General conditions
Article 1.
Definitions
In these general conditions the User is: the user of the general conditions. The client: the opposing party of the user.
Article 2.
Suitability of the conditions
◦These conditions apply to each offer and each agreement between user and a
◦client to which user has declared these conditions applicable, as far as these conditions have not explicitly and in writing been deviated from.
◦The present conditions are also applicable to all agreements with the user, for the execution of which third parties must be involved.
Artikel 3.
Tenders
◦All our offers are free of obligations, unless a term for acceptance is mentioned in the tender.
◦The tenders made by user are free of obligations; they are valid for 30 days, unless otherwise stated. User is only bound to the tenders if the acceptance of this is confirmed in writing by the opposing party within 30 days.
◦The prices mentioned in the tenders are excluding VAT, unless stated otherwise. (Also see: Article specific explanation under 1)
Article 4.
Execution of the agreement
◦User will execute the agreement according to best intention and ability and in agreement with the demands of good craftmanship and on the basis of the present state of knowledge.
◦If, and in so far a proper execution of the agreement requires this, the user has the right to let a third party execute certain work.
◦The client makes sure that all details, of which the user has indicated that these are necessary or of which the client in reason should understand that these are necessary for the execution of the agreement, should be given to the user in time. If the necessary details for the execution of the work are not given to the user in time, then the user has the right to suspend the agreement and/or charged to the client the additional costs resulting from the delay. This must be done by charging the usual rates.
◦User is not responsible for damage, of any kind, because the user has been provided with incorrect and/or incomplete details by the client, unless this incorrectness or incompleteness should have been known to the user.
◦If it has been agreed upon that the agreement will be carried out in stages, the user can suspend the execution of the parts that are part of the next stage, until client has approved of the results of the previous stage in writing.
Article 5.
Contract term; execution term
◦The agreement is concluded for an indefinite period, unless parties explicitly and in writing have decided otherwise (Also see: Article specific explanation under 2)
◦ When withinthe term of an agreement about the completion of certain work a term has been agreed upon, then this is never a final date. Upon exceeding the completion deadline, the client must therefore in writing declare in default the user.
Article 6.
Alteration of the agreement
◦If during the execution of the agreement it appears that for a proper realization it is necessary to alter or to round up the work, then both parties must on time and in mutual consulted adjust the agreement accordingly.
◦If both parties agree upon that the agreement is altered or completed, then the period of the completion of the realization can be influenced by that. The user will inform the client of this as soon as possible.
◦If the alteration or the addition to the agreement has financial and/or qualitative consequences, then the user must notify the client about this in advance.
◦If a fixed fee has been agreed upon, the user must indicate in how far the alteration or addition of the agreement will cause exceeding of this fee.
◦In deviation of subsection 3, user will not be able to charge any additional costs if the alteration or addition is caused by circumstances that can be attributed to user.
Article 7.
Secrecy
Both parties are obliged to secrecy concerning all confidential information which they have obtained as part of their agreement from each other or from a different source. Information is regarded as confidential when this is announced by the other party or when this comes forth from the kind of information.
Article 8.
Intellectual property
◦Without prejudice, that which is determined in article 7 of these conditions, the user keeps the rights and competences that he/she is entitled to on the basis of the Copyright Act.
◦All by user distributed documents, such as reports, advice, designs, drafts, drawings, software, etc., are exclusively intended to be used by the client and cannot without prior permission of the user be multiplied, made public, or reported to third parties.
◦In case of permits and CD-ROMs it always concerns the user charge of 1 natural person, unless explicitly determined otherwise in the agreement.
◦User also keeps the right to use the increased knowledge obtained by the execution of the work, for other purposes, if no confidential information comes to the notice of third parties.
Article 9.
Cancellation
Both parties can at all times cancel the agreement in writing. Cancellation of licences and subscriptions can only takes place at the end of the calendar year. In this case, parties must take note of a period of notice of at least three months. (Also see: Article specific explanation under 3)
Article 10.
Annulment of the agreement
◦The claims of the user on the client are withdrawable on demand in the following cases: if it comes to the notice of the user after entering into an agreement with the client, that user has solid fear that the client will not be able to fulfill his obligations; if user has asked the client to provide collateral for compliance and this collateral fails to occur or is insufficient.
◦In the cases mentioned the user is authorised to suspend further realization of the agreement, or to convert to annulment of the agreement, without prejudice to the right of the user to demand compensation.
◦If the client wants to annul the agreement with regard to a media campaign, at least 40 % of the costs will be charged in connection with booked media space.
Article 11.
Shortcoming; Complaints terms
◦Complaints about the work that has been done, must be reported in writing by the client to the user within 8 days of discovery, and no later than 14 days after completion of the work concerned.
◦If a complaint is legitimate, the user will still execute the work as agreed upon, unless this has now become demonstrably pointless to the client. This must then be made known in writing by the client.
◦ If it is no longer possible or useful to perform the agreed upon service at a later stage, the user will only be liable within the limits of article 15.
Article 12.
◦For offers and agreements in which a fixed fee is offered, the subsections 2, 5 and 6 of this article apply. If no fixed fee is agreed upon, the subsections 3 through 6 of this article apply.
◦Parties can, upon the realization of the agreement, agree upon a fixed fee. The fixed fee is excluding VAT.
◦If no fixed fee is agreed upon, the fee will be determined on the basis of hours worked. The fee is calculated according to the usual hourly rates of the user, valid during the period in which the work is carried out, unless a different hourly rate has been agreed upon.
◦Any possible estimates of the costs are excluding VAT.
◦In case of assignments with a duration of more than 12 months the due costs will be charged periodically.
◦If the user and the client agree upon a fixed fee, the user nevertheless has the right to raise this fee or rate. User is allowed to pass on price increases, if user can show that between moment of offer and delivery significant changes in price have occurred with regard to, for example, wages.
Article 13.
Payment
◦Payment must be done within 30 days after invoice date, in a manner indicated by the user in the currency in which it is billed. (Also see: Article specific explanation under 4)
◦After the expiry date of 30 days the client is in default; from the moment of being in default the client owes an interest over the claimable sum of 1 % per month, unless the legal interest is higher in which case the legal interest applies.
◦In case of liquidation, bankruptcy or suspention of payment of the client, the claims of the user and the obligations of the client towards the user will immediately be claimable.
◦Payments done by the client are always in settlement of, in the first place ,all interest and costs due, in the second place of claimable invoices which are outstanding the longest, even though the client mentions that the payment concerns a later invoice.
Article 14.
Collection charges
◦When the client is in default concerning fulfillment of one or more of his obligations, then all reasonable costs for obtaining settlement extrajudicially is at the expense of the client. In any case the client owes: – of the first F 6.500,- 15% – of the surplus up to F 13.000,- 10% – of the surplus up to F 32.500,- 8% – of the surplus up to F 130.000,- 5% – of the surplus up to 3%
◦If user shows to have made more costs, which were reasonably necessary, these are also eligible for compensation. (Also see: Article specific explanation under 5)
Article 15.
Liability
If user is liable then this liability is determined as follows:
◦The liability of the user, as far as this is covered by his/her liability insurance, is limited to the amount of the payment done by the insurer.
◦If the insurer decides not to pay out or when damage is not covered by the insurer, the liability of the user is limited to twice the invoice value of the assignment, at least that part of the assignment which the liability is related to.
◦In deviation of what is determined above in subsection 2 of this article, in case of an assignment with a longer term than six months, the liability is further limited to the indebted fee part during the last six months.
◦The in these conditions included limitations of lability do not apply if the the damage is attributed to intent or gross blame of user or his/her subordinates.
◦User is never liable for consequential loss. (Also see: Article specific explanation under 6)
Article 16.
Force majeure
◦With force majeure is meant in these general conditions, besides that which is included in law and jurisprudence, all outside causes, anticipated or not, on which the user has no influence, yet through which the user is not able to comply with his/her obligations. Included are strikes in the company of the user.
◦User also has the right to appeal to force majeure if the circumstance, which prevents (further) fullfilment, sets in after the user needed to comply with his/her commitment.
◦During a force majeur, the obligations of the user are suspended. If the period in which, because of force majeure, fulfillment of the obligations by the user is no longer possible for longer than 2 months, both parties are authorised to resolve the agreement without there being a matter of obligation of damages.
◦If the user upon the commencement of the force majeur has partly fulfilled his/her obligations, or can only partially comply with his/her obligations, he/she has the right to separately invoice the already executed and/or performable part separately billed. The client must pay out this invoice as whether it concerns a separate contract. This, however, does not apply if the already executed and/or performable part has no separate value.
Article 17.
Dispute settlement
The judge in the place of residence of the user is exclusively authorised to take note of disputes, unless the sub-district court judge is authorised. Nevertheless, the user has the right to summon the opposing party in front of an according to the law qualified judge. (Also see: Article specific explanation under 7)
Article 18.
Applicable law
Dutch law is applicable on every agreement between user and client.
Article 19.
Alteration and location conditions
These terms are filed with the Chamber of Commerce Gooi- en Eemland. Applicable here is always the latest filed version and/or the version as it was valid at the time of realization of the present assignment. (c) 2003, Medical Media B.V., 2 Provincialeweg, 4494 NA Geersdijk
Address:
Medical Media B.V.
3 Steenovenweg
3532 AE Utrecht
Tel.: 0031 85 201 91 44
Fax.: 0031 84 867 97 70