General Terms and Conditions
Posth Werk BV, having its registered office at the Boerhaavelaan 99, 2334 EG Leiden, The Netherlands
Article 1. Applicability
- These general terms and conditions are applicable to all proposals and agreements made between Posth Werk BV and the other party unless the parties have expressly waived these general terms and conditions in writing.
- The term “other party” shall mean: the natural or legal entity that commissions Posth Werk BV for supplying services or executing work activities, and the counterparty to the contract in the meaning of Article 6:231, paragraph c, of the Dutch Civil Code.
- These general terms and conditions are also applicable to agreements with Posth Werk BV, where third parties are involved for the fulfillment of the agreement.
- The applicability of general terms and conditions of the other party is hereby excluded explicitly.
- Deviations of the agreement and general terms and conditions shall only be valid in case these have been explicitly agreed upon in writing.
Article 2. Proposals and conclusion of the agreement
- All proposals of Posth Werk BV are revocable and are made subject to contract, unless indicated otherwise in writing.
- The agreement is concluded by the acceptance of the other party of the proposal of Posth Werk BV in writing or by acknowledgment of a verbal acceptance as if this would have been made in writing.
- The agreement replaces all previous proposals, correspondence or other communication, in writing or verbally
Article 3. Performance of the agreement
- The agreement will be performed by Posth Werk BV to the best of its knowledge and ability, and in accordance with good professional practice. The activities to be performed are subject to a best efforts obligation on the part of Posth Werk BV.
- Posth Werk BV determines how and by whom the assignment is performed. If – and in as far as in the opinion of Posth Werk BV – a proper fulfilment of the contract shall require this, Posth Werk BV shall be entitled to have third parties carry out certain work activities. The application of article 7:404, 7:407 paragraph 2 of the Dutch Civil Code is explicitly excluded.
- Posth Werk BV will send invoices monthly. If an invoice is not paid by the other party, Posth Werk BV is authorized to suspend the performance of the agreement.
- If it has been agreed that the agreement will be fulfilled in phases, Posth Werk BV shall be entitled to suspend the fulfilment of the parts that belong to the next phase, until the other party has approved in writing the results of the preceding phase.
Article 4. Changes and additional work
- If during the performance of the agreement it appears to be necessary to change or supplement the agreement for an adequate execution, Posth Werk BV will inform the other party as soon as possible and the parties shall adjust the agreement on time and in mutual consultation.
- If the parties agree to amend or supplement the agreement, the time of completing the fulfilment might be affected. Posth Werk BV shall inform the other party about this as soon as possible.
- If the changes or supplement to the agreement will have financial, quantitative and/or qualitative consequences, the other party will be informed of this by Posth Werk BV in advance.
- If a fixed rate has been agreed, Posth Werk BV will indicate whether and to what extent the amendment or supplement shall result in exceeding this fixed rate.
- In deviation of the stipulation(s) of this matter, Posth Werk BV shall not be able to charge additional costs, if amending or supplementing the agreement is the result of circumstances that can be attributed to Posth Werk BV.
Article 5. Obligations Counterparty
- The other party makes sure that all information required for the performance of the agreement is available in time. In addition, the other party needs to provide all rights and authorizations to Posth Werk BV that are required to execute the Assignment adequately.
- Posth Werk BV is not liable for any damages, of any kind, because of using incorrect and/or incomplete information provided by the other party.
Article 6. Rates
- All rates and prices quoted by Posth Werk BV shall, unless otherwise expressly agreed in writing, be exclusive of VAT.
- The rates and prices are excluding shipment-, travel-, accommodation and other expenses, unless otherwise agreed. Any travel-, accommodation and other expenses shall be reimbursed by the other party upon submission of the appropriate receipts or as invoiced.
- Posth Werk BV shall reserve the right to alter prices, unless otherwise agreed in writing. In the event of price alterations the other party shall have the right to dissolve the agreement concluded by means of a written notice if there is a price increase of more than 10%. The dissolution must take place immediately after the other party has taken note of the price increase. If a price is a consequence of a statutory or other government measure, Posth Werk BV shall have the right to pass the price increase on tot the other party, even if it has been agreed that the price is fixed, without this leading to a right of dissolution for the other party.
Article 7. Payment
- Payment shall be made by means of a transfer in the currency and into a bank account indicated by Posth Werk BV, unless otherwise agreed.
- Posth Werk BV will send an invoice for the amounts payable by the other party. The payment period of each invoice is 2 weeks after the date of the invoice, unless indicated differently on the invoice or otherwise agreed.
- Invoicing takes place monthly, unless otherwise agreed.
- Objections with respect to the amount stated in the invoice do not suspend the other party’s obligation to fulfil the payment.
- The other party may not set off any amounts with the amount to be paid in relation to an alleged counterclaim.
- In the event of non-payment or an overdue payment, the other party will be in default without any notice of default being required. As from the date such payment is due the other party is required to pay the statutory commercial interest rate until the date of full payment. Interest accrued in relation to a part of a month shall be calculated for a full month.
- Any reasonably incurred judicial and (extra juridical) enforcement costs shall be for the account of the other party.
Article 8. Commencement, duration, termination, dissolution
- The agreement is for an indefinite period, unless it is clear from the content, nature or scope of the granted assignment, that it is entered into for a certain period of time.
- The other party and Posth Werk BV may terminate the agreement at any time, with a notice period of one months, unless reasonableness and fairness oppose termination or termination at such time.
- In case the agreement shall be dissolved, the payments owned by the other party to Posth Werk BV are immediately due and payable.
- The agreement may be terminated (prematurely) by registered letter, by both parties, without a notice period, in the event that the counterparty is unable to pay its debts, or if a receiver, administrator or liquidator has been appointed, if the counterparty arranges for a debt restructuring, or ceases its activities for any other reason, or if one of the parties has reasonable cause to suspect the occurrence of any of the above conditions with the counterparty, or if a situation has arisen that justifies immediate termination in the interest of one of the parties.
- Posth Werk BV reserves the right, in all cases of (premature) termination, to claim payment of the invoices for the work that it has done so far, of which Post Werk BV shall, upon receipt of the payment, provide the other party with the provisional results of the work carried out until that time.
- If (premature) termination is initiated by the other party, Posth Werk BV is entitled to reimbursement of the demonstrated caused loss of capacity, as well as additional costs that Posth Werk BV has or will need to make, within reason, as a result of the premature termination of the agreement (such as costs related to possible sub-contracting), unless there are facts and circumstances of the dissolution that are attributable to Posth Werk BV.
- If (premature) termination or dissolution is carried out by Posth Werk BV, the other party is entitled to assistance from Posth Werk BV in the transfer of activities to third parties, unless there are facts and circumstances of the dissolution that are attributable to the other party. Insofar as the transfer of the activities would result in additional expenses for Posth Werk BV, this will be charged to the other party.
- Upon termination of the agreement, each party will hand over all goods, objects and documents in its possession, that belong to the counterparty, to that other party, without delay.
- The provisions of the general terms and conditions and the agreement, which expressly or due to their nature are intended to remain in force after termination of this agreement or the performance of the assignment, shall remain in full force.
Article 9. Complaints
- Upon performance of the assignment, or at least within seven (7) days after invoicing, the other party shall examine whether the performed assignment meets the agreement.
- Complaints should be reported to Posth Werk BV in writing within seven (7) days after performing the assignment or invoicing.
- If complaints are justified, Posth Werk BV shall perform its obligations again within a reasonable period, (partially) refund the price to the other party or compensation the other party for damages. If a complaint is not reported within the prescribed term, the other party loses all its rights regarding, unless an extended term arises from the nature of the assignment or the circumstances of the situation.
- The payment obligation shall not be suspended in the event the other party informs Posth Werk BV of the complaint within the prescribed term.
Article 10. Force majeure and unforeseen circumstances
- Notwithstanding anything in these general terms and conditions to the contrary, neither party shall be liable to the other party for any failure to perform or delay in the performance of any obligation under the agreement when such failure to perform or delay in performance is caused by unforeseen circumstances or due to any cause or condition beyond the reasonable control of the party. In such event the parties are not required to comply with the obligations under the agreement.
- In addition to the interpretation of this concept under the laws of The Netherlands and case law, the term „force majeure“ under these general terms and conditions shall include all external causes, foreseen or unforeseen, beyond the reasonable control of Posth Werk BV due to which Posth Werk BV is unable to comply with its obligations.
Article 11. Liability
- Posth Werk BV is only liable for direct damage caused as a result of intent or gross negligence of Posth Werk BV. If Posth Werk BV is liable for any damage, this liability shall be limited to reimbursing the immediate damage and up to the invoiced amount excluding VAT that Posth Werk BV has charged for its work activities within the framework of the particular assignment. To assignments with a turnaround time longer than six (6) months shall apply a further liability limitation referred to above of up to the invoiced amount excluding VAT over the last six (6) months.
- Posth Werk BV shall not be liable for any indirect or consequential damage, including consequential loss, loss of profits, lost savings and damage caused by interruption of operations, loss as a result of providing insufficient cooperation and/or information to the other party, damage as a result of information or advice provided by Posth Werk BV.
- Posth Werk BV shall not be liable for mistakes in the event the other party has already given approval, or has had the opportunity to carry out an inspection and has expressed no desire for such an inspection.
- The liability restrictions set out in this article also apply to third parties appointed by Posth Werk BV for the performance of the agreement, and Posth Werk BV shall not be liable for damages caused by failures of such third parties.
Article 12. Confidentiality
- Both parties undertake not to disclose to third parties any confidential information obtained from each other or from another source in the context of the agreement. Information is deemed to be confidential if the other party has communicated it as such or if this results from the nature of the information. The party receiving confidential information, shall only use it for the purpose for which it was provided.
- If Posth Werk BV is required by law or or by any legal authority to disclose confidential information to third parties and Posth Werk BV cannot invoke a legal privilege or a privilege acknowledged or approved by a competent court of law, Posth Werk BV shall not be liable for any damages or compensation, and the other party shall not be entitled to dissolve the agreement pursuant to any damage caused by such disclosure.
- Notwithstanding the above, Posth Werk BV is authorized to include the name of the other party in a list of business relations, that is published on the website for third parties or via other means, unless agreed otherwise.
Article 13. Indemnification
- The other party shall indemnify Posth Werk BV to the extent permitted by law against possible claims of third parties who incur damage in connection with the implementation of the agreement or the use of (the results of) the agreement and of which the cause can be blamed on the other party, including claims of third parties with regard to intellectual property rights on materials and data supplied by the other party that are used for the implementation of the agreement. In the event that Posth Werk BV should be challenged by a third party in this respect, then the other party shall be obliged to assist Posth Werk BV both in and out of court and to immediately do all that may be expected of it in such a case. If the other party fails to take adequate measures then Posth Werk BV shall, without notice of default, be entitled to proceed accordingly. All costs and damage on the part of Posth Werk BV and third parties arisen as a result thereof, shall be fully for the risk and expense of the other party.
Article 14. Intellectual property
- All intellectual property rights to all the provided products, materials, analyses, designs, software, documentation, opinions, reports, quotes, information and preparatory material thereof (together the „IE Material“), developed or provided as part of the agreement, are owned exclusively by Posth Werk BV or its licensors.
- The other party’s rights and authorizations with respect to the IE Material derive from the agreement and/or are expressly conferred in writing.
- In case the other party has received expressly written consent of Posth Werk BV for the exploitation, reproduction, utilization or publication of the IE Material outside the scope of this agreement or granted rights and authorities, this shall not constitute as an infringement of intellectual property rights.
Article 15. Privacy
- Posth Werk BV respects the privacy of the other party. Posth Werk BV handles and processes all personal data provided in accordance with the applicable legislation, specifically the Personal Data Protection Act (Wet Bescherming Persoonsgegevens) and the General Data Protection Regulation (Algemene Verordening Gegevensbescherming). The other party agrees with this handling. Posth Werk BV applies appropriate security measures for the protection of personal data of the other party.
- Posth Werk BV will use the personal data of the other party exclusively for the performance of the agreement or to deal with a complaint.
Article 16. Final provisions
- Any deviations from these general terms and conditions can only be agreed in writing. No rights shall derive from such deviations with regards to legal relationships entered into subsequently.
- In case and to the extent that any provision of these general terms and conditions and/or the agreement will be declared invalid or unenforceable under the applicable legislation and regulations, the other provisions or parts of the provisions will continue to apply. Posth Werk BV will replace the provision in question with a valid and enforceable provision that differs as little as possible from the original provision.
- The place of performance of the agreement shall be deemed the place where Posth Werk BV is located.
Article 17. Governing law and jurisdiction
- These general terms and conditions and the agreement, and all non-contractual rights and obligations arising thereto, are governed by and will be interpreted in accordance with the laws of The Netherlands.
- All disputes between Posth Werk BV and the other party related to these general terms and conditions and the agreement, or the agreements concluded in the performance of or in connection with these general terms and conditions and the agreement, will be submitted exclusively to the competent court of The Hague (‘s-Gravenhage).