General terms and conditions
Article 1 General
These terms and conditions are applicable to every offer, quotation and agreement between Skip a Stone consultancy, hereinafter referred to as: “Contractor”, and a Client to which the Contractor has declared these terms and conditions applicable, insofar as parties have not explicitly deviated from these terms and conditions* in writing.
*The present terms and conditions are also applicable to actions of third parties engaged by the Contracted Party in the context of an order.
These general terms and conditions have also been written for the employees of the Contracted Party and its management.
The applicability of any purchase or other terms and conditions of the Client is expressly rejected.
If one or more provisions of these General Terms and Conditions are wholly or partially null and void or should be null and void at any time, the provisions of these General Terms and Conditions will remain fully applicable. The Contractor and the Client will then consult in order to agree on new provisions to replace the void or nullified provisions, taking into account as much as possible the purpose and purport of the original provisions.
If there is uncertainty regarding the interpretation of one or more provisions of these general terms and conditions, then the interpretation should take place ‘in the spirit’ of these provisions.
If a situation arises between the parties that is not regulated in these terms and conditions, then this situation should be assessed in the spirit of these terms and conditions.
If the Contractor does not always require strict compliance with these conditions, this does not mean that the provisions thereof do not apply, or that the Contractor would in any way lose the right to require strict compliance with the provisions of these conditions in other cases.
Article 2 Quotations, offers
All quotations and offers made by the Contractor are without obligation, unless a deadline for acceptance has been set in the quotation. If no acceptance period has been set, the offer will always expire after 30 days.
The Contractor cannot be held to its offers or quotations if the Client can reasonably understand that the offers or quotations, or a part thereof, contain an obvious mistake or error in writing.
The prices stated in an offer or quotation are exclusive of VAT and other government levies, any costs to be incurred in the context of the Agreement, including travel and accommodation, shipping and administration costs, unless otherwise indicated.
If the acceptance (whether or not on minor points) deviates from the offer included in the quotation or 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 quotation shall 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, execution terms, risk transfer, execution and modification agreement, price increase
The Agreement between the Contracted Party and the Client is entered into for a definite period of time, unless the nature of the Agreement dictates otherwise or if the parties expressly agree otherwise in writing.
If a term has been agreed or specified for the execution of certain work or for the delivery of certain goods, this shall never be a deadline. If a term is exceeded, the Client must therefore give the Contractor notice of default in writing. The Contractor must be given a reasonable period of time in which to perform the Agreement after all.
The contractor shall perform the Agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship. All this on the basis of the state of knowledge known at that time.
The contractor shall be entitled to have certain work performed by third parties. The applicability of Sections 7:404, 7:407(2) and 7:409 of the Dutch Civil Code is expressly excluded.
If the Contracted Party or third parties engaged by the Contracted Party in the context of the assignment perform work at the Client’s location or at a location designated by the Client, the Client shall provide the facilities reasonably desired by those employees free of charge.
The contractor shall be entitled to perform the Agreement in various stages and to invoice the part thus performed separately.
If the Agreement is performed in phases, the Contractor may suspend the performance of those parts belonging to a subsequent phase until the Client has approved the results of the preceding phase in writing.
The Client shall ensure that all information which the Contracted Party indicates is necessary or which the Client should reasonably understand is necessary for the performance of the Agreement is provided to the Contracted Party in a timely manner. In the event that the data required for the performance of the Agreement are not provided to the Contracted Party on time, the Contracted Party will be entitled to suspend the performance of the Agreement and/or to charge the Client for the additional costs arising from the delay at the then customary rates. The performance period will not commence until after the Client has made the data available to the Contracted Party. The contractor shall not be liable for any loss or damage of any nature whatsoever arising from the fact that the contractor has relied on incorrect and/or incomplete information provided by the Client.
If during the execution of the agreement it appears that it is necessary for a proper execution thereof to modify or supplement, then parties will timely and in mutual consultation to adapt the agreement. If the nature, scope or content of the agreement, whether or not at the request or indication of the Client, of the competent authorities etcetera, is changed and the agreement is thereby qualitatively and / or quantitatively changed, this may have consequences for what was originally agreed upon. As a result, the originally agreed amount may also be increased or decreased. The Contractor will, as much as possible, give a quotation in advance. Through an amendment of the agreement, the originally specified period of execution can also be changed. The Client accepts the possibility of amendment of the Agreement, including the change in price and term of execution.
In the event that the Agreement is amended, including an addition, the Contracted Party will not be entitled to perform the Agreement until the person authorised within the Contracted Party has given his approval and the Client has agreed to the price and other terms and conditions stated for the performance, including the time to be determined at that time when the Agreement will be performed. Failure to execute the amended Agreement or to execute it immediately will not constitute a breach of contract on the part of the Contracted Party and will not constitute grounds for 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 goods to be delivered in that context.
In the event that the Client should fail to properly fulfil its obligations towards the Contracted Party, the Client shall be liable for all damage caused directly or indirectly on the part of the Contracted Party as a result.
In the event that the Contracted Party and the Client agree on a fixed fee or price, the Contracted Party will nevertheless at all times be entitled to increase this fee or price without the Client being entitled to terminate the Agreement for that reason, if the price increase is the result of an authority or obligation under the law or regulations or is caused by an increase in the price of raw materials, wages, etc., or on other grounds that could not reasonably have been foreseen at the time the Agreement was entered into.
If the price increase, other than as a result of an amendment to the Agreement, amounts to more than 10% and occurs within three months of the conclusion of the Agreement, only the Client who is entitled to invoke Section 3 of Book 6 of the Dutch Civil Code will be entitled to dissolve the Agreement by means of a written statement, unless the Contractor is then still prepared to perform the Agreement on the basis of the originally agreed amount;
if the price increase is the result of an authority or an obligation incumbent on the Contractor by 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 of goods, if it has been stipulated that delivery will take place more than three months after the sale.
Article 4 Suspension, dissolution and premature termination of the agreement
The Contracted Party will be entitled to suspend the fulfilment of the obligations or to dissolve the Agreement if the Client fails to fulfil the obligations arising from the Agreement, or fails to fulfil them fully or on time, if circumstances come to the Contracted Party’s knowledge after the Agreement has been concluded and give the Contracted Party good reason to fear that the Client will not fulfil the obligations, if, at the time of concluding the Agreement, the Client was requested to provide security for the fulfilment of his obligations under the Agreement and this security is not provided or insufficient or if, due to the delay on the part of the Client, the Contractor can no longer be required to fulfil the Agreement at the originally agreed conditions.
Furthermore, the contractor shall be entitled to dissolve the Agreement if circumstances arise of such a nature that fulfilment of the Agreement is impossible or if other circumstances arise of such a nature that unchanged maintenance of the Agreement cannot reasonably be required of the contractor.
If the Agreement is dissolved, the Contracted Party’s claims against the Client shall become immediately due and payable. If the contractor suspends fulfilment of its obligations, it will retain its claims under the law and the Agreement.
If the contractor suspends or dissolves the Agreement, he shall in no way be obliged to pay compensation for damage and costs incurred as a result in any way whatsoever.
If the dissolution is attributable to the Client, the Contracted Party will be entitled to compensation for damages, including costs, directly and indirectly incurred as a result.
In the event that the Client fails to fulfil its obligations arising from the Agreement and this failure to fulfil obligations justifies dissolution, the Contracted Party will be 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 will be obliged to pay compensation or indemnification on account of breach of contract.
In the event that the Agreement is terminated prematurely by the Contracted Party, the Contracted Party will, in consultation with the Client, arrange for the transfer of work still to be performed to third parties. This unless the termination is imputable to the Client. If the transfer of the work involves additional costs for the Contracted Party, these costs will be charged to the Client. The Client is obliged to pay these costs within the aforementioned period, unless the Contracted Party indicates otherwise.
In the event of liquidation, (application for) suspension of payments or bankruptcy, attachment – if and insofar as the attachment has not been lifted within three months – at the expense of the Client, debt rescheduling or any other circumstance as a result of which the Client can no longer freely dispose of its assets, the Contracted Party will be 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 damages or compensation.
In that case, the Contracted Party’s claims against the Client will be immediately due and payable.
In the event that the Client cancels an order placed in whole or in part, the Client will be charged in full for the work performed and the items ordered or prepared for it, plus any delivery and disposal costs thereof and the working time reserved for the performance of the Agreement.
Article 5 Force majeure
The Contractor is not obliged to fulfil any obligation towards the Client if he is hindered to do so as a result of a circumstance that is not due to fault, and is not for his account under the law, a legal act or generally accepted views.
In these general terms and conditions, force majeure shall, in addition to what is understood in this respect by law and case law, be understood to mean all external causes, foreseen or unforeseen, on which the Contractor cannot exert any influence, but which prevent the Contractor from fulfilling his obligations. Including strikes in the company of the Contractor or third parties. The contractor shall also be entitled to invoke force majeure if the circumstance preventing (further) performance of the agreement occurs after the contractor should have performed its obligations.
The contractor may suspend its obligations under the Agreement during the period of force majeure. If this period lasts longer than one year after the end of the contract/assignment, each of the parties will be entitled to dissolve the agreement, without any obligation to compensate the other party for damages.
Insofar as the Contractor has already partially fulfilled his obligations under the Agreement at the time of the commencement of force majeure or will be able to fulfil them, and the part fulfilled or to be fulfilled respectively has independent value, the Contractor shall be entitled to invoice the part already fulfilled or to be fulfilled respectively separately. 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 to be indicated by the contractor in the currency in which the invoice was made, unless otherwise indicated in writing by the contractor.
The contractor shall be entitled to invoice periodically.
If the Client fails to pay an invoice on time, the Client will be in default by operation of law. The Client will then owe the statutory interest. The interest on the amount due and payable will be calculated from the moment that the Client is in default until the moment that the amount due and payable in full has been paid.
The Contracted Party will be entitled to have the payments made by the Client go first of all to reduce the costs, then to reduce the interest that has fallen due and finally to reduce the principal sum and the accrued interest. The Contracted Party may, without being in default as a result, refuse an offer of payment if the Client designates a different sequence for the allocation of the payment. The Contractor may refuse full repayment of the principal sum, if the outstanding and current interest and collection costs are not also paid.
The Principal will never be entitled to set off the amount owed by the Principal to the Contracted Party. Objections to the amount of an invoice do not suspend the payment obligation. The Client who is not entitled to invoke Section 6.5.3 (Sections 231 through 247 of Book 6 of the Dutch Civil Code) is also not entitled to suspend payment of an invoice for any other reason.
If the Client is in default or default in the (timely) fulfilment of its obligations, all reasonable costs incurred to obtain extrajudicial satisfaction shall be for the account of the Client. The extrajudicial costs are calculated on the basis of what is customary in the Dutch collection practice, currently the calculation method according to Rapport Voorwerk II. However, if Contractor has incurred higher costs for collection that were reasonably necessary, the actual costs incurred will be eligible for reimbursement. Any judicial and enforcement costs incurred will also be recovered from the Client. The Client will also owe interest on the collection costs owed.
Article 7 Retention of title
The goods delivered by the Contracted Party under the Agreement will remain the property of the Contracted Party until the Client has properly fulfilled all obligations arising from the Agreement(s) concluded with the Contracted Party.
The products delivered by the Contracted Party, which are subject to the retention of title pursuant to paragraph 1, may not be resold and may never be used as a means of payment. The Client is not authorized to pledge or encumber in any other way what is subject to the retention of title.
The Client must at all times do everything that may reasonably be expected of it to safeguard the Contracted Party’s ownership rights.
In the event that third parties seize the goods delivered subject to retention of title or wish to establish or assert rights to them, the Client will be obliged to inform the Contracted Party immediately. Furthermore, the Client undertakes to insure the goods delivered subject to retention of title and to keep them insured against fire, explosion and water damage as well as against theft, and to make the policy of this insurance available for inspection by the Contracted Party at its first request. In the event of any payment of the insurance, the Contractor will be entitled to these tokens. To the extent necessary, the Client undertakes in advance towards the Contracted Party to cooperate in everything that may be necessary or desirable in that context.
In the event that the Engaged Firm wishes to exercise its ownership rights as referred to in this article, the Client gives its unconditional and irrevocable permission in advance to the Engaged Firm and third parties to be appointed by the Engaged Firm to enter all places where the Engaged Firm’s property is located and to repossess it.
Article 8 Guarantees, research and advertisements, limitation period
The goods 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 goods intended for use within the Netherlands. In the event of use outside the Netherlands, the Client shall verify for itself whether the use thereof is suitable for use there and meet the conditions set for that purpose. In that case, the Contractor may set other warranty and other conditions with regard to the goods to be delivered or work to be carried out.
The guarantee mentioned in paragraph 1 of this article applies for a period of 3 months after delivery, unless the nature of the delivered goods dictates otherwise or the parties have agreed otherwise. If the guarantee provided by the Contractor concerns a good produced by a third party, the guarantee will be limited to that provided by the producer of the good, unless stated otherwise.
Any form of guarantee will lapse if a defect has arisen as a result of or results from injudicious or improper use thereof or use after the best-before date, incorrect storage or maintenance thereof by the Client and/or by third parties when, without the written permission of the Contracted Party, the Client or third parties have made changes or attempted to make changes to the item, other items have been attached to it that should not be attached to it or if they have been processed or treated in a manner other than prescribed.
Nor will the Client be entitled to any warranty if the defect has arisen due to or as a result of circumstances beyond the Contracted Party’s control, including weather conditions (such as, but not limited to, extreme rainfall or temperatures) etcetera.
The Client is obliged to examine the delivered goods (or have them examined) immediately at the moment that the goods are made available to him or the work in question has been carried out. In doing so, the Client should examine whether the quality and/or quantity of the delivered goods corresponds with what has been agreed upon and meets the requirements that the parties have agreed upon in this respect. Any visible defects must be reported in writing to the Contractor within 2 weeks after delivery. Any non-visible defects must be reported in writing to Contractor immediately, but in any case no later than fourteen days after their discovery. The report must contain as detailed a description of the defect as possible, so that the Contractor is able to respond adequately. The Client must give Provider the opportunity to investigate a complaint (or have it investigated).
If the Client submits a complaint in a timely manner, this will not suspend its payment obligation. In that case, the Client will also continue to be obliged to take delivery of and pay for the other goods ordered and that for which the Client has instructed the Contracted Party.
If a defect is reported later, the Client will no longer be entitled to repair, replacement or compensation.
If it is established that an item is defective and a complaint in this respect has been made in a timely manner, the Contracted Party will replace the defective item within a reasonable period of time after receipt of the return thereof or, if return is not reasonably possible, written notification of the defect by the Client, at the discretion of the Contracted Party, or arrange for repair thereof or pay the Client a replacement fee for this. In the event of replacement, the Client shall be obliged to return the replaced item to the Contracted Party and to transfer ownership thereof to the Contracted Party, unless the Contracted Party indicates otherwise.
If it is established that a complaint is unfounded, the costs incurred on the part of the Contracted Party as a result, including research costs, will be borne in full by the Client.
After expiry of the warranty period, all costs for repair or replacement, including administration, shipping and call-out costs, will be charged to the Client.
Contrary to the statutory limitation periods, the limitation period for all claims and defences against the Contracted Party and third parties involved by the Contracted Party in the performance of an Agreement will be 3 months.
Article 9 Liability
If the Contractor should be liable, this liability shall be limited to the provisions of this provision.
The Contractor is not liable for damages of any nature whatsoever arising from the fact that the Contractor has relied on incorrect and/or incomplete information provided by or on behalf of the Client.
If the Contractor should be liable for any damage, the liability of the Contractor is limited to a maximum of once the invoice value of the order, at least to that part of the order to which the liability relates.
The Contractor’s liability shall in any event always be limited to the amount paid out by its insurer as the case may be.
The Contractor shall only be liable for direct damage.
Direct loss or damage is exclusively understood to mean the reasonable costs incurred to determine the cause and scope of the loss or damage, insofar as the determination relates to loss or damage within the meaning of these General Terms and Conditions, any reasonable costs incurred to ensure that the Contracted Party’s defective performance complies with the Agreement, insofar as these can be attributed to the Contracted Party, and reasonable costs incurred to prevent or limit the loss or damage, insofar as the Client demonstrates that these costs have led to the limitation of direct loss or damage as referred to in these General Terms and Conditions. The Contractor shall never be liable for indirect damage, including consequential damage, loss of profit, lost savings and damage due to business stagnation.
The limitations of liability included in this article do not apply if the damage is due to intent or gross negligence of the Contractor or his managerial subordinates.
Article 10 Freedom
The Client indemnifies the Provider against any claims from third parties who suffer damage in connection with the performance of the Agreement and the cause of which can be attributed to parties other than the Provider. In the event that the Contracted Party should be held liable by third parties for such claims, the Client shall be obliged to assist the Contracted Party both out of court and in court and to immediately do everything that may be expected of the Contracted Party in such case. In the event that the Client fails to take adequate measures, the Contractor shall be entitled, without notice of default being required, to do so itself. All costs and damage on the part of the Contracted Party and third parties arising as a result shall be entirely at the expense and risk of the Client.
Article 11 Intellectual property
The Contractor reserves the rights and powers vested in him under the Copyright Act and other intellectual property laws and regulations. The Contractor has the right to use the knowledge gained through the execution of an Agreement on his side for other purposes, insofar as no strictly confidential information of the Client is brought to the attention of third parties.
Article 12 Applicable law and disputes
All legal relationships to which the Contractor is a party shall be governed exclusively by Dutch law, even if an obligation is wholly or partly performed abroad or if the party involved in the legal relationship is domiciled there. The applicability of the Vienna Sales Convention is excluded.
The court in the Contractor’s place of business shall have exclusive jurisdiction to hear disputes, unless the law prescribes otherwise. Nevertheless, the Contractor shall be entitled to submit the dispute to the competent court according to the law.
Parties will only appeal to the court after they have made every effort to settle a dispute in mutual consultation.
Article 13 Location and amendment of general terms and conditions
These conditions are part of the assignment and sent along with the signed assignment.
Applicable is always the latest version or the version as it applied at the time of the establishment of the legal relationship with Contractor.
The Dutch text of the general terms and conditions is always decisive for the interpretation thereof.