General terms and conditions
AUTOMOTIVENL B.V.
Disclaimer: This text serves only the purpose of a translation of the following terms in dutch: Algemene Voorwaarden | RAI Vereniging
1. Definitions
Some important terms in these terms and conditions are defined as follows:
1.1. Client: the natural or legal person who has commissioned Contractor to perform work.
1.2. Contractor: AutomotiveNL B.V. All Agreements shall, to the exclusion of Articles 7:404, 7:407(2) and 7:409 of the Dutch Civil Code, be concluded with Contractor and shall be performed exclusively by or on behalf of Contractor. All stipulations in these terms and conditions are also made for the benefit of the Director(s) of the Contractor, as well as for all the person(s) who work or have worked for the Contractor. This also applies if it is the Client's explicit or tacit intention that the Work be performed by a specific person or specific persons.
1.3. Work: all work commissioned or performed by the Contractor on another account. The above applies in the broadest sense of the word and in any event comprises the activities as specified in the engagement letter.
1.4. Documents: all information or data made available by the Principal to the Contractor, all information or data produced or collected by the Contractor in the context of the performance of the Agreement and all other information of any relevance to the performance or completion of the Agreement, whether or not contained on tangible or intangible data carriers, including but not limited to paper, CD-ROMs, hard disks, email and digital environments, whether or not held by third parties.
1.5. Agreement: any agreement between the Principal and the Contractor for the performance of Work by or on behalf of the Contractor for the Principal.
1.6. Data breach: a breach of security at Provider that leads to the accidental or unlawful destruction, loss, modification or unauthorized disclosure of or access to transmitted, stored or otherwise processed data (Article 4 General Data Protection Regulation).
2. Applicability
2.1. These General Terms and Conditions apply to: all offers, quotations, contracts, legal relationships and agreements, by whatever name, whereby the Contractor undertakes/will undertake to perform Work for the Client, as well as to all Work arising therefrom for the Contractor.
2.2. Deviations from and additions to these General Terms and Conditions will only be valid if they have been explicitly agreed upon in writing or have been confirmed by the Client in any way.
2.3. In the event that these general terms and conditions and the order confirmation contain conflicting conditions, the conditions included in the order confirmation shall apply.
2.4. These General Terms and Conditions also apply to agreements between the Client and any third party engaged by the Contracted Party for the performance of an Assignment with the approval of the Client.
2.5. The applicability of the Client's general terms and conditions is explicitly rejected by the Contractor.
2.6. The underlying Agreement reflects - together with these general terms and conditions - the full agreements between the Client and the Contractor regarding the Work for which the Agreement was concluded. All earlier agreements or proposals made between the Parties in this regard will lapse.
2.7. These general terms and conditions will also apply to any additional or follow-up activities ensuing from the underlying Agreement.
3. Commencement and duration of the Agreement
3.1 The Agreement between the Contracted Party and the Client will be concluded at such time as the Client accepts the Contracted Party's offer to perform the Work, either verbally or in writing and without amendment. The Contractor's offer is based on the information and/or Documents provided by the Contractor to the Contractor at the time. The Contractor's offer will be deemed to be an accurate and complete representation of the Agreement.
3.2 The parties will be free to prove the formation of the Agreement by other means.
3.3 Each Agreement will be entered into for a fixed period unless it follows from the nature, content or scope of the assignment that it has been entered into for a fixed period.
4. Data of Client
4.1 The Principal will be obliged to make all Documents that the Contractor believes it needs for the proper performance of the Agreement available to the Contractor in good time, in the desired form and in the desired manner. The Contractor will determine what is to be understood by timely provision, the desired form and the desired manner.
4.2 The Contractor is entitled to suspend the performance of the Agreement until the Principal has complied with the obligation mentioned in the previous paragraph.
4.3 If Documents are made up electronically from (and on the instructions of) the Principal by the Contracted Party to third parties, the Principal will be regarded as the party that signs and sends the relevant Documents.
4.4 The Principal will be obliged to inform the Contracted Party immediately of any facts and circumstances that may be relevant in connection with the performance of the Agreement.
4.5 The Principal guarantees the accuracy, completeness and reliability of the information and Documents made available to the Contractor by or after it, even if they originate from third parties.
4.6 Any additional costs, damage and/or additional fees arising from a delay in the performance of the Agreement as a result of the required information and/or Documents not being made available or not being made available in time or properly will be payable by the Contractor.
5. Execution of the Agreement
5.1 The Contractor will determine the manner in which and by which person or persons the Agreement will be performed. Where possible, the Contractor will take account of timely and responsible instructions issued by the Client regarding the performance of the Agreement.
5.2 The Contractor will perform the Work to the best of its ability. However, the Contractor cannot guarantee the achievement of any intended result.
5.3 The Contractor will have the right to have certain Work performed by a person or third party designated by the Contractor, without notification to and the explicit permission of the Client, if the Contractor believes that this is desirable.
5.4 If during the term of the Agreement Work is performed for the Principal's profession or company that is not covered by the Work to which the Agreement relates, this Work will be deemed to have been performed under separate Agreements.
5.5 Any deadlines stipulated in the Agreement within which the Work must be performed will only apply in the event of disadvantages and not as deadlines. If such a deadline is exceeded, this will not constitute an attributable breach on the part of the Contractor and consequently will not constitute a ground for terminating the Agreement. Deadlines by which the Work must be completed will only be regarded as strict deadlines if this has been explicitly agreed in so many words between the Principal and the Contractor.
5.6 The communication between the Principal and the Contracted Party as well as the sending in the context of the performance of the Agreement will be effected by electronic mail, including e-mail, unless the parties have agreed otherwise.
6. Intellectual property
6.1 The Contractor reserves all rights relating to products of the mind which the Contractor uses or has used in the context of the performance of the Agreement with the Client, in so far as any legal rights to these products may exist or be established.
6.2 The Client is expressly forbidden to provide, duplicate, disclose or exploit those products, including but not limited to computer programs, system designs, working methods, advice and other intellectual products, all in the broadest sense of the word, with or without the involvement of third parties.
6.3 The Principal will not be permitted to provide (auxiliary materials from) those products to third parties other than to obtain an expert opinion about the Contractor's Work. In that case, the Client will impose its obligations under this article on the third parties that it engages.
7. Force majeure
7.1 If the Contractor is unable to perform its obligations under the Agreement or is unable to perform them properly or in good time as a result of a cause not attributable to it, including but not limited to employee sickness, breakdowns in the computer network and other stagnation in the normal course of business those obligations will be suspended until the moment that the Contractor is still able to perform them in the agreed manner.
7.2 In the event that the situation referred to in paragraph 1 arises, the Client will have the right to terminate all or part of the Agreement in writing with immediate effect, without being entitled to any compensation.
7.3 If the Contractor has already partially performed the Work when the situation of force majeure arises, the Contractor will be entitled to invoice the Work already performed separately and in the interim and the Client will be obliged to pay this invoice as if it were a separate transaction.
8. Fee
8.1 The Contractor will be entitled to suspend the performance of its Work before the start of the Work and in the interim until the Principal has paid an advance for the Work to be performed, to be reasonably determined by the Contractor, or has provided security for that advance. Any advance payment made by the Client shall in principle be set off against the final invoice.
8.2 The Contractor's fee will not depend on the outcome of the Work performed.
8.3 The Contractor's fee may consist of a predetermined amount per Agreement and will be payable as and when the Contractor performs Work for the Principal. In addition to the fee, the Principal will be charged any expenses incurred by the Contractor and invoices from third parties engaged by the Contractor. All fees will be exclusive of turnover tax and other government levies.
8.4 If a rate per Agreement has been agreed, the Contractor will also be entitled to charge a rate per unit of time worked, if and insofar as the Work exceeds the Work provided for in the Agreement, which rate will then also be payable by the Principal.
8.5 If wages and/or prices change after the Agreement has been concluded but before the Assignment has been completed, the Contractor will be entitled to adjust the agreed rate accordingly, unless the Principal and the Contractor have made other agreements in this regard.
8.6 The Contractor's fee, if necessary plus disbursements and invoices from third parties called in, including any turnover tax due, will be charged to the Principal on a monthly, quarterly or annual basis or after completion of the Work.
9. Payment
9.1 Payment of the invoice amount by Contractor must be made within 14 days of the invoice date, in euros, by means of deposit into a bank account designated by Contractor and, to the extent that the payment relates to work, without any right to discount or set-off.
9.2 If the Principal fails to pay within the period specified in paragraph 1 or within the further agreed period, it will be in default by operation of law and the Contractor will be entitled, without any further demand or notice of default being required, to charge the Principal statutory (commercial) interest on the invoiced amount from the due date until the date of full payment, without prejudice to the Contractor's other rights.
9.3 All costs incurred as a result of judicial or extrajudicial collection of the debt will be borne by the Principal, even if these costs exceed the court order for costs. The extra-judicial costs shall be set at a minimum of 15% of the amount to be claimed, with a minimum of € 250 (in words: two hundred and fifty euros), unless another statutory provision applies.
9.4 If the Contractor is of the opinion that the Principal's financial position or payment record gives cause to do so, the Contractor will be entitled to require the Principal to provide (additional) security in a form to be determined by the Contractor. If the Principal fails to furnish the required security, the Contractor will be entitled, without prejudice to its other rights, to suspend the further performance of the Agreement with immediate effect and anything owed by the Principal to the Contractor on any account whatsoever will be immediately payable.
9.5 In the event of a jointly issued assignment, to the extent that the Work was performed for the joint Clients, the Clients will be jointly and severally liable for the payment of the invoice amount, the interest and costs due.
9.6 To the extent possible, the Client will make electronic invoicing possible at the Contractor's request.
10. Complaints
10.1. Complaints relating to the work performed and/or the related invoiced amount must be made known to Contractor in writing within 30 days of the date of dispatch of the documents or information about which the Client is complaining, or within 30 days of the discovery of the defect, if the Client proves that it could not reasonably have discovered the defect earlier.
10.2 Complaints as referred to in the first paragraph will not suspend the Principal's payment obligation, except in so far as the Contractor has indicated that it considers the complaint to be justified.
10.3 In the event that a complaint is justified, the Contractor will have the choice between adjusting the fee charged, correcting the rejected Work or performing it again free of charge or not performing all or part of the Work (or no longer performing it) in exchange for a proportionate refund of the fee already paid by the Principal.
10.4 If a complaint is not filed in a timely manner, all rights of the Client in connection with the complaint will lapse.
11. Liability and indemnity
11.1 The Contractor will be liable to the Principal only for damage that is the direct result of a (related series of) attributable shortcoming(s) in the performance of the Agreement. This liability is limited to the amount paid out by the Contractor's liability insurer for the case in question. If, for whatever reason, the liability insurer does not pay out, the Contractor's liability will be limited to the amount of the fee charged for the performance of the Agreement. If the Agreement is a continuing performance agreement with a term of more than one year, the amount referred to above will be set at three times the amount of the fee charged to the Principal in the twelve months preceding the occurrence of the damage. In no event shall the total compensation for damages under this article exceed € 25,000 (in words: twenty-five thousand euros) per event, whereby a series of related events shall be deemed to be a single event, unless - in view of the scope of the order or the risks associated with the order - the parties see reason to deviate from this maximum when entering into the Agreement.
11.2 Any (personal) liability pursuant to Article 6:162 of the Dutch Civil Code of the director(s) and all the person(s) who work or have worked for the Contractor for damage caused during or by the performance of the Agreement will be excluded in its entirety, with the exception of liability due to intent or wilful recklessness. In so far as this exemption clause is ineffective for whatever reason, the persons referred to in the preceding sentence may in any case invoke vis-à-vis the Employer all exclusions and/or limitations of liability that the Contractor can invoke vis-à-vis the Employer.
11.3 The Contractor will not be liable for:
- losses incurred by the Client or third parties that are the result of the provision of incorrect or incomplete information or specifications by the Client to the Contractor, or losses that are otherwise the result of an act or omission by the Contractor;
- losses incurred by the Client or third parties that are the result of an act or omission by auxiliary persons engaged by the Contractor (not including employees of the Contractor), even if they are employed by an organization affiliated with the Contractor;
- business, indirect or consequential damage suffered by the Client or third parties, including but not limited to stagnation in the regular course of business in the Client's company.
11.4 Contractor will at all times be entitled, if and insofar as possible, to remedy or limit Principal's damage by repairing or improving the defective product and/or work.
11.5 The Contractor will not be liable for damage to or loss of Documents during transport or dispatch by post, regardless of whether the transport or dispatch is carried out by or on behalf of the Principal, the Contractor or third parties.
11.6 During the performance of the Agreement, the Client and the Contracted Party may communicate with each other by electronic means at the Client's request. The Principal and the Contractor will not be liable to each other for any damage suffered by one or both of them as a result of the use of electronic means of communication, including - but not limited to - damage resulting from the non-delivery or delayed delivery of electronic communications by third parties or by software/equipment used for transmission, reception or processing of electronic communications, the transmission of viruses and the non-functioning or improper functioning of the telecommunications network or other means required for electronic communications, except insofar as damage is the result of wilful intent or gross negligence.
11.7 The Client indemnifies the Contractor against all claims by third parties, including shareholders, directors, supervisory directors and employees of the Contractor, as well as affiliated legal entities and companies and others involved in the Client's organization, which are directly or indirectly related to the performance of the Agreement. In particular, the Principal shall indemnify the Contractor against third-party claims for damage caused by the fact that the Principal provided the Contractor with incorrect or incomplete information, data or Documents, unless the Principal is able to prove that the damage is not related to culpable acts or omissions on its part, or was caused by intent or gross negligence on the part of the Contractor.
11.8 The Principal shall indemnify the Contractor against all possible claims by third parties in the event that the Contractor is compelled by law to surrender the Assignment and/or is compelled to cooperate with government agencies that are entitled to receive solicited or unsolicited information which the Contractor has received from the Principal or third parties in the performance of the Assignment.
11.9 The provisions of this article apply to both the Contractor's contractual and non-contractual liability towards the Client.
12. Termination
12.1 The Client and the Contractor may terminate the Agreement at any time with immediate effect by giving notice. In the event that the Agreement ends before the Work has been completed, the provisions of Article 12, third paragraph will apply. In that case the Contractor will be entitled to the fee for the Work performed up to that date, as well as to compensation for the resulting and plausible loss of capacity utilization, compensation for additional costs already incurred by the Contractor and costs arising from any cancellation of third parties already engaged.
12.2 Notice of cancellation must be given to the other party in writing.
12.3 If and to the extent that the Contractor terminates the Agreement by giving notice, it will be obliged to inform the Client of the reasons for the termination and to do whatever the circumstances require in the interest of the Client.
13. Right to suspend performance
The Contracted Party will be entitled to suspend the fulfilment of all its obligations, including the surrender of Documents or other items to the Client or third parties, until such time as all due and payable claims against the Client have been settled in full.
14. Final provisions
14.1 If any provision of these general terms and conditions or of the underlying Agreement should be wholly or partly void and/or invalid and/or unenforceable as a result of any statutory regulation, judicial decision or otherwise, this will have no effect whatsoever on the validity of all the other provisions of these general terms and conditions or of the underlying Agreement.
14.2 If a provision of these General Terms and Conditions or the underlying Assignment/Agreement should not be valid for a reason referred to in the preceding paragraph, but would be valid if it had a more limited scope or purport, then this provision will - in the first instance - automatically apply with the most far-reaching or extensive more limited scope or purport with which or within which it is valid.
14.3 Without prejudice to the provisions of paragraph 2, the parties may consult to agree on new provisions to replace the void or voided provisions. The purpose and purport of the null and void provisions shall be approximated as closely as possible.
14.4 All Agreements shall be governed by Dutch law.
14.5 All disputes relating to Agreements between the Client and the Contractor to which these conditions apply will be settled by the competent court of the district court in which the Contractor is domiciled, unless the disputes do not relate to the Client's business or profession.
14.6 Notwithstanding the provisions of paragraph 5, the Client and the Contractor may opt for a different method of dispute resolution.
14.7 All rights and obligations arising from the Agreement which by their purport are intended to continue in force after termination of the Agreement will continue to apply in full between the Contracted Party and the Client after such termination.
