English translation of the Dutch original
These are the General Terms and Conditions of AESIR Consultancy B.V. (hereinafter referred to as “AESIR Consultancy”), a company with its address at Kerkstraat 15, Haaren. AESIR Consultancy is registered with the Chamber of Commerce under number 94367426.
Definitions
In these General Terms and Conditions, the following terms shall have the following meanings, unless expressly stated otherwise:
General Terms and Conditions: these general terms and conditions as set out below.
Business: the Counterparty acting in the exercise of a business or profession.
DCC: the Dutch Civil Code (Burgerlijk Wetboek).
Assignment: All work, in whatever form, performed by AESIR Consultancy for or on behalf of the Counterparty.
Agreement: Any agreement concluded between AESIR Consultancy and the Counterparty.
Counterparty: the Business that has accepted these General Terms and Conditions and has instructed AESIR Consultancy to perform an Assignment.
Unless the General Terms and Conditions expressly provide otherwise, in interpreting the General Terms and Conditions the singular shall be deemed to include the plural and vice versa, and a reference to the masculine form shall also be deemed to include a reference to the feminine form and vice versa.
1. Applicability
1. These General Terms and Conditions apply to every offer, quotation and Agreement concluded between AESIR Consultancy and the Counterparty, unless the parties have expressly agreed otherwise in writing.
2. These General Terms and Conditions also apply to agreements with AESIR Consultancy for the performance of which third parties must be engaged.
3. The applicability of any general terms and conditions of the Counterparty is expressly rejected.
4. Deviations from the Agreement and the General Terms and Conditions are valid only if expressly agreed in writing between the parties.
2. Quotations and/or offers
1. All quotations and/or offers in which the contrary is not expressly stated shall be regarded as non-binding offers and may always be revoked, even if they contain a period for acceptance. Offers/quotations may also be revoked by AESIR Consultancy in writing immediately after receipt of acceptance, but no later than within two working days, in which case no agreement shall have been concluded between the parties.
2. All quotations and/or offers from AESIR Consultancy are valid for 30 days, unless stated otherwise.
3. AESIR Consultancy cannot be held to its quotations and/or offers if the Counterparty, on the basis of reasonableness and fairness and generally accepted standards in society, should have understood that the quotation and/or offer, or any part thereof, contained an obvious mistake or clerical error.
4. If the acceptance deviates, whether or not on minor points, from the offer contained in the quotation and/or offer, AESIR Consultancy shall not be bound by it. In that case, the Agreement shall not be concluded in accordance with such deviating acceptance, unless AESIR Consultancy indicates otherwise.
3. Formation of the Agreement
1. The Agreement is formed by the Counterparty’s acceptance of AESIR Consultancy’s quotation and/or offer.
2. Quotations and/or offers may only be accepted in writing (including electronically). Nevertheless, AESIR Consultancy is entitled to accept an oral acceptance as if it had been made in writing.
3. An Agreement between the parties is formed at the moment an assignment confirmation has been signed by both the Counterparty and AESIR Consultancy, or at the moment AESIR Consultancy actually commences performance.
4. The Agreement supersedes and replaces all previous proposals, correspondence, arrangements or other communications, whether made in writing or orally.
4. Performance of the Agreement
1. The Agreement shall be performed by AESIR Consultancy to the best of its knowledge and ability and in accordance with the requirements of good professional practice. With regard to the intended work, AESIR Consultancy has an obligation to use best efforts rather than an obligation to achieve a specific result. The applicability of Articles 7:404, 7:407 paragraph 2 and 7:409 of the DCC is expressly excluded.
2. AESIR Consultancy determines the manner in which and the person(s) by whom the Assignment is performed. AESIR Consultancy is entitled to have certain work performed by third parties.
3. AESIR Consultancy is entitled to the days off already announced in advance, notwithstanding any minimum number of hours included in the Agreement.
5. Amendments and additional work
1. If, during the performance of the Agreement, it becomes apparent that amendment or supplementation of the Agreement is necessary for proper performance, AESIR Consultancy shall inform the Counterparty thereof as soon as possible. The parties shall then amend the Agreement in a timely manner and in mutual consultation.
2. If the parties agree that the Agreement is amended/supplemented, the time of completion of performance may be affected as a result. AESIR Consultancy shall inform the Counterparty thereof as soon as possible.
3. If the amendment of or supplement to the Agreement will have financial, quantitative and/or qualitative consequences, AESIR Consultancy shall inform the Counterparty thereof in advance.
4. If a fixed rate or fixed price has been agreed, AESIR Consultancy shall indicate to what extent the amendment/supplement to the Agreement affects the rate/price. In doing so, AESIR Consultancy shall endeavour, insofar as possible, to provide a price quotation in advance.
5. AESIR Consultancy may not charge additional costs if the amendment/supplement is the result of circumstances attributable to AESIR Consultancy.
6. Amendments to the Agreement originally concluded between the parties shall only be valid from the moment such amendments have been accepted by both parties by means of a supplementary or amended Agreement.
6. Obligations of the Counterparty
1. The Counterparty shall ensure that all data, equipment or premises which AESIR Consultancy indicates are necessary, or which the Counterparty should reasonably understand to be necessary for the performance of the Agreement, are made available in a timely manner. The Counterparty must also grant AESIR Consultancy all powers and authorisations necessary to properly perform the Assignment.
2. AESIR Consultancy shall not be liable for damage of any nature whatsoever resulting from AESIR Consultancy having relied on incorrect and/or incomplete information provided by the Counterparty, unless AESIR Consultancy should have been aware of such incorrectness or incompleteness.
3. The Counterparty shall ensure that employees of the Counterparty’s organisation who are involved in the work are available in a timely manner.
4. The Counterparty must refrain from conduct that makes it impossible for AESIR Consultancy to properly perform the Assignment.
5. If AESIR Consultancy or third parties engaged by AESIR Consultancy perform work in connection with the Assignment at the Counterparty’s location or at a location designated by the Counterparty, the Counterparty shall provide, free of charge, the facilities reasonably required.
6. If the Counterparty has failed to fulfil its obligations as set out in this article, AESIR Consultancy is entitled to suspend performance of the Agreement and/or charge the Counterparty the additional costs arising from the delay at the customary price or rates.
7. Prices
1. Unless expressly agreed otherwise in writing, the prices and rates stated by AESIR Consultancy are always exclusive of VAT.
2. The prices and rates are exclusive of shipping, travel, accommodation and other expenses, unless agreed otherwise.
3. If no price or rate has expressly been agreed, the price or rate shall be determined on the basis of the hours actually spent and AESIR Consultancy’s customary rates.
4. AESIR Consultancy shall, in good time before conclusion of the Agreement, provide the Counterparty with a statement of all additional costs or provide information on the basis of which such costs may be charged to the Counterparty.
5. If AESIR Consultancy agrees a fixed price or fixed rate upon conclusion of the Agreement, AESIR Consultancy is entitled to increase it, even if the price or rate was not originally made subject to reservation.
6. If AESIR Consultancy intends to change the price or rate, it shall inform the Counterparty thereof as soon as possible.
7. If the price or rate is increased within three months after conclusion of the Agreement, the Counterparty may terminate the Agreement by written declaration, unless:
a. the increase results from a power or an obligation imposed on AESIR Consultancy pursuant to the law;
b. the increase is caused by an increase in the price of raw materials, taxes, production costs, currency exchange rates, wages, et cetera, or on other grounds that could not reasonably have been foreseen when the Agreement was entered into;
c. AESIR Consultancy is nevertheless prepared to perform the Agreement on the basis of what was originally agreed; or
d. it has been stipulated that performance will take place more than three months after conclusion of the Agreement.
8. Payment
1. Payment shall be made by transfer to a bank account designated by AESIR Consultancy, unless agreed otherwise.
2. AESIR Consultancy shall send an invoice for the amounts owed by the Counterparty. The payment term for each invoice is 30 days after the date of the relevant invoice, unless otherwise stated on the invoice or otherwise agreed.
3. Invoicing shall take place monthly, unless agreed otherwise.
4. Objections to the amount of an invoice do not suspend the Counterparty’s payment obligation.
5. The Counterparty is not entitled to deduct from the amount due any amount in respect of a counterclaim asserted by it.
6. In the event of non-payment or late payment, the Counterparty shall be in default by operation of law without notice of default being required. From the date on which payment became due, the Counterparty shall owe the statutory commercial interest until the date of payment in full, whereby interest for part of a month shall be calculated for a full month.
7. A payment made by the Counterparty shall first be applied in reduction of all interest and costs due and finally to due and payable invoices that have been outstanding the longest, even if the Counterparty states that the payment relates to later invoices.
8. If the Counterparty is in breach or in default in the (timely) performance of its obligations, all reasonable extrajudicial costs incurred in obtaining payment shall be borne by the Counterparty.
9. With regard to extrajudicial (collection) costs, AESIR Consultancy is entitled to compensation amounting to 15% of the total outstanding principal sum, with a minimum of €500 for each invoice that has not been paid in whole or in part.
10. In the event of bankruptcy, suspension of payments, liquidation, general attachment of assets, death or placement under guardianship, AESIR Consultancy’s claims and the Counterparty’s obligations towards AESIR Consultancy shall become immediately due and payable.
11. Any reasonable legal costs and enforcement costs incurred shall also be borne by the Counterparty.
9. Complaints
1. The Counterparty must examine the Assignment at the time of performance, but in any event within 7 days after performance, to determine whether the Assignment as performed conforms to the Agreement.
2. Complaints must be reported to AESIR Consultancy in writing within 7 days after performance of the Assignment.
3. The right to a (partial) refund of the price, replacement or compensation shall lapse if the complaint is not reported within the stipulated period, unless the nature of the Assignment or the circumstances of the case imply a longer period.
4. The payment obligation shall not be suspended if the Counterparty informs AESIR Consultancy of the complaint within the stipulated period.
10. Force majeure and unforeseen circumstances
1. A failure cannot be attributed to AESIR Consultancy or the Counterparty if the failure is not due to its fault, nor is it for its account pursuant to law, a legal act or generally accepted standards. In that case, the parties are also not obliged to perform the obligations arising from the Agreement.
2. In these General Terms and Conditions, force majeure means, in addition to what is understood by that term under the law and case law, all external causes, foreseen or unforeseen, over which AESIR Consultancy has no control and as a result of which AESIR Consultancy is unable to fulfil its obligations.
3. Force majeure on the part of AESIR Consultancy shall in any event include:
a. strikes;
b. traffic disruptions;
c. government measures preventing AESIR Consultancy from fulfilling its obligations in a timely or proper manner;
d. riots, civil unrest, war;
e. traffic obstructions;
f. shortage of labour;
g. extreme weather conditions;
h. fire;
i. import, export and/or transit bans; and/or
j. any circumstance that disrupts the normal course of business as a result of which the Counterparty cannot reasonably require AESIR Consultancy to perform the Agreement.
11. Termination of the Agreement
1. The parties may terminate the Agreement at any time by mutual consent.
2. The parties may terminate the Agreement in writing before its expiry subject to a notice period of 1 month.
3. The parties may terminate the Agreement in writing with immediate effect in the event of:
a. an application by the other party for, or the granting to the other party of, a suspension of payments;
b. an application for bankruptcy by the other party or the declaration of bankruptcy of the other party; or
c. liquidation of the other party or a non-temporary cessation of the other party’s business.
d. If the Agreement is dissolved, AESIR Consultancy’s claims against the Counterparty shall become immediately due and payable. If AESIR Consultancy suspends performance of its obligations, it shall retain its rights under the law and the Agreement. AESIR Consultancy shall at all times retain the right to claim damages.
12. Liability
1. AESIR Consultancy shall only be liable for direct damage caused by gross negligence or wilful misconduct on the part of AESIR Consultancy, and for no more than the amount paid out to AESIR Consultancy by its insurer or, at most, once the amount stated in the invoice.
2. Direct damage shall exclusively mean:
a. reasonable costs incurred in determining the cause and extent of the damage, insofar as the determination relates to damage within the meaning of the General Terms and Conditions;
b. reasonable costs incurred to have AESIR Consultancy’s defective performance conform to the Agreement, insofar as such defective performance can be attributed to AESIR Consultancy; or
c. reasonable costs incurred to prevent or limit damage, insofar as the Counterparty demonstrates that these costs have resulted in limitation of direct damage as referred to in the General Terms and Conditions.
3. AESIR Consultancy shall never be liable for indirect damage, including consequential damage, loss of profit, missed savings, damage due to business interruption, damage resulting from inadequate cooperation and/or information provided by the Counterparty, damage arising from non-binding information or advice provided by AESIR Consultancy whose content does not expressly form part of the Agreement, and all damage that does not fall within direct damage within the meaning of these General Terms and Conditions.
4. AESIR Consultancy shall never be liable for errors in material supplied by the Counterparty or for misunderstandings or errors regarding performance of the Agreement if these arise from or are caused by acts of the Counterparty, such as failure to provide, or failure to provide in a timely manner, complete, proper and clear data/materials.
5. AESIR Consultancy shall never be liable for errors if the Counterparty has previously given approval, or has been given the opportunity to carry out an inspection and has indicated that it has no need for such an inspection.
6. The limitations of liability laid down in this article are also stipulated for the benefit of third parties engaged by AESIR Consultancy for the performance of the Agreement.
7. AESIR Consultancy shall not be liable for damage to or loss of documents during transport or dispatch by post, irrespective of whether the transport or dispatch is carried out by or on behalf of AESIR Consultancy, the Counterparty or third parties.
13. Confidentiality
1. Both parties are obliged to maintain confidentiality with regard to all confidential information obtained from each other or from another source in connection with the Agreement. Information shall be regarded as confidential if the other party has stated that it is confidential or if this follows from the nature of the information. The party receiving confidential information shall use it only for the purpose for which it was provided.
2. If, pursuant to a statutory provision or a court judgment, AESIR Consultancy is obliged to disclose confidential information to third parties designated by law or by the competent court, and AESIR Consultancy cannot invoke a statutory right or a right of non-disclosure recognised or permitted by the competent court, AESIR Consultancy shall not be liable to pay damages or compensation and the Counterparty shall not be entitled to dissolve the Agreement on the grounds of any damage arising as a result thereof.
3. Without prejudice to the foregoing, AESIR Consultancy is entitled to include the Counterparty’s name in a list of business relations published on its website or through other communications to third parties, unless agreed otherwise.
14. Indemnification
1. To the extent permitted by law, the Counterparty shall indemnify AESIR Consultancy against liability towards one or more third parties arising out of and/or in connection with performance of the Agreement, irrespective of whether the damage was caused or inflicted by AESIR Consultancy or by its auxiliary person(s), auxiliary materials or the Assignment performed.
2. In addition, to the extent permitted by law, the Counterparty shall indemnify AESIR Consultancy against all claims by third parties in connection with any infringement of the intellectual property rights of such third parties.
3. The Counterparty is at all times obliged to make every effort to limit the damage.
15. Intellectual property
1. All intellectual property rights in all products, materials, analyses, designs, software, documentation, advice, reports, quotations, (electronic) information and preparatory material thereof developed or made available in connection with performance of the Agreement (collectively, the “IP Material”) shall vest exclusively in AESIR Consultancy or its licensors.
2. The Counterparty shall only acquire such rights and powers in relation to the IP Material as arise from the Agreement and/or are expressly granted in writing.
3. The Counterparty is not permitted to transfer to third parties any acquired right or power in relation to the IP Material without the prior written consent of AESIR Consultancy.
4. The Counterparty is not permitted to remove or alter any indication relating to intellectual property rights, such as copyrights, trademark rights or trade names, from the IP Material.
5. Any exploitation, reproduction, use or disclosure by the Counterparty of the IP Material that falls outside the scope of the Agreement or the rights and powers granted shall be regarded as an infringement of AESIR Consultancy’s intellectual property rights.
6. For such an infringement, the Counterparty shall pay AESIR Consultancy an immediately due and payable penalty of €150000 per infringing act, which shall not be subject to judicial reduction, without prejudice to AESIR Consultancy’s right to obtain compensation for damage caused by the infringement or to take other legal measures in order to bring the infringement to an end.
7. There shall be no infringement of intellectual property rights if the Counterparty has obtained AESIR Consultancy’s express written consent for the exploitation, reproduction, use or disclosure of IP Material falling outside the scope of the Agreement or the rights and powers granted.
8. All IP Material developed by AESIR Consultancy for performance of the Agreement may be used by AESIR Consultancy for its own promotional purposes, unless otherwise agreed with the Counterparty.
16. Privacy
1. AESIR Consultancy respects the privacy of the Counterparty. AESIR Consultancy handles and processes all personal data provided to it in accordance with applicable legislation, in particular the General Data Protection Regulation. The Counterparty consents to such processing. AESIR Consultancy applies appropriate security measures to protect the Counterparty’s personal data.
2. AESIR Consultancy uses the Counterparty’s personal data solely in connection with performance of the Agreement or the handling of a complaint.
3. For more information about privacy, reference is made to the AESIR Consultancy website.
17. Limitation period
For all claims and/or rights that the Counterparty has against AESIR Consultancy and/or against third parties that may have been engaged by AESIR Consultancy, a limitation period of one year from the moment an event occurs that enables the Counterparty to exercise such rights and/or powers against AESIR Consultancy and/or any third parties engaged by AESIR Consultancy shall apply, in deviation from the statutory limitation periods.
18. Assignment
1. The Counterparty is not permitted to transfer to third parties any rights and obligations arising from the Agreement without having obtained written consent from AESIR Consultancy.
2. AESIR Consultancy is entitled to attach conditions to such consent.
19. Survival
The provisions of the General Terms and Conditions and the Agreement which expressly, or by their nature, are intended to remain in force after termination of this Agreement shall remain in force thereafter and shall continue to bind both parties.
20. Miscellaneous
1. Any deviations from these General Terms and Conditions may only be agreed in writing. No rights may be derived from such deviations with regard to legal relationships entered into at a later date.
2. The records of AESIR Consultancy shall, subject to evidence to the contrary, constitute evidence of requests made by the Counterparty. The Counterparty acknowledges that electronic communications may serve as evidence.
3. If and insofar as any provision of the General Terms and Conditions and the Agreement is declared null and void or is annulled, the remaining provisions of these General Terms and Conditions and the Agreement shall remain in full force and effect. AESIR Consultancy shall then establish a new provision to replace the null and void/annulled provision, taking into account as far as possible the purport of the null and void/annulled provision.
4. The place of performance of the Agreement shall be deemed to be the place where AESIR Consultancy has its registered office.
21. Governing law and choice of forum
1. All Agreements, the General Terms and Conditions, and all non-contractual rights and obligations arising therefrom shall in all respects be governed by Dutch law.
2. All disputes between AESIR Consultancy and the Counterparty arising in connection with an Agreement and/or the General Terms and Conditions, or agreements resulting therefrom, shall in the first instance be decided by the competent court of the Zeeland-West-Brabant District Court.
AESIR Consultancy B.V.
AESIR Consultancy B.V. — General Terms and Conditions — English translation