Terms and conditions | Wouter Dieleman

Terms and Conditions

Article 1 - Definitions

Wouter Dieleman Consultancy, located in Eindhoven, Chamber of Commerce number 87007010, is referred to as service provider in these general terms and conditions. The counterparty of the service provider is referred to as the client in these general terms and conditions. Parties are the service provider and client together. The agreement refers to the service agreement between parties.

Article 2 - Applicability of General Terms and Conditions

These conditions apply to all quotations, offers, work, agreements, and delivery of services or goods by or on behalf of the service provider. Deviation from these conditions is only possible if explicitly agreed upon in writing by both parties. The agreement always contains best-effort obligations for the service provider, not result obligations.

Article 3 - Payment

Invoices must be paid within 14 days of the invoice date, unless parties have made other written agreements or a different payment term is stated on the invoice. Payments are made without any appeal to suspension or settlement by transferring the amount due to the bank account number provided by the service provider. If the client fails to pay an invoice within the agreed term, they are legally in default without any notice being required. From that moment, the service provider has the right to suspend obligations until the client has met their payment obligations. If the client remains in default, the service provider will proceed with collection. The costs related to collection will be charged to the client. When the client is in default, they owe the statutory (commercial) interest, extrajudicial collection costs, and other damages to the service provider in addition to the principal sum. Collection costs are calculated according to the Decision on compensation for extrajudicial collection costs. In case of liquidation, bankruptcy, seizure, 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 with the execution of the assignment by the service provider, they are still obliged to pay the agreed price to the service provider.

Article 4 - Offers and Quotations

The service provider's offers are valid for a maximum of 12 months, unless a different acceptance period is specified in the offer. If the offer is not accepted within the specified period, the offer expires. Delivery times in quotations are indicative and do not give the client the right to dissolution or compensation if exceeded, unless parties have explicitly agreed otherwise in writing. Offers and quotations do not automatically apply to reorders. Parties must explicitly agree to this in writing.

Article 5 - Prices

Prices quoted in offers, quotations, and invoices by the service provider are exclusive of 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 thereof, which could not be foreseen by the service provider at the time of making the offer or entering into the agreement, may lead to price increases. Regarding the service provision, parties can agree on a fixed price when establishing the agreement. If no fixed price has been agreed upon, the rate for the service provision can be determined based on the actual hours spent. The rate is calculated according to the service provider's usual hourly rates, valid for the period in which they perform the work, unless a different hourly rate has been agreed upon. If no rate based on actual hours spent has been agreed upon, a target price will be set for the service provision, whereby the service provider is entitled to deviate from this by up to 10%. If the target price will be more than 10% higher, the service provider must inform the client in a timely manner why a higher price is justified. In this case, the client has the right to cancel a portion of the order that exceeds the target price plus 10%.

Article 6 - Price Indexation

The prices and hourly rates agreed upon when 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 January 1st. Adjusted prices, rates, and hourly wages will be communicated to the client as soon as possible.

Article 7 - Information Provision by Client

The client shall make all information relevant to the execution of the assignment available to the service provider. The client is obliged to provide all data and documents that the service provider deems necessary 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 these originate from third parties, unless the nature of the assignment dictates otherwise. The client indemnifies the service provider against any damage in whatever form resulting from failure to comply with the provisions in the first paragraph of this article. If and insofar as the client requests it, the service provider will return the relevant documents. If the client does not, not timely, or not properly make available the data and documents required by the service provider, and the execution of the assignment is delayed as a result, the additional costs and extra fees arising from this will be charged to the client.

Article 8 - Withdrawal of Assignment

The client is free to terminate the assignment to the service provider at any desired moment. When the client withdraws the assignment, the client is obliged to pay the wages owed and the expenses incurred by the service provider.

Article 9 - Execution of the Agreement

The service provider executes the agreement to the best of their insight 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 responsibility of the client that the service provider can start the assignment in a timely manner.

Article 10 - Contract Duration

The agreement between client and service provider is entered into for an indefinite period unless the nature of the agreement dictates otherwise or parties have explicitly agreed otherwise in writing. If parties have agreed on a deadline within the duration of the agreement for the completion of certain activities, 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 becomes apparent that for proper execution of the assignment it is necessary to modify or supplement the work to be performed, parties shall timely and in mutual consultation adjust the agreement accordingly. If parties agree that the agreement is to be modified or supplemented, the time of completion of the execution may be influenced by this. The service provider shall inform the client of this as soon as possible. If the modification or supplementation of the agreement has financial and/or qualitative consequences, the service provider shall inform the client of this in writing as soon as possible. If parties have agreed on a fixed fee, the service provider shall indicate to what extent the modification or supplementation of the agreement will result in this fee being exceeded.

Article 12 - Force Majeure

In addition to the provisions of Article 6:75 Dutch Civil Code, a shortcoming of the service provider in the fulfillment of any obligation towards the client cannot be attributed to the service provider in a situation independent of the service provider's will, whereby the fulfillment of their obligations towards the client is wholly or partially prevented or whereby the fulfillment of their obligations cannot reasonably be required from the service provider. 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 as described above occurs as a result of which the service provider cannot fulfill their obligations towards the client, those obligations will be suspended as long as the service provider cannot fulfill their obligations. If the situation referred to in the previous sentence has lasted 30 calendar days, parties have the right to dissolve the agreement in writing wholly or partially. In the case referred to in the second paragraph of this article, the service provider is not obliged to compensate any damage, even if the service provider benefits from the force majeure situation.

Article 13 - Settlement

The client waives their right to settle a debt to the service provider with a claim on the service provider.

Article 14 - Suspension

The client waives the right to suspend the fulfillment of any obligation arising from this agreement.

Article 15 - Transfer of Rights

Rights of a party under this agreement cannot be transferred without the prior written consent of the other party. This provision applies as a clause with property law effect as referred to in Article 3:83(2) Dutch Civil Code.

Article 16 - Expiry of Claim

Every right to compensation for damages 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 Dutch Civil Code.

Article 17 - Warranty

Parties have entered into an agreement with a service provision character, which contains only a best-efforts obligation for Wouter Dieleman Consultancy and thus no obligation to achieve a result.

Article 18 - Insurance

The client undertakes to adequately insure and keep insured against, among others, fire, explosion and water damage as well as theft, the goods delivered that are necessary for the execution of the underlying agreement, as well as goods of the service provider that are present at the client's premises and goods that have been delivered under retention of title. The client shall provide the policy of these insurances for inspection upon first request.

Article 19 - Liability for Damage

The service provider is not liable for damage arising 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 shall not exceed the fee. Any liability for damage arising from or related to the execution of an agreement is always limited to the amount 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 arising directly or indirectly from the improper functioning of the equipment, software, data files, registers, or other items used by the service provider in the execution of the assignment. Not excluded is the liability of the service provider for damage resulting from intent or deliberate recklessness of the service provider or their subordinates.

Article 20 - Client's Liability

In case an assignment is given by more than one person, each of them is jointly and severally liable for the amounts due to the service provider from that assignment. If an assignment is given directly or indirectly by a natural person on behalf of a legal entity, this natural person can also be a client in private. For this to be the case, this natural person must be considered as the (co-)policymaker of the legal entity. In case of non-payment by the legal entity, the natural person is therefore personally liable for payment of the invoice, regardless of whether it was issued, at the client's request or not, in the name of a legal entity or in the name of the client as a natural person or both.

Article 21 - Indemnification

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

Article 22 - Complaints

The client is obliged to report complaints about the work performed in writing immediately to the service provider. The complaint contains a detailed description of the shortcoming, enabling the service provider to respond adequately. A complaint can in no case lead to the service provider being obliged to perform other work than agreed upon.

Article 23 - Retention of Title, Right of Suspension and Right of Retention

The goods present at the client's premises and delivered goods and parts remain the property of the service provider until the client has paid the entire agreed price. Until that time, the service provider can invoke their retention of title and take back the goods. If the agreed advance payments are not or 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 case of creditor's default. A delayed delivery cannot in this case be held against the service provider. The service provider is not authorized to pledge the goods falling under their retention of title or to encumber them in any other way. If goods have not yet been delivered, but the agreed advance payment or price has not been paid according to agreement, the service provider has the right of retention. The good will then not be delivered until the client has paid in full and according to agreement. In case of liquidation, insolvency, or suspension of payment of the client, the client's obligations are immediately due and payable.

Article 24 - Intellectual Property

Unless parties have agreed otherwise in writing, the service provider retains all intellectual absolute rights (including copyright, patent right, trademark right, drawings and models right, etc.) on all designs, drawings, writings, carriers with data or other information, quotations, images, sketches, models, scale models, etc. The mentioned 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 commits themselves to confidentiality of the confidential information made available to them by the service provider. Confidential information in any case includes that to which this article relates, as well as the business data. The client commits to impose a written confidentiality obligation of the purport of this provision on their personnel and/or third parties involved in the execution of this agreement.

Article 25 - Confidentiality

Each party keeps the information they receive (in whatever form) from the other party and all other information concerning the other party of which they know or can reasonably suspect that it is secret or confidential, or information of which they can expect that its dissemination could cause damage to the other party, secret and takes all necessary measures to ensure that their personnel also keep this information secret. The confidentiality obligation referred to in the first paragraph of this article does not apply to information:

which was already public at the time the recipient received this information or has subsequently become public without a breach by the receiving party of a confidentiality obligation resting on them
of which the receiving party can prove that this information was already in their possession at the time of provision 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
which 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 26 - Penalty for Breach of Confidentiality Obligation

If the client violates the article of these general terms and conditions about confidentiality, the client forfeits an immediately due and payable penalty of €5,000 for each violation and additionally an amount of [amount] for each day that the violation continues. This applies regardless of whether the violation can be attributed to the client. Moreover, no prior notice of default or legal proceedings are required for the forfeiture of this penalty. There also does not need to be any form of damage. The forfeiture of the penalty referred to in the first paragraph of this article does not affect the other rights of the service provider including their right to claim damages in addition to the penalty.

Article 27 - Non-takeover of Personnel

The client does not take on employees of the service provider (or of companies on which the service provider has called for the execution of this agreement and who are or have been involved in the execution of the agreement) or have them work for them in another way directly or indirectly. 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 with each other in good business consultation. These arrangements apply insofar as they have been laid down in writing.

Article 28 - Amendment of General Terms and Conditions

Wouter Dieleman Consultancy is entitled to amend or supplement these general terms and conditions. Minor changes can be made at any time. Major content changes will be discussed with the client as much as possible in advance.

Article 29 - Applicable Law and Competent Court

Dutch law exclusively applies to every agreement between parties. The Dutch court in the district where Wouter Dieleman Consultancy is established/practices/holds office has exclusive jurisdiction to hear any disputes between parties, unless the law mandatorily prescribes otherwise. - Applicable Law and Competent Court