Article 1. Definitions
In these terms and conditions, the following definitions shall apply:
Client:
a. the natural person, or
b. the legal person who commissions Ekwadraat Advies B.V. to carry out work.
Consultancy: the contractor, being Ekwadraat Advies B.V. in Leeuwarden, or its affiliated companies, hereafter to be referred to as Ekwadraat Advies B.V.
Consultant: the natural person appointed as such by Ekwadraat Advies B.V., employed by Ekwadraat Advies B.V.
Assignment: the assignment as described in the order confirmation, whereby Ekwadraat Advies B.V. commits itself towards the client to carry out the agreed work, under application of the provisions of the present conditions.
Project: the subject matter of the work as described in the confirmation of the assignment.
Article 2. Application of law, titles
1. These general terms and conditions apply to all legal relationships between the contractor and the client, unless expressly agreed otherwise in writing prior to their establishment.
2. The General Conditions of Ekwadraat Advies B.V. are applicable and not those of the client, the latter are hereby expressly rejected.
3. The titles of the articles of these conditions do not form part of these conditions.
4. Insofar as the contents of these conditions may appear to be in conflict with any mandatory statutory provision, this shall not affect the validity of the remaining provisions of the conditions. In case of contradiction of any provision the interpretation will be determined in all reasonableness, taking into account the purpose and purport of the provision.
Article 3. Realization and modification of the assignment
1. The assignment shall be deemed to have been concluded if the client has confirmed the offer in writing, within the period of validity specified in the offer, or if the conclusion of the assignment agreement is proved in some other way. Sections 7:400 et seq. of the Dutch Civil Code shall apply to the assignment, unless expressly departed from in these terms and conditions. Articles 7:404 and 7:407 paragraph 2 of the Civil Code are excluded.
2. Changes to the assignment, including expansion or reduction of the (consultancy) work already commissioned, shall only be deemed to have been effected when Ekwadraat Advies B.V. has confirmed these changes in writing.
3. The provisions of the first and second paragraphs are without prejudice to the authority of the parties to prove the existence of the assignment and/or the change therein by other means.
4. The client guarantees the correctness, completeness and reliability of the information and documents made available to Ekwadraat Advies B.V., even when these originate from third parties, unless the nature of the assignment dictates otherwise.
5. The extra costs and additional fees resulting from delays in the execution of the assignment caused by the fact that the requested information and documents were not or not correctly made available shall be for the account of the client.
6. The client has received a copy of these general terms and conditions at the conclusion of the assignment.
Article 4. Content of the assignment
1. The assignment comprises all that has been agreed between the client and Ekwadraat Advies B.V. and mentions the project, as well as all that is necessary in the light of the nature and scope of the assignment for its proper fulfillment. The assignment shall further indicate:
a. the method of remuneration and the terms of payment;
b. the time within which the assignment is to be performed;
c. the manner in which Ekwadraat Advies B.V. notifies the client that it considers its activities, resulting from the assignment, to have been fulfilled.
2. In case the assignment also includes giving advice on quotations requested by (Ekwadraat Advies B.V. on behalf of) the client, this advice shall only extend to price comparisons, assessment of the completeness of the quotations as well as the suitability of the client on the basis of general branch information and/or specific experiences Ekwadraat Advies B.V. has with the client. It is the final choice of the client to contract with a principal. Ekwadraat Advies B.V. excludes all liability for possible consequences of that choice, including possible shortcomings of the party/parties with which the client eventually contracts.
3. Ekwadraat Advies B.V. shall provide the client with an indicative estimate of the costs at the conclusion of the assignment. Ekwadraat Advies B.V. will settle with the client on the basis of the time actually spent on the assignment, multiplied by the agreed fee, and costs incurred by Ekwadraat Advies B.V., unless otherwise agreed at the time changes to the assignment are agreed, Ekwadraat Advies B.V. will indicate whether and to what extent this will affect the aforementioned estimate. As soon as the expectation is justified that the last provided estimate is insufficient, Ekwadraat Advies B.V. will inform the client thereof in writing.
Article 5. General obligations of Ekwadraat Advies B.V.
1. Ekwadraat Advies B.V. shall carry out the assignment properly and carefully, shall represent the interests of the client to the best of its knowledge and ability and shall perform its services to the best of its knowledge and ability.
2. Ekwadraat Advies B.V. will keep the client informed about the execution of the assignment, including the financial aspects of the project, and will provide him with all information on request.
3. Insofar as reasonably possible, the assignment will be carried out by Ekwadraat Advies B.V. within the agreed period, barring circumstances that cannot reasonably be attributed to Ekwadraat Advies B.V.. Agreed periods are not to be considered as fatal unless explicitly agreed upon.
4. In the fulfilment of its obligation to provide information, Ekwadraat Advies B.V. shall inform the client in a timely manner regarding the foreseeable financial consequences and risks related to the imposition of more or other demands, the postponement or modification of decisions and the occurrence of circumstances that have not been taken into account at the time of entering into the agreement.
Article 6. General obligations of the client
1. The client shall provide Ekwadraat Advies B.V. in due time with the information, data and decisions which Ekwadraat Advies B.V. requires.
Ekwadraat Advies B.V. needs, according to its opinion, in order to execute and complete the granted assignment.
2. The client warrants the correctness, completeness and reliability of the information and documents placed at the disposal of Ekwadraat Advies B.V., even when they originate from third parties, unless the nature of the assignment dictates otherwise.
3. The extra costs and additional fees resulting from delays in the execution of the assignment caused by the fact that the requested information and documents were not or not correctly made available shall be for the account of the client.
4. The client shall pay the amounts due to Ekwadraat Advies B.V. in a timely manner. Invoices are to be paid within 14 days of the invoice date.
5. The client has the option to agree with the contractor to pay the agreed costs by direct debit. The contractor must agree to this by signing the agreement. If the contractor receives a discount for payment by direct debit, this discount will lapse if it turns out that direct debit is not possible.
6. If the client is formed by separate persons acting jointly for the provision of the order, each of them will be jointly and severally liable (see art. 1. below).
Article 7. Acting as agent of Ekwadraat Advies B.V.
1. Ekwadraat Advies B.V. shall act as agent of the client if and in so far as the proper fulfilment of the assignment so warrants.
2. Should the client wish to involve third parties in the execution of the assignment, he shall only do so after having reached an agreement with Ekwadraat Advies B.V. in this respect.
3. Insofar as required for a proper execution of the assignment, Ekwadraat Advies B.V. is authorized to call in third parties. When engaging third parties Ekwadraat Advies B.V. shall at all times exercise due care. Ekwadraat Advies B.V. is not liable for damages resulting from shortcomings of third parties. Ekwadraat B.V. assumes, and if necessary hereby stipulates, that each assignment implies the authority to accept any limitations of liability of third parties also on behalf of the client.
Article 8. Cooperation with third parties
1. If Ekwadraat Advies B.V. is instructed by the client to carry out the assignment or part of the assignment in co-operation with other parties, Ekwadraat Advies B.V. shall in no way whatsoever be liable for this choice and/or the consequences thereof, Ekwadraat Advies B.V. will, after consultation with all parties involved, determine who will be charged with the management and co-ordination of the work and what each party's task in this respect will be.
2. The management and coordination referred to in paragraph 1 at the very least implies that the coordinator, in consultation with the other collaborating parties, determines a time schedule for the execution of the assignment referred to in paragraph 1 and that, in case of time overrun or other circumstances that may lead to delay or damage, he consults with the collaborating parties without delay and sends a report of the consultations to all parties involved.
Article 9. Costs, payments
1. The costs of the assignment include all costs as stated in the offer.
2. Ekwadraat Advies B.V. reserves the right to pass on annual rate changes to the client in case of assignments lasting longer than 6 months. Costs are billable on the basis of actual costs incurred, unless otherwise agreed in writing. Billing will take place once a month in arrears, or quarterly for small amounts.
3. The amounts to be invoiced by Ekwadraat Advies B.V. according to the assignment shall be increased with the turnover tax due, kilometer costs, office costs, external costs and other costs.
4. For payments the client is bound by article 6 paragraph 2.
5. If the client disputes the correctness of a part of an invoice, he shall nevertheless be bound to pay the part that is not disputed in accordance with art. 6 paragraph 2. If and insofar as the disputed part is still due, the original invoice date shall apply.
6. If the client fails to make the payments due pursuant to the assignment on time and if the delay is not the result of circumstances for which Ekwadraat Advies B.V. is responsible, Ekwadraat Advies B.V. shall be entitled to compensation of interest at the statutory rate from the day on which the payment should have been made at the latest.
7. In case the payment of the invoice has not taken place within 14 days and a written reminder sent by Ekwadraat Advies B.V. has not resulted in payment after the expiry of fourteen days either, the invoice shall, after the expiry of thirty days, be increased with the legal interest rate of 2% as well as the extra-judicial costs made in connection with the collection of what the client owes Ekwadraat Advies B.V.
8. Ekwadraat Advies B.V. shall calculate a credit limitation of 2% on all invoices. If the invoice is paid within the statutory payment period of 30 days, the credit limitation may be deducted from the invoice amount.
Article 10. Consequences of interruption of assignment
1. The client may order Ekwadraat Advies B.V. to interrupt/suspend the work. The client is obliged to inform Ekwadraat Advies B.V. thereof in writing.
2. In case of interruption of the assignment, the client is obliged to compensate Ekwadraat Advies B.V. for:
a. the proportional part of the costs according to the state of the work;
b. other costs incurred for the benefit of the assignment, including costs/compensation of third parties.
In addition, the client shall pay Ekwadraat Advies B.V. all damages suffered by Ekwadraat Advies B.V. as a direct result of the interruption of the assignment, except in case of interruption of the assignment due to force majeure.
3. Should the assignment later proceed, the costs related to the additional work arising from the restart of the work for Ekwadraat Advies B.V. shall be reimbursed by the client on the basis of the costs as mentioned in paragraph 2 of this article. The client and Ekwadraat Advies B.V. are furthermore entitled to unilaterally adjust the provisions and the budget of the assignment to the new situation.
4. Ekwadraat Advies B.V. is authorised to dissolve the agreement without notice of default:
a. in case of bankruptcy, suspension of payment, administration of the client, etc;
b. in the event of force majeure on the part of Ekwadraat Advies B.V. such as strike, excessive absenteeism of personnel, government measures in connection with health requirements, theft, fire, equipment failure, etc;
c. in the event of an attributable shortcoming on the part of the client;
d. in case of failure to obtain permission as referred to in article 8, paragraph 3.
The client shall compensate Ekwadraat Advies B.V. in accordance with the state of the activities as meant in paragraph 2. In case of shortcomings on the part of the client, the client shall, in addition to the fulfilment of its obligations under the present agreement, compensate Ekwadraat Advies B.V. for any damage sustained by it.
Article 11. Termination, dissolution and termination of the assignment
1. The assignment may be wholly or partially terminated other than the completion of the assignment, viz:
a. the client may terminate the assignment prematurely. The client shall in that case fully respect the rights of Ekwadraat Advies B.V. in accordance with the provisions of paragraph 3.
b. Ekwadraat Advies B.V. can terminate the assignment in case of force majeure, see also art. 10, paragraph 4b, in case of an attributable shortcoming on the part of the client and in case of not obtaining permission as meant in art. 8, paragraph 3.
c. Ekwadraat Advies B.V. shall be bound to do all that can reasonably be demanded of it, considering the circumstances, in view of the consequences for the client resulting from this termination.
d. in the event that the client applies for a moratorium, is declared bankrupt, is placed under administration, etc.
e. in case Ekwadraat Advies B.V. requests suspension of payment, is declared bankrupt, is placed under administration, etc.
f. in case of dissolution of the legal entity.
2. Assignments given to Ekwadraat Advies B.V. shall not terminate through the death of the client.
3. In case of termination of the assignment, as referred to in paragraph 1a of this article, the client is obliged to compensate Ekwadraat Advies B.V. in the manner as mentioned in article 10, paragraph 2.
In addition, the client shall pay 10% of the remaining part of the amounts mentioned in the quotation that the client would have owed in case of complete fulfilment of the assignment by Ekwadraat Advies B.V.
The latter obligation shall not apply in case of termination of the assignment in case of imputable failure on the part of Ekwadraat Advies B.V. or in case of force majeure. In that case the client is bound to pay full compensation as mentioned in article 10, paragraph 4.
4. In the event of an (imputable) failure on the part of Ekwadraat Advies B.V., as mentioned in paragraph 3 of this article, the liability of Ekwadraat Advies B.V. shall be limited to that stipulated in article 12 of these General Conditions.
5. In case the client, paragraph 1c of this article, is declared bankrupt, Ekwadraat advies B.V. is authorised to summon the receiver to declare, within eight days, whether he is prepared to put the agreement into liquidation, providing security for the proper fulfilment of the agreement.
If the trustee in bankruptcy fails to declare his willingness to honour the agreement within the aforementioned period of eight days, the agreement shall be dissolved.
6. In case of suspension of payment, administration, etc., of the principal, paragraph 1c of this article, the provisions of paragraph 5 shall apply mutatis mutandis, with the proviso that for "the receiver" read "the principal and the administrator".
7. In the event that Ekwadraat Advies B.V., paragraph 1d of this article, is declared bankrupt, the client is authorised to summon the receiver to declare, within eight working days, whether he is prepared to honour the agreement, providing security for the proper fulfilment of the agreement. If the receiver does not declare his willingness to honor the contract within the said period of eight working days, the contract is dissolved.
8. In case of suspension of payment, administration, etc., of Ekwadraat Advies B.V., paragraph 1d of this article, the provisions of paragraph 7 are correspondingly applicable, on the understanding that for "the trustee" read "Ekwadraat Advies B.V. and the administrator".
9. Unless execution is definitively impossible, the assignment cannot be dissolved by the client on the grounds of exceeding the time limit, unless Ekwadraat Advies B.V. also fails to execute the agreement, or fails to execute it in its entirety, within a reasonable period of which it has been notified in writing after expiry of the agreed delivery period.
Dissolution will then be permitted in accordance with article 265 Book 6 of the Dutch Civil Code.
10. Notice of termination must be given to the other party in writing.
Article 12. Liability of Ekwadraat Advies B.V.
1. The work relating to the assignment shall be carried out by Ekwadraat Advies B.V. to the best of its knowledge and ability. In doing so, the state of the art shall be taken into account as much as possible, without guaranteeing any result as intended by the client.
2. Should the User be liable for direct damage, then such liability shall be limited to a maximum of the amount of the statement of expenses, at any rate that part of the assignment to which the liability relates, at any rate to a maximum of 5,000 Euros. The liability shall at all times be limited to a maximum of the amount to be paid by the User's insurer. 1. Notwithstanding the above, Ekwadraat Advies B.V. shall have the option to avoid payment of damages by eliminating the relevant consequences of the errors or omissions for its own account within a reasonable period of time.
3. Any liability as referred to in paragraph 1 shall lapse 1 year after the date of invoicing for the assignment or the relevant part of an assignment.
4. Ekwadraat Advies B.V. is indemnified by the client with respect to claims for damages by third parties.
Article 13. Publication - Copyright - Patents
1. The documents issued by Ekwadraat Advies B.V. to the (future) client shall, under the conditions mentioned below, become the property of the client and may be used by him. The conditions are:
a. the copyright remains vested in Ekwadraat Advies B.V.;
b. the intellectual property rights shall remain vested in Ekwadraat Advies B.V. (see also art. 14);
c. the provisions in paragraph 2 of this article;
d. that the client has fulfilled its financial obligations towards Ekwadraat Advies B.V.
2. The client is not permitted to use the results produced by Ekwadraat Advies B.V. in such a way that they are detrimental or inconsistent with the correctness or the purport of the results.
3. The client is not permitted to repeat an assignment, carried out in accordance with the design, drawings and other works of Ekwadraat Advies B.V., with or without any extension, in its entirety or in parts, without the express permission of Ekwadraat Advies B.V.
Ekwadraat advies B.V. is authorized to attach conditions to the granting of such permission, including the fixing of a certain fee.
Article 14. Secrecy and patent rights.
1. Information and documents submitted to Ekwadraat Advies B.V. by or on behalf of the client or made known to Ekwadraat Advies B.V. may not be disclosed by Ekwadraat Advies B.V. to third parties without the explicit permission of the client as well as in case the submission or disclosure is necessary for the proper execution of the work. The results of calculations, examinations, tests and considerations originating from third parties and paid for entirely by the client are also considered as such data and documents. This obligation shall not apply to data and documents which are generally known or accessible to the public.
2. The client shall not impede Ekwadraat Advies B.V. in placing its knowledge at the disposal of third parties, unless that knowledge consists of trade secrets of the client or forms part of an invention in respect of which a patent application has been filed with due observance of the provisions of paragraph 3.
3.
a. Ekwadraat Advies B.V. undertakes to bring to the client's attention without delay any inventions which, in its opinion, are susceptible to the granting of patents and which have arisen in and through its work on the assignment.
b. If such an invention has been created through an exchange of knowledge between the client and Ekwadraat Advies B.V., the client shall be entitled to apply for a patent on that invention in his name and at his expense. The client shall inform Ekwadraat Advies B.V. without delay of its decision to do so. If requested, Ekwadraat Advies B.V. shall be obliged to assist the client in the handling of the application. The resulting work for Ekwadraat Advies B.V. will be compensated on the basis of time spent.
c. If the client obtains a patent as referred to in paragraph 3b, it shall grant Ekwadraat Advies B.V. free of charge a non-transferable license to that invention. In case of concrete application of the license, Ekwadraat Advies B.V. will request permission from the client, which permission can only be refused if the client can demonstrate conflicting interests with his business.
d. If the client does not make use of the right mentioned in paragraph 3b, or if such an invention has not been created through an exchange of knowledge between the client and Ekwadraat Advies B.V., Ekwadraat Advies B.V. shall be entitled to apply for a patent for that invention in its own name and at its own expense, with due observance of the provisions of paragraph 2 of this article. Ekwadraat Advies B.V. shall inform the client forthwith of its decision to that effect.
e. If Ekwadraat Advies B.V. obtains a patent, as referred to in the present paragraph d, it shall grant the client free of charge a license, in principle non-transferable, to apply this invention in the current business operations of the client.
f. Ekwadraat Advies B.V. is not entitled to use the information made available to it by the Principal for a purpose other than that for which it was obtained. An exception shall be made in case Ekwadraat Advies B.V. is acting on its own behalf in disciplinary, civil or criminal proceedings in which these documents may be of importance.
Article 15. Partial nullity
Should one or more provisions of these General Conditions be null and void or otherwise non-binding, this shall not affect the validity and applicability of the remaining provisions.
Article 16. Applicable law
All agreements between the Client and Ekwadraat Advies B.V. to which these General Conditions are applicable shall be governed by Dutch law.
Article 17. Disputes
1. Differences of opinion between the client and the consultancy shall be solved as much as possible amicably. If a difference of opinion is not resolved amicably, a dispute shall be deemed to exist.
2. All disputes which may arise in connection with the present commission or further commissions resulting therefrom shall be settled by the competent court in Leeuwarden. A dispute shall be deemed to exist if one of the parties so declares in writing.