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Article 1 Definitions
- Floral Innovations, established in Kudelstaart, the Netherlands, with Chamber of Commerce number 69010668, is referred to in these general terms and conditions as service provider.
- The other party to the service provider is referred to in these general terms as the client.
- Parties are service provider and ordering customer together.
- The agreement refers to the service agreement between the parties.
Article 2 Applicability of the terms and conditions
- These terms and conditions shall apply to all quotations, offers, work, agreements and deliveries of services or goods by or on behalf of service provider.
- Deviation from these terms and conditions shall only be possible if expressly agreed in writing by the parties.
- The agreement always contains obligations to perform to the best of one’s ability, not obligations to achieve a certain result.
Article 3 Payment
- Invoices must be paid within 14 days after the invoice date, unless the parties have made other agreements in writing or another term of payment is mentioned on the invoice.
- Payments shall be made without any appeal to suspension or settlement by transferring the amount due to the bank account number stated by the service provider.
- If the principal does not pay within the agreed period, he shall be in default by operation of law, without any reminder being required. From that moment onwards the service provider shall have the right to suspend his obligations until the principal has met his payment obligations.
- If the principal remains in default, the service provider shall proceed to collect. The costs of such recovery shall be for the principal’s account. When client is in default he shall, in addition to the principal sum, owe service provider legal (commercial) interest, extrajudicial collection costs and other damages. The collection costs are calculated according to the Decree on compensation for extrajudicial collection costs (Besluit vergoeding voor buitengerechtelijke incassokosten).
- In case of liquidation, bankruptcy, seizure or suspension of payment of the principal, the claims of service provider on the principal shall be immediately due and payable.
- If the principal refuses to cooperate in the execution of the order by the service provider, he is still obliged to pay the agreed price to the service provider.
Article 4 Offers and quotations
- The service provider’s offers shall be valid for no more than 1 month, unless another period of acceptance is mentioned in the offer. If the offer is not accepted within that period, the offer shall lapse.
- Delivery times in offers are indicative and if exceeded shall not entitle the principal to dissolution or damages, unless parties have expressly agreed otherwise in writing.
- Offers and quotations do not apply automatically to repeat orders. The parties must agree to this explicitly and in writing.
Article 5 Prices
- The prices mentioned in offers, quotations and invoices of the service provider are exclusive of VAT and any other government levies, unless explicitly stated otherwise.
- The prices of goods shall be based on the cost prices known at the time. Increases thereof, which the service provider could not foresee at the time of making the offer or entering into the agreement, may give rise to price increases.
- With respect to the provision of services, the parties may agree a fixed price when concluding the agreement.
- If no fixed price is agreed upon, the rate with respect to the services may be determined on the basis of hours actually worked. The rate shall be calculated according to service provider’s usual hourly rates, valid for the period in which he performs the work, unless a different hourly rate has been agreed upon.
- If no rate based on hours actually worked has been agreed upon, a recommended price for the services shall be agreed upon, whereby service provider is entitled to deviate therefrom up to 10%. If the guide price is going to be more than 10% higher, service provider shall inform client in time why a higher price is justified. Client shall in that case have the right to cancel a part of the order that exceeds the recommended price increased by 10%.
Article 6 Price Indexation
- The prices and hourly wages agreed upon at the conclusion of the agreement shall be based on the price level prevailing at the time. Service provider is entitled to adjust the fees to be charged to client annually as per 1 January.
- The client will be informed of adjusted prices, rates and hourly wages as soon as possible.
Article 7 Provision of information by the client
- The ordering customer shall make available to the service provider all information relevant to the performance of the assignment.
- The ordering customer is obliged to provide all data and documents the service provider thinks he needs for the correct execution of the order, in time and in the desired form and manner.
- The client warrants the accuracy, completeness and reliability of the data and documents made available to the service provider, even if they originate from third parties, to the extent the nature of the order does not require otherwise.
- The principal shall indemnify the service provider for any damage in whatever form resulting from the failure to comply with the provisions of the first paragraph of this article.
- If and insofar as the principal so requests, the service provider will return the documents concerned.
- If the ordering customer does not provide the information and documents required by the service provider or does not provide them on time or properly, and the execution of the agreement is delayed as a result, the resulting extra costs and additional fees will be charged to the ordering customer.
Article 8 Withdrawal of the order
- The principal shall be free to terminate the order to the service provider at any desired moment.
- When cancelling the order the principal shall be obliged to pay the wages due and the expenses incurred by the service provider.
Article 9 Execution of the agreement
- Service provider shall execute the agreement to the best of its knowledge and ability and in accordance with the requirements of good craftsmanship.
- Service provider has the right to have work done by third parties.
- The execution shall take place in mutual consultation and after written agreement and payment of any agreed advance payment.
- It is the client’s responsibility that service provider can start in time with the assignment.
Article 10 Duration of the agreement
- The agreement between the principal and the service provider shall be for an indefinite period, unless the nature of the agreement dictates otherwise or if parties have expressly agreed otherwise in writing.
- If within the term of the agreement the parties have agreed on a period for completion of certain work, this shall never be a fatal term. If this term is exceeded, the client must give service provider written notice of default.
Article 11 Modification of the agreement
- If during the execution of the agreement it appears that for a proper execution of the order it is necessary to modify or supplement the activities to be carried out, parties shall timely and in mutual consultation adapt the agreement accordingly.
- If parties agree that the agreement is amended or supplemented, this may affect the time of completion of the execution. Service provider will inform the client of this as soon as possible.
- If the change or supplement to the agreement has financial and/or qualitative consequences, service provider will inform client in writing as soon as possible.
- If parties have agreed a fixed fee, service provider shall also indicate to what extent the change or supplement to the agreement will result in an increase of this fee.
Article 12 Force majeure
- In addition to the provisions of Section 6:75 of the Dutch Civil Code, a default by the service provider in the performance of any obligation to the principal shall not be attributable to the service provider in the event of a circumstance independent of the will of the service provider, as a result of which the performance of his obligations to the principal is wholly or partly impeded or as a result of which the performance of his obligations cannot reasonably be required of the service provider. Such circumstances shall include failure of 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 meet its obligations towards the principal, these obligations shall be suspended for as long as the service provider cannot meet its obligations. If the situation referred to in the preceding sentence has lasted for 30 calendar days, the parties shall be entitled to dissolve the agreement in writing in whole or in part.
- In the case referred to in the second paragraph of this article, service provider shall not be obliged to compensate any damage, not even if service provider benefits from any advantage as a result of the force majeure situation.
Article 13 Settlement
- The Principal waives his right to set off a debt to the Service Provider against a claim against the Service Provider.
Article 14 Suspension
- The Principal waives the right to suspend the performance 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 shall be deemed to be a clause with property law effect as referred to in Article 3:83, second paragraph, of the Dutch Civil Code.
Article 16 Extinction of claim
- Any right to compensation by the service provider shall in any case lapse 12 months after the event from which the liability directly or indirectly arose. This does not exclude the provisions of article 6:89 of the Civil Code.
Article 17 Insurance
- Principal undertakes to adequately insure and keep insured all goods delivered which are necessary for the execution of the underlying agreement, as well as goods of service provider present at principal’s premises and goods delivered under reservation of title, against among other things fire, explosion and water damage and theft.
- Principal shall make the policy of these insurances available for inspection at first request.
Article 18 Liability for damage
- Service provider shall not be liable for any damage resulting from this agreement, unless service provider has caused the damage intentionally or with gross negligence.
- In the event that service provider owes damage to client, the damage shall not exceed the fee.
- Any liability for damage resulting from or related to the execution of an agreement shall always be limited to the amount paid out in the case concerned by the (professional) liability insurance(s) taken out. This amount shall be increased by the amount of the excess under the relevant policy.
- The limitation of liability shall also apply if the service provider is held liable for damage resulting directly or indirectly from the improper functioning of the hardware, software, data files, registers or other goods used by the service provider in the execution of the order.
- Not excluded is the liability of the service provider for damage resulting from intent or conscious recklessness of the service provider or his managing subordinates.
Article 19 Liability of the Principal
- If an order is given by more than one person, each of them shall be jointly and severally liable for the amounts owing to the service provider on the basis of that order.
- If an order is directly or indirectly given by a natural person on behalf of a legal person, this natural person may also be the principal in his private capacity. This requires that this natural person can be considered as the (co)policy maker of the legal person. In the event of non-payment by the legal entity, the natural person will therefore be personally liable for the payment of the invoice, regardless of whether this invoice has been drawn up in the name of a legal entity or in the name of the client as a natural person or both of them, at the client’s request or otherwise.
Article 20 Indemnification
- The principal shall indemnify the service provider against all claims of third parties relating to the goods and/or services supplied by the service provider.
Article 21 Obligation to complain
- Principal is obliged to immediately report complaints about the work done in writing to service provider. The complaint shall contain as detailed a description as possible of the shortcoming, so that the service provider is able to respond adequately.
- In any case, a complaint cannot lead to the obligation of the service provider to perform other work than agreed.
Article 22 Retention of title, right of suspension and right of retention
- The goods present at the principal’s premises and goods and parts delivered shall remain the property of the service provider until the principal has paid the agreed price in full. Until that time service provider may invoke his reservation of title and take back the goods.
- If the agreed amounts to be paid in advance are not paid or not paid in time, the service provider shall have the right to suspend the work until the agreed part is paid. This shall be a case of creditor’s default. In that case a late delivery cannot be held against service provider.
- Service provider shall not be entitled to pledge or encumber in any other way the goods falling under his reservation of title.
- If goods have not yet been delivered, but the agreed advance payment or price has not been paid, the service provider has the right of retention. The goods shall then not be delivered until the principal has paid in full and in accordance with the agreement.
- In the event of liquidation, insolvency or suspension of payment of the principal, the obligations of the principal shall be immediately due and payable.
Article 23 Intellectual property
- Unless the parties have agreed otherwise in writing, service provider shall retain 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, offers, images, sketches, models, etc.
- The said intellectual absolute rights may not be copied, shown and/or made available to third parties or used in any other way without written consent of service provider.
- Client agrees to keep confidential the confidential information made available to him by service provider. Confidential information is in any case understood to mean that which is covered by this article, as well as the company data. Principal undertakes to impose on his personnel and/or third parties involved in the execution of this agreement a written duty of confidentiality with the scope of this provision.
Article 24 Confidentiality
- Each of the Parties shall keep secret the information which it receives (in whatever form) from the other Party and all other information concerning the other Party which it knows or may reasonably suspect to be secret or confidential, or information the dissemination of which it may expect to cause damage to the other Party, and shall take all necessary measures to ensure that its staff also keeps the said information secret.
- The duty of confidentiality mentioned in the first paragraph of this article shall not apply to information:
- which was already in the public domain at the time when the recipient received such information or which subsequently became public without a breach by the receiving party of an obligation of secrecy incumbent upon it;
- which the receiving party can prove was already in his possession at the time of disclosure by the other party;
- which the receiving Party received from a third party where that third party had the right to disclose this information to the receiving Party
- which is made public by the Receiving Party pursuant to a legal obligation.
- The confidentiality obligation described in this Article shall apply for the duration of this Agreement and for a period of three years after its termination.
Article 25 Penalty for violation of duty of confidentiality
- If the client violates the article of these general terms and conditions about secrecy, he forfeits to the service provider an immediately payable fine of € 000 for each violation and in addition an amount of € 500 for each day that the violation continues. This is irrespective of whether the breach can be attributed to the principal. Moreover, no prior notice of default or legal proceedings are required for the forfeiture of this penalty. Nor is it necessary for there to be any question of damage.
- Forfeiture of the penalty referred to in paragraph 1 of this article shall not affect the other rights of the service provider including its right to claim damages in addition to the penalty.
Article 26 Non-acquisition of staff
- Client shall not employ any employees of service provider (or of companies engaged by service provider for the execution of this agreement and who are (have been) involved in the execution of the agreement). Nor shall he have them otherwise work for him 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: the parties may make other arrangements in good businesslike consultation with each other. These agreements apply insofar as they have been laid down in writing.
Article 27 Settlement of disputes
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- These general terms and conditions are governed by Dutch law.
- All disputes arising from these general terms and conditions shall be submitted exclusively to the competent court of the District Court of Amsterdam.
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