WORX Project Management & Consultancy bv
Haarlem, The Netherlands
hereafter referred to as: user
Article 1 Definitions
1.1 In these General Terms and Conditions the following terms have the following meaning, unless specifically indicated otherwise.
User: the user of the terms and conditions.
Client: the counterpart for the user.
Agreement: the agreement for products and/or services.
Article 2 General
2.1 These conditions apply to every offer, quotation, tender and agreement between user and a client, unless deviations have been specifically agreed upon in writing.
2.2 If at one time an agreement has been established between user and client, these conditions automatically apply for any to any subsequent offers and agreements between the user and client.
2.3 The applicability of any sales- or other general terms and conditions by the client is explicitly rejected.
2.4 If one or more of the provisions in these conditions prove legally invalid or void, the remaining provisions of these conditions remain in full force. The invalid provision(s) will be replaced by a substitute valid provision with the same object and purpose of the invalid clause it is replacing.
Article 3 Offers and Tenders
3.1 All offers and quotations are without engagement, unless the offer or quotation states a deadline for acceptance.
3.2 All prices in the above mentioned offers, tenders or quotations are exclusive of VAT and any other government levies, as well as possible expenses related to the agreement which can include shipping and handling, travel, etc. unless otherwise indicated.
3.3 If the acceptance of an offer, quotation or tender deviates from what was originally provided by user, this acceptance shall not be binding. The agreement will not be made in accordance with the acceptance conditions, except if user specifically states otherwise.
3.4 A composite quotation shall not oblige user to execute part of the assignment against a corresponding part of the quoted price.
3.5 Offers, quotations or tenders do not automatically apply to future assignments.
Article 4 Execution of the agreement
4.1 During the execution of the agreement, user will observe all applicable best practices and will operate as a good contractor.
4.2 User has the right to engage third parties for the execution of the agreement if user deems this necessary for the correct execution of the agreement.
4.3 The client shall ensure that all data and information which user has indicated to be necessary or which the client can reasonably understand to be necessary for the execution of the agreement, will be provided to the user in a timely manner. If user has not received all required data and/or information from client in a timely manner required for correct execution of the agreement, user has the right to postpone execution of the agreement and/or charge client with consequential charges in accordance with the agreed rates.
4.4 User is not liable for damages of any kind, as a result of incorrect data and/or information provided by client, unless such inaccuracy or incompleteness was explicitly known to user.
4.5 If it is agreed that the agreement will be executed in phases, the user is entitled to suspend implementation of the next phase until user receives written approval of the previous phase(s) by the client.
4.6. If third parties engaged by user within the context of the assignment perform work at client’s location or a location designated by the client, the client shall provide these parties with reasonably required facilities free of charge.
Article 5 Amendment(s) to the Agreement
5.1 If after the start of the agreement it becomes evident that for a proper execution of the agreement it is necessary to modify and/or supplement the agreement, user shall, after consultation with the client, modify and/or amend the agreement accordingly. In case the modification and/or the amendment to the agreement results in a change of the completion date, user shall inform client accordingly.
5.2 If the modification and/or amendment to the agreement has any financial and/or operational consequences for the client, user is obligated to inform client accordingly prior to executing that part of the agreement.
5.3 In case a fixed fee or lump sum has been agreed, user is obligated to inform client which impact the modification and/or amendment to the agreement has on this fixed fee or lump sum.
5.4 User will not charge any additional fees to client if the modification and/or amendment to the agreement can solely be attributed to circumstances created by user.
Article 6 Term of the Agreement; execution time
6.1 The agreement between user and a client is for an indefinite period, unless the nature of the agreement dictates otherwise or in case parties explicitly agree otherwise in writing.
6.2 If within the term of the agreement, certain milestones have been agreed for completion of certain parts of the work, these milestones shall never be of the essence. In case user exceeds certain milestone(s), client is obligated to inform user of such default in writing.
Article 7 Fee
7.1 During the development of the agreement, parties can agree on a fixed fee. In case no fixed fee is agreed upon, the agreement will be executed based on actual manhours. The fee will then be calculated based on actual manhours spent at the going manhour rate applicable for user at the time of execution. Exception is only made if client and user agree on an alternate manhour rate applicable for the agreement.
7.2 The fee and possible estimates will be subject to adding the levies and expenses as described in para 3.2 which can include VAT at the time of billing.
7.3 If the client and user have agreed on a fixed fee or an hourly rate, user shall nevertheless be entitled to increase this fee or rate if during the term of the agreement (agreed) cost factors warrant it. Such an increase can only first occur after a minimum duration of the agreement of at least three (3) months.If for whatever reason the increase exceeds 50% compared to the originally agreed fee or rate, user shall notify the client and the client is entitled to cancel the remainder of the agreement at no further cost.Of any increase in user fees or rates resulting from an increase of agreed cost-determining factors, the client will be informed in writing before the increased fee is charged.
7.4 User shall furthermore be entitled to increase fees or rates during the execution of the work that was originally agreed upon when it becomes evident that the expected amount of work was substantially underestimated through no fault of user, and user can not be reasonably expected to complete the work at the originally agreed fee or rate.
7.5 User will invoice client at two week intervals, unless parties agree otherwise in writing.
Article 8 Payment Terms
8.1. Payment must be made within 15 days after invoice date, in a manner to be specified by user in the currency as stated on the invoice. Complaints or objections concerning the invoice and/or the execution of the agreement do not suspend the payment obligation.
8.2. If the client fails to pay within the payment term, client is legally in default. Client is then obligated to pay an interest over the outstanding amount of 1% per month (or part thereof) unless the statutory interest rate is higher, then the statutory interest rate is applicable. The interest on the amount due shall be calculated from the time the client is in default until the moment of payment of the full amount.
8.3 In the event of liquidation, bankruptcy, moratorium, debt restructuring of the client, seizure of the client or a request for seizure, the user’s claims against client shall immediately become due.
8.4 User has the option of charging a credit limitation surcharge of 2%. in costs. This surcharge is not applicable for invoices paid within 7 days of invoice date.
Article 9 Right of Ownership
9.1 All goods provided by user, including designs, sketches, drawings, films, software, and (electronic) files remain user’s property until client has fulfilled all his obligations under all agreements between client and user.
9.2 The client is not authorized to alienate, pledge or otherwise encumber any of the proprietary goods as mentioned in Article 9.1.
9.3 If third parties seize goods or intend to seize goods as described in Article 9.1, client is obliged shall immediately notify user in writing.
9.4 In case user wishes to exercise his proprietary rights and reclaim goods as indicated in this article, client gives its unconditional and irrevocable permission to the user or to a designated third party to enter all sites and locations where user’s goods are located and take possession of these goods.
Article 10 Collection Fees
10.1 If the client is in default or fails to fulfill any of its obligations, all reasonable costs incurred in obtaining payment in and out of court, including the redress and enforcement costs, are on behalf of client. The extrajudicial costs are at least 15% of the principal amount payable with a minimum of € 250, -.
10.2 Client shall pay interest over collection fees as stated in Article 8.2.
Article 11 Claims, Complaints
11.1. Complaints about the work done need to be reported, in writing, to user within eight days after discovery. At the time of completion of work the client will check this, as undiscovered defects are subject to forfeiture of rights after fourteen days after completion of the work. Client is obligated to report in writing to user on any defect including a detailed description of the failure, so that user is able to adequately react.
11.2. If a complaint is valid and reported within the set time limitations, user will, at the request of the client, bring the work in accordance with the agreement, unless these corrective measures have become useless for the client.
11.3. If corrective measures are no longer possible or have been rendered useless, user shall only be liable within the limits of Article 15.
Article 12 Termination
12.1. Both parties can terminate the agreement in writing at any time if the agreement has a term of longer than one (1) month. A written notice period of two (2) weeks is applicable.
12.2. If the client terminates the agreement, the client is obliged to pay for work done until the point of termination. In addition, user has the right to be compensated for the loss of revenue as caused by termination of the agreement.
12.3. If the agreement is terminated prematurely by user, user shall make every reasonable effort to support handover of the remaining work third parties as designated by client, unless the facts and circumstances that have led to the premature termination of the agreement are attributable to client. User can charge client for the costs related to the transfer of the remaining work.
Article 13 Suspension and Dissolution
13.1. User is authorized to suspend fulfillment of obligations under the agreement or to dissolve the agreement if:
– client does not fulfill its obligations as per agreement;
– user becomes aware of facts or circumstances that clearly indicate client will not fulfill its obligations;
– at the start of the agreement, client has promised to provide certain securities that warrant the fulfillment of his obligations under the agreement and these securities have not, or insufficiently, been provided.
13.2 In addition the user is authorized to dissolve the agreement if circumstances arise of such a nature that fulfillment of the agreement becomes impossible or to standards of reasonableness and fairness can no longer be expected, or if other circumstances arise of such nature that the unaltered continuation of the agreement cannot reasonably be expected.
13.3 If user suspends fulfillment of his obligations, he shall retain his rights under the law and the agreement.
13.4. User shall always retain the right to claim damages.
Article 14 Return of Goods
14.1. If user, during implementation of the agreement, has made goods available to client, the client shall, return these goods at the end of the agreement within fourteen days of first request of user in original condition, free of defects.
Article 15 Liability
15.1 If user is liable, this liability is limited to what is stipulated in this article, unless user is responsible for damages as a result of intent or gross negligence by managers under user’s employment.
15.2 User shall never be liable for consequential damages of any kind, including, but not limited to, loss of profits, loss of revenue, unachieved cost savings and/or damage due to business stagnation.
15.3 User’s liability for failure attributable to user as set out in Article 4.4 is limited to adherence to the warranty obligations set out in Article 11.
15.4 If and insofar the above limitation of liability for any reason could not be upheld legally, the direct damage liability is limited to the amount of user’s liability insurance (maximum insured amount per event is € 1.250.000) as applicable for the occurring event. In case user’s insurance is absent or not applicable, the maximum liability is twice the value of the invoice related to the damage causing event with a maximum of € 1000, – (one thousand Euros).
15.5. Direct damage is explicitly defined as:
– the reasonable costs of determining the cause and extent of the damage, as far as damage relates to the what is stipulated under these General Terms & Conditions.;
– potential reasonable costs incurred to compensate for the poor performance of the user only to the level as set out in the agreement, unless user cannot be held accountable;
– reasonable costs to prevent or limit damage, in so far client demonstrates that said costs have clearly led to the limitation of direct damage as defined in these General Terms & Conditions.
Article 16 Warranty / Indemnity
16.1. Client shall indemnify user against claims by third parties, including those relating to intellectual property provided by the client during the execution of the agreement.
16.2. If the client provides user with information carriers, electronic files or software etc., client guarantees that said information carriers, electronic files or software are free of viruses and defects.
16.3. Client shall indemnify user against claims by third parties for damages in connection with the agreement and / or in connection with the execution thereof for which user in the relationship with the client is not liable.
16.4 Each party (the “Indemnifier”) hereto agrees to indemnify and hold harmless the other party, its affiliates, officers, directors, employees and agents, (collectively the “Indemnified Parties”), from and against any and all claims, damages and liabilities.
Article 17 Transfer of Risk
17.1. The risk of loss or damage to the goods which form part of the agreement is legally transferred to client at the handover of goods during execution of the agreement or at such time when client or a designated third party has actual control over the goods, whichever occurs first.
Article 18 Force Majeure
18.1 Parties are not obliged to fulfill any obligation if they are hindered due to a circumstance that is not due to negligence, a legal act or generally accepted conditions (best practices) for which parties cannot be held accountable.
18.2 Force majeure as considered in these General Terms & Conditions is, apart from what is defined by law and jurisprudence, all external causes, foreseen or unforeseen, which the user can not influence but which prevent user to fulfill the obligations as per agreement which includes but is not limited to strikes in user’s company and failure of third parties (including suppliers) engaged by user.
18.3 User also has the right to invoke force majeure if the circumstance rendering (further) fulfillment impossible, occurs after the user should have fulfilled its obligations.
18.4 The parties may, during the period that the force majeure situation continues, suspend their obligations under the agreement. If this period lasts longer than two months, either party may terminate the agreement without right or obligation to compensate damages.
18.5 To the extent that user at the time the force majeure occurs has fulfilled its obligations under the agreement or is able to fulfill these obligations, the user is entitled to separately invoice client for this work. Client shall pay such bills as if it were a separate agreement.
Article 19 Confidentiality
19.1 With respect to information, designs, projections, business plans, technical data, trade secrets and commercially sensitive information (collectively, “Confidential Information”) provided by either party to the other, the receiving party shall (a) hold the Confidential Information in confidence and protect it in accordance with the same degree of care with which it protects its own Confidential Information of like importance which it does not wish to disclose, but in no event less than reasonable care; (b) use the Confidential Information only for the purposes described herein and except as may otherwise be mutually agreed in writing; (c) except in the normal anticipated use thereof, not copy or otherwise duplicate the Confidential Information, or knowingly allow anyone else to copy or otherwise duplicate any of the Confidential Information then under its control without the disclosing party’s prior written approval; (d) promptly notify the disclosing party in the event that the receiving party becomes legally compelled in a judicial, administrative or governmental proceeding to disclose any of the Confidential Information so that the disclosing party, at its expense, may seek a protective order or other appropriate remedy and/or waive compliance with this Article; and (e) upon request of the disclosing party, the receiving party shall forthwith return any and all Confidential Information to the disclosing party. This Article shall not apply to information which (i) is already known to the receiving party or its affiliates, as evidenced by a writing dated prior to the date of disclosure; (ii) is or becomes generally known to the public through no violation of this Article by the receiving party or its affiliates; (iii) is received from an unaffiliated third party without an obligation of nondisclosure or breach of an obligation of confidentiality to the disclosing party; (iv) is independently developed by it or its affiliates, or for it by third parties, which third parties have not had access to the Confidential Information in violation of the rights of the disclosing party; or (v) is approved in advance for release by written authorization of an officer or principal of the disclosing party. Specifically included in the definition of Confidential Information is the fact that client and user entered into an agreement.
The confidentiality obligation shall end one year after the termination of the agreement. Upon termination of the agreement, client and user will return back and forth all the proprietary information as applicable.
Article 20 Intellectual Property and Copyrights
20.1 Notwithstanding the other provisions of these General Terms & Conditions, user shall reserve its intellectual property rights.
20.2 All documents provided by user, including, but not limited to reports, advice, agreements, designs, sketches, drawings, software, etc., are intended solely to be used by the client and may not, without prior written consent from user, be reproduced, published, or made known to third parties, subject to an immediately payable, irrevocable and not susceptible to settlement fine of € 50,000 (fifty thousand Euros) per violation, notwithstanding the right of user to claim the actual damage incurred.
20.3.User reserves the right to use and apply any increase of knowledge obtained through execution of the agreement for other purposes, provided that no confidential information from client is brought to the attention of any third parties.
Article 21 Samples and Models
21.1. If client is provided with or shown a sample or model, it will be presumed to have been provided as an indication or example only, unless explicitly agreed that the final product or service under the agreement will fully correspond with the model or sample.
21.2. When an agreement involves real estate or an immovable property, the data provided by user with respect to the area or other measurements and indications will also be presumed to be merely indicative and not necessarily in full accordance with the final product as delivered under the agreement.
Article 22 Non-subordinates
22.1 The client shall not, during the term of the agreement and one year following termination thereof, in any way, except after proper consultation concerning this matter has taken place with user, recruit or employ, in any way, staff of user or of enterprises which user has engaged under the agreement. This is subject to an immediately payable, irrevocable and not susceptible to settlement fine of € 50,000 (fifty thousand Euros) per violation, notwithstanding the right of user to claim the actual damage incurred.
Article 23 Disputes
23.1 The district court in the location user has the jurisdiction to be informed of any disputes. User shall nevertheless be entitled to submit any dispute to a competent court in accordance with the governing law.
Article 24 Applicable Law
24.1 Dutch law is applicable to any agreement or legal relationship between client and user.
WORX Project Management & Consultancy
Last reviewed April 21