Article 1 Definitions
- Paradise Supplies B.V., established in Zevenaar, Chamber of Commerce number 67437982, is referred to in these general terms and conditions as service provider.
- The counterparty of service provider is referred to as client in these general terms and conditions.
- The parties are service provider and client together.
- The agreement means the agreement for services between the parties.
Article 2 Applicability 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.
- Deviating from these conditions is only possible if both parties have agreed upon this explicitly and in writing.
- The agreement always contains obligations/duties of best efforts for the service provider; no obligations/duties of results.
Article 3 Payment
- Declarations must be paid within 14 days after the invoice date, unless the parties have agreed otherwise in writing or if a different payment term is stated on the invoice.
- Payments are made without any recourse to suspension or set-off by transfer of the amount due to the bank account number specified by the service provider.
- If the client does not pay the required sum within the agreed period, he is in default by operation of law, without any notice of default being required. From that moment on, the service provider is entitled to suspend his obligations until the client has met his payment obligations.
- If the client remains in default, the service provider will proceed to collection. The costs related to this collection are at the expense of the client. If the client is in default, he is also liable to pay legal (commercial) interest, extrajudicial collection costs and other damage to the service provider in addition to the principal amount. The collection costs are determined on the basis of the Decree on compensation for extrajudicial collection costs.
- In the event of liquidation, bankruptcy, seizure or suspension of payment of the client, any claims of the service provider against the client are immediately due and payable.
- If the client refuses to cooperate with the execution of the assignment/order by the service provider, he is still obliged to pay the agreed upon amount to the service provider.
Article 4 Quotations and offers
- The service provider’s offers are valid for a maximum of 2 months, unless a different term of acceptance is mentioned 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 it is exceeded, unless the parties have expressly agreed otherwise in writing.
- Offers and quotations do not automatically apply to repeat orders. The parties must expressly agree to this in writing.
Article 5 Prices
- The prices mentioned on offers, quotations and invoices from the service provider do not include VAT and any other government levies or taxes, unless expressly stated otherwise.
- The prices of goods are based on the rates known at that time. Increases, 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 provision of services, the parties can agree upon on a fixed price for the conclusion of the agreement.
- If no fixed price has been agreed, the rate for the service may be determined on the basis of the hours actually spent. The rate is calculated according to the regular hourly rates of the service provider, applicable for the period in which he performs the work, unless a deviating hourly rate has been agreed upon.
- If no rate for the hours actually spent has been agreed upon, then a target price will be agreed upon for the service, whereby the service provider is entitled to deviate from this rate up to 10%. If the target price exceeds 10%, the service provider must timely inform the client of the reason why a higher price is justified. In that case, the client is entitled to cancel any part of the order which exceeds the target price plus 10%.
Article 6 Price indexing
- The prices and hourly wages agreed upon at the conclusion of the agreement are based on the general price level at that time. The service provider is entitled to adjust the fees charged to the client annually as of the first of January.
- Adjusted prices, rates and hourly wages are communicated to the client as soon as possible.
Article 7 Provision of information by the client
- The client makes all information relevant to the execution of the assignment available to the service provider.
- The client is obliged to make all data and documents, which the service provider considers necessary for the correct execution of the assignment, available in a timely manner en in the desired form.
- 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, unless otherwise arises from the nature of the assignment.
- The client indemnifies the service provider for any damage in any form whatsoever arising 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, not timely or not adequately deliver the data and documents required by the service provider, and the execution of the assignment is delayed, the resulting additional costs and extra fees will be charged to the client.
Article 8 Withdrawal of assignment
- The client is free to terminate the agreement with the service provider at any time.
- When the client withdraws the assignment, the client is obliged to pay the wages owed and the expenses incurred by the service provider.
Article 9 Execution of the agreement
- The service provider executes 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 call on third parties.
- The execution takes place in mutual consultation and after a written agreement and payment of any agreed upon advance.
- It is the client’s responsibility that the service provider can start executing the assignment on time.
Article 10 Duration of the 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 provides otherwise or the parties have explicitly agreed otherwise in writing.
- If the parties have agreed a term within the term of the agreement for the completion of certain activities, this is never a strict deadline. In the event that this period is exceeded, the client must give the service provider written notice of default.
Article 11 Modification of the assignment
- If it becomes apparent during the execution of the agreement that it is necessary for the proper performance of the assignment to change or supplement the work to be performed, the parties will timely and in mutual consultation adjust the agreement accordingly.
- If the parties agree that the agreement is to be amended or supplemented, the time of completion of the execution can be influenced as a result. The service provider will inform client of this as soon as possible.
- If the change or addition to the agreement has financial and/or qualitative consequences, the service provider informs the client of this in writing as soon as possible.
- If the parties have agreed upon a fixed fee, the service provider will indicate to what extent the change or addition to the agreement will result in an exceeding of this fee.
Article 12 Force majeure
- In addition to the provisions of section 6:75 of the Dutch Civil Code, the service provider’s failure to perform any obligation towards the client cannot be attributed to the service provider in the event of any circumstance beyond the control of the service provider. As a consequence, the service provider is unable to fulfill his obligations to the client, in whole or in part, or the fulfillment of his obligations cannot reasonably be demanded. These circumstances also include failures 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 his obligations towards the client, these obligations will be suspended as long as the service provider is unable to meet his obligations. If the situation referred to 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 damages, not even if the service provider experiences any advantages as a result of the force majeure situation.
Article 13 Settlement
- The client waives his right to set off a debt to the service provider against a claim on the service provider.
Article 14 Suspension
- The client waives his right to suspend the fulfilment of any obligation arising from this agreement.
Article 15 Transfer of rights
- Rights of a party to this agreement cannot be transferred without the prior written consent of the other party. This provision applies as a clause with a property law effect as referred to in section 3:83, paragraph 2 of the Dutch Civil Code.
Article 16 Lapse of the claim
- Any right to compensation by the service provider expires 12 months after the event from which the liability arises, whether it be directly or indirectly. This does not exclude the provisions of article 6:89 of the Dutch Civil Code.
Article 17 Insurance
- The client undertakes to adequately insure and keep insured goods that are necessary for the performance of the underlying agreement, as well as goods of the service provider that are present at the client’s location and goods that have been delivered under retention of title, against fire, explosion and water damage as well as theft.
- The client will provide the policy of these insurances for inspection when requested.
Article 18 Liability for damages
- The service provider is not liable for damage resulting from this agreement, unless the service provider has caused the damage deliberately or it is due to gross negligence.
- In the event that the service provider owes compensation to the client, the damage shall not exceed the fee of the agreement.
- Any liability for damage arising from or connected with the execution of an agreement is always limited to the amount that is paid by the (professional) liability insurance(s) in the relevant case. This amount is increased by the amount of the deductible according to the relevant policy.
- The liability limitation also applies if the service provider is held liable for damage that arises directly or indirectly from the improper functioning of the equipment, software, data files, registers or other items used by the service provider in the execution of the assignment.
- The liability of service provider for damage resulting from intent or deliberate recklessness on the part of the service provider or his managerial subordinates is not excluded.
Article 19 Liability of the client
- In the event that an assignment is issued 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 provided indirectly or immediately by a natural person on behalf of a legal entity, this natural person may also be a private client. This requires that this natural person can be considered as the (co-)policymaker of the legal person. In case of default by the legal entity, the natural person is therefore personally liable for the payment of the invoice, irrespective of whether or not it has been placed on behalf of the client in the name of a legal entity or in the name of the client as natural person or both of them.
Article 20 Indemnity
- The client indemnifies the service provider against all third-party claims that are related to the goods and/or services supplied by the service provider.
Article 21 Complaint obligation
- The client is obliged to immediately report complaints about the work performed to the service provider in writing. The complaint contains as detailed a description as possible of the shortcoming, so that the service provider is able to respond adequately.
- In any case, a complaint cannot oblige the service provider to perform other work than what has been agreed upon.
Article 22 Retention of title, right of suspension and right of retention
- The present and delivered goods at the client remain the property of the service provider until the client has paid the agreed upon amount in full. Until then, the service provider can invoke his retention of title and request the goods to be returned.
- If the agreed advances are not paid or not paid on time, the service provider has the right to suspend the work until the agreed upon advance has been paid. The client is then considered in default. In this case, the service provider cannot be held accountable for any late delivery.
- The service provider is not entitled to pledge the goods falling under his retention of title nor encumber them in any other way.
- If items have not yet been delivered, but the agreed upon payment or price has not been paid in accordance with the agreement, the service provider has the right of retention. The goods will then 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 23 Intellectual property
- Unless the parties have agreed otherwise in writing, the service provider retains all intellectual absolute rights (including copyrights, patent rights, trademark rights and design rights, etc.) on all designs, drawings, writings, data carriers or other information, including quotations, images, sketches, models, scale models, etc.
- The aforementioned 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 confidentiality with regard to the confidential information made available to him by the service provider. Confidential information in any case means that to which this article relates, as well as company data. The client undertakes to impose a written duty of confidentiality on the scope of this provision on its staff and/or third parties involved in the execution of this agreement.
Article 24 Confidentiality
- Each party shall keep the information that it receives (in any form whatsoever) from the other party and any other information concerning the other party that he knows or from which he can reasonably suspect that is confidential, or information for which he can expect that the dissemination thereof may cause harm to the other party, secret and take
all necessary measures to ensure that its personnel also keep the aforementioned information confidential.
- The confidentiality mentioned in the first paragraph of this article does not apply to information:
- which was already public at the time the recipient received this information or was subsequently made public without a breach by the receiving party of a confidentiality obligation that is applicable to him;
- which the receiving party can prove that it already was in its possession at the time of the provision by the other party;
- which the receiving party has received from a third party whereby this third party was entitled to provide this information to the receiving party;
- which is made public by the receiving party on the basis of a statutory duty.
- The duty of confidentiality described in this article applies for the duration of this agreement and for a period of three years after its termination.
Article 25 Penalty on violation of duty of confidentiality
- If the client breaches any clauses of the confidentiality article of these terms and conditions, then the client forfeits an immediately due and payable penalty of €5,000 for each breach of the service and also an amount of €500 for each day that this violation continues. This is irrespective 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. Whether the breach incurred damages is not relevant.
- The forfeiture of the fine referred to in the first paragraph of this article shall not affect the other rights of the service provider, including his right to claim compensation in addition to the fine.
Article 26 Non-acquisition of personnel
- The client cannot recruit employees of the service provider (or of companies on which the service provider has called upon for the execution this agreement and who are or have been involved in the performance of the agreement). Nor does he let them work directly or indirectly for themselves. This prohibition applies during the term of the agreement up to one year after its termination. There is one exception to this prohibition: parties may decide otherwise in consultation with each other. These agreements apply insofar as they have been put in writing.
Article 27 Dispute settlement
- Dutch law applies to these terms and conditions.
All disputes arising from these terms and conditions are exclusively submitted to the competent court of the Gelderland District Court.