GENERAL TERMS AND CONDITIONS FOR ASTARI BV (Business2Business) / (Corporate)
Article 1 – Definitions
- Astari, established in Doetinchem, Chamber of Commerce number 88430553, is referred to as a 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.
- The parties are service provider and client together.
- The agreement means the service agreement between the parties.
Article 2 – Applicability of general terms and conditions
- These terms and conditions apply to all quotations, offers, activities, agreements and deliveries of services or goods by or on behalf of the service provider.
- It is only possible to deviate from these terms and conditions if this has been agreed explicitly and in writing by the parties.
- The agreement always contains best efforts obligations for the service provider, not results obligations.
Article 3 – Payment
- Invoices must be paid within 14 days of the invoice date, unless the parties have made other agreements about this in writing 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 specified by the service provider.
- If the client does not pay an invoice within the agreed term, it will be in default by operation of law, without any reminder being required. From that moment on, the service provider is entitled to suspend the obligations until the client has fulfilled its payment obligations.
- If the client remains in default, the service provider will proceed to collection. The costs related to this collection shall be borne by the client. When the client is in default, he also owes the service provider legal (commercial) interest, extrajudicial collection costs and other damages in addition to the principal sum. The collection costs are calculated on the basis of the Decree on compensation for extrajudicial collection costs.
- In the event of liquidation, bankruptcy, attachment or suspension of payment of the client, the claims of the service provider against the client are immediately due and payable.
- If the client refuses to cooperate with the performance of the assignment by the service provider, it is still obliged to pay the agreed price to the service provider.
Article 4 – Offers and quotations
- The offers of the service provider are valid for a maximum of 1 month, unless a different term of acceptance is stated in the offer. If the offer is not accepted within that period, the offer will lapse.
- Delivery times in quotations are indicative and do not entitle the client to dissolution or compensation if they are exceeded, unless the parties have expressly agreed otherwise in writing.
- Offers and quotations do not automatically apply to repeat orders. The parties must agree on this explicitly and in writing.
Article 5 – Prices
- The prices stated on offers, quotations and invoices from the service provider are exclusive of VAT and any other government levies, unless expressly stated otherwise.
- The prices of goods are based on the cost prices known at that time. Increases in this, which could not be foreseen by the service provider at the time of making the offer or the conclusion of the agreement, may give rise to price increases.
- With regard to the services, the parties can agree on a fixed price when the agreement is concluded.
- If no fixed price has been agreed, the rate with regard to the service can be determined on the basis of the hours actually spent. The rate is calculated according to the usual hourly rates of the service provider, applicable for the period in which it performs the work, unless a different hourly rate has been agreed.
- If no rate has been agreed on the basis of the hours actually spent, a target price will be agreed for the service, whereby the service provider is entitled to deviate from this by up to 10%. If the target price is more than 10% higher, the service provider must inform the client in good time why a higher price is justified. In that case, the Client has the right to cancel part of the assignment that exceeds the target price plus 10%.
Article 6 – Price indexation
- The prices and hourly wages agreed 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 on 1 January.
- Adjusted prices, rates and hourly wages will be communicated to the client as soon as possible.
Article 7 – Provision of information by the client
- The Client shall make all information relevant to the performance of the assignment available to the service provider.
- The client is obliged to provide all data and documents that the service provider believes are necessary for the correct execution of the assignment, in a timely manner and in the desired form and in the desired 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, insofar as the nature of the assignment does not dictate otherwise.
- The client indemnifies the service provider against any damage in any form whatsoever resulting from failure to comply with the provisions of the first paragraph of this article.
- If and insofar as the client requests this, the service provider will return the relevant documents.
- If the client does not make the information and documents required by the service provider available, or does not do so in time or properly, and the execution of the assignment is delayed as a result, the resulting additional costs and extra fees will be borne by the client.
Article 8 – Withdrawal of assignment
- The client is free to terminate the assignment to the service provider at any time.
- When the client withdraws the assignment, the client is obliged to pay the wages due and the expenses incurred by the service provider.
Article 9 – Execution of the agreement
- The Service Provider performs the agreement to the best of its knowledge 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 implementation 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 on time.
Article 10 – Contract duration assignment
- The agreement between the client and the service provider is entered into for an indefinite period of time, unless the nature of the agreement dictates otherwise or the parties have expressly agreed otherwise in writing.
- If the parties have agreed on a term for the completion of certain work within the term of the agreement, 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 appears that it is necessary for the proper execution of the assignment to change or supplement the work to be performed, the parties will adjust the agreement accordingly in a timely manner and in mutual consultation.
- If the parties agree that the agreement will be amended or supplemented, the time of completion of the performance may be affected. The Service Provider will inform the Client of this as soon as possible.
- If the change or addition to the agreement has financial and/or qualitative consequences, the service provider will inform the client about this in writing as soon as possible.
- If the parties have agreed on a fixed fee, the service provider will indicate to what extent the amendment or addition to the agreement will result in an exceeding of this fee.
Article 12 – Force majeure
- In addition to the provisions of Article 6:75 of the 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 the event of a circumstance independent of the will of the service provider, as a result of which the fulfillment of its obligations towards the client is prevented in whole or in part or as a result of which the fulfillment of its obligations cannot reasonably be expected from the service provider. These circumstances also include non-performance by suppliers or other third parties, power failures, computer viruses, strikes, bad weather conditions and work interruptions.
- If a situation as referred to above occurs as a result of which the service provider cannot fulfill its obligations towards the client, those obligations will be suspended as long as the service provider cannot fulfill its obligations. If the situation referred to in the previous sentence has lasted 30 calendar days, the parties have the right to dissolve the agreement in whole or in part in writing.
- In the case referred to in the second paragraph of this article, the service provider is not obliged to pay compensation for any damage, not even if the service provider enjoys any advantage as a result of the force majeure situation.
Article 13 – Settlement
The client waives its right to set off a debt to the service provider against a claim against 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 either party under this Agreement may not 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 paragraph 2 of the Dutch Civil Code.
Article 16 – Forfeiture of the claim
Any right to compensation for damage 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 Section 6:89 of the Dutch Civil Code.
Article 17 – Warranty
The parties have entered into an agreement of a service nature, which only contains an obligation of effort for Astari and therefore no obligation of result.
Article 18 – Insurance
- The client undertakes to adequately insure and keep insured the delivered goods that are necessary for the implementation of the underlying agreement, as well as the service provider's goods that are present at the client's premises and goods that have been delivered under retention of title, against, among other things, fire, explosion and water damage, as well as theft.
- The Client will make the policy of these insurances available for inspection on first request.
Article 19 – Liability for damage
- The service provider is not liable for damage resulting from this agreement, unless the service provider has caused the damage intentionally or with gross negligence.
- In the event that the service provider owes compensation to the client, the damage will not exceed the fee.
- Any liability for damage arising from or related to the performance of an agreement is always limited to the amount paid out in the relevant case by the (professional) liability insurance(s). 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 resulting directly or indirectly from the improper functioning of the equipment, software, data files, registers or other items used by the service provider in the performance of the assignment.
- The service provider's liability for damage resulting from intent or deliberate recklessness on the part of the service provider, its manager or subordinates is not excluded.
Article 20 – Client's liability
- If an assignment is given by more than one person, each of them is jointly and severally liable for the amounts owed to the service provider under that assignment.
- If an assignment is given directly or indirectly by a natural person on behalf of a legal person, this natural person can also be a private client. This requires that this natural person can be regarded as the (co-)policymaker of the legal entity. In the event of non-payment by the legal person, the natural person is therefore personally liable for the payment of the invoice, irrespective of whether it has been made out in the name of a legal person or in the name of the customer as a natural person or both of them, whether or not at the request of the client. .
Article 21 – Indemnity
The client indemnifies the service provider against all third-party claims related to the goods and/or services supplied by the service provider.
Article 22 – Complaint obligation
- The client is obliged to immediately report complaints about the work performed to the service provider in writing. The complaint contains a description of the shortcoming that is as detailed as possible, so that the service provider is able to respond adequately.
- In any case, a complaint cannot lead to the service provider being obliged to perform other work than has been agreed.
Article 23 – Retention of title, right of suspension and right of retention
- The goods present at the client and the goods and parts delivered remain the property of the service provider until the client has paid the entire agreed price. Until that time, the service provider can invoke its retention of title and take back the goods.
- If the agreed amounts to be paid in advance are not paid or not paid on time, the service provider has the right to suspend the work until the agreed part has been paid. In that case, there is creditor default. In that case, a late delivery cannot be invoked against the service provider.
- The Service Provider is not authorized to pledge or encumber in any other way the goods falling under its retention of title.
- If goods have not yet been delivered, but the agreed advance payment or price has not been paid in accordance with the agreement, the service provider has the right of retention. In that case, the item will not be delivered until the client has paid in full and in accordance with the agreement.
- In the event of liquidation, insolvency or suspension of payment of the client, the obligations of the client are immediately due and payable.
Article 24 – Intellectual Property
- Unless the parties have agreed otherwise in writing, the service provider retains all intellectual absolute rights (including copyright, patent law, trademark law, drawing and model law, etc.) to all designs, drawings, writings, carriers with data or other information, quotations, images, sketches, models, maquettes, etc.
- The said intellectual absolute rights may not be copied, shown to third parties and/or made available or used in any other way without the written permission of the service provider.
- The client undertakes to maintain the confidentiality of the confidential information made available to it by the service provider. Confidential information is in any case understood to mean that to which this article relates, as well as company data. The Client undertakes to impose a written duty of confidentiality within the purport of this provision on its personnel and/or third parties involved in the implementation of this agreement.
Article 25 – Confidentiality
- Each of the parties will keep the information it receives (in whatever form) from the other party and all other information concerning the other party that it knows or can reasonably suspect to be secret or confidential, or information that it can expect to be its dissemination may harm the other party, and take all necessary measures to ensure that its personnel also keep the said information confidential.
- The confidentiality obligation referred to in the first paragraph of this article does not apply to information:
- 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 duty of confidentiality
- If the client violates the article of these general terms and conditions on confidentiality, the client will forfeit an immediately due and payable fine of € 5,000 for each violation and an additional amount of € 500 for each day that the violation continues. This is 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 fine. Also, there does not have to be any form of damage.
- The forfeiture of the fine referred to in the first paragraph of this article does not affect the other rights of the service provider, including its right to claim compensation in addition to the fine.
Article 27 – Non-takeover of personnel
The client does not employ any employees of the service provider (or of companies that the service provider has called upon for the implementation of this agreement and who are or have been involved in the implementation of the agreement). He also does not otherwise let them 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 can make other arrangements in good business consultation. These agreements apply insofar as they have been laid down in writing.
Article 28 – Change of general terms and conditions
- Astari is entitled to change or supplement these general terms and conditions.
- Changes of minor importance can be made at any time.
- Astari will discuss major substantive changes with the customer in advance as much as possible.
Article 29 – Applicable law and competent court
- Dutch law applies exclusively to every agreement between the parties.
- The Dutch court in the district where Astari is established/has a practice/office has exclusive jurisdiction to take cognizance of any disputes between the parties, unless the law prescribes otherwise.
Article 30 – Attribution
These terms and conditions have been created together with Rocket Lawyer.
These terms and conditions are applicable from: September 23, 2022