General terms and conditions

Terms and Conditions - ByThiBo

GENERAL TERMS AND CONDITIONS FOR SERVICE PROVIDERS (B2B)

Article 1 - Definitions

ByThibo, located in Amersfoort, Chamber of Commerce number 76381110, is referred to as a service provider in these terms and conditions.
The other party of the service provider is referred to as the client in these general terms and conditions.
The parties are service provider and client together.
The agreement means the service agreement between the parties.

Article 2 - Applicability of general terms and conditions

These terms and conditions apply to all offers, offers, activities, agreements and deliveries of services or goods by or on behalf of the service provider.
Deviating from these terms and conditions is only possible if this has been expressly agreed in writing by the parties.
The agreement always contains best efforts obligations for the service provider, not obligations to achieve results.

Article 3 - Payment

Invoices must be paid within 30 days of the invoice date, unless the parties have made other agreements about this in writing or the invoice states a different payment term.
Payments are made without any recourse to suspension or set-off by transferring the amount due to the bank account number specified by the service provider.
If the client does not pay within the agreed period, he will be in default by operation of law, without the need for any reminder. From that moment on, the service provider is entitled to suspend the obligations until the client has fulfilled its payment obligations.
If the client remains in default, the service provider will proceed with collection. The costs related to that collection are borne by the client. When the client is in default, in addition to the principal sum, he also owes statutory (commercial) interest, extrajudicial collection costs and other damage to the service provider. The collection costs are calculated on the basis of the Extrajudicial Collection Costs Reimbursement Decree.
In the event of liquidation, bankruptcy, attachment or suspension of payment of the client, the service provider's claims against the client are immediately due and payable.
If the client refuses to cooperate in the execution of the order by the service provider, he is still obliged to pay the agreed price to the service provider.

Article 4 - Offers and offers

The service provider's offers are valid for a maximum of 2 months, unless the offer specifies a different period of acceptance. If the offer is not accepted within that specified period, the offer expires.
Delivery times in offers are indicative and do not entitle the client to dissolution or compensation if they are exceeded, unless the parties have expressly agreed otherwise in writing.
Offers and quotes do not automatically apply to backorders. The parties must agree to this explicitly and in writing.

Article 5 - Prices

The prices stated on the service provider's offers, offers and invoices do not include VAT and any other government levies, unless explicitly stated otherwise.
The prices of goods are based on the cost prices known at that time. Increases in this, which could not be foreseen by the service provider at the time of making the offer or the conclusion of the agreement, may give rise to price increases.
With regard to the service, the parties can agree on a fixed price when concluding the agreement.
If no fixed price has been agreed, the rate with regard to the service can be determined on the basis of the hours actually spent. The rate is calculated in accordance with the service provider's usual hourly rates, valid for the period in which he performs the work, unless a different hourly rate has been agreed.
If no rate has been agreed on the basis of the hours actually spent, a target price will be agreed for the service, with the service provider entitled to deviate from this by up to 10%. If the target price is more than 10% higher, the service provider must let the client know in good time why a higher price is justified. In that case, the Client has the right to cancel part of the order that exceeds the target price plus 10%.

Article 6 - Price indexation

The prices and hourly wages agreed upon when entering into the agreement are based on the price level used at that time. The service provider has the right to adjust the fees to be charged to the client annually as of 1 January.
Adjusted prices, rates and hourly wages will be communicated to the client as soon as possible.

Article 7 - Provision of information by the client

The Client makes all information that is relevant to the execution of the assignment available to the service provider.
The Client is obliged to provide all information and documents that the service provider believes it needs to carry out the order correctly, in a timely manner and in the desired form and manner.
The Client guarantees the accuracy, completeness and reliability of the data and documents made available to the service provider, even if they come from third parties, insofar as this does not otherwise result from the nature of the assignment.
The Client indemnifies the service provider against any damage in any form resulting from failure to comply with the provisions of paragraph 1 of this article.
If and insofar as the client requests this, the service provider will return the relevant documents.
If the client does not provide, not timely or properly, the data and documents required by the service provider and the execution of the order is therefore delayed, the resulting additional costs and additional fees will be borne by the client.

Article 8 - Revocation of the order

The client is free to terminate the assignment to the service provider at any time.
When the client withdraws the order, the client is obliged to pay the service provider's salary and expenses incurred.

Article 9 - Implementation of the agreement

The service provider conducts the agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship.
The service provider has the right to have work carried out by third parties.
The execution takes place in mutual consultation and after written agreement and payment of any agreed advance.
It is the client's responsibility that the service provider can start the assignment on time.

Article 10 - Contract duration

The agreement between client and service provider is entered into for an indefinite period of time, unless the nature of the agreement dictates otherwise or the parties have explicitly agreed otherwise in writing.
If the parties have agreed on a period of time for the completion of certain activities within the term of the agreement, this is never a deadline. If this period is exceeded, the client must give the service provider notice of default in writing.

Article 11 - Amendment to the agreement

If, during the execution of the agreement, it appears that it is necessary for the proper execution of the assignment to change or supplement the work to be performed, the parties will amend the agreement accordingly in good time and in mutual consultation.
If the parties agree that the agreement will be amended or supplemented, the time of completion of the execution may be affected. The service provider will inform the client about this as soon as possible.
If the change or addition to the agreement has financial and/or qualitative consequences, the service provider will inform the client about this in writing as soon as possible.
If the parties have agreed on a fixed fee, the service provider will indicate to what extent the change or addition to the agreement will result in this fee being exceeded.

Article 12 - Force majeure

In addition to the provisions of article 6:75 of the Civil Code, a failure by the service provider in fulfilling any obligation towards the client cannot be attributed to the service provider in the event of a circumstance independent of the service provider's control, which prevents the fulfillment of its obligations towards the client in whole or in part or as a result of which the service provider cannot reasonably be expected to fulfill its obligations. These circumstances include non-performance by suppliers or other third parties, power failures, computer viruses, strikes, bad weather conditions and work interruptions.
If a situation such as the above occurs as a result of which the service provider is unable to fulfil its obligations towards the client, those obligations will be suspended as long as the service provider is unable to meet its obligations. If the situation referred to in the previous sentence has lasted 30 calendar days, the parties have the right to terminate the agreement in whole or in part in writing.
In the event referred to in paragraph 2 of this article, the service provider is not obliged to pay compensation for any damage, even if the service provider benefits from any advantage as a result of the force majeure situation.

Article 13 - Settlement

The client waives its right to set off a debt to the service provider against a claim against the service provider.

Article 14 - Suspension

The Client waives the right to suspend compliance with any obligation arising from this agreement.

Article 15 - Transfer of rights

Any party's rights under this Agreement cannot be transferred without the other party's prior written consent. This provision is considered a clause with property law effect as referred to in article 3:83, paragraph 2, of the Civil Code.

Article 16 - Expiration of the claim

Any right to compensation for damage caused by the service provider expires in any case 12 months after the event from which the liability arises directly or indirectly. This does not exclude the provisions of article 6:89 of the Civil Code.

Article 17 - Insurance

The Client undertakes to adequately insure and keep insured goods supplied that are necessary for the execution of the underlying agreement, as well as items from the service provider that are present at the client's premises and goods that are delivered under retention of title against, among other things, fire, explosion and water damage as well as theft.
At first request, the Client will provide the policy for these insurances for inspection.

Article 18 - Liability for damage

The service provider is not liable for damage resulting from this agreement, unless the service provider caused the damage intentionally or with gross negligence.
In the event that the service provider owes compensation to the client, the damage does not exceed the fee.
Any liability for damage resulting from or related to the execution of an agreement is always limited to the amount paid out by the (professional) liability insurance (s) taken out in the relevant case. This amount is increased by the amount of the deductible under the relevant policy.
The limitation of liability also applies if the service provider is held liable for damage that directly or indirectly results from the improper functioning of the equipment, software, databases, registers or other items used by the service provider in carrying out the order.
The service provider's liability for damage resulting from intent or deliberate recklessness on the part of the service provider, his supervisor or subordinates is not excluded.

Article 19 - Client's liability

In the event that an order is issued by more than one person, each of them is jointly and severally liable for the amounts due to the service provider under that order.
If an order is issued directly or immediately by a natural person on behalf of a legal person, this natural person can also be a client privately. This requires that this natural person can be considered as the legal person's (co) policy maker. In the event of default by the legal person, the natural person is therefore personally liable for payment of the invoice, regardless of whether or not it was made in the name of a legal person or in the name of the client as a natural person or both of them.

Article 20 - Indemnification

The client indemnifies the service provider against all third-party claims related to the goods and/or services provided by the service provider.

Article 21 - Duty to complain

The client is obliged to report complaints about the work performed immediately in writing to the service provider. The complaint contains as detailed a description as possible of the shortcoming, so that the service provider is able to respond appropriately.
In any case, a complaint cannot mean that the service provider can be obliged to perform work other than those agreed.

Article 22 - Retention of title, right of suspension and right of retention

The goods and parts delivered to the client remain the property of the service provider until the client has paid the entire agreed price. Until then, the service provider can invoke its retention of title and take back the goods.
If the agreed prepayment amounts are not paid or are not paid on time, the service provider has the right to suspend the work until the agreed part has been paid. There is then a creditor's default. In that case, a late delivery cannot be invoked by the service provider.
The service provider is not authorized to pledge or encumber the items subject to its retention of title in any other way.
If goods have not yet been delivered, but the agreed prepayment or price has not been paid in accordance with the agreement, the service provider has the right of retention. The item will then not be delivered until the client has paid in full and in accordance with the agreement.
In the event of liquidation, insolvency or suspension of payment on the part of the client, the client's obligations are immediately due and payable.

Article 23 - Intellectual Property

Unless the parties have agreed otherwise in writing, the service provider reserves all absolute intellectual rights (including copyright, patent law, trademark law, drawing and model law, etc.) to all designs, drawings, writings, carriers with data or other information, quotes, images, sketches, models, models, etc.
The intellectual absolute rights mentioned may not be copied, shown and/or made available to third parties or used in any other way without written permission from the service provider.
The Client undertakes to maintain the confidentiality of the confidential information provided to him by the service provider. Confidential information in any case includes what this article relates to, as well as company details. The Client undertakes to impose a written obligation of confidentiality for the purposes of this provision on its staff and/or third parties involved in the execution of this agreement.

Article 24 - Confidentiality

Each party keeps the information that it receives (in any form) from the other party and all other information about the other party that it knows or reasonably suspects is secret or confidential, or information that it can expect to cause harm to the other party, secret and takes all necessary measures to ensure that its staff also keeps the said information confidential.
The confidentiality obligation referred to in paragraph 1 of this article does not apply to information:

that was already public or subsequently became public at the time the recipient received this information without a breach by the receiving party of an obligation of confidentiality;
which the receiving party can prove that this information was already in its possession at the time of provision by the other party;
that the receiving party received from a third party where that third party was entitled to provide this information to the receiving party
that is made public by the receiving party on the basis of a legal obligation.

The confidentiality obligation described in this article applies for the duration of this agreement and for a period of three years after its termination.

Article 25 - Penalty for breach of confidentiality

If the client violates the article of these general terms and conditions on confidentiality, the client will owe the service provider an immediately payable penalty of € for each violation and an additional amount of €500 for each day that the violation continues. This is regardless of whether the offence can be attributed to the client. In addition, the forfeiture of this fine does not require prior notice of default or legal proceedings. There also does not have to be any form of damage.
The forfeiture of the penalty referred to in paragraph 1 of this article does not affect the service provider's other rights, including his right to claim compensation in addition to the penalty.

Article 26 - Non-readmission of staff

The Client does not hire employees of the service provider (or companies that the service provider has used to implement this agreement and who are (were) involved in the execution of the agreement). He also does not otherwise let them work for them directly or indirectly. This prohibition applies during the term of the agreement up to one year after its termination. There is one exception to this ban: parties can make other agreements with each other in good business consultation. These agreements apply insofar as they have been laid down in writing.

Article 27 - Applicable law and competent court

Every agreement between the parties is exclusively governed by Dutch law.
The Dutch court in the district where ByThibo is located/has its practices/offices has exclusive jurisdiction to hear any disputes between the parties, unless the law prescribes otherwise.

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