TERMS AND CONDITIONS
Article 1 – Definitions
- The private company with limited liability SYYNC B.V., statutory located at Ottersum, with offices in 6534 AB Nijmegen at the address Jonkerbosplein 52, Chamber of Commerce number 85553816, is referred to in these general terms and conditions as ‘service provider’.
- The other party of the service provider is referred to in these general terms and conditions as the ‘client’.
- ‘Parties’ are service provider and client together.
- By ‘the agreement’ is meant the agreement for services between the parties.
- By ‘products’ is meant all goods and matters as referred to in Articles 3:1 and 3:2 of the Dutch Civil Code.
Article 2 – Applicability of general terms and conditions
- These terms and conditions apply to all quotations, offers, activities, agreements and deliveries of services or goods/products by or on behalf of the service provider.
- Deviation from these terms and conditions is only possible if this has been expressly agreed in writing by the parties.
- The parties expressly exclude the applicability of additional and/or deviating general terms and conditions of the client or of third parties.
- The agreement always contains best efforts obligations for the service provider, not obligations of result.
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 a different payment term is stated on the invoice.
- Payments are made without any appeal to suspension or settlement by transfer of the amount due to the bank account number specified by the service provider.
- If the client does not pay an invoice within the agreed term, he will be in default by operation of law, without any reminder being required. From that moment on, the service provider is entitled to suspend the obligations until the client has fulfilled its payment obligations.
- In the event of default, the service provider will proceed to collection. The costs related to such collection shall be fully borne by the client. If the client is in default, in addition to the principal sum, he also owes interest of 8% per month for commercial transactions and the statutory interest for private parties, as well as the statutory extrajudicial collection costs and other damage, such as the full legal costs including full lawyer’s costs of the service provider in the event of a legal proceedings, to service provider.
- In the event of liquidation, bankruptcy, attachment or suspension of payment of the client, the claims of the service provider against the client are immediately due and payable.
- If the client refuses to cooperate with the execution of the assignment by the service provider, he is still obliged to pay the agreed price to the service provider.
Article 4 – Offers and quotations
- The offers of the service provider are valid for a maximum of 1 month, unless a different term of acceptance is stated in the offer. If the offer is not accepted within that term, the offer will lapse.
- Delivery times in quotations are indicative and if they are exceeded, they do not entitle the client to dissolution or compensation, unless the parties have expressly agreed otherwise in writing.
- Offers and quotations do not automatically apply to repeat orders. The parties must agree to this expressly and in writing.
Article 5 – Prices
- The prices stated on offers, quotations and invoices from the service provider are exclusive of VAT and any other costs such as administration costs, levies and travel, shipping or transport costs, unless explicitly stated otherwise or otherwise agreed.
- All prices that the service provider uses for its products or services, on its website or that are otherwise made known, can be changed by the service provider at any time.
- Increases in the cost prices of products or parts thereof, which the service provider could not foresee 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 the agreement is concluded.
- 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 according to the usual hourly rates of the service provider, applicable 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, whereby the service provider is entitled to deviate from this by up to 10%, higher or lower.
Article 6 – Price indexation
- The prices and hourly wages agreed upon upon entering into the agreement are based on the price level applied 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 relevant to the execution of the assignment available to the service provider.
- The Client is obliged to make available all data and documents that the service provider believes it needs for the correct execution of the assignment, in a timely manner and in the desired form and manner.
- The Client guarantees the correctness, completeness and reliability of the data and documents made available to the service provider, even if they originate from third parties, insofar as the nature of the assignment does not dictate otherwise.
- The client indemnifies the service provider against any damage in whatever form resulting from failure to comply with the provisions of the first paragraph of this article.
- If and insofar as the client requests this, the service provider will return the relevant documents.
- If the client does not make the data and documents required by the service provider available, not timely or properly, and the execution of the assignment is delayed as a result, the resulting additional costs and additional fees will be borne by the client.
Article 8 – Withdrawal of assignment
- The client is free to terminate the assignment to the service provider at any time with due observance of a notice period of 2 months.
- When the client withdraws the order, the client is obliged to pay the wages owed and the expenses incurred by the service provider.
- The service provider has the right to dissolve the agreement with the client if the client does not fully or not timely fulfill its obligations under the agreement, or if the service provider has become aware of circumstances that give it good grounds to fear that the client will not be able to properly fulfill its obligations.
Article 9 – Performance of the agreement
- The service provider performs the agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship.
- Service provider has the right to have work performed by third parties.
- The execution takes place in mutual consultation and after written agreement and payment of any agreed advance.
- It is the responsibility of the client that the service provider can start the assignment on time. If the client has not ensured that the service provider cannot start the execution of the agreement in time, the resulting additional costs and/or extra hours will be borne by the client.
Article 10 – Contract duration for the assignment
- The agreement between the client and the service provider is entered into for an indefinite period of time, unless the nature of the agreement dictates otherwise or the parties have expressly agreed otherwise in writing.
- If the parties have agreed on a term for the completion of certain work within the term of the agreement, this is never a strict deadline. If this term is exceeded, the client must give the service provider written notice of default.
Article 11 – Amendment of 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 adjust the agreement accordingly in a timely manner and in mutual consultation and with mutual consent.
- If the parties agree that the agreement will be amended or supplemented, the time of completion of the execution may be affected as a result. The service provider will inform the client of this as soon as possible.
- If the amendment or addition to the agreement has financial and/or qualitative consequences, the service provider will inform the client of 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 amendment or supplement to the agreement will result in this fee being exceeded.
Article 12 – Force of the majority
- In addition to the provisions of Article 6:75 of the Dutch Civil Code, a failure by the service provider in the fulfillment of any obligation towards the client cannot be attributed to the service provider in the event of a circumstance independent of the will of the service provider, as a result of which the fulfillment of its obligations towards the client is wholly or partially prevented or as a result of which the fulfillment of its obligations cannot reasonably be expected of the service provider. These circumstances also include non-performance by suppliers or other third parties, power failures, (computer) viruses, strikes, bad weather conditions and work interruptions.
- If a situation as referred to above arises as a result of which the service provider cannot fulfill its obligations towards the client, those obligations will be suspended as long as the service provider cannot meet its obligations. If the situation referred to in the previous sentence has lasted 30 calendar days, the service provider has the right to dissolve the agreement in writing in whole or in part.
- In the case as referred to in the second paragraph of this article, the service provider is not obliged to pay compensation for any damage, even if the service provider enjoys any advantage as a result of the force majeure situation.
Article 13 – Settlement and suspension
The Client waives its right to set off a debt owed to the service provider against a claim against the service provider. The Client waives the right to suspend the fulfillment of any obligation arising from this agreement.
Article 14 – Retention
If the client does not accept ordered products until later than the agreed delivery date, the risk of any loss of quality is entirely at the expense of the client. Any additional costs as a result of early or late purchase of products are entirely at the expense of the client.
Article 15 – Transfer of rights
Any party’s rights under this Agreement may not be transferred without the other party’s prior written consent. This provision applies as a stipulation with property law effect as referred to in Section 3:83(2) of the Dutch Civil Code.
Article 16 – Forfeiture 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 directly or indirectly arises. This does not exclude the provisions of Article 6:89 of the Dutch Civil Code.
Article 17 – Warranty
The parties have entered into an agreement with a service-providing nature, which only contains a best efforts obligation for the service provider and therefore no obligation to achieve a result.
Article 18 – Insurance
- The client undertakes to adequately insure and keep insured goods delivered that are necessary for the execution of the underlying agreement, as well as goods from a service provider present at the client’s premises and to keep them insured against, among other things, fire, explosion and water damage as well as theft.
- The client makes the policy of these insurances available for inspection on first request.
Article 19 – Liability for damage
- The service provider is not liable for damage arising from this agreement, unless the service provider has caused the damage intentionally or with gross negligence. The service provider is never liable for indirect damage, such as consequential damage, lost profit, missed savings or damage to third parties.
- In the event that the service provider owes compensation to the client, the damage will not exceed the fee.
- Any liability for damage arising from or in connection with the execution of an agreement is always limited to the amount that is paid out in the relevant case by the (professional) liability insurance(s) taken out. This amount is increased by the amount of the deductible according to the relevant policy.
- The limitation of liability also applies if the service provider is held liable for damage resulting directly or indirectly from the improper functioning of the equipment, software, data files, registers or other items used by the service provider in the performance of the assignment.
Article 20 – Liability of the client
- In the event that an assignment is given by more than one person, each of them is jointly and severally liable for the amounts owed to the service provider under that assignment.
- If an assignment is given directly or indirectly by a natural person on behalf of a legal person, this natural person can also be a private client. This requires that this natural person can be regarded as the (co-)policymaker of the legal person. In the event of non-payment by the legal person, the natural person is therefore personally liable for the payment of the invoice, irrespective of whether it has been made, whether or not at the request of the client, in the name of a legal person or in the name of the client as a natural person or both of them.
Article 21 – Indemnification
The client indemnifies the service provider against all claims from third parties that are related to the goods and/or services delivered by the service provider.
Article 22 – Complaint obligation
- The Client must examine a product or service provided by the service provider for any shortcomings within 2 days after the service or product has been delivered. The client is obliged to report complaints about the work performed to the service provider in writing within 2 days after this complaint has arisen. The complaint contains as detailed a description as possible of the shortcoming, so that the service provider is able to respond adequately.
- A complaint can in any case not lead to the service provider being obliged to perform other work than has been agreed.
- Client must prove that the complaint relates to the agreement.
- If a complaint relates to ongoing work, this can in any case not lead to the service provider being obliged to perform other work than the parties have agreed.
Article 23 – Retention of title, right of suspension and right of retention
- The goods present at the client and the goods and parts delivered remain the property of the service provider until the client has paid the entire agreed price. Until that time, the service provider can invoke its retention of title and take back the goods.
- If the agreed amounts to be paid in advance 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. Then there is creditor default. In that case, a late delivery cannot be invoked against the service provider.
- The service provider is not authorized to pledge or in any other way encumber the items falling under its retention of title.
- If goods have not yet been delivered, but the agreed advance payment or price has not been paid in accordance with the agreement, the service provider has the right of retention. In that case, the item will 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 of the client, the client’s obligations are immediately due and payable.
Article 24 – Intellectual property
- Unless the parties have agreed otherwise in writing, the service provider retains all intellectual absolute rights (including copyright, patent law, trademark law, drawing and model law, etc.) on all designs, drawings, writings, carriers with data or other information, offers, images, sketches, models, scale models, etc.
- The said intellectual absolute rights may not be copied, shown to third parties and/or made available or used in any other way without written permission from the service provider.
- The Client undertakes to maintain the confidentiality of the confidential information made available to it by the service provider. Confidential information is in any case understood to mean that to which this article relates, as well as company data. The Client undertakes to impose a written confidentiality obligation on its personnel and/or third parties who are involved in the implementation of this agreement.
Article 25 – Confidentiality
- Each of the parties shall keep the information it receives (in whatever form) from the other party and all other information concerning the other party that it knows or can reasonably suspect to be secret or confidential, or information of which it can expect that its dissemination could cause harm to the other party, secretly and takes all necessary measures to ensure that its personnel also keep the said information confidential.
- The duty of confidentiality referred to in the first paragraph of this article does not apply to information:
- which was already publicly available at the time the recipient received this information or has subsequently become public without a breach by the receiving party of its duty of confidentiality;
- of which the receiving party can prove that this information was already in its possession at the time of disclosure by the other party;
- which the receiving party has received from a third party whereby this third party was entitled to provide this information to the receiving party
- disclosed by the receiving party pursuant to 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 26 – Fine for breach of confidentiality obligation
- If the client violates the article of these general terms and conditions regarding confidentiality, the client will forfeit to the service provider an immediately due and payable fine of € 5,000.00 for each violation and an additional amount of € 1,000.00 for each day that that violation continues. This is regardless of whether the violation can be attributed to the client. In addition, no prior notice of default or legal proceedings are required for the forfeiture of this fine. There is also no need for any kind of damage.
- Forfeiture of the fine referred to in the first paragraph of this article does not affect the other rights of the service provider, including its right to claim compensation in addition to the fine.
Article 27 – Non-takeover of personnel
The Client will not employ any employees of the service provider (or of companies that the service provider has called upon for the execution of this agreement and who are or have been involved in the execution of the agreement). He also does not allow them to work directly or indirectly for him in any other way. This prohibition applies during the term of the agreement until one year after its termination. There is one exception to this prohibition: parties can make other arrangements in good business consultation. These agreements apply insofar as they are laid down in writing.
Article 28 – Amendment of general terms and conditions
- The service provider is entitled to change or supplement these general terms and conditions.
- Minor changes can be made at any time.
- Major substantive changes will be discussed with the client in advance by the service provider as much as possible.
Article 29 – Consequences of nullity or voidability
- If one or more provisions of these general terms and conditions prove to be invalid or voidable, this will not affect the other provisions of these terms and conditions.
- In that case, a provision that is void or annullable will be replaced by a provision that comes closest to what the service provider had in mind when drafting the conditions on that point.
Article 29 – Applicable law and competent court
- Only Dutch law applies to every agreement between the parties.
- The Dutch court in the district where the service provider is established/practice/has its office has exclusive jurisdiction to hear any disputes between the parties, unless the law prescribes otherwise.