Article 1 Definitions
In these general terms and conditions, the following terms are used with the meaning stated next to them, unless otherwise indicated. Contractor: Merkelijkheid Client: the counterparty of the contractor. Assignment: the work to be determined in mutual consultation between client and contractor, including sales and deliveries of goods, to be performed by the contractor and the conditions under which this must take place.
Article 2 General
The general terms and conditions apply, to the exclusion of other (purchase) conditions, to all offers, quotations, work, assignments, and agreements between contractor and client(s), to which the contractor has declared these conditions applicable, unless explicitly deviated from in writing by the contractor. These conditions also apply to assignments with the contractor involving third parties. If one or more provisions in these general terms and conditions become invalid, the remaining provisions remain applicable. In that case, the parties will consult to agree on replacement provisions, which, as far as possible, will reflect the purpose and intent of the original provision.
Article 3 Quotations
Quotations from the contractor are based on the information provided by the client. The client guarantees that to the best of their knowledge, all essential information for the design, execution, and completion of the assignment has been provided. The quotations made by the contractor are non-binding and valid for 30 days, unless otherwise stated. The contractor is only bound by the quotations if acceptance thereof is confirmed in writing by the counterparty within 30 days, unless otherwise stated. The contractor has the right to revoke the offer within 2 working days after acceptance by the client. The prices in the mentioned quotations are exclusive of VAT, other government levies, and other costs made for the assignment, such as shipping and administration costs, unless otherwise stated. If the acceptance (on minor points) deviates from the offer included in the quotation, the contractor is not bound by it. The assignment will then not be established according to this deviating acceptance, unless the contractor indicates otherwise. In case of oral (telephone) changes to the assignment by the client without written confirmation, the risk of implementing the changes lies with the client. Any additional costs related to changes communicated orally or in writing by the client to the original assignment will be fully charged to the client. A composite price quotation does not oblige the contractor to perform part of the assignment for a corresponding part of the quoted price. Quotations do not automatically apply to future assignments.
Article 4 Provision of Information and Cooperation
The client shall timely provide the contractor with all documents, information, and contacts necessary for proper execution of the assignment.
Article 5 Execution of the Assignment and Involvement of Third Parties
The contractor performs the work within the framework of the assignment to the best of their insight, expertise, and ability. As far as necessary for proper execution of the assignment, the contractor has the right to have (parts of) the work performed by third parties. This is done in consultation with the client, and the contractor will make every effort to achieve the agreed obligations and quality. The contractor accepts no liability for work performed by third parties, insofar as they have entered into an agreement with the client themselves. The contractor is not liable for damage caused by relying on incorrect and/or incomplete data provided by the client, unless the contractor should have known of the incorrectness or incompleteness of the data. If it has been agreed that the assignment will be executed in phases, the contractor may suspend the execution of parts belonging to a next phase until the client has approved the results of the preceding phase in writing. If work is performed by the contractor or third parties engaged by the contractor at the client’s location or a location designated by the client, the client shall provide the reasonably desired facilities free of charge.
Unless otherwise agreed, the assignment does not include research into the existence of patent, copyright, and portrait rights of third parties. The same applies to any research into the possibility of such protection forms for the client. Unless the work does not lend itself to this, the contractor is always entitled to have their name mentioned on or near the work or to remove it, and the client is not allowed to disclose or reproduce it without written permission from the contractor.
Article 6 Change of Assignment, Additional Work
The client accepts that the schedule of the assignment may be affected if parties decide to change the approach, method, or scope of the assignment and resulting work during the process. When changes arise during the execution of the assignment by the client, the contractor will make the necessary adjustments on behalf of the client. If this leads to additional work, it will be charged as a supplementary assignment to the client. The contractor may charge the extra costs for changes to the assignment to the client. Contrary to paragraph 1, the contractor will not charge additional costs if the change or addition to the assignment results from circumstances attributable to the contractor.
Article 7 Contract Duration; Execution Period
The contractor safeguards the interests of the client within the limits of the provided assignment. The client is not entitled to have the agreed work performed by a third party without consultation with or permission from the contractor. Likewise, the contractor is not entitled to provide similar services to other clients competing with the involved client without consultation with or permission from the client. Unless explicitly agreed otherwise in writing or if it follows from the nature of the assignment, the client’s assignment to the contractor is for an indefinite period, with the understanding that both parties may terminate it by registered letter with a notice period of six months after the relationship has lasted six months. If a term for completion of certain work has been agreed within the assignment period, this is not a fatal term. In case of exceeding the execution period, the client must put the contractor in default in writing.
During the six-month period mentioned in the previous paragraph, the client is obliged to comply with the applicable remuneration agreements with the contractor as if no termination had occurred.
Article 8 Rates
Unless parties have agreed otherwise in writing, the contractor sets their rate according to their hourly rate. The contractor’s rate includes the costs of secretarial work and telephone costs. Travel time is charged at half the hourly rate. Travel and accommodation costs are invoiced according to the agreements in the quotation. For all quotations, the contractor only charges the actual time spent and, in case of a threatened overrun of more than 10% of the quoted amount, invoices after consultation with the client. Amounts are exclusive of VAT. If the contractor agrees on an hourly rate with the client, the contractor is nevertheless entitled to increase this rate without the client being entitled to dissolve the agreement for that reason if the price increase results from a legal obligation or authority or is caused by an increase in the price of raw materials, wages, etc., or other grounds that were reasonably unforeseeable at the time of entering into the agreement.
The contractor may increase the rate agreed in the quotation annually on January 1 without prior written notice by a maximum of the inflation percentage provided by CBS for the previous year. The contractor may also increase prices beyond inflation. The client may cancel the assignment in case of an annual increase of more than 10%. This is not allowed if the increase results from the law.
The contractor will inform the client in writing of plans to increase the rate, including the amount and effective date.
If the client does not agree with the planned increase of more than 10%, they may cancel the assignment in writing within two weeks after notification, effective as of the date mentioned in the contractor’s notification.
Article 9 Payment Terms
Payment must be made within 30 days after the invoice date, unless otherwise agreed. Unless otherwise agreed, the client owes a down payment of 30% of the total price stated in the quotation. After the due date, the client is in default by operation of law, and the contractor has the right to charge statutory interest. The client calculates interest on the amount payable from the moment of default until full payment. The costs of a reminder, demand, and summons amount to €100.00 each time and are for the client’s account. The contractor has the right to allocate payments made by the client first to costs, then to outstanding interest, and finally to principal and current interest. The contractor may refuse an offer of payment without being in default if the client specifies a different order for allocation. The contractor may refuse full repayment of the principal if outstanding and current interest and collection costs are not also paid.
In case of liquidation, bankruptcy, attachment, or suspension of payment of the client, the contractor’s claims on the client become immediately due and payable.
If the client fails to meet obligations, all costs incurred to collect the claims, both judicial and extrajudicial, with the latter amounting to at least 15% of the outstanding claim(s), are for the client’s account.
Article 10 Retention of Title
All goods delivered by the contractor, including designs, sketches, drawings, films, software, and (electronic) files, remain the property of the contractor unless otherwise agreed. The contractor grants the client a license for their use. The client is not authorized to pledge or otherwise encumber goods subject to retention of title. If third parties seize goods delivered under retention of title or wish to establish or assert rights on them, the client must notify the contractor as soon as reasonably possible. The client is obliged to insure and keep insured the goods delivered under retention of title against fire, explosion, water damage, and theft and to show the insurance policy upon request immediately. The goods delivered by the contractor under retention of title may only be resold in the normal course of business but never used as payment.
If the contractor wishes to exercise the ownership rights designated in this article, the client gives unconditional and irrevocable permission to the contractor—or third parties designated by them—to enter all locations where the contractor’s property is located to reclaim these goods.
Article 11 Inspection, Complaints, and Claims
Complaints about the performed work must be reported in writing to the contractor within two weeks after the invoice date and no later than three weeks after completion of the relevant work. The notice of default must contain as detailed a description of the shortcoming as possible so that the contractor can respond adequately. If a complaint is justified, the contractor will perform the work as agreed, unless this has demonstrably become pointless. The client must notify this in writing. If performing the agreed work is no longer possible or meaningful, the contractor is liable within the limits of Article 15.
Article 12 Termination
If the agreement is terminated prematurely by the contractor, the contractor will ensure in consultation with the client the transfer of remaining work to third parties, unless the termination is attributable to the client. If the transfer of work causes extra costs for the contractor, these will be charged to the client. The client is obliged to pay these costs within the specified term unless the contractor indicates otherwise.
Article 13 Suspension and Dissolution
The contractor is entitled to suspend the fulfillment of obligations or dissolve the agreement if the client does not, does not fully, or does not timely fulfill the obligations, if circumstances known to the contractor after concluding the agreement give good reason to fear non-fulfillment, if the client was asked to provide security for fulfillment and this security is lacking or insufficient, or if due to delay on the client’s side, the contractor can no longer be expected to fulfill the agreement under the originally agreed conditions.
Furthermore, the contractor may dissolve the agreement if circumstances arise that make fulfillment impossible or if other circumstances occur that make it unreasonable to expect the contractor to maintain the agreement unchanged. Upon dissolution, the contractor’s claims on the client become immediately due and payable. If the contractor suspends fulfillment, they retain their rights under law and agreement.
If the contractor suspends or dissolves, they are not liable for any damages or costs arising therefrom. If the dissolution is attributable to the client, the contractor is entitled to compensation for damages, including costs, directly and indirectly arising (including costs of engaged third parties), as well as 50% of the remaining part of the fee the client would owe upon full completion.
If the client fails to fulfill obligations justifying dissolution, the contractor may immediately dissolve the agreement without any obligation to pay damages, while the client is obliged to pay damages due to breach.
If the assignment is terminated prematurely for any reason, the client is no longer allowed to use the designs made available and any license granted in the context of the assignment lapses.
Article 14 Return of Provided Items
If the contractor has provided items to the client during the execution of the assignment, the client must return the delivered items in their original condition, free of defects, and complete within 14 days upon written request. Failure to comply will result in all related costs being charged to the client.
If the client remains in default after a reminder, the contractor may recover resulting damages and costs, including replacement costs, from the client.
Article 15 Liability
For accepted assignments, the contractor has an obligation of best efforts. If the contractor is liable, this liability is limited to what is stipulated in this provision.
The contractor is not liable for damage of any kind caused by relying on incorrect and/or incomplete data provided by or on behalf of the client or if the client has approved the prototype, proof, etc.
The contractor is only liable for direct damage, provided such damage is reported within one year of completion of the assignment.
Indirect damage includes only reasonable costs to determine the cause and extent of the damage, insofar as this relates to damage under these conditions, reasonable costs incurred to have the defective performance of the contractor comply with the agreement, as far as attributable to the contractor, and reasonable costs incurred to prevent or limit damage, provided the client demonstrates these costs led to limiting direct damage as defined here.
The contractor is never liable for indirect damage, including consequential damage, lost profits, missed savings, and business interruption damage.
If the contractor is liable for direct damage, this liability is limited to the invoiced amount and in any case the amount paid out by the contractor’s insurer in the relevant case.
The client is obliged, if reasonably possible, to keep copies of materials and data provided until the assignment is fulfilled. Failure to do so releases the contractor from liability.
The limitations of liability in this article do not apply if the damage is due to intent or gross negligence of the contractor or their managerial subordinates.
Article 16 Delivery Conditions
Deliveries are made “ex warehouse” contractor. Transport and insurance costs are for the client’s account.
Article 17 Indemnities
The client indemnifies the contractor against claims from third parties who suffer damage related to the execution of the agreement and whose cause is attributable to others than the contractor. If the contractor is addressed by third parties on this basis, the client must assist the contractor both out of court and in court and do everything expected in such cases without delay.
If the client fails to take adequate measures, the contractor is entitled to take such measures without notice of default. All costs and damages incurred by the contractor and third parties thereby are fully for the client’s account and risk.
Article 18 Force Majeure
Parties are not required to fulfill obligations if hindered by circumstances not due to fault and, according to law, also not when a legal act or generally accepted traffic opinions apply.
Force majeure includes all external causes, foreseen or unforeseen, beyond the contractor’s control, preventing fulfillment. Strikes in the contractor’s company, illness, and/or incapacity are included.
The contractor may also invoke force majeure if the circumstance preventing (further) fulfillment occurs after the contractor should have fulfilled obligations.
Parties may postpone obligations during force majeure. If force majeure lasts longer than two months, all parties may dissolve without obligation to compensate damages.
If the contractor has partially fulfilled obligations at the time of force majeure or can fulfill them, they may invoice that part. The client must pay as if it were a separate assignment.
Article 19 Confidentiality
Both parties are obliged to keep confidential information received for the assignment secret. Information is confidential if indicated by the other party or evident from the type of information. The contractor’s distinct knowledge, including methodology, results, and benchmark data in any form, must be kept confidential by the client.
Violation of this last paragraph results in an immediately payable penalty of €25,000, with the contractor having the right to claim actual damages if higher.
If the contractor must provide confidential information to third parties designated by law or court and cannot invoke a legal or court-recognized right of refusal, they are not obliged to pay damages, and the counterparty is not entitled to dissolve the assignment due to resulting damage.
Article 20 Intellectual Property and Copyrights
The contractor reserves rights and powers granted under the Copyright Act and other intellectual property laws.
The contractor has the right to use knowledge gained through executing an agreement for other purposes, provided no strictly confidential client information is disclosed to third parties.
Article 21 Disputes
In case of disputes arising from this agreement or related agreements, parties will first attempt to resolve them through mediation according to the regulations of the Netherlands Mediation Institute in Rotterdam, valid at the start of mediation.
If mediation fails, the dispute will be settled by the competent court.
Article 22 Applicable Law
Dutch law applies to every assignment between contractor and client, also if performance is wholly or partly abroad or if the client resides or is established abroad.
Article 23 Amendments
These conditions are filed with the Chamber of Commerce where the contractor is registered.
The most recently filed version or the version valid when the assignment was established always applies.