Terms and Conditions

Article 1 – Definitions

1. Fabricon Europe B.V., established in Amersfoort, the Netherlands, Chamber of Commerce number 73027634, is referred to in these Terms and Conditions as the service provider.
2. The other party to the service provider is referred to in these Terms and Conditions as the client.
3. The service provider and the client are jointly referred to as the parties.
4. The agreement means the service agreement between the parties.

Article 2 – Applicability of the Terms and Conditions

1. These Terms and Conditions apply to all quotations, offers, work, agreements and supplies of services or goods by or on behalf of the service provider.
2. Any deviation from these Terms and Conditions is valid only if expressly agreed in writing by the parties.
3. The agreement always imposes obligations of best efforts on the service provider, not obligations to achieve a specific result.

Article 3 – Payment

1. Invoices must be paid within 14 days of the invoice date unless the parties have agreed otherwise in writing or a different payment term is stated on the invoice.
2. Payments must be made without suspension or set-off by transferring the amount due to the bank account specified by the service provider.
3. If the client fails to pay an invoice within the agreed period, the client is in default by operation of law without any notice of default being required. From that moment, the service provider is entitled to suspend its obligations until the client has fulfilled its payment obligations.
4. If the client remains in default, the service provider will proceed with collection. The costs associated with collection are payable by the client. When the client is in default, the client owes the service provider, in addition to the principal amount, statutory commercial interest, extrajudicial collection costs and other damages. Collection costs are calculated in accordance with the Dutch Extrajudicial Collection Costs Decree.
5. In the event of liquidation, bankruptcy, attachment or suspension of payments of the client, all claims of the service provider against the client become immediately due and payable.
6. If the client refuses to cooperate with the performance of the assignment by the service provider, the client remains obliged to pay the agreed price.

Article 4 – Offers and quotations

1. Offers from the service provider are valid for no more than one month unless a different acceptance period is stated in the offer. If the offer is not accepted within that period, it expires.
2. Delivery times stated in quotations are indicative and, if exceeded, do not entitle the client to terminate the agreement or claim damages unless the parties have expressly agreed otherwise in writing.
3. Offers and quotations do not automatically apply to repeat orders. The parties must expressly agree this in writing.

Article 5 – Prices

1. Prices stated in offers, quotations and invoices of the service provider exclude VAT and any other government levies unless expressly stated otherwise.
2. Prices of goods are based on the cost prices known at that time. Increases that the service provider could not reasonably foresee when making the offer or entering into the agreement may result in price increases.
3. For services, the parties may agree a fixed price when entering into the agreement.
4. If no fixed price has been agreed, the fee for the services may be determined on the basis of the hours actually spent. The fee is calculated according to the service provider’s usual hourly rates applicable during the period in which the work is performed, unless a different hourly rate has been agreed.
5. If no hourly-rate arrangement has been agreed, an estimated price will be agreed for the services, from which the service provider may deviate by up to 10%. If the estimated price is expected to be exceeded by more than 10%, the service provider must inform the client in good time why a higher price is justified. In that case, the client is entitled to cancel the part of the assignment that exceeds the estimated price plus 10%.

Article 6 – Price indexation

1. The prices and hourly rates agreed when entering into the agreement are based on the price level applicable at that time. The service provider is entitled to adjust the fees charged to the client annually on 1 January.
2. Adjusted prices, rates and hourly fees will be communicated to the client as soon as possible.

Article 7 – Information provided by the client

1. The client shall make all information relevant to the performance of the assignment available to the service provider.
2. The client is obliged to provide all data and documents that the service provider considers necessary for the proper performance of the assignment in a timely manner and in the requested form and manner.
3. The client guarantees the accuracy, completeness and reliability of the data and documents supplied to the service provider, including where these originate from third parties, unless the nature of the assignment dictates otherwise.
4. The client indemnifies the service provider against any loss or damage arising from failure to comply with the first paragraph of this article.
5. If and insofar as requested by the client, the service provider will return the relevant documents.
6. If the client fails to provide the data and documents requested by the service provider, or fails to do so on time or properly, and the performance of the assignment is delayed as a result, the resulting additional costs and fees will be borne by the client.

Article 8 – Withdrawal of the assignment

1. The client is free to terminate the assignment to the service provider at any time.
2. If the client withdraws the assignment, the client is obliged to pay the fees due and the expenses incurred by the service provider.

Article 9 – Performance of the agreement

1. The service provider shall perform the agreement to the best of its knowledge and ability and in accordance with the standards of good professional practice.
2. The service provider is entitled to have work performed by third parties.
3. Performance shall take place in mutual consultation and after written approval and payment of any agreed advance payment.
4. It is the client’s responsibility to ensure that the service provider can commence the assignment on time.

Article 10 – Duration of the assignment

1. The agreement between the client and the service provider is entered into for an indefinite period unless the nature of the agreement indicates otherwise or the parties have expressly agreed otherwise in writing.
2. If the parties agree a period for completion of certain work during the term of the agreement, that period is never a strict deadline. If the period is exceeded, the client must give the service provider written notice of default.

Article 11 – Amendment of the agreement

1. If, during performance of the agreement, it becomes apparent that the work must be amended or supplemented for proper performance of the assignment, the parties shall amend the agreement accordingly in a timely manner and by mutual consultation.
2. If the parties agree that the agreement is amended or supplemented, the completion date may be affected. The service provider shall inform the client of this as soon as possible.
3. If an amendment or supplement to the agreement has financial and/or qualitative consequences, the service provider shall inform the client in writing as soon as possible.
4. If the parties have agreed a fixed fee, the service provider shall indicate the extent to which the amendment or supplement to the agreement results in the fee being exceeded.

Article 12 – Force majeure

1. In addition to Article 6:75 of the Dutch Civil Code, a failure by the service provider to perform any obligation towards the client shall not be attributable to the service provider if it results from a circumstance beyond the service provider’s control that wholly or partly prevents performance or makes performance unreasonable to require. Such circumstances include failures by suppliers or other third parties, power failures, computer viruses, strikes, adverse weather conditions and work interruptions.
2. If a situation as described above occurs and the service provider is unable to fulfil its obligations towards the client, those obligations shall be suspended for as long as the service provider remains unable to perform them. If the situation continues for 30 calendar days, either party is entitled to terminate the agreement in whole or in part in writing.
3. In the situation referred to in the second paragraph of this article, the service provider is not obliged to compensate any damage, even if the service provider benefits from the force majeure situation.

Article 13 – Set-off

The client waives the right to set off a debt owed to the service provider against a claim on the service provider.

Article 14 – Suspension

The client waives the right to suspend performance of any obligation arising from this agreement.

Article 15 – Assignment of rights

Rights of a party under this agreement may not be assigned without the prior written consent of the other party. This provision constitutes a clause with proprietary effect as referred to in Article 3:83(2) of the Dutch Civil Code.

Article 16 – Expiry of claims

Any right to compensation for damage caused by the service provider shall in any event expire 12 months after the event from which the liability directly or indirectly arises. This does not exclude the application of Article 6:89 of the Dutch Civil Code.

Article 17 – Warranty

The parties have entered into a service agreement under which Fabricon Europe B.V. has an obligation of best efforts only and not an obligation to achieve a specific result.

Article 18 – Insurance

1. The client undertakes to adequately insure and keep insured any delivered goods necessary for performance of the underlying agreement, any property of the service provider present at the client’s premises, and goods delivered subject to retention of title, against risks including fire, explosion, water damage and theft.
2. At the service provider’s first request, the client shall make the relevant insurance policies available for inspection.

Article 19 – Liability for damage

1. The service provider is not liable for damage arising from this agreement unless the damage was caused intentionally or through gross negligence by the service provider.
2. If the service provider is liable to pay compensation to the client, the compensation shall not exceed the amount of the fee.
3. Any liability for damage arising from or connected with the performance of an agreement is always limited to the amount paid out in the relevant case under the applicable professional liability insurance policy or policies, increased by the amount of the deductible under the relevant policy.
4. The limitation of liability also applies if the service provider is held liable for damage arising directly or indirectly from the improper functioning of equipment, software, data files, registers or other items used by the service provider in performing the assignment.
5. The service provider’s liability is not excluded for damage resulting from intentional misconduct or deliberate recklessness by the service provider, its management or subordinates.

Article 20 – Liability of the client

1. If an assignment is given by more than one person, each of them is jointly and severally liable for the amounts owed to the service provider under that assignment.
2. If an assignment is given directly or indirectly by a natural person on behalf of a legal entity, that natural person may also be regarded as the client in a personal capacity, provided that the natural person can be considered a policymaker or co-policymaker of the legal entity. In the event of non-payment by the legal entity, the natural person is therefore personally liable for payment of the invoice, regardless of whether the invoice was issued in the name of the legal entity, the natural person, or both.

Article 21 – Indemnity

The client indemnifies the service provider against all third-party claims relating to goods and/or services supplied by the service provider.

Article 22 – Duty to complain

1. The client is obliged to report complaints about work performed to the service provider immediately in writing. The complaint must describe the alleged deficiency in as much detail as possible so that the service provider can respond adequately.
2. A complaint cannot in any event result in the service provider being required to perform work other than that which was agreed.

Article 23 – Retention of title, right of suspension and right of retention

1. Items belonging to the service provider that are present at the client’s premises, and delivered goods and components, remain the property of the service provider until the client has paid the full agreed price. Until then, the service provider may invoke retention of title and repossess the goods.
2. If agreed advance payments are not made or are not made on time, the service provider is entitled to suspend the work until the agreed amount has been paid. In such a case there is creditor default, and delayed delivery cannot be attributed to the service provider.
3. The service provider is not entitled to pledge or otherwise encumber goods that are subject to its retention of title.
4. If goods have not yet been delivered and the agreed advance payment or price has not been paid as agreed, the service provider has a right of retention. The goods will not be delivered until the client has paid in full in accordance with the agreement.
5. In the event of liquidation, insolvency or suspension of payments of the client, the client’s obligations become immediately due and payable.

Article 24 – Intellectual property

1. Unless otherwise agreed in writing, the service provider retains all intellectual property rights, including copyright, patent rights, trademark rights and design rights, in all designs, drawings, written materials, data carriers or other information, quotations, images, sketches, models, scale models and similar materials.
2. The intellectual property rights referred to above may not be copied, shown or made available to third parties, or otherwise used, without the service provider’s written permission.
3. The client undertakes to keep confidential all confidential information made available by the service provider. Confidential information includes, in any event, the matters covered by this article and business information. The client shall impose a written confidentiality obligation of equivalent scope on its personnel and/or third parties involved in the performance of this agreement.

Article 25 – Confidentiality

1. Each party shall keep confidential all information received from the other party in any form, as well as any other information concerning the other party that it knows or reasonably suspects to be secret or confidential, or whose disclosure could reasonably be expected to cause harm to the other party, and shall take all necessary measures to ensure that its personnel also keep such information confidential.
2. The confidentiality obligation referred to in the first paragraph of this article does not apply to information:
   1. that was already public when received by the receiving party or subsequently became public without a breach by the receiving party of a confidentiality obligation;
   2. that the receiving party can demonstrate was already in its possession when it was provided by the other party;
   3. that the receiving party received from a third party who was entitled to provide that information;
   4. that the receiving party discloses pursuant to a legal obligation.
3. The confidentiality obligation described in this article applies for the duration of this agreement and for a period of three years after its termination.

Article 26 – Penalty for breach of confidentiality

1. If the client breaches the confidentiality article of these Terms and Conditions, the client forfeits to the service provider an immediately payable penalty of €5,000 for each breach, plus €500 for each day the breach continues. This applies regardless of whether the breach can be attributed to the client. No prior notice of default or court proceedings are required for the penalty to become due, and no actual damage needs to have occurred.
2. The forfeiture of the penalty referred to in the first paragraph of this article does not affect the service provider’s other rights, including the right to claim damages in addition to the penalty.

Article 27 – Non-solicitation of personnel

The client shall not employ employees of the service provider, or of companies engaged by the service provider in performing this agreement and involved in its performance, nor otherwise have them work directly or indirectly for the client. This prohibition applies during the term of the agreement and for one year after its termination. The parties may agree otherwise in good-faith business consultation, provided that such arrangements are recorded in writing.

Article 28 – Amendment of the Terms and Conditions

1. Fabricon Europe B.V. is entitled to amend or supplement these Terms and Conditions.
2. Minor amendments may be made at any time.
3. Fabricon Europe B.V. will, where possible, discuss substantial amendments with the client in advance.

Article 29 – Applicable law and competent court

1. Every agreement between the parties is governed exclusively by Dutch law.
2. The Dutch court in the district where Fabricon Europe B.V. is established, practises or maintains an office has exclusive jurisdiction over any disputes between the parties, unless mandatory law provides otherwise.

These Terms and Conditions are effective from 7 November 2018.