General conditions

This article was last updated on 23/07/2024

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Article 1 Applicability

1. These general terms and conditions are the general terms and conditions of Fendix B.V., located in Elst (GLD), at Industrieweg Oost 7d, 6662 NE Elst (GLD) and registered in the trade register under number 84758945 (Establishment No. 000050858424), hereinafter referred to as 'Contractor'.
2. In these terms and conditions, "other party" or "client" shall mean any (legal) person who has placed an order with the contractor or has entered into, or wishes to enter into, an agreement with the contractor and, apart from the latter, his/her representative(s), agent(s), assignee(s) and heirs.
3. The general terms and conditions shall apply to all quotations, offers and/or agreements and/or legal relationships entered into by the contractor with a client within the scope of the performance of work.
4. Deviations from and additions to these general terms and conditions shall apply only if agreed in writing between the parties
5. Amendments to these terms and conditions must be expressly confirmed by the contractor in writing.
6. Standard terms and conditions used by the client do not apply unless accepted in writing by the contractor.
7. If a situation arises between the parties that is not governed by these general terms and conditions, this situation should be judged in the spirit of these general terms and conditions.

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Article 2. Secrecy

1. Fendix B.V. undertakes and guarantees towards its client to maintain absolute confidentiality regarding all information provided to Fendix B.V. by the client. Information can consist of: written documents, work instructions, computer files, conversations, client data and organizational data in the broadest sense of the word, further referred to as "information". Fendix B.V. undertakes and guarantees towards its client to maintain absolute confidentiality regarding all information provided by the client to Fendix. Fendix B.V. and the client are both obliged to ensure that this information is stored and handled confidentially in such a way that it cannot be accessed by third parties.

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Article 3. Definitions

The following capitalized definitions shall have the following meanings for the purposes of these general terms and conditions:

1. Documents: all information or data made available to Contractor by Principal; all data produced or collected by Contractor in the context of the execution of the Assignment/Agreement; and all other information of any relevance to the execution or completion of the Assignment. The aforementioned information may or may not be stored on tangible or intangible data carriers and may or may not be held by third parties; 
2. Employee: a natural person employed by or associated with the Contractor, whether or not under an employment contract;
3. Assignment/ Agreement: the assignment agreement, whereby the Contractor undertakes to the Client to perform certain Work;
4. Client: the natural or legal person who has given the Contractor the Assignment to perform Work;
5. Firm: the firm that has accepted the Engagement. All Engagements shall be accepted and executed exclusively by the Firm, not by or on behalf of any individual Employee, even if the Client has expressly or tacitly granted the Engagement with a view to its execution by a particular Employee or particular Employees. Sections 7:404, 7:407 (2) and 7:409 of the Dutch Civil Code are expressly excluded from application;
6. Work: all work and operations to be performed by the Contractor for the benefit of the Principal for which the Contractor has been commissioned and which have been accepted by the Contractor, as well as all work and operations arising therefrom for the Contractor. 

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Article 4. Client data

1. The Client shall be obliged to make available to the Contractor all Documents which the Contractor, in its opinion, requires for the correct execution of the awarded Assignment in the desired form, in the desired manner and in a timely manner. The Contractor shall determine what is to be understood by timely, the desired form and the desired manner.   
2. The Client guarantees the accuracy, completeness and reliability of the Documents provided by it, even if they originate from third parties, insofar as the nature of the Assignment does not dictate otherwise. 
3. Client shall indemnify Contractor for damages resulting from incorrect or incomplete Documents.
4. For the Client's account and risk, the extra costs and extra hours incurred by the Contractor, as well as any other damage suffered by the Contractor, due to the Client's failure to provide the necessary documents required for the performance of the Work, or failure to do so in a timely or proper manner.
5. In the event of electronic transmission of information - including (but not limited to) tax returns, financial statements, reports - from (and on behalf of) Client by Contractor to third parties, Client shall be deemed to be the party signing and transmitting the information in question.
6. Contractor has the right to suspend the execution of the Assignment until the moment Client has fulfilled the obligations mentioned in the first paragraph.   
7. Upon Client's first written request, Contractor shall return to Client the original Documents provided by Client.

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Article 5 Quotations

1. Quotes are non-binding and valid for 3 months. Prices are exclusive of VAT and other legal charges.
2. Contractor cannot be held to its quotations or offers if the Client can reasonably understand that the quotations or offers, or any part thereof, contain an obvious mistake or slip of the pen.
3. Quotations clearly describe the work to be performed. In accepting the quotation, and thus entering into an agreement, the Client indicates that the work is described in full in the quotation.

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Article 6. Order execution, price increase & fee

1. The Contractor shall perform the Assignment to the best of his ability and in compliance with the applicable laws and (Professional) regulations. 
2. Contractor shall determine the manner in which the Assignment will be performed and by which Employee(s). 
3. The Contractor is entitled to have certain work performed by third parties. The applicability of Sections 7:404, 7:407 (2) and 7:409 of the Dutch Civil Code is expressly excluded.
4. The Client shall ensure that all data, which the Contractor indicates to be necessary or which the Client should reasonably understand to be necessary for the performance of the Agreement, shall be provided to the Contractor in a timely manner. If the data required for the performance of the Agreement are not provided to the Contractor in time, the Contractor shall be entitled to suspend the performance of the Agreement and/or to charge the Principal the additional costs resulting from the delay in accordance with the then customary rates. The execution period shall not commence until after the Principal has made the information available to the Contractor. Octrooibureau Novopatent shall not be liable for any loss or damage, of whatever nature, resulting from the fact that Octrooibureau Novopatent has relied on incorrect and/or incomplete data provided by the Client.
5. If during the execution of the agreement it appears that for a proper execution thereof it is necessary to modify or supplement it, then the parties will timely and in mutual consultation proceed to adapt the agreement. If the nature, scope or content of the agreement, whether or not at the request or indication of the Client, the competent authorities et cetera, is changed and the agreement is thereby changed in qualitative and / or quantitative respect, this may have consequences for what was originally agreed. As a result, the amount originally agreed upon may also be increased or decreased. The Contractor will give as much advance notice as possible. An amendment to the Agreement may also change the originally specified period of performance. Client accepts the possibility of amending the agreement, including the change in price and term of execution.
6. If the Agreement is amended, including an addition, the Contractor will submit an offer for this amendment if required. Execution of this additional work may take place as soon as Principal has agreed to the price and other conditions specified for the execution, including the time to be determined at that time when it will be executed. Failure to execute or not immediately execute the amended agreement shall not constitute a breach of contract on the part of the Contractor and shall not be a ground for the Client to terminate or cancel the agreement.
7. Without being in default, Contractor may refuse a request to amend the agreement if this could have qualitative and/or quantitative consequences, for example, for the work to be performed in that context.
8. Additional costs resulting from a change named in clauses 4.4 and 4.5 will be quoted by the contractor in the same capacity, provided the change is in line with the current agreement.
9. If the client does not agree with the additional costs of a change as named in articles 4.4 and 4.5, the client is not entitled to cancel the entire agreement. The contractor shall perform the work as in the original agreement. If the Client still demands cancellation of the agreement, the Client shall be liable for all damages on the part of the Contractor resulting directly or indirectly.
10. Contractor is entitled to change hourly rates once a year. For this purpose, Contractor uses the Service Price Index (DPI).

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Article 7. Intellectual property

1. The performance of the Order by the Contractor does not also imply the transfer of intellectual property rights vested in the Contractor. All intellectual property rights created during, or resulting from, the performance of the Engagement shall belong to the Contractor. 
2. The Client is expressly forbidden to reproduce, disclose or exploit the products to which the Contractor's intellectual property rights are attached, or products to which intellectual property rights are attached with respect to the use of which the Contractor has acquired user rights. This includes for example (but not exclusively): software, system designs, working methods, advice, (model) contracts, reports, templates, macros and other intellectual products.
3. The Principal is not permitted to make the products mentioned in the second paragraph available to third parties without the Contractor's prior written consent. This does not apply in the event that the Client wishes to obtain an expert opinion on the Contractor's performance of the Work. In that case, the Principal will impose its obligations under this article on the third parties it engages.

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Article 8. Force Majeure

1. If the parties cannot fulfill the obligations under the Agreement, or cannot fulfill them on time or properly, as a result of force majeure within the meaning of Article 6:75 of the Dutch Civil Code, those obligations will be suspended until such time as the parties are still able to fulfill them in the agreed manner without the Contractor being in default and without being liable for any compensation.
2. If the situation referred to in the first paragraph arises, the parties have the right to terminate the Agreement in whole or in part and with immediate effect in writing, otherwise without any right to compensation. 
3. If the Contractor has already partially fulfilled the agreed obligations when the force majeure situation occurs, the Contractor is entitled to invoice the Work performed separately and in the interim and the Client must pay this invoice as if it were a separate transaction. 

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Article 9. Charges

1. The Work performed by the Contractor shall be charged to the Client on the basis of time spent and costs incurred, unless the parties expressly agree otherwise such as, for example, payment of a fixed price. Payment of the fee does not depend on the result of the Work unless otherwise agreed in writing. Travel time and accommodation expenses for the purposes of the Work will be charged separately.
2. In addition to the fee, expenses incurred by the Contractor and invoices from third parties engaged by the Contractor will be charged to the Client. 
3. The Contractor is entitled to request the payment of an advance from the Principal. Failure to pay the advance payment (on time) may be a reason for the Contractor to (temporarily) suspend the Work.
4. If fees or prices change after the conclusion of the Agreement, but before the Assignment is fully executed, the Contractor shall be entitled to adjust the agreed rate, unless expressly agreed otherwise. 
5. If required by law then sales tax will be charged separately on all amounts owed by Client to Contractor.

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Article 10. Payment

1. Payment by Client of amounts due to Contractor shall be made, without Client being entitled to any deduction, discount, suspension or set-off, within 14 days of the invoice date, unless otherwise agreed. The day of payment shall be the day on which the amount due is credited to Contractor's account. Set-off of counterclaims is not permitted.
2. If the Client has not paid within the period referred to in the first paragraph, the Client shall be in default by operation of law and the Contractor shall be entitled to charge statutory (commercial) interest from that time onwards.
3. If the Client has not paid within the period mentioned in the first paragraph, the Client shall be obliged to reimburse all judicial and extrajudicial (collection) costs actually incurred by the Contractor. Reimbursement of the costs incurred shall not be limited to any cost order established by the court. 
4. In the case of a jointly awarded Order, Clients are jointly and severally liable for payment of the invoice amount, interest(s) and costs due. 
5. If, in the opinion of the Contractor, the Principal's financial position or payment record gives cause to do so, or if the Principal fails to make an advance payment or to settle an invoice within the specified payment term, the Contractor is entitled to demand that the Principal immediately furnish (additional) security in a form to be determined by the Contractor. If the Principal fails to furnish the requested security, the Contractor is entitled, without prejudice to its other rights, to immediately suspend the further performance of the Agreement and all that the Principal owes the Contractor on any account whatsoever will be immediately payable.

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Article 11. Deadlines

1. If a term/date has been agreed between the Client and the Contractor within which the Assignment is to be performed and the Client fails to: (a) make an advance payment - if agreed - or (b) make the necessary Documents available on time, in full, in the desired form and in the desired manner, the Client and the Contractor will enter into consultations regarding a new term/date within which the Assignment must be performed. 
2. Deadlines by which the Work must be completed are only to be regarded as deadlines if this has been expressly and in so many words agreed (in writing) between the Client and the Contractor.

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Article 12. Liability and indemnities.

1. The Contractor shall not be liable for any loss or damage incurred by the Client due to the fact that the Client did not provide the Contractor with any, incorrect or incomplete Documents, or that they were not provided on time. 
2. The Contractor shall not be liable for indirect damages, including: lost profits, lost savings, damages due to business interruption and other consequential or indirect damages resulting from the Contractor's failure to perform, to perform on time or to perform properly.
3. The Contractor's liability shall be limited to compensation for direct loss directly resulting from an (interconnected series of) attributable failure(s) in the performance of the Engagement. This liability for direct damage is limited to the amount paid out for the case in question according to the Contractor's liability insurer, plus any excess to be borne by the Contractor under the insurance policy. Direct damage is understood to mean - among other things - the reasonable costs incurred to establish the cause and extent of the damage; the reasonable costs incurred to have the Contractor's performance comply with the Agreement and the reasonable costs incurred to prevent or limit the damage. 
4. If, for whatever reason, the liability insurer does not pay out - as referred to in paragraph 3 of this article - the Contractor's liability shall be limited to the amount of the fee charged for the execution of the Engagement. If the Engagement is a continuing performance contract with a term of more than one (1) year, the amount referred to above shall be set at once the amount of the fee charged to the Client in the twelve months preceding the occurrence of the damage. In no event shall the total compensation for damages under this paragraph exceed €300,000 per attributable failure, unless - in view of the scope of the Engagement or the risks associated with the Engagement - the parties see reason to deviate from this maximum when entering into the Agreement. 
5. A related series of culpable failures shall constitute one (1) culpable failure.  
6. The limitations of liability set forth in this Article shall not apply if and to the extent of intentional or deliberate recklessness on the part of Contractor or its executive management.
7. The Client is obliged to take damage control measures. The Contractor has the right to undo or limit damage by repairing or improving the Work performed.
8. The Client shall indemnify the Contractor against third-party claims for damages caused by the fact that the Client failed to provide the Contractor with Records, or provided incorrect or incomplete Records.
9. The Client shall indemnify the Contractor against claims from third parties (including employees of the Contractor and third parties engaged by the Contractor) who suffer damage in connection with the execution of the Order, which damage is the result of the Client's acts or omissions or unsafe situations in the Client's company or organization.
10. The provisions of paragraphs 1 through 9 of this article relate to both Contractor's contractual and non-contractual liability to Principal.

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Article 13. Suspension, dissolution and (premature) termination of the agreement

1. The Client and the Contractor may terminate the Agreement (prematurely) at any time, subject to a notice period of at least 30 days, unless otherwise agreed in writing. Notice of termination must be given in writing and will take effect on the date the Contractor receives the notice of termination.
2. In the event of interim cancellation by the Client, the Client remains obliged to pay in full all costs as agreed in the quotation and/or order confirmation.
   This payment obligation applies regardless of the stage of execution of the order at the time of cancellation.
3. If the interim termination occurs, Contractor shall charge the Client on a pro rata basis for the work already performed, if these costs exceed the agreed quotation price.
   Contractor shall provide the Client with a breakdown of the work already performed and the related costs.
4. In addition to the costs agreed upon in the quotation, the Client is responsible for all other direct and indirect costs resulting from the interim termination. This includes, but is not limited to, costs incurred in connection with the Agreement and the (future) work and investments made and loss of capacity, cancellation costs of hired third parties, and any other costs reasonably incurred by the Contractor.
5. The fifth paragraph does not apply to Documents of the Client that have not (yet) been processed by the Contractor. 
6. If suspension occurs for a period longer than 6 months then the Contractor is entitled to charge a higher fee for the entire course of performance due to the extra effort involved.
7. If the dissolution is attributable to the Client, Contractor shall be entitled to compensation for damages, including costs, incurred directly and indirectly as a result.
8. If the Principal fails to fulfill his obligations arising from the agreement and this failure to fulfill his obligations justifies dissolution, Provider will be entitled to dissolve the agreement immediately and with immediate effect, without any obligation on his part to pay any compensation or indemnification, while the Principal will be obliged to pay compensation or indemnification by virtue of default. If the Agreement is terminated prematurely by Octrooibureau Novopatent, Octrooibureau Novopatent shall, in consultation with the Client, arrange for the transfer of work yet to be performed to third parties. This unless the termination is attributable to the Client. If the transfer of the work involves additional costs for Provider, these will be charged to the Principal. The Client shall be obliged to pay these costs within the period stated for this purpose, unless the Contractor indicates otherwise.
9. In case of liquidation, of (applications for) suspension of payments or bankruptcy, of attachment - if and to the extent that the attachment has not been lifted within two months - at the Client's expense, of debt rescheduling or any other circumstance as a result of which the Client can no longer dispose freely of its assets, the Contractor will be free to terminate the Agreement forthwith and with immediate effect or to cancel the order or Agreement, without any obligation on its part to pay any compensation or indemnification. The Contractor's claims against the Principal shall in that case be immediately due and payable.
10. The contractor reserves the right to suspend performance of the contract until all outstanding invoices are paid in full.

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Article 14. Due date

1. Insofar as these General Terms and Conditions do not provide otherwise, rights of action and other powers of the Client on whatever account vis-à-vis the Contractor in connection with the performance of Work by the Contractor will lapse in any event after one year from the time at which the Client became aware or could reasonably have become aware of the existence of these rights and powers. This period does not concern the possibility of submitting a complaint to the designated complaint handling body or bodies and/or the Dispute Resolution Board. 

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Article 15. Electronic communication and electronic filing of financial statements

1. During the performance of the Order, the Client and the Contractor may communicate with each other by electronic means and/or use electronic storage (such as cloud applications). Unless otherwise agreed in writing, the parties may assume that sending correctly addressed faxes, e-mails (including e-mails sent via the Internet) and voicemail messages regardless of whether they contain confidential information or documents relating to the Assignment will be mutually accepted. The same applies to other means of communication used or accepted by the other party.
2. The Principal and the Contractor are not liable to each other for any damage that may result to one or both of them as a result of the use of electronic means of communication, networks, applications, electronic storage, or other systems including - but not limited to - damage resulting from non-delivery or delay in delivery of electronic communications, omissions distortion, interception or manipulation of electronic communications by third parties or by software/equipment used to transmit, receive or process electronic communications, transmission of viruses and non or improper functioning of the telecommunications network or other means required for electronic communications, except insofar as the damage is the result of intent or gross negligence. The foregoing also applies to the Contractor's use thereof in its dealings with third parties.
3. In addition to the previous paragraph, the Contractor accepts no liability for any damage arising from or in connection with the electronic transmission of (electronic) financial statements and their digital filing with the Chamber of Commerce. 
4. Both Client and Contractor shall do or refrain from doing all that can reasonably be expected of each of them to prevent the occurrence of the aforementioned risks. 
5. Data extracts from the sender's computer systems provide compelling evidence of (the content of) the electronic communication sent by sender until rebuttal evidence is provided by the recipient. 

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Article 16. Other provisions

1. Client shall not hire or approach Employees involved in the performance of the Work to join Client, whether temporarily or not, directly or indirectly, or to perform work directly or indirectly on Client's behalf, whether salaried or not, during the term of the Agreement or any renewal thereof and for the 12 months thereafter.  

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Article 17. Repair clause nullities

1. If any provision of these General Terms and Conditions or of the underlying Assignment/Agreement should be wholly or partially void and/or invalid and/or unenforceable as a result of any statutory regulation, judicial decision or otherwise, this shall have no effect whatsoever on the validity of all the other provisions of these General Terms and Conditions or of the underlying Assignment/Agreement.
2. If any provision in the Assignment or part of the Assignment cannot be invoked at law, the remaining part of the Assignment shall remain in full force and effect, on the understanding that the provision of the part that cannot be invoked shall be deemed to have been amended in such a way as to permit invocation thereof, whereby the intention of the parties with respect to the original provision or part thereof shall be maintained as far as possible.

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Article 18. Applicable law and choice of forum.

1. These General Terms and Conditions are exclusively governed by Dutch law.
2. All disputes relating to these General Terms and Conditions shall be submitted to the exclusive competent court of the district court of Gelderland in Arnhem.

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