General terms and conditions JANS COMPANY LAW FIRM (PJ Jans and / or B. Jans mr.)
DEFINITIONS Within the framework of these general terms and conditions, the definitions indicated with capital letters have the following meaning:
Client: The natural person or legal person who assigns the Contractor has given to perform Work;
Contractor: The (lawyer and advice) practice that concludes the Agreement and uses these general terms and conditions. The Agreement is accepted and executed by the Contractor, not by or on behalf of an individual Employee, irrespective of whether the Client has expressly or tacitly granted the Assignment with a view to the execution thereof by a specific Employee or certain Employees. Articles 7: 404, 7: 407, paragraph 2 and 7: 409 of the Dutch Civil Code are expressly excluded;
Work: All work to be performed by the Contractor on behalf of the Client that has been commissioned and accepted by the Contractor, as well as all work ensuing therefrom for the Contractor;
Agreement: The assignment agreement, in which the Contractor undertakes towards the Client to perform Work;
Documents: All information and / or data provided by the Client to the Contractor orally or in writing, whether or not contained on physical and non-physical media including – but not limited to – paper, CD-ROMs, hard drives, e-mail and digital environments, whether or not placed with third parties, as well as all data produced or collected by the Contractor in the context of the performance of the Agreement, whether or not contained on physical and non-material carriers including – but not limited to – paper, CD -roms, hard drives, e-mail and digital environments, whether or not placed with third parties, as well as all other information of any relevance to the implementation or completion of the Agreement.
Employee: A natural person working for or associated with the Contractor, whether or not based on an employment contract.
Article 2. APPLICABILITY
1. These general terms and conditions apply to: all offers, quotations, assignments, legal relationships and agreements, whatever their name may be, whereby the Contractor undertakes to undertake Work for the Client, as well as to all ensuing contracts for the Contractor Activities.
2. Deviations from and additions to these general terms and conditions are only valid if they have been explicitly agreed in writing in, for example, a (written) agreement or order confirmation.
3. In the event that these general terms and conditions and the order confirmation contain conflicting terms and conditions, the conditions included in the order confirmation apply.
4. The applicability of the Client’s general terms and conditions is expressly rejected by the Contractor.
5. The Agreement together with these general terms and conditions represent the full agreements between the Client and the Contractor with regard to the Work for which the Agreement has been concluded. All agreements or proposals made earlier between the parties in this regard will be canceled.
Article 3. STARTING AND DURATION OF THE AGREEMENT
1. The Agreement is concluded and commences at the moment that the order confirmation signed by the Client has been received by the Contractor and / or has been approved by e-mail.
2. The parties are free to prove the formation of the Agreement by other means.
3. The Agreement is entered into for an indefinite period of time, unless it follows from the nature or scope of the assignment that it has been entered into for a definite period of time.
Article 4. CLIENT DETAILS
1. The Client is obliged to provide all Documents that, in its opinion, the Contractor requires for the correct execution of the Assignment granted, (a) in the desired form, (b) in the desired manner and (c) in a timely manner. to make available to the Contractor. The contractor determines what is meant by the desired form, desired manner and on time.
2. The Client guarantees the accuracy and reliability of the Documents provided by him, even if they originate from third parties, to the extent that the nature of the Assignment does not indicate otherwise.
3. The Contractor has the right to suspend the execution of the Assignment until the Client has fulfilled the obligations referred to in the first and second paragraphs.
4. For the account and risk of the Client, the extra costs and extra hours incurred by the Contractor, as well as the other damage for the Contractor, due to the Client not providing, not timely or properly providing the Documents necessary for the execution of the Work.
5. At the Client’s first request, the Contractor will return the original Documents provided by the Client to the Client.
Article 5. PERFORMANCE CONTRACT
1. The Contractor implements the Agreement to the best of its ability and with due observance of the applicable laws and (professional) regulations.
2. The Contractor determines the manner in which the Agreement is executed and by which Employee (s) .
3. The Contractor has the right to have Work performed by a third party to be designated by the Contractor. If a term / date has been agreed between the Client and the Contractor within which the Assignment must be carried out and the Client fails to: (a) pay an advance payment – if agreed – or (b) the necessary Documents in a timely, complete, desired form and to make it available in the desired manner, the Client and the Contractor will enter into consultation about a new term / date within which the Assignment must be carried out.
5. Periods within which the Work must be completed can only be regarded as a strict deadline if this has been agreed explicitly and in so many words between the Client and the Contractor.
Article 6. (PROFESSIONAL) REGULATIONS
1. The Client shall always and fully cooperate with the obligations arising for the Contractor from the applicable laws and (professional) regulations.
2. The Client is aware that the Contractor – for example, but not exclusively – may:
a. Be obliged by virtue of applicable laws and (professional) regulations to comply with certain provisions described in those laws and (professional) regulations and during the to carry out his Work, to report transactions to the authorities established for this purpose by the government;
b. will have to report fraud in certain situations based on applicable laws and (professional) regulations; c. under applicable legislation and (professional) regulations may be required to conduct an investigation into the (identity of) the Client.
3. The Contractor excludes any liability for damage caused to the Client as a result of the Contractor’s compliance with the applicable laws and (professional) regulations.
Article 7. CONFIDENTIALITY AND EXCLUSIVITY
1. The Contractor, subject to obligations imposed on him by law for the disclosure of certain data, is obliged to maintain secrecy towards third parties who are not involved in the performance of the Assignment. This confidentiality concerns all information of a confidential nature that is made available to him by the Client and the results obtained by processing it. An exception is made, however, in the event that the Contractor or an Employee acts for himself in disciplinary, civil or criminal proceedings where this information may be important.
Article 8. INTELLECTUAL PROPERTY
1. The execution of the Agreement by the Contractor does not entail the transfer of intellectual property rights that belong to the Contractor. All intellectual property rights that arise during, or arise from, the execution of the Agreement belong to the Contractor.
2. The Client is expressly forbidden to include the products in which the intellectual property rights of the Contractor are contained, or products on which intellectual property rights rest with regard to the use of which the Contractor has acquired user rights – including in this regard in any case, but not exclusively, : computer programs, system designs, working methods, advice, (model) contracts, templates, macros and other mental products – to reproduce, disclose or exploit.
3. The Client is not permitted to hand over the products referred to in the second paragraph to third parties without prior written permission from the Contractor, other than to obtain an expert opinion regarding the Contractor’s performance of the Work. In that case, the Client shall impose its obligations under this Article on the third parties it has engaged.
Article 9. FORCE MAJEURE
1. If the parties cannot, not timely or properly fulfill the obligations arising from the Agreement as a result of force majeure within the meaning of art. 6:75 BW then those obligations are suspended until the time that the parties are still able to meet them in the agreed manner.
2. In the event that the situation as referred to in the first paragraph occurs, the parties have the right to terminate the Agreement in whole or in part and with immediate effect, otherwise without the right to any compensation.
Article 10. REMUNERATION
1. The fee of the Contractor consists of a predetermined amount or is calculated on the basis of rates per time unit worked by the Contractor and is due to the extent that the Contractor has performed Work for the Client. If a fixed amount has been agreed, the Client is furthermore obliged to pay a rate per unit of time worked to the Contractor, if and insofar as the work exceeds the Work provided for in the Agreement.
2. The fee does not depend on the outcome of the assignment granted.
3. In addition to the fee, the costs incurred by the Contractor and the invoices of third parties engaged by the Contractor will be charged to the Client.
4. The Contractor has the right to request an advance from the Client.
5. If after the conclusion of the Agreement, but before the Assignment has been fully implemented, fees or prices undergo a change, the Contractor is entitled to adjust the agreed rate accordingly.
6. The fee, if necessary plus advances and invoices from third parties engaged and expenses incurred, will be charged to Client on a monthly, quarterly or annual basis, at the Contractor’s option. The contractor is at all times entitled to change a frequency of invoicing once chosen.
7. Budgets for the fee for the Work must be provided in writing and explicitly and are without obligation and not binding.
Article 11. PAYMENT
1. Payment by the Client of the amounts due to the Contractor must be made, without the Client being entitled to any deduction, discount or set-off, within fourteen days after the invoice date, unless the Client and the Contractor have made other agreements on this. The day of payment is the day of transfer of the amount due to the account of the Contractor.
2. If the Client has not paid within the (fatal) term referred to in the first paragraph, the Client will be in default by operation of law and the Contractor will be entitled to charge the contractual interest of three percent per quarter from that moment. If the Client is in default, all claims of the Contractor under the Agreement are immediately due and payable.
3. If the Client has not paid within the period specified in the first paragraph, the Client is obliged to reimburse all judicial and extrajudicial (collection) costs incurred by the Contractor. The extrajudicial costs are set at least 15% (in words: fifteen percent) of the amount to be claimed with a minimum of € 250 (in words: two hundred and fifty euros). The reimbursement of the costs incurred is not limited to any costs order determined by the court.
4. Payments made by the Client always first serve to settle all interest and costs owed and then to settle the invoices that have been outstanding the longest, even if the Client states that the payment relates to a later invoice.
5. In the event of a joint Assignment, Clients are jointly and severally liable towards the Contractor for the payment of the invoice amount and the interest (s) and costs owed. If the Contractor performs Work for the Client, belonging to a group or partnership, all entities belonging to that group or partnership are jointly and severally liable towards the Contractor for the payment of the invoice amount and the interest (s) and costs owed.6. If the financial position or payment behavior of the Client gives reason to do so in the opinion of the Contractor, or if the Client fails to pay an advance or an invoice within the specified payment term, the Contractor is entitled to demand that the Client immediately (additional ) provides security in a form to be determined by the Contractor. If the Client fails to provide the required security, the Contractor is entitled, without prejudice to his other rights, to immediately suspend further performance of the agreement and all that the Client owes to the Contractor for whatever reason is immediately due and payable.
Article 12. COMPLAINT
1. A complaint or complaint with regard to the Work and / or the invoice amount must be submitted in writing within fourteen days after the date of dispatch of the invoice, the documents or information about which the Client claims, or within fourteen days after the discovery of the defect, provided the Client demonstrates that he could not reasonably have discovered the defect earlier, to be notified to the Contractor, on pain of forfeiture of legal claim.
2. A complaint or complaint as referred to in paragraph 1 does not suspend the Client’s payment obligation.
3. There is a complaints procedure (Small Office Consultation model) that the Client can use. At the Client’s request, the Contractor will inform him / her of the procedure to be followed.
4. In the event that a complaint – submitted to the Council of Discipline – is declared wholly or partially unfounded, the Client will owe the Contractor damages (flat-rate) of € 1,250: to be increased by € 1,250 if the complaint is also on appeal wholly or partially unfounded. This compensation is equal to what the contractor – if the complaint proves to be justified – must comply with the Discipline Council and is based on the Minister’s justification when introducing this compensation; the polluter pays.
Article 13. LIABILITY AND INDEMNITIES
1. The Contractor is not liable for damage suffered by the Client as a result of the Client providing incorrect or incomplete Documents to the Contractor.
2. The Contractor is not liable for any consequential, operational or indirect damage that is the result of the Contractor’s failure to perform, timely performance or improper performance.
3. The Contractor is only liable to the Client for damage that is a direct consequence of a (related series of) attributable shortcoming (s) in the performance of the Assignment. This liability is limited to the amount of the fee charged for the performance of the Assignment.
4. If, for whatever reason, limitation of liability (in law) does not stand, the liability of the Contractor is in any case limited to the amount that according to the liability insurer of the Contractor is paid for the relevant case, plus the any deductible to be borne by the Contractor under the insurance.
5. The limitations of liability included in this article do not apply if and insofar as there is intent or deliberate recklessness on the part of the Contractor.
6. Client is obliged to take measures to limit damage.
7. The Contractor is not liable for damage or destruction of Documents during transport or during dispatch by post, regardless of whether the transport or dispatch is carried out by or on behalf of the Client, Contractor or third parties.
8. Employees of the Contractor are not authorized in any way to acknowledge liability on behalf of the Contractor for the damage referred to in this article.
9. The Client indemnifies the Contractor against claims from third parties for damage caused by the Client not providing the Contractor with any, incorrect or incomplete Documents.
10. Client indemnifies Contractor against claims from third parties (including Employees of Contractor and third parties engaged by Contractor) who suffer damage in connection with the execution of the Assignment resulting from the Client’s actions or omissions or unsafe situations in his company or organization.
Article 14. TERMINATION
1. The Client and the Contractor may terminate the Agreement (in the interim) at any time without observing a cancellation period. If the agreement ends before the Assignment is completed, the Client will owe the fee in accordance with the hours specified by the Contractor for Work performed for the Client.
2. Cancellation must be in writing.
3. If the Client has proceeded to (premature) termination, the Contractor is entitled to compensation for the occupancy loss incurred and to be made plausible on its part, as well as to compensation for additional costs that the Contractor has already incurred and costs arising from any cancellation of engaged third parties ( such as – among other things – any costs related to subcontracting) .
4. If the Contractor has proceeded with (interim) termination, the Client is entitled to cooperate by the Contractor in the transfer of work to third parties, unless there is intent or deliberate recklessness on the part of the Client, as a result of which the Contractor is forced to proceed with termination. A condition for the right to cooperation as determined in this paragraph is that the Client has paid all underlying outstanding advances or all invoices.
Article 15. RIGHT OF SUSPENSION
1. The Contractor is authorized, after careful consideration of interests, to suspend the fulfillment of all his obligations, including the issue of Documents or other items to the Client or third parties, up to the moment that all claims due to the Client are complete with.
2. The first paragraph does not apply with regard to Client’s Documents that have not (yet) been processed by the Contractor.
3. The Contractor is not liable for damage caused by the Client caused by the delayed handling or Work caused by the suspension.
Article 16. EXPIRY PERIOD
Unless otherwise stipulated in these general terms and conditions, claim rights he facts on which the claim is based and other powers of the Client for whatever reason will lapse against the Contractor. in connection with the performance of Work by the Contractor, within one year after the moment at which the Client became aware or could reasonably have been aware of the existence of these rights and powers. The same applies to the existance of a (possible) claim.
Article 17. ELECTRONIC COMMUNICATION
1. During the execution of the Assignment, the Client and the Contractor can communicate with each other by electronic means.
2. Client and Contractor are not liable vis-à-vis each other for damage that may occur to one or each of them as a result of the use of electronic means of communication, including – but not limited to – damage caused by non-delivery or delay in the delivery of electronic communication, interception or manipulation of electronic communication by third parties or by software / equipment used for sending, receiving or processing electronic communication, transferring viruses and the malfunctioning of the telecommunication network or other means required for electronic communication, except to the extent that the damage is the result of intent or gross negligence.
3. Both the Client and the Contractor will do or fail to do everything that can reasonably be expected of each of them to prevent the aforementioned risks from occurring.
4. The data extracts from the computer systems of the sender provide compelling evidence of (the content of) the electronic communication sent by the sender until proof to the contrary has been provided by the receiver.
Article 18. APPLICABLE LAW AND CHOICE OF FORUM
1. The Agreement is governed by Dutch law. 2. All disputes will be settled by the competent court in the Northern Netherlands district or, in the case of a cantonal case / consumer case, the court that is relatively competent by law. 3. Contrary to the provisions of paragraph 2, the Contractor and the Client may jointly opt for a different method of settling disputes.
Article 19. REPAIR CLAUSE NULLITY
1. If any provision of these general terms and conditions or of the Agreement is wholly or partly invalid and / or not valid and / or not enforceable, as a result of any legal provision, court decision or otherwise, then this will have no effect whatsoever on the validity of all other provisions of these general terms and conditions or the Agreement.
2. If a provision of these general terms and conditions or the Agreement should not be valid for a reason as referred to in the previous paragraph, but would be valid if it would have a more limited scope or scope, then this provision will first apply automatically to the most far-reaching or most extensive more limited scope or scope with which or in which it is valid.
3. Without prejudice to the provisions of paragraph 2, the parties may, if desired, enter into consultations in order to agree on new provisions to replace the invalid or annulled provisions. As far as possible, this will be in line with the purpose and scope of the invalid or annulled provisions.