Article I. General
- These general terms and conditions shall govern every offer, invoice and agreement between “Transition Experts”, which shall be understood to mean: Transition Experts BV in Utrecht, and a Client, to which Transition Experts has declared these general terms and conditions to be applicable, unless an explicit written agreement stipulates otherwise.
- These general terms and conditions are also applicable on any agreement with Transition Experts, where Transition Experts has to involve any third party for the execution of the agreement.
- These general terms and conditions are also written for the employees of Transition Experts and its board.
- These general terms and conditions shall supersede any (general) terms and conditions of the Client.
- When one or more conditions in these general terms and conditions are to be annulled completely or partly at any time, the remainder of these general terms and conditions will remain completely applicable. Transition Experts and the Client will deliberate on newly determined conditions that replace the annulled conditions, during which the original goal and purpose are to be considered as much as possible.
- In case of vagueness concerning one or more conditions in these general terms and conditions, explanations should be given ‘in the spirit’ of these conditions.
- If a situation occurs that is not described in these terms and conditions, this shall be judged in the spirit of these general terms and conditions.
- If Transition Experts does not constantly demand a strict observing of these conditions, this does not interfere with the applicability of these general terms and conditions, neither does it mean that Transition Experts loses the right, in any way, to demand a strict observing of these general terms and conditions in a later stage.
Article II. Invoices and offers
- General quotations and estimates provided by Transition Experts shall not entail any commitment, unless the invoice stipulates an acceptance term. When there is no acceptance term, the invoice or offer does not provide rights in any way when the product on which the invoice or offer is based is no longer available.
- Transition Experts cannot be held to execute any invoice or offer, when the Client could reasonably understand that the either the invoice or offer, or part of it, contains a mistake or miswriting.
- All prices in an invoice or quotation is quoted exclusive of VAT and any other a charges made in order to execute an agreement, including travel costs, accommodation expenses, forwarding charges, and administration expenses, unless indicated otherwise..
- When the acceptance differs (even on subordinate points) from the invoice or quotation, Transition Experts is not bound to this. Unless Transition Experts indicates otherwise, this agreement will derive based on a non-agreement.
- A composed quotations does not oblige Transition Experts to execute part of the assignment for the agreed upon part of the sum. Quotations and invoices are not automatically applicable for any future orders.
Article III. Contracts; completion deadlines, risk-transition, execution and alterations agreement; price increase
- The agreement between Transition Experts and the Client is indefinite, unless the nature of the agreement requires otherwise or unless an explicit written agreement between the parties stipulates otherwise.
- The agreed date of delivery of certain items or completion deadline for certain activities is never a fatal deadline. When the completion deadline is exceeded the Client is obliged to declare Transition Experts in default in writing. Transition Experts has to be allowed a reasonable period of time to execute the agreement.
- Transition Experts undertakes to carry out orders to the best of its ability, bringing to bear sufficient professional know-how to meet the demands concerning craftsmanship. Bearing in mind the scientific knowledge at that moment.
- Transition Experts shall be entitled to hire third parties to carry out the order. The applicability of articles 7.404, 7.407 and 7.409 BW are explicitly excluded.
- When Transition Experts or third parties hired by Transitions Experts have to execute activities at a location of a Client or designated by the Client, the Client shall provide the required facilities, in all fairness.
- The Client is obligated to take the items when they become available to him. When the Client refuses to take the items or when the Client is neglectful in providing information or instructions concerning delivery, Transition Experts has the right to store the items at the costs and risks of the Client. The risk of loss, damage or decrease of value is for the Client from the moment the items are at their disposal.
- Transition Experts is entitled to executing the agreement in different phases and they are therefore entitled to charging each part separately.
- When the agreement is executed in phases, Transition Experts can postpone the execution of elements that are part of a subsequent phase until the Client approves the results of the previous phase in writing.
- The Client ensures that all data, of which Transition Experts indicates to be necessary in order to execute the agreement, or which the Client is reasonably to understand that it is necessary to execute the agreement, is provided to Transition Experts in time. When the data, necessary to execute the agreement, is not provided in time, Transition Experts is entitled to postpone the agreement and/or charge the Client with the additional costs coming form the delay. The completion deadline will not start before the data is handed over to Transition Experts. Transition Experts shall under no circumstance be liable for any forms of damage, as Transition Experts was faced with incorrect and/or incomplete data from the Client.
- When, during the execution of an agreement, it turns out that a change or supplement of the agreement is necessary in order to properly execute the agreement, the parties will deliberate on an adjustment of the agreement, in time. When the nature, size or content of the agreement, whether or not on the request or indication of the Client, authorised organisations et cetera, is changed which leads to a change in either quantity and/or quality of the agreement, this may effect the original agreement. This may cause an increase or decrease of the agreed upon sum. Transition Experts will offer an indication of price as much as possible. An alteration of the agreement can change the agreed upon completion deadline. The Client accepts the possibility of an alteration of the agreement, including a change in price and completion deadline.
- When the agreement is changed, including any supplements, Transition Experts is entitled to execute that first after the authorised person at Transition Experts and the Client have agreed upon the price and other conditions concerning the execution, including the completion deadline, which is to be determined. When Transition Experts is not able to (immediately) execute the alteration of the agreement, this shall not be considered a default, nor does it result in the Client having ground to cancel or annul the agreement.
- Without being in default, Transition Experts can refuse to execute a request to alter the agreement, in case this could have consequences, either in quality and/or quantity, concerning the activities that have to be executed or the items that have to be delivered.
- If the Client fails to meet its obligations to Transition Experts, the Client is liable to Transition Experts for any damage deriving either directly or indirectly.
- When Transition Experts and the Client have agreed upon a fixed fee or price, Transition Experts is still entitled to raise the agreed fee or price, without that providing the Client with the right to annul the agreement, when the raise is a consequence of an authority or obligation concerning the law- or legislation or when there is a raise in price of raw materials, wages et cetera or when Transition Experts is incurred more costs than might reasonably have been foreseen on conclusion of the agreement.
- When the price increase, caused by an alteration of the agreement, is over 10% and if it occurs within three months after closing the agreement, the Client is entitled to dissolve the contract through a written declaration, based on title 5 department 3 of Book 6BW, unless Transition Experts
- is still prepared to execute the original agreement;
- when the price increase is a consequence of an authority or an obligation of the law that affects Transition Experts;
- when a condition stating that the delivery will take longer than three months after closing the agreement, has been laid down in a contract;
- or, in case of the delivery of a activity, the delivery will take longer than three months after the date of purchase.
Article IV. Adjournment, dissolution and intermediate cancellation of the agreement
- Transition Experts has the right to suspend performance of the contract or to dissolve the contract in whole, when the Client fails to meet (part of) its obligations completely, or timely, or when Transition Experts finds out that there are circumstances which lead to reasonable doubt about the Client’s ability to meet its obligations, when the Client is required to provide sufficient security concerning the fulfilment of its obligations deriving from the agreement, and when this security is not given or not sufficient or when a delay caused by the Client prevents Transition Experts to meet the original conditions of the agreement.
- Subsequently, Transition Experts has the right to dissolve the agreement when circumstances occur that make it impossible to meet the agreement or when circumstances occur that an unaltered preservation of the agreement cannot reasonably be expected from Transition Experts.
- If the agreement is dissolved Transition Experts is entitled to demand immediate payment of any outstanding amounts. When Transition Experts postpones the follow-up of the obligations, it shall retain the right to claims from the law and the agreement.
- If Transition Experts dissolves or adjourns the agreement, it shall not be liable to pay any compensation for damage or costs whatsoever.
- If the adjournment can be attributed to the Client, Transition Experts shall retain the right to reimbursement for damage, including any costs, derived either directly or indirectly.
- If the Client fails to meet the obligations from the agreement and justifies this default, Transition Experts shall have the right to dissolve the agreement directly, without any obligations to pay any compensation, while the Client, based on default, is obligated to pay reimbursement or compensation..
- In case of an intermediate cancellation by Transition Experts, Transition Experts will consult the Client in order to take care of a transfer to third parties of the activities that still have to be executed. Unless the Client can be accounted for the cancellation. If the transfer of activities cause extra costs for Transition Experts, these will be charged to the Client. The client has to make the payment by the due date, unless Transition Experts stipulates otherwise.
- If the Client is declared insolvent or bankrupt or if a petition is filed for the Client’s compulsory liquidation or bankruptcy, attachment – when this attachment is not dissolved within three months –, debt rescheduling regulations or any other circumstance that prevents the Client from free access to its assets, Transition Experts shall have the right, without being required to pay any compensation or reimbursement, to dissolve the agreement in whole or in part or to suspend performance of the agreement. Transition Experts shall in that case be entitled to demand immediate payment of any outstanding amounts.
- If the Client dissolves the agreement in whole or in part, Transition Experts shall charge the Client for all the activities performed and for the items that were ordered for that purpose, with on top of that the extra delivery costs and labour costs.
Article V. Force majeure
- Transition Experts shall not be retained to performance of any obligation to the Client, should Transition Experts be unable to meet its obligations either due to circumstances beyond its control and risk, or due to an act of law, or due to any common notions in traffic.
- Force majeure includes, besides that which has been described in law and legislation, all other circumstances, foreseen or unforeseen, beyond Transition Experts’ control, nor the circumstances that prevent Transition Experts from performing its obligations. Strikes at Transition Experts or at any third party involved. Transition Experts can appeal to force majeure when the circumstance that prevents any performance of the agreement, occurs after the completion deadline.
- Transition Experts can postpone its obligations deriving from the agreement during the entire period in which force majeure is applicable. If this period takes longer than two months, each party is legally entitled to dissolve the agreement, without any obligations to pay compensation for damage to the other party.
- If, in case of force majeure, Transition Experts has performed part of the agreement, or is about to perform part of the agreement, which is of any independent value, Transition Experts shall retain the right to charge the Client for these parts of the agreement separately. The Client is obligated to pay this invoice as if it were a separate agreement.
Article VI. Payment and collection costs
- Payment shall be due 14 calendar days after the invoice date. Transition Experts shall indicate the way in which payment should occur, and it shall be in the currency invoiced, unless Transition Experts has stipulated otherwise in writing. Transition Experts has the right to charge periodically.
- If payment is not made by the due date, the Client shall be in default, and shall owe an interest of 1% per month, unless the statutory interest due on the invoice amount is higher, in which case the statutory interest is owed. The interest shall be demanded for the entire period from the due date until settlement is made in full.
- Transition Experts has the right to deduct the payments made by the Client from the costs in the first place, then from the arrear interest and lastly from the capital sum and accrued interest. Transition Experts can refuse an offer to pay, without being in default, when the Client suggests a different order of assigning the paid sum. Transition Experts can refuse a payment of the entire sum, when the arrear interest and the accrued interest and collection fees are not covered.
- The Client is never entitled to settlement of the amount due to Transition Experts. Any complaints concerning the amount on the invoice, shall not release the Client from its payment obligations. The Client that is not entitled to a complaint, based on department 6.5.3 (articles 231 to 247 Book 6 BW), is not entitled to postpone payment of the invoice for any other reason.
- If the Client fails to meet its obligations (in time), all reasonable costs made in order to satisfy, are on the account of the Client. The extra judicial costs will be calculated based on the standards of the Dutch collection practices, currently a method of calculating according to Report Prework II. If the costs made for the collection are reasonably higher, the actual costs made will be used for reimbursement. The Client shall also be charged for any extra judicial costs and execution costs. The Client also owes interest over the collection fee due.
Article VII. Ownership reservation
- The delivered goods that were part of the agreement, shall remain property of Transition Experts until the Client has properly met all obligations deriving from the agreement.
- The goods delivered, which fall within the ambit of ownership reservation according to art 1., by Transition Experts, cannot be resold nor can it be used as a means for payment. The Client is not authorized to pawn the goods that fall within the ambit of ownership reservation, nor can they charge it in any other way.
- The Client has to do all that could reasonably be expected in order to secure the ownership rights of Transition Experts. When a third party confiscates the delivered goods that fall under the ambit of ownership reservation, or when they aspire to acquire rights on the delivered goods, the Client has to inform Transition Experts immediately. The Client is also compelled to insure the delivered goods, and keep them insured against fire, damage caused by explosion and water damage, as well as theft, and the policy shall be handed over to Transition Experts at first request. In case of payment by the insurance company, Transition Experts is entitled to these payments. The Client commits, in advance, to give full support to all that could reasonably be expected in this matter.
- If Transition Experts wishes to practise the ownership rights defined in this article, the Client gives their consent, in advance and indisputably, for Transition Experts and third parties hired by Transition Experts to enter all the places where properties of Transition Experts are and to take back these goods.
Article VIII. Guarantees, research and commercials, limitation period
- The goods that are to be delivered by Transition Experts meet the usual standards and demands that could be demanded at time of delivery, and that are required for normal use in the Netherlands. The guarantee defined in this article is applicable to goods that are to be used in the Netherlands. In case of usage outside the Netherlands, the Client is responsible for verifying whether the goods are suitable for usage over there, and whether the goods meet the conditions that are required over there. Transition Experts can inflict other guarantees and other conditions on the goods that are to be delivered or activities that are to be executed.
- The guarantee, as described in part 1 of this article, applies for a period of 2 months after the delivery date, unless the nature of the delivered goods require otherwise or if the parties involved have agreed upon other conditions. If the guarantee Transition Experts gives concerns a good that is delivered by a third party, the guarantee is limited to the period that the supplier of the good sets, unless stipulated otherwise.
- Any form of guarantee is disposed of if a default is caused by an incompetent use or abuse of the good or if the goods are used after the perishable date, or in case of improper storage or maintenance by the Client and/or third parties, unless Transition Experts has provided a written consent, or when the Client or third parties have changed or tried to change the goods, tried to connect goods that were not to be connected or when the goods were revised or processed in a different way than was prescribed. Nor is the Client entitled to guarantee when the default was caused by, or is the result of, circumstances that Transition Experts has no control over, including weather circumstances (like for example, nor not exclusively, extreme rainfall or temperatures) et cetera.
- It is the responsibility of the Client to review the delivered goods, or have it reviewed, immediately at the moment when the goods are at its disposal, or at the moment the activity has been executed. The Client shall review whether the delivered goods are of the quality and/or quantity that has been agreed upon, and whether it meets the requirements that the parties have agreed upon. The Client shall notify Transition Experts in writing of any visible flaws, yet no later than seven days after delivery. Any invisible flaws shall be immediately reported to Transition Experts in writing, yet no later than fourteen days after discovery of the flaw. The notification should contain a detailed description of the flaw, in order to enable Transition Experts to respond properly. The Client shall allow Transition Experts to research a complaint, or have it researched.
- Lodging a complaint in time shall not release the Client from its payment obligations. The Client is still held to purchase and payment of the other goods that were ordered and which it has ordered Transition Experts to.
- The Client is not entitled to recovery, replacement or reimbursement, if the flaw is lodged in a later stage.
- In the case of a valid complaint which has been lodged in time, Transition Experts shall be allowed a reasonable period of time after the return, or if return is not possible, a written notification by the Client, to replace the goods or take care of recovery or reimbursement. In case of replacement, the Client has to return the goods that are to be replaced to Transition Experts and provide Transition Experts with ownership of the goods, unless Transition Experts indicates otherwise.
- If a complaint proves to be unjust, the Client will be charged with the costs that were caused by the complaint, including research costs, made by Transition Experts.
- If the guarantee period has expired, the Client will be charged for all costs made to recover or replace, including administration costs, forwarding-charges and call fees.
- By way of derogation from the legal term of limitation, the term of limitation for all advances and complaints towards Transition Experts and the execution of the agreement, is one year.
Article IX. Liability
- If Transition Experts were to be liable, this liability will never exceed the content of this condition.
- Transition Experts is not liable for damage, of any kind, when Transition Experts was faced with incorrect and/or incomplete data from the Client.
- If Transition Experts is liable for any damage, this liability is limited to twice the value of the invoice of the order, at least the part of the order to which the liability is applicable.
- The liability of Transition Experts is always limited by the amount of settlement of the insurance company.
- Transition Experts shall exclusively be liable for any damage directly deriving from shortcoming attributable to Transition Experts.
- Direct damage shall only concern the reasonably costs made to determine the cause and size of the damage, given that this determination affects damage as described in this condition, possible, reasonable costs made to answer the faulty proceedings of Transition Experts, for as much as Transition Experts is to blame for this costs, costs made to limit the damage, given that the Client proves that these costs have lead to a limitation of direct damage as described in these general terms and conditions. Transition Experts is never liable for any indirect damage, including consequential loss, lost profit, missed savings and damage caused by business hold-up.
- The limitations on the liability are not applicable when the damage is caused by intent or serious misconduct by Transition Experts or any of its managerial subordinates.
Article X. Guarantee
- The Client clears Transition Experts of any claims by third parties, which have suffered damage as a result of the execution of the agreement and that have a cause that cannot be attributed to Transition Experts. If Transition Experts faces a claim of any third party, the Client is obligated to support Transition Experts, both in and out of court, and the Client has to do all that could be expected in these cases. If the Client fails to take sufficient measures, Transition Experts has the right, without being in default, to take the measures itself. The Client will be charged with all costs and damage of Transition Experts and third parties that were caused by this.
Article XI. Intellectual ownership
- Transition Experts shall retain the right and authorities which are presented based on the Copyright and other intellectual law and legislation. Transition Experts shall retain the right to use the knowledge gained during the execution of an agreement for other purposes, as long as this does not provide any third party with any strictly confidential information of the Client.
Article XII. Governing law and disputes
- The legal relationship between the Client and Transition Experts shall be governed by Dutch law, even when, part of, the agreement is executed abroad or when the involved party has an address abroad. The applicability of Vienna Sales Convention is excluded.
- Any dispute shall be submitted for judgement to the competent court at the place where Transition Experts has its office, unless the law urgently stipulates otherwise. Nonetheless, Transition Experts retains the right to submit the dispute to the judge authorised by the law.
- Parties shall not appeal to court, before they have exerted to settle the dispute by mutual agreement.
Article XIII. Registration and alteration general terms and conditions
- These General Terms and Conditions were filed with the Gorichem Chamber of Commerce.
- The most recent terms that have been registered and/or the latest version that existed when the legal relationship with Transition Experts commenced, is always applicable.
- The original Dutch text of these General Terms and Conditions shall prevail over versions published in any other language.
Utrecht, 28 July 2011