for an indefinite period of time, unless the nature of the agreement dictates otherwise or if parties have explicitly agreed otherwise in writing.
- If a term has been agreed to complete certain work within the term of the agreement, then this term shall never be a term to be observed on penalty of forfeiture of rights. If the term of execution is exceeded, user will not be in default, unless client has declared this in writing.
Article 7 Fee
- At the moment the agreement is concluded, parties can agree upon a fixed fee.
- If no fixed fee has been agreed upon, the fee shall be determined on the basis of the number of hours/days actually spent on the work. The fee shall be calculated in accordance with user’s usual hourly/daily rates, valid for the period in which the work is being done, unless a deviating hourly/daily rate has been agreed upon.
- The fee and a possible cost estimate are exclusive of VAT or other taxes. If the delivery of goods or the provision of services is subject to a Withholding tax or similar tax that cannot be set off in the Netherlands, the agreed price is understood to be a net price. In such a case, client will have to pay a price that is raised to such an extent, that for user the effects of the said tax are compensated, unless user has indicated otherwise.
- With respect to assignments with a duration of more than three months, the costs owed shall be charged periodically.
- If user and client agree upon a fixed fee or an hourly rate, user is nevertheless entitled to increase this fee or rate.
- User is allowed to charge on price increases, if changes in price have occurred between the time of offer and the time of delivery with respect to including, but not limited to the cost of supply, transportation, storage, salaries and wages as well as the law.
- User can furthermore increase the fee when during the execution of the work it becomes apparent that the volume of work initially agreed upon or expected when the contract was concluded, was underestimated to such a degree, and this through no fault of user, that user cannot be expected in reasonableness to do the work agreed upon for the fee initially agreed
upon. In that case, user shall notify client of his intention to increase the fee or the hourly rate, whereby user shall communicate the volume of said increase and the date on which it shall take effect.
Article 8 Payment
- Payment must be made within 14 days from the date of invoice, in a way to be indicated by user and in the currency in which the statement of expenses was drawn up. Client does not have any right of suspension, deduction or of setting off any amount against a claim or invoice of client.
- An invoice has only been paid if 1) user has received the amount in full, or 2) in case of payment by a client from a country in which payment of the goods or services is subjected to ‘Withholding tax’ or a similar tax and these taxes are deductible in the Netherlands: when user has received the full amount that results after deduction of the said taxes and, pertaining to the amounts deducted, has received documents that are accepted by the Dutch tax authorities (‘Withholding Tax Certificate’ or similar document).
- If a client obtains a ‘Withholding Tax Certificate’ (or similar) on the basis of an invoice from user, user is proprietor of the document from the moment of delivery of that document to client. Client must put user in possession of this document as soon as possible.
- If client fails to fulfil his payment obligation within the term of 14 days, then client shall be in default by operation of law. In that event, client shall owe an interest of 1% per month, unless statutory interest is higher. Should this be the case, than the statutory interest is owed. The interest on the amount due and payable shall be calculated as from the day client is in default until the moment he has paid the amount in full.
- User’s claims against client shall become due on demand in the event that client’s company is wound up, attached, declared bankrupt, or if a suspension of payment is granted.
- Payments made by 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. User shall have the right, without this leading user to be in default, to refuse an offer for payment, if client designates a different sequence of attribution. User shall be entitled to refuse full payment of the principal sum, without this leading user to be in default, if said payment does not include the interest still due, the current interest and the costs.
Article 9 Retention of Title
- All goods delivered by user, including but not limited to designs, sketches, drawings, films, software, (electronic) files, etc., shall remain user’s property until client has fulfilled all of his obligations under all agreements concluded with user.
- Client shall not be authorised to pledge or encumber in any way the goods falling under the retention of title.
- If third parties seize goods delivered subject to retention of title or wish to establish or assert a right to them, client shall be held to inform user thereof as soon as can reasonably be expected.
- Client shall undertake to insure the goods delivered subject to retention of title and to keep them insured against damage caused by fire, explosion and water as well as against theft and make this insurance policy available for inspection on first demand.
- Goods delivered by user falling under the retention of title by virtue of the stipulations under 1. of the present article, may only be sold on within the framework of normal business activities and must never be used as instrument of payment.
- In the event that user wishes to exercise the ownership rights mentioned in the present article, client shall give user or third parties to be appointed by user, now for then, unconditional and irrevocable permission to access all sites and locations where user’s property might be found and to take these goods back.
Article 10 Collection Charges
- If client fails to fulfil his obligations in time or defaults on them, then all reasonable costs incurred with extrajudicial collection shall be borne by client. If client remains in default of payment within the set term, he forfeits an immediately payable fine of 15% on the amount due at that moment. This with a minimum of € 250.
- If user demonstrates that he has incurred higher expenses, which were reasonable, said expenses are to be reimbursed as well.
- All judicial and execution costs incurred shall equally be borne by client.
- Client shall owe interest on the collection charges of 1% per month, unless the statutory interest rate is higher, in which case the statutory interest rate shall apply. The interest on the collection charges is due and payable and will be calculated as from the moment that the collection charges are spent until the moment that client has paid the amount of collection charges in full.
Article 11 Inspection & Complaints
- Client must notify user in writing of complaints about the work done by user within 8 days following their detection, but no later than within 14 days following completion of the work concerned. The notice of default must give a detailed description of the shortcoming, so that user is in a position to respond adequately. If user has not received a complaint within these terms, both the work/delivery and the invoice are deemed to have been accepted by client.
- If a complaint proves to be well-founded, user shall yet do the work as agreed upon, unless in the meantime such has become demonstrably useless to client. Client must notify user in writing if the latter is the case.
- If it is no longer possible or useful to still do the work with respect to the provision of services agreed upon, user shall only be liable within the limits of article 15 of these Terms.
Article 12 Cancellation
- Both parties are entitled to cancel the agreement at all times by registered mail, observing a term of 1 month, stating the reasons for termination.
- If the agreement is terminated prematurely by client, user shall be entitled to compensation of the loss of capacity utilisation and of missed profits caused by said premature termination, unless the termination is based on facts and circumstances which can be attributed to user. Furthermore client shall in that event be held to pay the expenses for the work done up till that moment. The preliminary results of the work done up till that moment shall be put at client’s disposal subject to payment.
- If the agreement is terminated prematurely by user, user shall see to it in conjunction 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.
- If the transfer of the work still to be done entails extra costs for user, said costs shall be charged to client.
Article 13 Suspension and Dissolution
- User shall be authorised without notification or judicial intervention to immediately suspend the fulfilment of the obligations under
the agreement or to wholly or partly dissolve the agreement in the event that:
- a) client does not fulfil or does not fully fulfil his obligations resulting from the agreement;
- b) after the agreement has been concluded, user learns of circumstances giving good ground to fear that client will not fulfil his obligations;
- c) client was asked to furnish security to guarantee the fulfilment of his obligations resulting from the agreement when the contract was concluded and that this security is not provided or insufficient;
- d) client files for bankruptcy or suspension of payment or by virtue of law is subjected to financial oversight or be put in ward, declared bankrupt, wholly or partly transfers or disbands his company or acts in violation of the law or legal provision.
- User shall furthermore be authorised to dissolve the agreement if circumstances arise of such a nature that fulfilment
of the obligations becomes impossible or can no longer be demanded in accordance with the requirements of reasonableness and fairness, or if other circumstances arise of such a nature that the unaltered maintenance of the agreement can no longer be demanded in all reasonableness.
- If the agreement is dissolved, the user’s claims against client shall be forthwith due and payable. If user suspends fulfilment of his obligations, he shall retain his rights under the law and the agreement.
- User shall always retain the right to claim damages.
Article 14 Return of Goods Put at Client’s Disposal
- If user has put goods at client’s disposal during and in connection with the execution of the agreement, client shall be held to return the delivered goods in their original state, free of defects and in their entirety, within 14 days from completion of the execution or from termination of the agreement. If client fails to fulfil this obligation, all resulting costs shall be at client’s expense.
- If, for any reason whatsoever, client still remains in default to fulfil the obligation mentioned under 1. after being warned to do so, user shall be entitled to recover the resulting damage and costs, including replacement costs, from client.
- Nevertheless, in case of one or more data loggers that user has put at client’s disposal is lost, an amount of € 100,– per lost data logger will be charged to client.
Article 15 Liability
- Should user be liable, then said liability shall be limited to the stipulations of this article. The liability of user towards client is always limited to the damage that is the typical and foreseeable consequence of the attributable shortcoming in the fulfilment of user. User is never liable for:
-any indirect damage of client or third parties, including but not limited to consequential damage, loss of profit, lost savings, company damage, loss of goodwill, loss of orders, stagnation or delay of the production process, damage to other goods than the goods delivered by user, lesion damage and damage of third parties, all in the broadest sense;
– damage or loss of data during transport or forwarding by mail, regardless of whether the transport or forwarding is executed by or in name of client, user or a third party;
– damages with/at client or a third party, related to the provision of data not in accordance with article 4.4 or that are related to acts or actions by client.
– damages with/at client or a third party related to acts or omissions by third parties that are engaged by user. Client safeguards user against all claims as in the sentence above and against all possible claims of third parties. Furthermore, client safeguards user against all costs and damages in case law or regulations force it to stop the execution of the agreement or is forced to co-operate with government institutions entitled to receiving the information that user has received from client or a third party while executing the agreement. In addition to the above safeguarding obligations, client is to compensate all of user’s damages.
- If user is liable for direct damage, then said liability shall be limited to a maximum of once the amount of the statement of expenses, at any rate that part of the assignment to which the liability relates. User’s liability shall at all times be limited to a maximum equalling the amount of the payment to be made by user’s insurer in the occurring event.
- In the event of an assignment with a duration of more than 6 months, the liability shall, contrary to the stipulations under 2. of the present article, furthermore be limited to the part of the fee regarding the last six months.
- Direct damage shall be understood to be exclusively: a) the reasonable costs incurred to establish the cause and the volume of the damage, in so far said establishment relates to damage in the sense of these Terms; b) the reasonable costs possibly incurred to have user’s faulty performance meet the conditions of the agreement, unless such faulty performance cannot be attributed to user; c) the reasonable costs incurred
to prevent or limit the damage, in so far as client demonstrates that said costs have led to the limitation of direct damage as meant in these Terms.
- The limitations of liability for direct damage contained in these Terms shall not apply if the damage is due to an intentional act or gross misconduct on the part of user.
- User is not liable for damage of client, if client has not acted in the way described in article 11 under 1 of these general terms en conditions. User is also not liable for damage of client if client has not given user a reasonable term to correct the complaint and/or repair the damage suffered by client.
Article 16 Safeguarding
- Client safeguards user against claims filed by third parties concerning intellectual property rights on material or data provided by client, which are used for and during the execution of the agreement.
- If client provides user with information carriers, electronic files or software etc., the former shall guarantee that said information carriers, electronic files or software are free of viruses and defects.
Article 17 Transfer of Risk
- The risk of loss of, or damage to the goods being the subject of the agreement, are transferred to client the moment said goods are judicially and/or actually delivered to client and therefore fall into the power of client or of third parties to be appointed by client.
Article 18 Force Majeure
- Parties shall not be held to fulfil any of their obligations if they are hindered to do so due to a circumstance through no fault of their own and which cannot be attributed to them by virtue of law, a legal action or generally accepted practice.
- In addition to the provisions of the law and the judge-made law in this respect, force majeure shall in these Terms furthermore be understood to be any external circumstance, be it envisaged or not, on which user cannot have any influence but which prevents user from fulfilling his obligations.
- User shall also be entitled to invoke force majeure if the circumstance rendering (further) fulfilment of the obligation(s) impossible, commences after the point in time on which user should have fulfilled his obligation.
- Throughout the duration of the circumstances of force majeure, parties shall be entitled to suspend the fulfilment of their obligations. If this period lasts for more than two months, either of the parties shall be entitled to dissolve the agreement without any obligation to pay the opposite party damages.
- Insofar user has already partially fulfilled his obligations resulting from the agreement at the moment the circumstance of force majeure commenced or shall be able to fulfil them and insofar separate value can be attributed to the part already fulfilled or still to be fulfilled respectively, user shall be entitled to submit a separate statement of expenses of the part already fulfilled or still to be fulfilled respectively. Client shall be held to pay this statement of expenses as if it were a separate agreement.
Article 19 Secrecy
- Both parties are bound to secrecy of all confidential information they have received within the scope of their agreement from each other or from another source. Information shall be considered to be confidential if the other party has indicated so or if the confidential character results from the nature of the information.
- If a statutory provision or a judicial decision compels user to convey confidential information to third parties designated by law or by the court and user cannot for that purpose invoke a legal right to refuse to give evidence or such a right acknowledged or allowed by the competent court, user shall not be held to pay damages or compensation and the opposite party shall not be entitled to demand the dissolution of the agreement on the ground of any damage resulting from said circumstance.
Article 20 Intellectual Property and Copyrights
- Without prejudice to the other stipulations of these Terms, user reserves the rights and authorities to which user is entitled under the Copyright Act or any other act regarding Intellectual property.
- All documents, such as reports, advice, agreements, designs, sketches, drawings, software, etc., provided by user, are to be used by client exclusively and must not be altered, reproduced, made public or brought to the notice of third parties by client without prior consent from user, unless the nature of the documents provided dictates otherwise.
- User is not liable for changes in written, electronic and/or digital documents which are drafted by user, if the changes are made by client or by third parties to whom client supplied these documents authorized or unauthorized.
- User reserves the right to use the knowledge gained through the execution of the work for other purposes, in so far no confidential information shall be brought to the notice of third parties when doing so.
- Client is never entitled to using, purchasing or selling of or working or producing according to a designed working or production method, a designed product and/or an invention made by user, whether or not in connection with the execution of an agreement between parties, unless client has obtained prior written consent for that by user.
Article 21 Samples and Models
- If a sample or model has been shown or given to client, such has been by way of indication only, unless parties agree explicitly that the product to be delivered shall correspond with it.
- In the event of an assignment concerning immovable property, the surface area or other measurements and indications given shall also be assumed to be merely indicative without any obligation to have the product to be delivered correspond with it.
Article 22 Non-employment of the opposite party’s personnel
- Throughout the duration of the agreement and for one year following termination thereof, client shall not in any way, hire or employ in any other way, be it directly or indirectly, staff of user or of third parties whom user has engaged to execute the present agreement and who are (were) involved in the execution of the agreement.
- During the currency of the agreement and for one year after termination thereof, client shall not, in any way, move staff of user or of third parties whom user has engaged to execute the present agreement to execute activities for a competitor of user or start an enterprise by which user suffers damage.
Article 23 Lapsing of rights
Insofar these Terms do not stipulate otherwise, all claims and any other rights of client towards user in relation to the execution of work by user lapse at any rate a year after the moment at which client finds out or reasonably should have found out about the source of such a claim or right.
Article 24 Disputes
1.The parties shall try to solve all disputes that might arise between the parties in connection with these Terms, the agreements that they apply to and the execution thereof in mutual consultation, or, should this fail, by Mediation according to the regulations of the ‘Stichting Nederlands Mediationinstituut’ in Rotterdam as it is on the day the mediation is started. The parties will present their cause to a judge only after it is final, that the parties are not able to solve their differences through mediation.
- All differences in relation to agreements between client and user that are subject to these Terms and that are not of the exclusive competence of the cantonal judge in Leiden are to be decided by the competent judge in the district of The Hague. Parties shall nevertheless submit their dispute to ICC Arbitration in case there is no execution treaty between The Netherlands and the country in which client has its seat.
Article 25 Applicable Law
- Dutch law shall apply to each and every agreement between user and client.
Article 26 Changes to the Terms, interpretation and their Location
- These Terms have been filed at the office of the Chamber of Commerce in the Netherlands under number 77634845.
- The English version of these Terms is a translation. In case of disputes with regard to the interpretation and purpose of these Terms, the Dutch original prevails.
- The most recently filed version shall always apply, or, as the case may be, the version valid at the time the agreement was concluded.
- In case of following agreements, these Terms will also apply. If these Terms have been changed between times, the changed version applies.