General terms & conditions
GENERAL TERMS AND CONDITIONS OF PROVISION OF SERVICES BY EXTER POLAK & CHARLOUIS B.V.
Filed at the District Court of The Hague on July 26, 2018 under number 31/2018
Article 1 General
1.1 These General Terms and Conditions of Provision of Services (“General Terms and Conditions”) shall apply to all contracts entered into by Exter Polak & Charlouis B.V. ("EP&C") in the context of execution of work for any third party ("Client"), and to all legal relations between EP&C and the Client deriving from this.
1.2 EP&C will act exclusively as the contractor to the Client. This is also the case if there is an explicit or implicit intention to have the services performed by a particular party. The articles 7:404 (which regards services intended to be performed by a particular party) and article 7:407 section 2 (which establishes joint and several liability in cases where the services are performed by two or more parties) of the Dutch Civil Code are excluded.
1.3 The individual who is a direct or indirect shareholder of EP&C and who performs professional services on behalf of EP&C can be indicated as “shareholder” or “partner” by or on behalf of EP&C, such in accordance with general practice. During the performance of those services, the individual who acts in its capacity as “shareholder” or “partner” acts exclusively for the risk and expense of EP&C.
1.4 These General Terms and Conditions can also be invoked by natural and legal persons that are or have been directly or indirectly affiliated with EP&C for the purpose of performing services by or on behalf of EP&C.
1.5 These General Terms and Conditions shall apply to any additional or otherwise modified assignment from the Client.
1.6 All quotations and offers by EP&C shall be non-binding and shall be considered invitations for placement of orders, unless otherwise agreed in writing or provided to the contrary in these General Terms and Conditions.
1.7 The applicability of terms and conditions of the Client is hereby expressly precluded.
1.8 In case of deviation from these General Terms and Conditions, such deviations shall be agreed in writing. Provisions of these General Terms and Conditions from which no deviation has been made shall remain in full force.
Article 2 Execution of order, information and instructions
2.1 EP&C shall execute the placed order to the best of its ability and with due diligence. In performing its activities, EP&C shall exercise the care of a good contractor.
2.2 EP&C shall execute the order based on the information provided by the Client. To enable EP&C to execute the order, the Client is bound to provide EP&C with full, detailed and clear written information on the order. This shall include information known to the Client in connection with past inquiries and publications relating the subject of the order, or a similar subject. If the Client furnishes inaccurate and/or incomplete data, even in good faith, EP&C shall be entitled to rescind the contract.
2.3 In executing the order, EP&C shall rely (in whole or in part) on the Client's instructions. The Client shall pass all instructions to EP&C clearly and in writing. If, in a given case, EP&C is unable to wait for the Client's instructions, EP&C may act as it deems fit to safeguard the Client's rights.
2.4 In case of an order for search, due to limitations (of the agreed scope of the search) or possible inaccuracies in classifications, indices, computer databases and official registers, EP&C cannot guarantee the completeness and accuracy of the results.
2.5 An order, including the necessary information and instructions to carry out the order, received on a working day after 16.00 CET, will be commenced by EP&C on the subsequent working day.
2.6 If, despite EP&C's request to do so, the Client does not give EP&C the necessary instructions to carry out the order, or does not supply them promptly, or does not promptly ensure a payment, necessary for this purpose, to EP&C, EP&C may unilaterally terminate the order.
2.7 The Client is bound promptly to notify EP&C, clearly and in writing, of any changes in its address and other details impinging on its accessibility. If EP&C is unable to contact the Client because the Client has not given EP&C this information as described, EP&C may unilaterally terminate the order.
Article 3 Confidentiality
3.1 EP&C shall observe total confidentiality concerning any communication of a confidential nature made to EP&C in the context of fulfilment of an order.
3.2 In performing its work, EP&C also communicates by electronic means. It cannot wholly be excluded that errors may occur in this mode of communication, or that the content of communications passed in this way may become known to third parties. EP&C shall not be liable for any loss resulting from this mode of communication. The Client may request EP&C not to communicate with it in this way.
Article 4 Third-party services
4.1 By entering into a contract with EP&C, the Client shall grant EP&C power of attorney to involve third parties if EP&C considers this desirable for the proper performance of the order placed with it. Such third parties shall include experts in the field of search to be carried out. In involving such third parties, EP&C shall act as the Client's attorney. Such power shall specifically include authority to accept general terms and conditions of third parties on behalf of the Client.
4.2 EP&C shall pass the costs of services performed by third parties on to the Client. In this regard, EP&C shall act purely as a payment address. EP&C shall pay on to third parties the portion of the amounts declared by EP&C which is due to them. Unless the Client and EP&C have expressly agreed otherwise in writing, payments to a third party, necessary for the order, shall only be carried out by EP&C, after the sum has been paid by the Client into EP&C's bank account. In the event of payments to a third party residing outside of the Netherlands, the sum has to be paid by the Client into EP&C's bank account not later than one week before payment is due.
4.3 When involving third parties on behalf of the Client, EP&C shall always use due diligence and attention. EP&C shall not be liable for loss deriving from failures of third parties, save culpable failure by EP&C in the context of its involvement of such third parties. This shall not prejudice the effectiveness of Article 9 of these General Terms and Conditions.
Article 5 Fee and expenses
5.1 EP&C's fee is exclusive of VAT and shall be based on EP&C's standard tariffs, regardless of the result of the work done. In addition to its fee, EP&C shall charge the Client the expenses which are not included in the EP&C tariffs. Such expenses shall include, but is not limited to, those of third parties involved, or to be involved, by EP&C. EP&C may add to the latter expenses its own administrative fee, as may be reasonable, having regard to all circumstances.
5.2 Cost estimates supplied by EP&C to the Client shall serve purely as a non-binding guide, unless expressly stated otherwise in writing.
5.3 EP&C shall be entitled to add any price rises in its expenses to the amount payable by the Client. If this happens within three (3) months of entering into the contract, the Client shall be entitled to cancel the contract, subject to settlement of the expenses made by EP&C pursuant to the contract. Any fluctuations in foreign exchange rates shall also be treated as price rises in expenses, but shall not entitle the Client to cancel the contract.
5.4 EP&C shall charge its fee, plus any expenses not included in its tariffs, to the Client by advance, interim and/or final invoices. EP&C shall be free to choose whether to issue advance, interim and/or final invoices.
5.5 All invoices shall be paid to EP&C, without discount or set-off, within thirty (30) days of the date of sending. Surplus amounts paid shall be refunded to the Client on completion of the activities. If one or more advance invoices are sent, EP&C shall only start to execute the order when they have been settled in full.
5.6 Each invoice shall be treated as a separate claim of EP&C against the Client.
Article 6 Non-payment
6.1 If the Client fails to pay promptly, the Client shall owe the statutory commercial interest as per Civil Code Article 6:119a, without the need for warning or service of default notice. In addition, the Client shall owe all costs reasonably incurred by EP&C in ascertaining loss and liability, and in obtaining satisfaction by extra-judicial means. The latter costs shall be reckoned at the rate of the Netherlands Bar Association. In case of late payment, EP&C shall be entitled to suspend its work for the Client, with immediate effect.
Article 7 Force majeure
7.1 For the present purpose, force majeure shall mean any failure of performance not attributable to fault by, or for the account of, EP&C. Force majeure shall in any case exist on EP&C's side if, after entering into the contract, it is prevented from fulfilling its obligations under the contract due to illness or other prevention of an EP&C employee. Provision of inaccurate data by the Client or failure by the Client to afford sufficient co-operation shall, in any case, constitute force majeure.
7.2 In case of prevention of performance of the contract due to force majeure, EP&C shall be entitled to suspend fulfilment of its obligations for a maximum of thirty (30) days, or to cancel the contract, in whole or in part, without judicial involvement. EP&C shall not thereby become liable to pay any compensation.
Article 8 Suspension
8.1 Disputes of any kind whatsoever shall never entitle the Client to refuse or suspend settlement of invoices.
8.2 If the Client considers EP&C in breach of its obligations, it shall notify EP&C accordingly in writing within eight (8) days of the reasonable time of detection by the Client of such breach by EP&C. Unless such prompt written notice is given, the Client shall forfeit the right to invoke such breach.
Article 9 Liability
9.1 EP&C shall only be liable for damage attributable to it on the basis of the close relationship to a culpable failure in the activities performed by EP&C and as included in Article 4.3. EP&C shall not be liable for any damage that is not directly related to a culpable failure on the part of EP&C, including but not limited to lost sales, lost profits, missed opportunities, missed savings and reduced goodwill. The above does not apply in the event of intent or wilful recklessness on the part of EP&C or its executive staff. The burden of proof in respect of the liability on the part of EP&C shall rest with the client.
9.2 Any damage to be compensated by EP&C shall be limited to a maximum of the sum due in the relevant case under EP&C's professional and business liability insurance and paid out by the insurer, plus the amount of EP&C's policy excess under the policy terms. EP&C will provide the Client with further information on the relevant policy terms upon request.
9.3 The Client cannot invoke a failure by EP&C in the performance of its activities if the Client has failed to file a complaint with EP&C within ten (10) days after such failure has become known or could have reasonably become known to it. The right to claim damages, as well as any other rights which accrue to the Client in connection with a failure on the part of EP&C, will in any event expire after twelve (12) months from the date on which the event occurred that caused the damage.
9.4 The Client will indemnify EP&C against all claims by third parties in connection with the activities performed by EP&C for the Client, including any costs incurred by EP&C within that context, unless these claims are the result of intent or wilful recklessness on the part of EP&C or its executive staff.
9.5 EP&C shall not be liable for any damage related to the non-fulfilment by the Client of its obligations under Article 2.
9.6 Intent or wilful recklessness within the meaning of these General Terms and Conditions will be exclusively regarded as an act whereby the party performing the act is (subjectively) aware that the possibility that this act will result in damage is substantially greater than the possibility that it will not result in damage.
Article 10 Termination of contract
10.1 The Client shall be entitled to terminate its contract with EP&C at any time. Termination shall not take effect before receipt by EP&C of written notice from the Client. The Client is bound to pay the fee for work already done, and expenses already incurred, at the time of termination. The Client shall also be bound, in such case, to meet the costs of handover of the file to EP&C.
10.2 If the Client fails to meet any obligation incumbent upon it under the contract, or does not meet it duly or promptly, and in case of bankruptcy, stay of payments, placement in receivership or closure or winding up of the Client's business, EP&C shall be entitled to cancel the contract, in whole or in part, otherwise to end the contract, or to suspend further performance thereof, without any liability to pay compensation and without prejudice to EP&C's further rights. All EP&C's claims against the Client shall, in such case, fall due immediately. The Client shall be liable for any loss incurred by EP&C in this respect, including loss of profit.
10.3 EP&C may also terminate the contract if it considers that there has been a breach of trust with the Client, or that there is a conflict of interests with an order from another client. A conflict of interests is assumed not to exist when the activities for one of the clients consist solely of or are related to the translation of a European patent granted in the Netherlands and/or Belgium.
Article 11 Choice of law and jurisdiction
11.1 The whole legal relationship between the Client and EP&C shall be governed by Dutch law.
11.2 Disputes arising from the legal relations between the Client and EP&C shall be referred for settlement only to the Court of The Hague, unless EP&C states a preference for referring the dispute for resolution to another competent judicial forum, Dutch or otherwise.
Article 12 Versions of General Terms and Conditions
12.1 In case of discrepancy between the English and Dutch text of these general terms and conditions, the Dutch text shall be binding.