GENERAL TERMS AND CONDITIONS
General terms and conditions for the provision of services by Profitz VOF (PROFITZ), a partnership organized and existing under the laws of the Netherlands, having its official address at (5508 PZ) Veldhoven, the Netherlands, at Kwartel 6, registered with the trade register of the Dutch Chambers of Commerce under number 57578834.
Article 1 Definitions and Interpretation
1.1 For the purposes of these General Terms and Conditions and all related documents, the capitalized terms as defined below in alphabetical order shall have the following meanings whereby these terms may be used in the singular or the plural form and vice versa, as the context so requires:
‘Affiliated Company’: any company, firm, partnership or other legal entity which (a) controls either directly or indirectly a Party, or (b) is controlled directly or indirectly by a Party, or (c) is directly or indirectly controlled by a company or entity which directly or indirectly controls a Party. ‘Control’ meaning the ownership of 50% (fifty percent) or more of the share capital or the right to exercise 50% (fifty percent) or more of the voting rights in the appointment of the directors of such company, firm, partnership or other legal entity, but any such legal entity shall be deemed to be an Affiliated Company only as long as such liaison exists.
‘Agreement’: the agreement concerning the provision of Services by PROFITZ concluded in writing between PROFITZ and the Client of which these General Terms and Conditions form an integral part, including all appendices, subsequent amendments hereof and/or addenda hereto as may be agreed upon in writing between PROFITZ and the Client.
‘Confidential Information’: the Agreement, its terms and execution, as well as all information and know-how (including but not limited to formulations, designs and other intellectual property rights) furnished by a Party to the other in any form whatsoever or otherwise coming to a Party’s knowledge in connection with the performance of the Agreement and all data derived directly or indirectly from such information and all warranty claims, if any, which may arise under the Agreement.
‘Client’: PROFITZ counterparty to an Agreement.
‘Force Majeure’:includes, but is not limited to, an act of God, directive of any governmental body or of persons purporting to act therefore, legislation, war, civil disturbance, fire, drought, failure of power supply, explosion, riot, disturbances or standstill of essential production equipment, flood, earthquake, lock-out, transportation issues, shortage of essential raw materials, strike or other action taken by employees in contemplation of or furtherance of a trade dispute or owing to any liability to procure materials or force majeure of any other nature, including non- or late delivery due to non- or late fulfilment of obligations of subcontractors of PROFITZ or transportation companies engaged by PROFITZ and/or solvency and/or liquidity issues and/or bankruptcy of third parties engaged by PROFITZ, in so far as any of these circumstances prevent PROFITZ performance of the Agreement.
‘General Terms and Conditions’: these general terms and conditions for the provision of Services by PROFITZ.
‘Party’: each of PROFITZ and the Client separately.
‘Parties’: PROFITZ and the Client together.
‘Services’: all services, such as advice, consultancy and intermediary services, to be performed by PROFITZ under the Agreement.
PROFITZ: PROFITZ, a private company organized and existing under the laws of the Netherlands, having its official address at (5508 PZ) Veldhoven, the Netherlands, at Kwartel 6, registered with the trade register of the Dutch Chambers of Commerce under number 57578834, and any of its Affiliated Companies.
1.2 The headings of these General Terms and Conditions are for ease of reference only and are not intended to qualify the meaning of any Article or Section hereof.
1.3 References to words denoting any gender shall include all genders.
1.4 References to the Parties include their respective successors in title and permitted assigns.
1.6 In these General Terms and Conditions the term ‘in writing’ includes by post, fax, e-mail and any other electronic communication device customary in the market.
Article 2 Applicability of the General Terms and Conditions
2.1 These General Terms and Conditions apply to all Agreements as well as to all related legal acts of the Parties.
2.2 The applicability of the Client’s general conditions or other conditions is expressly rejected.
2.3 Any amendments of and/or addenda to these General Terms and Conditions have to be agreed upon in writing by the duly authorized representatives of both Parties.
2.4 A failure by PROFITZ to exercise or a delay in exercising a right or remedy provided by these General Terms and Conditions or by law does not constitute a waiver of that right or remedy or a waiver of other rights or remedies. No single or partial exercise of a right or remedy provided by these General Terms and Conditions or by law by PROFITZ prevents further exercise of that right or remedy or the exercise of another right or remedy.
2.5 If one or more provisions of these General Terms and Conditions shall be found, by a court with jurisdiction, to be illegal, invalid or unenforceable, it shall not affect the legality, validity or enforceability of any of the remaining provisions of these General Terms and Conditions. The Parties agree to attempt to substitute for any illegal, invalid or unenforceable provision a legal, valid or enforceable provision that achieves to the greatest extent possible the objectives of the illegal, invalid or unenforceable provision.
2.6 These General Terms and Conditions do not derogate from PROFITZ statutory and common law rights, but are in addition thereto.
2.7 In the event of any contradictions between these General Terms and Conditions and an Agreement, the terms of the Agreement shall prevail.
Article 3 Agreement
An Agreement is constituted by the written acceptance of the instruction to provide Services by PROFITZ and shall be valid for the duration of the Agreement.
Article 4 Suspension and Dissolution
4.1 PROFITZ shall at all times be entitled to suspend the fulfilment of its obligations under the Agreement or to dissolve the Agreement, in the event that:
(i) the Client does not timely and fully fulfil its obligations under the Agreement;
(ii) PROFITZ learns of circumstances giving good ground to fear that the Client will not timely and fully fulfil its obligations under the Agreement. In such event suspension of the Agreement by PROFITZ shall only be allowed in so far the shortcoming justifies such action.
4.2 PROFITZ shall furthermore be entitled to dissolve the Agreement if circumstances arise of such nature that fulfilment of PROFITZ obligations becomes impossible or can no longer be expected in accordance with the requirements of reasonableness and fairness.
4.3 If the Agreement is dissolved pursuant to Article 4.2above, PROFITZ claims against the Client shall be forthwith due and payable. If PROFITZ suspends fulfilment of its obligations, it shall retain its rights under the applicable law and the Agreement.
4.4 PROFITZs shall always retain the right to claim damages.
Article 5 Remuneration
5.1 Whenever Parties did not agree upon a fixed remuneration, the remuneration of PROFITZ will be determined on the basis of the hours actually spent by PROFITZ in providing the Services. The remuneration will be calculated according to the common hourly rates of PROFITZ, valid for the period in which the Services are provided, unless a deviating remuneration has been agreed upon in an Agreement.
5.2 The remuneration is and any cost estimates are excluding taxes (a.o. VAT) and travelling and lodging, unless otherwise agreed upon in an Agreement.
Article 6 Payment
6.1 Unless otherwise agreed upon in writing, payment has to be made within 8 (eight) days from the invoice date at a manner to be designated by PROFITZ and in the currency stated on the invoice. All payment costs shall be borne by the Client. Contestation of an invoice by the Client shall not suspend the fulfilment of its payment obligations.
6.2The Client is only entitled to offset- or retention rights if the Client’s counterclaims are legally established, uncontested or recognized by PROFITZ.
6.3 In the event that the Client fails to timely fulfil its payment obligations, then the Client shall be in default by operation of law and owe an interest charge equal to the statutory interest rate. The interest on the amount due and payable shall be calculated as from the date the Client is in default until the date that PROFITZ has received the full outstanding amount. The foregoing shall be in addition to and not in lieu of any other rights and remedies PROFITZ may have at law for such default.
6.4 All judicial and extrajudicial costs incurred by PROFITZ in enforcing payment of the sum owed by the Client under the Agreement are payable by the Client.
6.5 In the event that the Client’s company is wound up, attached, declared bankrupt, or if a suspension of payment is granted, PROFITZ payment claims against the Client shall forthwith become due.
6.6 Payments made by the Client may be allocated by PROFITZ in the first place to reduce the costs, subsequently to reduce the interest due and finally to reduce the principal sum and the accrued interest.
Article 7 Liability
7.1 Unless the Agreement or these General Terms and Conditions provide otherwise, PROFITZ liability for direct damages shall at all times be limited to:
(i) the amount the Client was obliged to pay for the delivery of the Services which caused the direct damage (exclusive VAT); or
(ii) if the damage is covered by PROFITZ professional liability insurance, the amount actually paid out by the insurer.
7.2 PROFITZ shall not be liable for any indirect damages, including but not limited to, consequential damages, loss of profit, lost savings and damages due to business stagnation.
7.3 Liability claims against PROFITZ will lapse by operation of law after the applicable statutory term of prescription has been exceeded.
Article 8 Knowledge
PROFITZ reserves the right to use the knowledge gained during the execution of the Services for other purposes but shall in no event disclose confidential information of the Client to third parties.
Article 9 Force Majeure
9.1 PROFITZ shall not be liable for any failure to fulfil any terms of an Agreement to the extent that such fulfilment has been delayed, hindered, interfered with or prevented by any circumstance whatsoever which is not within its reasonable control and which amounts to an act of Force Majeure.
9.2 PROFITZ shall forthwith, but ultimately within 5 (five) days, inform the Client of all the circumstances and particulars which prevent PROFITZ from performing its obligations under the Agreement. PROFITZ shall consult the Client about the measures to be taken in order to limit the consequences of the situation of Force Majeure to a minimum and to safeguard the execution of the Agreement.
9.3 PROFITZ shall exert its reasonable efforts to cure any event of Force Majeure to the extent that it is reasonably possible to do so and may at its option suspend performance of the obligation affected by the Force Majeure during the period such Force Majeure continues, without incurring any liability on account hereof.
9.4 If the Force Majeure continues for a period of more than 3 (three) consecutive months, then either Party shall be entitled to terminate the Agreement by written notice to the other Party.
Article 10 Secrecy
10.1 The Parties shall be bound to secrecy of all of each other’s Confidential Information and shall use the same solely for the purposes of performing under an Agreement.
10.2 The Parties will cause their officers, directors, employees, agents and Affiliated Companies to abide by the terms of this Article 10.Each Party will be responsible for any breach by its officers, directors, employees, agents and Affiliated Companies of this Article 10.
10.3 If a statutory provision or a judicial decision compels PROFITZ to convey Confidential Information of the Client to third parties designated by law or by the court and PROFITZ cannot for that purpose invoke a legal right to refuse to give evidence of such a right acknowledged or allowed by the competent court, PROFITZ shall not be held to pay damages or compensation and the Client shall not be entitled to demand the dissolution of the Agreement on the ground of any damage resulting from said circumstance.
Article 11 Assignment and Subcontracting
11.1 PROFITZ is at all times entitled to assign all or part of its rights and/or obligations under the Agreement to an Affiliated Company or third party after prior written notice thereof to the Client.
11.2 The Client is not entitled to assign all or part of its rights and/or obligations under the Agreement to a third party without PROFITZ prior written consent, which shall not unreasonably be withheld. Affiliated Companies shall not be deemed third parties for the purpose of this Article 11.2.
11.3 PROFITZ is entitled to enter into any agreement with subcontractors with respect to the execution of the Agreement after sending prior written notice thereof to the Client.
Article 12 Non-employment of PROFITZ personnel
Throughout the term of the Agreement and for a period of 1 (one) year following the termination thereof, the Client shall not in any way hire or employ in any other way, be it directly or indirectly, staff of PROFITZ, PROFITZ’s Affiliated Companies or of enterprises whom PROFITZ has engaged to execute the Agreement and who are/were involved in the execution thereof, without prior proper businesslike consultation of PROFITZ on this matter, which consultation has to be recorded in writing, all in accordance with the requirements of reasonableness and fairness.
Article 13 Applicable law and disputes
14.1 These General Terms and Conditions are construed in accordance with and governed by the laws of the Netherlands.
14.2 In case of any disputes arising out of or relating to these General Terms and Conditions, the Parties shall endeavour to settle such disputes amicably. If the Parties are unable to, the dispute shall be exclusively submitted to the jurisdiction of the competent courts of Rechtbank Oost-Brabant, the Netherlands.
14.3 This applicable law and disputes clause shall apply mutatis mutandis to all Agreements concluded between the Parties.