General Terms
Applies to all formal offers and quotations
Article 1 General
These terms and conditions apply to every offer, quotation and agreement between Blue Kanvas Consulting, hereinafter referred to as the “Contractor,” and a Client to whom the Contractor has declared these terms applicable, insofar as the parties have not expressly and in writing deviated from these terms.
These terms and conditions also apply to acts performed by third parties engaged by the Contractor in the context of the/a assignment.
These general terms and conditions are likewise written for the Contractor’s employees and its management.
The applicability of any purchasing or other terms and conditions of the Client is expressly rejected.
If one or more provisions of these general terms and conditions are at any time wholly or partially void or annulled, the remaining provisions of these general terms and conditions shall remain fully applicable. In such a case, the Contractor and the Client shall consult in order to agree on new provisions to replace the void or annulled provisions, taking into account the purpose and purport of the original provisions as much as possible.
If there is any ambiguity regarding the interpretation of one or more provisions of these general terms and conditions, interpretation shall be “in the spirit” of these provisions.
If a situation arises between the parties that is not regulated in these general terms and conditions, this situation shall be assessed in the spirit of these general terms and conditions.
If the Contractor does not always demand strict compliance with these terms, this does not mean that the provisions do not apply, or that the Contractor would in any way lose the right to demand strict compliance with the provisions of these terms in other cases.
Article 2 Quotations, offers
All quotations and offers from the Contractor are without obligation, unless a period for acceptance is stated in the quotation. If no acceptance period is stated, the offer shall in all cases lapse after 30 days.
The 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 clerical error.
The prices stated in a quotation or offer are exclusive of VAT and other government levies, as well as any costs to be incurred in connection with the agreement, including but not limited to travel and accommodation, shipping and administration costs, unless indicated otherwise.
If the acceptance deviates (whether or not on minor points) from the offer included in the quotation or the offer, the Contractor shall not be bound by it. The agreement will then not be concluded in accordance with this deviating acceptance, unless the Contractor indicates otherwise.
A composite price quotation does not oblige the Contractor to perform part of the assignment for a corresponding part of the quoted price. Offers or quotations do not automatically apply to future orders.
Article 3 Contract term, performance periods, transfer of risk, performance and amendment of the agreement, price increase
The agreement between the Contractor and the Client is entered into for a definite period, unless the nature of the agreement indicates otherwise or the parties expressly and in writing agree otherwise.
If a period has been agreed or stated for the performance of certain work or for the delivery of certain items, this shall never be a strict deadline. If a period is exceeded, the Client must therefore place the Contractor in default in writing. The Contractor must be granted a reasonable period to still perform the agreement.
The Contractor shall perform the agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship, based on the then-current state of science.
The Contractor has the right to have certain work performed by third parties. The applicability of Articles 7:404, 7:407 paragraph 2 and 7:409 of the Dutch Civil Code (BW) is expressly excluded.
If work is performed by the Contractor or by third parties engaged by the Contractor at the Client’s location or at a location designated by the Client in the context of the assignment, the Client shall provide, free of charge, the facilities reasonably required by those employees.
The Contractor is entitled to execute the agreement in different phases and to invoice the portion thus performed separately.
If the agreement is executed in phases, the Contractor may suspend the execution of components belonging to a subsequent phase until the Client has approved in writing the results of the preceding phase.
The Client shall ensure that all data that the Contractor indicates are necessary, or that the Client should reasonably understand are necessary, for the execution of the agreement, are provided to the Contractor in a timely manner. If the data required for the execution of the agreement are not provided to the Contractor on time, the Contractor has the right to suspend the execution of the agreement and/or to charge the Client for the additional costs resulting from the delay according to the then customary rates. The execution period shall not commence until after the Client has made the data available to the Contractor. The Contractor is not liable for any damage of any kind resulting from the Contractor relying on incorrect and/or incomplete data provided by the Client.
If during the execution of the agreement it becomes apparent that it is necessary to modify or supplement it for proper performance, the parties shall proceed in good time and in mutual consultation to amend the agreement. If the nature, scope or content of the agreement is changed, whether at the request or instruction of the Client, competent authorities, etc., and the agreement is thereby altered in qualitative and/or quantitative terms, this may affect what was originally agreed. As a result, the originally agreed amount may be increased or decreased. The Contractor will, as far as possible, provide a price quotation in advance. A modification of the agreement may also change the originally stated term of performance. The Client accepts the possibility of amending the agreement, including the change in price and execution time.
If the agreement is amended, including an addition, the Contractor is entitled to implement it only after approval has been given by the person authorized within the Contractor and the Client has agreed to the stated price and other conditions for execution, including the time to be determined at which execution will take place. The failure to implement the amended agreement or the failure to do so immediately does not constitute a breach by the Contractor and does not entitle the Client to terminate or cancel the agreement.
Without being in default, the 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 or items to be delivered in that context.
If the Client fails to properly fulfill its obligations towards the Contractor, the Client shall be liable for all damage suffered by the Contractor as a result, directly or indirectly.
If the Contractor agrees a fixed fee or fixed price with the Client, the Contractor is nevertheless at all times entitled to increase this fee or price without the Client being entitled in that case to dissolve the agreement for that reason, if the price increase results from a power or obligation under laws or regulations, or is caused by an increase in the price of raw materials, wages, etc., or on other grounds that were not reasonably foreseeable at the time the agreement was concluded.
If the price increase—other than as a result of an amendment to the agreement—exceeds 10% and occurs within three months of the conclusion of the agreement, then only the Client who can invoke Title 5, Section 3 of Book 6 BW is entitled to dissolve the agreement by written declaration, unless the Contractor is then still willing to perform the agreement on the basis of the originally agreed amount;
if the price increase results from a power or obligation resting on the Contractor pursuant to law;
if it has been stipulated that delivery will take place more than three months after the conclusion of the agreement;
or, in the case of delivery of an item, if it has been stipulated that delivery will take place more than three months after the purchase.
Article 4 Suspension, dissolution and interim termination of the agreement
The Contractor is authorized to suspend the fulfillment of obligations or to dissolve the agreement if the Client does not, not fully, or not timely fulfill the obligations under the agreement; if circumstances that come to the Contractor’s knowledge after the agreement give good reason to fear that the Client will not fulfill the obligations; if, at the conclusion of the agreement, the Client was asked to provide security for the fulfillment of its obligations under the agreement and this security is not provided or is insufficient; or if, due to the Client’s delay, the Contractor can no longer be expected to perform the agreement under the originally agreed conditions.
Furthermore, the Contractor is authorized to dissolve the agreement if circumstances arise which are of such a nature that performance of the agreement becomes impossible or if other circumstances arise which are such that unaltered maintenance of the agreement cannot reasonably be required of the Contractor.
If the agreement is dissolved, the Contractor’s claims against the Client become immediately due and payable. If the Contractor suspends the fulfillment of obligations, it retains its rights under the law and the agreement.
If the Contractor proceeds to suspension or dissolution, it shall not be liable in any way to compensate for damages and costs incurred in any way.
If the dissolution is attributable to the Client, the Contractor is entitled to compensation for the damage, including costs, incurred directly and indirectly as a result.
If the Client fails to fulfill its obligations under the agreement and such failure justifies dissolution, the Contractor is entitled to dissolve the agreement immediately and with immediate effect without any obligation on its part to pay any compensation or indemnification, while the Client, by reason of breach of contract, is obliged to pay compensation or indemnification.
If the agreement is terminated prematurely by the Contractor, the Contractor will, in consultation with the Client, arrange for the transfer of work still to be performed to third parties, unless the termination is attributable to the Client. If the transfer of the work entails additional costs for the Contractor, these will be charged to the Client. The Client is obliged to pay these costs within the specified period, unless the Contractor indicates otherwise.
In the event of liquidation, (application for) suspension of payments or bankruptcy, attachment—if and to the extent the attachment is not lifted within three months—against the Client, debt rescheduling or any other circumstance as a result of which the Client can no longer freely dispose of its assets, the Contractor is free to terminate the agreement immediately and with immediate effect or to cancel the order or agreement, without any obligation on its part to pay any compensation or indemnification.
In that case, the Contractor’s claims against the Client become immediately due and payable.
If the Client cancels an order in whole or in part, the work performed and the items ordered or prepared for that purpose, plus any in- and outbound and delivery costs and the labor time reserved for the execution of the agreement, will be charged in full to the Client.
Article 5 Force majeure
The Contractor is not obliged to fulfill any obligation towards the Client if it is hindered from doing so as a result of a circumstance not attributable to fault and not for its account under the law, a legal act, or generally accepted standards.
In these general terms and conditions, force majeure includes, in addition to its definition in law and jurisprudence, all external causes, foreseen or unforeseen, over which the Contractor cannot exert influence, but as a result of which the Contractor is unable to fulfill its obligations. Strikes in the Contractor’s business or in that of third parties are included. The Contractor is also entitled to invoke force majeure if the circumstance preventing (further) performance of the agreement occurs after the Contractor should have fulfilled its obligation.
During the period of force majeure, the Contractor may suspend the obligations under the agreement. If this period lasts longer than 30 days, each party is entitled to dissolve the agreement, without any obligation to compensate the other party for damages.
Insofar as the Contractor, at the time force majeure occurs, has already partially fulfilled its obligations under the agreement or will be able to fulfill them, and independent value can be attributed to the fulfilled or to be fulfilled part, the Contractor is entitled to separately invoice the part already fulfilled or to be fulfilled. The Client is obliged to pay this invoice as if it were a separate agreement.
Article 6 Payment and collection costs
Payment must always be made within 14 days of the invoice date, in a manner indicated by the Contractor and in the currency in which the invoice is issued, unless otherwise indicated in writing by the Contractor.
The Contractor is entitled to invoice periodically.
If the Client fails to pay an invoice on time, the Client is in default by operation of law. The Client then owes statutory interest. Interest on the payable amount will be calculated from the moment the Client is in default until the moment of full payment of the amount due.
The Contractor has the right to allocate payments made by the Client first to reduce costs, then to reduce accrued interest, and finally to reduce the principal and current interest. The Contractor may, without being in default, refuse an offer of payment if the Client designates a different order of allocation. The Contractor may refuse full repayment of the principal if the accrued and current interest and collection costs are not also paid.
The Client is never entitled to set off any amount owed to the Contractor. Objections to the amount of an invoice do not suspend the payment obligation. The Client who cannot invoke Section 6.5.3 (Articles 231 to 247 of Book 6 BW) is likewise not entitled to suspend payment of an invoice for any other reason.
If the Client is in default or breach in the (timely) fulfillment of its obligations, then all reasonable costs incurred to obtain satisfaction out of court shall be borne by the Client. Extrajudicial costs are calculated based on what is customary in Dutch collection practice, currently the calculation method according to the “Rapport Voorwerk II.” If, however, the Contractor has incurred higher collection costs that were reasonably necessary, the actual costs incurred are eligible for reimbursement. Any judicial and execution costs incurred will also be recovered from the Client. The Client also owes interest on the collection costs due.
Article 7 Retention of title
Items delivered by the Contractor under the agreement remain the property of the Contractor until the Client has properly fulfilled all obligations under the agreement(s) concluded with the Contractor.
Items delivered by the Contractor that fall under the retention of title as referred to in paragraph 1 may not be resold and may never be used as means of payment. The Client is not authorized to pledge or otherwise encumber items falling under the retention of title.
The Client must always do everything that may reasonably be expected of it to safeguard the Contractor’s ownership rights.
If third parties seize items delivered under retention of title, or wish to establish or assert rights thereon, the Client is obliged to inform the Contractor immediately. Furthermore, the Client undertakes to insure and keep insured the items delivered under retention of title against fire, explosion and water damage as well as theft, and to make the policy of this insurance available for inspection to the Contractor upon first request. In the event of any insurance payout, the Contractor is entitled to these funds. Insofar as necessary, the Client hereby undertakes in advance towards the Contractor to cooperate in all matters that may (prove to) be necessary or desirable in this context.
In the event the Contractor wishes to exercise its ownership rights as referred to in this article, the Client grants the Contractor and third parties designated by the Contractor unconditional and irrevocable permission in advance to enter all locations where the Contractor’s property is located and to take them back.
Article 8 Warranties, inspection and complaints, limitation period
The items to be delivered by the Contractor meet the usual requirements and standards that can reasonably be set for them at the time of delivery and for which they are intended under normal use in the Netherlands. The warranty referred to in this article applies to items intended for use within the Netherlands. For use outside the Netherlands, the Client must verify whether the use is suitable for use there and meets the conditions set for it. In that case, the Contractor may impose different warranty and other conditions regarding the items to be delivered or the work to be performed.
The warranty referred to in paragraph 1 of this article applies for a period of 6 months after delivery, unless the nature of the delivered item indicates otherwise or the parties have agreed otherwise. If the warranty provided by the Contractor concerns an item produced by a third party, the warranty is limited to that provided by the manufacturer of the item, unless stated otherwise.
Any form of warranty lapses if a defect has arisen as a result of or results from improper or inappropriate use, use after the expiration date, incorrect storage or maintenance by the Client and/or third parties; when, without the Contractor’s written permission, the Client or third parties have made or attempted to make changes to the item; other items have been attached to it that should not be attached; or if it has been processed or treated in a manner other than prescribed.
The Client likewise has no claim to warranty if the defect arose from or is the result of circumstances over which the Contractor cannot exercise influence, including weather conditions (such as, but not limited to, extreme rainfall or temperatures), etc.
The Client is obliged to examine (or have examined) the delivered items immediately at the moment the items are made available to it or the relevant work has been carried out. In doing so, the Client must check whether the quality and/or quantity of the delivered items corresponds to what has been agreed and meets the requirements agreed by the parties in that regard. Any visible defects must be reported to the Contractor in writing within 5 working days after delivery. Any non-visible defects must be reported to the Contractor immediately, but in any case no later than fourteen days after their discovery, in writing. The notice must contain a description of the defect that is as detailed as possible, so that the Contractor can respond adequately. The Client must give the Contractor the opportunity to investigate (or have investigated) a complaint.
If the Client complains in a timely manner, this does not suspend its payment obligation. In that case, the Client also remains obliged to accept and pay for the other items ordered and for what it has commissioned the Contractor to do.
If a defect is reported later, the Client no longer has the right to repair, replacement or compensation.
If it is established that an item is defective and a complaint has been made in a timely manner in that regard, the Contractor will, within a reasonable time after the return receipt thereof—or, if return is not reasonably possible, after written notification of the defect by the Client—at the Contractor’s option, replace or arrange for repair of the defective item or pay replacement compensation to the Client. In the event of replacement, the Client is obliged to return the replaced item to the Contractor and to transfer ownership thereof to the Contractor, unless the Contractor indicates otherwise.
If it transpires that a complaint is unfounded, the costs thereby incurred, including investigation costs, on the part of the Contractor shall be borne in full by the Client.
After the warranty period expires, all costs for repair or replacement, including administration, shipping and call-out charges, shall be charged to the Client.
Article 9 Liability
If the Contractor should be liable, such liability is limited to what is provided in this article.
The Contractor is not liable for damage of any nature whatsoever caused by the Contractor having relied on incorrect and/or incomplete data provided by or on behalf of the Client.
If the Contractor should be liable for any damage, the Contractor’s liability is limited to a maximum of once the invoice value of the order, or at least to that part of the order to which the liability relates.
In any case, the Contractor’s liability is always limited to the amount of the payout from its insurer in the relevant case.
The Contractor is only liable for direct damage.
Direct damage exclusively means the reasonable costs to determine the cause and extent of the damage, insofar as the determination relates to damage within the meaning of these terms and conditions; any reasonable costs incurred to have the Contractor’s defective performance conform to the agreement, insofar as they can be attributed to the Contractor; and reasonable costs incurred to prevent or limit damage, insofar as the Client demonstrates that these costs have resulted in limitation of direct damage as referred to in these general terms and conditions. The Contractor is never liable for indirect damage, including consequential damage, loss of profit, missed savings and damage due to business interruption.
The limitations of liability included in this article do not apply if the damage is due to intent or gross negligence on the part of the Contractor or its managerial subordinates.
Article 10 Indemnification
The Client indemnifies the Contractor against any claims by third parties who suffer damage in connection with the execution of the agreement and whose cause is attributable to others than the Contractor. If the Contractor should be addressed by third parties on that account, the Client is obliged to assist the Contractor both extrajudicially and judicially and to do immediately all that may be expected of it in that case. Should the Client fail to take adequate measures, the Contractor is entitled, without notice of default, to proceed to do so itself. All costs and damage on the part of the Contractor and third parties thereby arising shall be entirely for the account and risk of the Client.
Article 11 Intellectual property
The Contractor reserves the rights and powers vested in it under the Dutch Copyright Act and other intellectual property laws and regulations. The Contractor has the right to use for other purposes the knowledge that has increased on its side through the execution of an agreement, insofar as no strictly confidential information of the Client is brought to the knowledge of third parties in doing so.
Article 12 Applicable law and disputes
All legal relationships to which the Contractor is a party are governed exclusively by Dutch law, even if an obligation is performed wholly or partly abroad or if the party involved in the legal relationship is domiciled there. The applicability of the Vienna Sales Convention (CISG) is excluded.
The court in the district where the Contractor is established has exclusive jurisdiction to take cognizance of disputes, unless the law imperatively prescribes otherwise. Nevertheless, the Contractor has the right to submit the dispute to the court that is competent under the law.
The parties shall only appeal to the court after they have made every effort to settle a dispute by mutual agreement.
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