Tems and Conditions
Article 1. DEFINITIONS
For the purposes of these terms and conditions, the capitalized definitions below have the following meanings:
a. Documents: all information or data made available by the Client to the Contractor; all data produced or collected by the Contractor in the context of the execution of the Assignment / Agreement; and all other information of any relevance to the execution or completion of the Assignment. The aforementioned information may or may not be stored on (non) material data carriers and may or may not have been placed with third parties;
b. Employee: a natural person working for or affiliated with the Contractor, whether or not on the basis of an employment contract;
c. Assignment / Agreement: the assignment agreement, whereby the Contractor agrees to undertake to perform certain Activities towards the Client;
d. Client: the natural person or legal person who has given the Contractor the Assignment to perform Work;
e. Contractor: the legal person that has accepted the Assignment (in this case Chinese Koks B.V.). All Assignments are only accepted and executed by the legal person, not by or on behalf of an individual Employee, even if the Client has explicitly or tacitly granted the Assignment with a view to its execution by a certain Employee or certain Employees. Articles 7: 404, 7: 407 paragraph 2 and 7: 409 of the Dutch Civil Code are explicitly excluded;
f. Activities: all activities and activities to be performed by the Contractor on behalf of the Client for which the Assignment has been given and which have been accepted by the Contractor, as well as all activities and operations ensuing from this for the Contractor.
Article 2. APPLICABILITY
1. These general terms and conditions apply to: all offers, quotations, Assignments, legal relationships and Agreements, by whatever name, whereby the Contractor undertakes / will undertake to perform Work for the Client, as well as all Work ensuing therefrom for the Contractor.
2. Deviations from and additions to the Assignment and / or these general terms and conditions are only valid if they have been expressly agreed in writing in, for example, a (written) Agreement or (a further) order confirmation.
3. If any condition in these general terms and conditions deviates from a condition in the order confirmation, the condition included in the order confirmation applies with regard to the contradiction.
4. These general terms and conditions also apply to any additional or follow-up assignments.
5. The applicability of the general terms and conditions of the Client is hereby expressly rejected by the Contractor.
6. These general terms and conditions can also be invoked by those natural and legal persons who are directly or indirectly involved in the provision of services to the Client by or on behalf of the Contractor, whether or not on the basis of an employment contract.
Article 3. INFORMATION OF THE CLIENT
1. The Client is obliged to provide the Contractor with all Documents that the Contractor deems necessary for the correct execution of the Assignment in the desired form, in the desired manner and in a timely manner. Contractor determines what should be understood by timely, the desired form and the desired manner.
2. The Client guarantees the correctness, completeness and reliability of the Documents provided by it, even if they come from third parties, unless the nature of the Assignment dictates otherwise.
3. The Client indemnifies the Contractor against damage resulting from incorrect or incomplete Documents.
4. At the expense and risk of the Client, the extra costs and extra hours incurred by the Contractor, as well as other damage to the Contractor, due to the Client's failure to provide, on time or properly provide Documents necessary for the performance of the Work.
5. In the event of electronic transmission of information from (and on behalf of) the Client by the Contractor to third parties, the Client will be regarded as the party that signs and sends the relevant information.
6. The Contractor has the right to suspend the execution of the Assignment until the Client has fulfilled the obligations referred to in the first paragraph.
Article 4. EXECUTION OF THE ASSIGNMENT
1. The Contractor will carry out the Assignment to the best of its ability and with due observance of the applicable laws and (Professional) regulations.
2. The Contractor determines the manner in which the Assignment is performed and by which Employee(s).
3. The Contractor has the right to have Work performed by a third party to be designated by the Contractor.
4. Every Assignment accepted by the Contractor is subject to a best efforts obligation. The contractor can never be held liable for results not achieved. The Contractor is only liable for shortcomings in the execution of the Assignment that are the result of carelessness and incompetence in the execution of assignments.
Article. 5. (PROFESSIONAL) REGULATIONS
1. The Client fully cooperates with the obligations that arise for the Contractor from the applicable (Professional) regulations.
2. The Contractor will take appropriate measures to protect the personal data and other confidential information originating from the Client. The Contractor will inform Employees and third parties to be engaged about the confidential nature of the information. Processing of personal data by Contractor takes place in accordance with the applicable (inter) national laws and (Professional) regulations in the field of the protection of personal data.
3 The Client is aware that the Contractor is in some cases obliged to disclose the Client's confidential information on the basis of (inter) national laws or (Professional) regulations.
4. The Contractor excludes any liability for damage that arises at the Client as a result of the Contractor's compliance with the applicable legislation and (Professional) regulations.
5. The parties will impose their obligations under this article on third parties that they engage with.
Article 6. INTELLECTUAL PROPERTY
1. The performance of the Assignment by the Contractor does not also include the transfer of intellectual property rights that rest with the Contractor. All intellectual property rights that arise during, or ensue from, the execution of the Assignment belong to the Contractor.
2. The Client is expressly forbidden to reproduce, disclose or exploit the products on which the intellectual property rights of the Contractor rest, or products on which the intellectual property rights rest with regard to the use of which the Contractor has acquired user rights. This includes (but is not limited to): computer programs, system designs, working methods, advice, (model) contracts, reports, templates, macros and other mental products.
3. The Client is not permitted to make the products referred to in the second paragraph available to third parties without the Contractor's prior written permission. This does not apply if the Client wishes to obtain an expert opinion about the performance of the Work by the Contractor. In that case, the client will impose its obligations under this article on third parties engaged by it.
Article 7. FORCE MAJEURE
1. If the parties cannot, not timely or properly fulfill the obligations under the Agreement as a result of force majeure within the meaning of art. 6:75 BW then those obligations are suspended until the parties are still able to fulfill them in the agreed manner.
2. If the situation as referred to in the first paragraph occurs, the parties have the right to terminate the Agreement in whole or in part and with immediate effect in writing, incidentally without any right to any compensation.
3. If the Contractor has already partially fulfilled the agreed obligations upon the occurrence of the force majeure situation, the Contractor is entitled to invoice the Work performed separately and in the interim and the Client must pay this invoice as if it concerned a separate transaction.
Article 8. FEE AND COSTS
1. The Activities performed by the Contractor will be charged to the Client on the basis of time spent and costs incurred, unless the parties explicitly agree otherwise, such as, for example, the payment of a fixed price. Payment of the fee is not dependent on the result of the Work, unless agreed otherwise in writing. Travel time and accommodation costs for the Activities will be charged separately.
2. In addition to the fee, the expenses incurred by the Contractor and the invoices from third parties engaged by the Contractor will be charged to the Client.
3. The Contractor has the right to request payment of an advance from the Client. Failure to pay the advance (in time) may be a reason for the Contractor to suspend the Activities (temporarily).
4. If after the conclusion of the Agreement, but before the Assignment has been fully executed, fees or prices change, the Contractor has the right to adjust the agreed rate, unless expressly agreed otherwise.
5. If this is required by law, the turnover tax will be charged separately on all amounts owed by the Client to the Contractor.
Article 9. PAYMENT
1. Payment by the Client of the amounts owed to the Contractor must be made before the performance of the Assignment, without the Client being entitled to any deduction, discount, suspension or setoff, unless agreed otherwise. The day of payment is the day on which the amount owed is credited to the Contractor's account.
2. If the Client has not paid within the period referred to in the first paragraph, the Client will be in default by operation of law and the Contractor will be entitled to charge the statutory (commercial) interest from that moment onwards.
3. If the Client has not paid within the period referred to in the first paragraph, the Client is obliged to reimburse all judicial and extrajudicial (collection) costs actually incurred by the Contractor. The reimbursement of the costs incurred is not limited to any costs ordered by the court.
4. In the event of a jointly given Assignment, the Clients are jointly and severally liable for the payment of the invoice amount, the interest (s) and costs owed.
5. If, in the opinion of the Contractor, the financial position or payment behavior of the Client gives cause to do so, or if the Client fails to pay an advance or an invoice within the payment term set for that purpose, the Contractor is entitled to demand that the Client immediately provides (additional) security in a form to be determined by the Contractor. If the Client fails to provide the required security, the Contractor is entitled, without prejudice to his other rights, to immediately suspend the further execution of the Agreement and all that the Client owes the Contractor for whatever reason is immediately due and payable.
Article 10. PERIODS
1. If a period / date has been agreed between the Client and the Contractor within which the Assignment must be performed and the Client fails to: (a) pay an advance payment - if agreed - or (b) complete the necessary Documents in time, in the desired manner and form, then the Client and the Contractor will consult about a new term / date within which the Assignment must be performed.
2. Periods within which the Work must be completed can only be regarded as a strict deadline if this has been expressly agreed in writing between the Client and the Contractor (in writing).
Article 11. LIABILITY AND DISCLAIMERS
1. The Contractor is not liable for damage to the Client that arises because the Client has not provided the Contractor with incorrect or incomplete Documents, or because these have not been delivered on time.
2. The Contractor is not liable for indirect damage, including: loss of profit, missed savings, damage due to business interruption and other consequential damage or indirect damage that is the result of the Contractor's failure to perform, or to perform on time or improperly.
3. The Client is obliged to take damage-limiting measures. Contractor has the right to undo or limit the damage by repairing or improving the Work performed.
4. The Client indemnifies the Contractor against claims from third parties due to damage caused by the fact that the Client has provided the Contractor with no, incorrect or incomplete Documents.
5. The Client indemnifies the Contractor against claims from third parties (including employees of the Contractor and third parties engaged by the Contractor) who suffer damage in connection with the execution of the Assignment, which damage is the result of the Client's acts or omissions or unsafe situations in its company or organization.
6. The provisions in paragraphs 1 to 5 of this article relate to both the contractual and the non-contractual liability of the Contractor towards the Client.
Article 12. TERMINATION
1. The Client and the Contractor can terminate the Agreement (interim) immediately at any time without observing a notice period by means of a written notification to the other party. If the Agreement ends before the Assignment has been completed, the Client will owe the fee in accordance with the hours stated by the Contractor for Work performed on behalf of the Client.
2. If the Client proceeds to (interim) cancellation, the Contractor is entitled to compensation for the loss of occupancy that has arisen on its side and to be made plausible, for compensation for additional costs that the Contractor has already incurred, and for compensation for costs resulting from any cancellation of third parties engaged (such as - among other things - any costs related to subcontracting).
3. If the Contractor proceeds to (interim) termination, then the Client is entitled to the Contractor's cooperation in the transfer of Work to third parties, unless there is intent or deliberate recklessness on the part of the Client, as a result of which the Contractor is obliged to cancel. A condition for the right to cooperate as stipulated in this paragraph is that the Client has paid all underlying outstanding advances or all invoices.
Article 13. SUSPENSION RIGHT
1. The Contractor is authorized, after a careful weighing of interests, to suspend the fulfillment of all its obligations, including the delivery of Documents or other goods to the Client or third parties, until all due and payable claims on the Client have been paid in full.
2. The first paragraph does not apply to Documents of the Client that have not (yet) been processed by the Contractor.
Article 14. EXPIRY PERIOD
Unless otherwise stipulated in these general terms and conditions, the Client's rights of claim and other powers for whatever reason vis-à-vis the Contractor in connection with the performance of Work by the Contractor expire in any given case after one year from the moment the Client became known or could reasonably know about the existence of these rights and powers. This term does not give possibility to file a complaint with the appropriate bod(y)(ies) for handling complaints and / or the Disputes Board.
Article 15. ELECTRONIC COMMUNICATION
1. During the execution of the Assignment, the Client and the Contractor can communicate with each other by electronic means and / or use electronic storage (such as cloud applications). Unless otherwise agreed in writing, parties may assume that properly addressed fax messages, e-mails (including e-mails sent via the Internet) and voicemail messages, regardless of whether they contain confidential information or documents relating to the Assignment have been accepted over and over again. The same applies to other means of communication used or accepted by the other party.
2. The Client and the Contractor are not liable to each other for damage that may arise from one or each of them as a result of the use of electronic means of communication, networks, applications, electronic storage, or other systems including - but not limited to - damage. as a result of non-delivery or delay in the delivery of electronic communications, omissions, distortion, interception or manipulation of electronic communications by third parties or by software / equipment used for sending, receiving or processing electronic communications, transmission of viruses and failure or improper functioning of the telecommunication network or other means necessary for electronic communication, except insofar as the damage is the result of intent or gross negligence. The above also applies to the use that the Contractor makes of this in its contacts with third parties.
3. Both the Principal and the Contractor will do or omit to do all that may reasonably be expected of each of them to prevent the aforementioned risks from occurring.
4. The data extracts from the sender's computer systems provide compelling evidence of (the content of) the electronic communication sent by the sender until the contrary is provided by the recipient.
5. The provisions of Article 11 apply accordingly.
Article 16. OTHER CLAUSES
1. The Client will not hire or approach any Employees involved in the execution of the Assignment to join the Client, either temporarily or indirectly, directly or indirectly, or directly or indirectly on behalf of the Client, whether or not as an employee to be working during the term of the Agreement or any extension thereof and during the 36 months thereafter.
2. Clauses in the Assignment that, expressly or by their nature, must remain in force after expiry or termination of the Assignment, remain in force after expiration or termination, including Articles 6, 8, 9, 11, 16, paragraph 2. and 17.
Article 17. APPLICABLE LAW AND CHOICE OF FORUM
1. The Agreement is governed by Dutch law.
2. All disputes will be settled by the competent court in the district in which the Contractor is established.
3. The provisions of paragraphs 1 and 2 of this article are without prejudice to the Client's option to submit a dispute to the Disputes Council and / or to submit a complaint to the Contractor itself.
Article 18. REPAIR CLAUSE NULLITIES
1. If any clause of these general terms and conditions or of the underlying Assignment / Agreement should be wholly or partly void and / or not valid and / or unenforceable, as a result of any statutory regulation, court decision or otherwise, this will have no consequences for the validity of all other clauses of these general terms and conditions or the underlying Assignment / Agreement.
2. If no clause can be invoked in law on any clause in the Assignment or on a part of the Assignment, the remaining part of the Assignment will remain in full force, with the understanding that the clause on the part that cannot be invoked, should be deemed to have been adapted in such a way that an appeal can be made to it, whereby the intention of the parties with regard to the original clause or the original part is maintained as much as possible.