GENERAL TERMS AND CONDITIONS
of the private company with limited liability Affix Engineering B.V.
01 January 2018
Contract for Professional Services
1. Wherever the term ‘Assignment’ is used below, reference is made to the
definition in article 7:400 paragraph 1 of the Dutch Civil Code.
2. An Assignment will be deemed to be concluded between the client (hereinafter
the “Client” and/or “Clients”), including the (indirect) shareholder(s) of the Client
on the one side, and the private company with limited liability Affix Engineering
B.V. (hereinafter “Affix Engineering”) as the contractor on the other side. This
will also apply if it is the Client's explicit or tacit intention to have the Assignment
carried out by a specific person. Articles 7:404 and 7:407 paragraph 2 of the Dutch
Civil Code will not be applicable. Affix Engineering and Client will hereinafter
also be referred to as “Parties”.
3. These general terms and conditions will form part of all proposals, agreements
or Assignments involving the provision of services by Affix Engineering:
Consulting, Programming (developing, creating and testing of software), Sales
(appliances, products and hardware, excluding self creating products and
adjustments), Commissioning and third party Experts (Recruitment) or any other
service that Affix Engineering will offer, and of all ensuing and/or related
proposals, agreements or Assignments between the Client and Affix Engineering
or their legal successors, as well as of all offers and/or quotations made or given
by Affix Engineering.
4. Any stipulations deviating from these general terms and conditions shall only
have effect if and insofar as Affix Engineering explicitly confirms these in writing
to the Client.
5. Should any stipulation forming part of these general terms and conditions or of
the agreement between Parties be, or become null, and void, the agreement will
otherwise remain in full force and the Parties will liaise in order to agree on the
immediate replacement of the said stipulation by a stipulation as close as possible
to the purport of the original stipulation.
6. General terms and conditions of the Client (if any) are explicitly declared
7. In case the Client changes its name, merges with another (legal) entity, sells or
otherwise transfers its business to another person or (legal) entity or in some other
way a legal successor of the addressee (“successor” in Dutch:“rechtsopvolger”)
comes into existence, then Affix Engineering and this legal successor may also
appeal to all rights and liabilities under the Assignment against that successor. The
coming into existence of a legal successor will not affect the right of Affix
Engineering to appeal to all rights under the Assignment against the Client.
8. Affix Engineering will be liable vis-à-vis the Client in the event of failure to
execute the Assignment, insofar as this failure consists of failure to provide the
care and expertise that may be expected in the performance of the Assignment,
subject to the provisions in clause 9.
9. Affix Engineering will not be liable for any losses suffered by the Client or
third parties that result from the provision of incorrect or incomplete data or
information by, or on behalf of, the Client to Affix Engineering, or losses that are
otherwise the result of acts or omissions by, or on behalf of, the Client, or losses
suffered by the Client or third parties as a result of acts of or omissions by
auxiliary staff engaged by Affix Engineering (not including employees of Affix
Engineering B.V.), even if these staff are employed by an organization affiliated to
Affix Engineering, or for trading losses, indirect losses or consequential damage,
replacing parts, losses in production in any situation, suffered by the Client or
10. Affix Engineering exclusions from liability set out in clause 9 will not apply
insofar as the damage or losses are the result of Affix Engineering’s willful
misconduct or gross negligence.
11. Any liability will be limited to the amount paid out in the relevant case under
the professional liability insurance taken out by Affix Engineering.
12. A claim for compensation of damage or loss must be submitted to Affix
Engineering within three months of the Client discovering the damage, failing
which any rights to compensation will lapse.
13. Machine or tooling performance and quality is subject to Client. Affix
Engineering preserves the right to not warrant the costs of replacement or the costs
of labor including the diagnosis and rectification of equipment. Affix Engineering
will be entitled to charge for site attendance, diagnostic labor and incidental
14. The Client is obliged to indemnify Affix Engineering against, and compensate
Affix Engineering, in the event of any claims by third parties (including
shareholders, directors, supervisory directors and persons in the service of the
Client, as well as affiliated legal persons and companies and others involved in the
Client's organization) arising from or related to the activities of Affix Engineering
for the Client, except insofar as these claims are the result of Affix Engineering’s
willful misconduct or gross negligence.
15. The Assignment will be executed exclusively for the Client. Third parties will
not be permitted to derive any rights from the contents of the activities performed
by Affix Engineering under the agreement concluded between Parties.
Obligations of the Client
16. In order to ensure that the Assignment is properly executed, the Client will
provide Affix Engineering with all data and information required by Affix
Engineering in the form and manner specified by Affix Engineering. If the Client
fails to comply with this obligation, Affix Engineering will not be obliged to
continue the performance of the Assignment. Any additional costs incurred as a
result of the Client's failure to provide the required data or information fully,
timely or properly, will be borne by the Client.
17. The Client is obliged to inform Affix Engineering immediately of any facts or
circumstances that may be of importance in connection with the performance of
the Assignment by Affix Engineering.
18. The Client will vouch for the accuracy, completeness and integrity of the data
and information provided by or on behalf of the Client to Affix Engineering.
19. The Client will provide all information required by Affix Engineering, and in
particular the information referred to in the Act on the Prevention of Money
Laundering and Financing of Terrorism (In Dutch: Wet ter voorkoming van
witwassen en financiering van terrorisme or “WWFT”), which is necessary in
order to determine e.g. the Client's identity. The Client may be required to provide
updated information from time to time.
20. If the Client informs a third party of the contents of the activities carried out by
Affix Engineering for the Client, the Client should advise the third party that these
general terms and conditions will apply and ensure that they are accepted by such
21. The Client will indemnify Affix Engineering against any claims by third
parties, who put forward that they have suffered losses as a result of, or in
connection with, activities performed by Affix Engineering for the Client.
22. Invoices issued by Affix Engineering will be paid within 30 days of the
invoice date, without deduction, suspension or set-off, in the currency of the
Netherlands to the bank account of Affix Engineering as stated in the invoice of
Affix Engineering, failing which the Client will be deemed to be in default and
Affix Engineering will then be entitled to dissolve or terminate the agreement
between Parties, without prejudice to any other rights. All judicial or extra-judicial
costs related to the collection of invoice payments will be borne by the Client
and/or its direct or indirect shareholder(s), with a minimum of € 40 and a
maximum of € 6.775 over the amount invoiced. The court costs will not be limited
to the costs of the proceedings, but will be entirely for the Client's account if the
Client is found to be entirely or largely at fault.
23. In case the payment of the invoice(s) of Affix Engineering is overdue, Affix
Engineering reserves the right to charge commercial overdraft rates (12% per
annum calculated per day) for all invoices not paid in full by the due date. Affix
Engineering has the right to hand over the debt collection of the invoice if it is not
paid in time to a third party. Furthermore, Client will reimburse the fees of third
parties and the expenses made by Affix Engineering on behalf and/or for the
benefit of the Client such as, but not limited to, notarial fees, court fees, courier
costs, expenses made by Affix Engineering in relation to travel by car or train,
within 14 days after the date these fees or expenses have been invoiced to the
24. Affix Engineering may (even during performance of an Assignment) require
full or partial payment in advance and/or the provision of security, failing which
Affix Engineering will be entitled to suspend performance of its obligations.
25. In case a joint Assignment has been provided by the Client, all Clients are
jointly and severally liable for the payment of the invoiced amount, accrued
interest thereupon and any costs related thereto.
26. The Client and Affix Engineering can terminate the agreement at any time by
written notice, with due observance of a reasonable notice period. In case the
Client has terminated the agreement prematurely, then Affix Engineering is
entitled to compensation of any losses and costs of any kind that she reasonably
has or had to make in view of the premature termination of the agreement. In all
cases of termination of the agreement, Affix Engineering preserves the right to
claim payment of declarations, costs and invoices from the Client for services
rendered up to the moment of termination with a minimum of 10% to the total
amount of the agreement.
Performance of the Assignment
27. Affix Engineering will determine the manner in which and by which person or
persons the Assignment will be performed, but will take into account, wherever
possible, the wishes made known by the Client.
28. Periods within which activities are scheduled to be completed will only be
regarded as deadlines if such is agreed in writing. An agreement between Parties
may not be dissolved by the Client on the mere ground that a period for
completion has been exceeded, unless Affix Engineering fails to complete the
Assignment to which the agreement sees within a reasonable time, or if it is
established that Affix Engineering can never complete the Assignment to which
the agreement sees. In such case, termination of the agreement only sees to that
part of the agreement that Affix Engineering cannot complete, or cannot complete
within a reasonable time.
Engagement of Third Parties
29. The choice of a third party to be engaged by Affix Engineering will, wherever
possible and considered reasonable, be made in consultation with the Client and
with due care. Affix Engineering will not be liable for any failure by such third
party, unless this is the result of Affix Engineering’s willful misconduct or gross
30. In case such third party wishes to limit its liability in connection with the
performance of an Assignment for the Client, Affix Engineering will assume and
can confirm that all Affix Engineering’s Assignments can be limited in this way.
Intellectual Property Rights
31. All intellectual properties that Affix Engineering develops or uses in
performance of the Assignment, including advice, procedures, models or other
contracts, systems, system designs and computer programs, will accrue to Affix
Engineering, insofar as they have not already been accrued to third parties.
32. Except with Affix Engineering's prior written consent, the Client will not be
allowed, whether on its own or by engaging third parties, to use, reproduce,
publish or exploit the said intellectual properties or recordings thereof on data
carriers. The foregoing does not affect the provisions of clause 35.
33. Affix Engineering undertakes to keep confidential vis-à-vis third parties who
are not involved in the execution of the Assignment, the data and information
provided by or on behalf of the Client. This obligation will not apply insofar as
disclosure by Affix Engineering is required on legal or professional grounds or the
Client has discharged Affix Engineering from the duty of confidentiality. Affix
Engineering will in any event disclose information, if required to do so under the
34. Affix Engineering will be entitled, if it acts for itself in disciplinary, civil or
criminal proceedings, to use the data and information provided by or on behalf of
the Client, as well as any other data and information of which Affix Engineering
has become aware during the performance of the Assignment, insofar as such data
and information may be of importance in Affix Engineering's reasonable opinion.
35. Except with Affix Engineering's prior written consent, the Client will not be
permitted to disclose or otherwise make available to third parties the contents of
advice, opinions or other information provided by Affix Engineering, whether
written or otherwise, except to the extent that such arises directly from the
agreement, is done in order to obtain an expert opinion on the relevant activities of
Affix Engineering, the Client is obliged for legal or professional reasons to
disclose the information or if the Client acts for itself in disciplinary, civil or
36. The Client will pay a fee to Affix Engineering and will reimburse expenses
incurred. The fee(s) will be calculated in accordance with Affix Engineering's
customary rates, calculation methods and procedures.
37. The fees due to Affix Engineering will be calculated on the basis of the time
spent by Affix Engineering times the applicable hourly rate of Affix Engineering.
38. Additional labor due to any delay or changes in Scope and/or deadlines and
extra work that needs to be done reserves Affix Engineering the right to issue
additionally towards hourly rate.
39. Affix Engineering will be entitled to unilaterally change its hourly rates and/or
its fixed fees, in case such change is reasonable.
40. Insofar as not provided for otherwise in these general terms and conditions,
any rights on any grounds whatsoever that the Client may have vis-à-vis Affix
Engineering in respect of activities performed by Affix Engineering will in any
event lapse one year from the moment at which the Client became aware of or
could reasonably be expected to be aware of the existence of such rights.
41. All agreements between the Client and Affix Engineering will be solely
subject to the Law of the Netherlands. The Eindhoven Court ( in Dutch:
Rechtbank Oost-Brabant, lokatie Eindhoven) will be competent to hear civil
disputes, unless the Client and Affix Engineering jointly opt for a different method
of resolving disputes.
42. All costs incurred by Affix Engineering in connection with judicial
proceedings taken against the Client will be borne by the Client, even insofar as
these costs exceed the legal order to pay the costs of the proceedings, unless Affix
Engineering is ordered to pay such costs as the unsuccessful party in the
43. Affix Engineering has the right to suspend its services at any time if the Client
fails to pay the outstanding invoices of Affix Engineering. Furthermore, Affix
Engineering has the right to suspend its services if the Client does not provide
Affix Engineering with the information required by Dutch law and regulations,
upon request of Affix Engineering, or when the Client does not provide Affix
Engineering with clear and acceptable assignments.
44. Affix Engineering can withhold any documents or other possessions if the
Client fails to fulfill its obligations or has not satisfied its debts towards Affix
45. Affix Engineering has the right to resign as the provider of services to the
Client without taking into account the notice period as mentioned in clause 26, in
case Affix Engineering has well founded reasons for this immediate resignation,
and hence Affix Engineering may as such terminate all agreements between the
Client and/or third parties which have been appointed by the Client in relation to
the provision of services by Affix Engineering to the Client.
46. These general terms and conditions are also applicable to additional
Assignments and subsequent Assignments from Client to Affix Engineering.
Subsequent Assignments will be considered as part of the original Assignment