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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”.


Applicability


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

inapplicable.

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.


Liability


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

third parties.

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

expenses.

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

third party.

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

Client.

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

negligence.

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.


Confidentiality


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

WWFT.

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

criminal proceedings.


Rates


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.


General Provisions


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

proceedings.

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

Engineering.

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