From: Burdock Holding B.V. and all its Subsidiary Companies
Article 1 Definitions
In these Conditions the following terms are used with the following meaning, unless expressly stated otherwise
- Burdock: Burdock Holding B.V. or one of its subsidiaries, the user of these conditions, the service provider, the vendor of services.
- Client: The Other Party, the purchaser of Burdock’s services.
- Agreement: The Agreement between Burdock and Client.
- Price: The order amount, the rate, the remuneration.
- Employee : Employee / freelancer of the Other Party deployed by Burdock, Employee / Freelancer employed by Burdock at the Other Party
Article 2 General
2.1 These Conditions apply to every offer and agreement between Burdock and Client in as far as these Conditions are not expressly deviated from between Parties in writing.
2.2 The current Conditions also apply to all agreements with Burdock, for the implementation whereof Burdock makes use of the services of third parties.
2.3 Parties can only deviate from these General Conditions in writing.
2.4 If Burdock enters into more than one agreement with Client, the current General Conditions always apply to all subsequent agreements, regardless of whether they have explicitly been declared applicable or handed over.
2.5 If one or more provisions in these General Conditions are void or should become void, the other provisions of these General Conditions fully applicable.
Article 3 Tenders and Agreements
3.1 All offers, in whatever form, are without obligation.
3.2 Agreements to which Burdock is a party are first considered to be concluded:
a) after the signing by both parties of an agreement drawn up for this purpose, from the date of signature, or
b) upon receipt and approval of the written acceptance by the other party of an offer made by Burdock.
3.3 Burdock is entitled to refuse an assignment if the assignment conflicts with any code of conduct.
3.4 Prices in the aforementioned quotations are in Euros excluding VAT and other government levies, as well as excluding any costs to be made under the agreement, including shipping, travel, accommodation and administration costs, facilities, accommodation costs, unless parties have agreed otherwise.
3.5 Offers only apply to the assignments to which they relate and cannot be invoked for later and / or other assignments.
3.6 The files, documents such as plans, reports, brochures, demos, or file carriers provided to the other party with the offer remain the property of Burdock and must be returned to Burdock upon first request.
Article 4 Modification of the Agreement
4.1 If during the execution of the agreement it appears that for a proper execution it is necessary to change or supplement the work to be performed, the parties will adjust the agreement accordingly in time and in mutual consultation.
4.2 If the parties agree that the agreement will be changed or supplemented, the time of completion of the execution can be influenced by this. Burdock will inform the other party of this as soon as possible.
4.3 If the change or supplement to the agreement has financial and / or qualitative consequences, Burdock will inform the other party immediately after it has been established.
4.4 If a fixed fee has been agreed, Burdock will indicate to what extent the change or addition to the agreement will result in this fee being exceeded.
Article 5 Price/Costs
5.1 Parties can agree a fixed price when the agreement is concluded.
5.2 If no fixed price is agreed, the price will be determined based on the hours or day parts spent. A half day consists of 4 working hours. The price is calculated in accordance with Burdock’s usual hourly or daily partial rates, applicable for the period in which the work is performed, unless a different hourly or partial daily rate has been agreed upon.
5.3 An agreed hourly rate / price applies to normal working days from 8:00 am to 6:00 pm. If work is performed outside these hours and on Saturdays, the other party will owe a surcharge of 50%. When carrying out the work on Sundays as well as on recognized Christian, local and national holidays, as well as on public holidays determined by the government, the other party owes a surcharge of 100%.
5.4 For travel time made more than 2 hours per day, the agreed hourly rate will be charged to the other party for 50% of the excess travel time. In addition, the total travel costs will be charged separately.
5.5 If Burdock agrees a fixed price, hourly rate or part-day rate with the other party, Burdock is nevertheless entitled to increase the price, if Burdock can demonstrate that between the moment of offer and execution the rates with regard to, for example, wages, travel or accommodation costs with more have risen by more than 10%.
5.6 Burdock will notify the other party of the intention to increase the price in writing. Burdock will state the size of the increase and the date on which it takes effect.
5.7 Burdock has the right to increase its rates annually, on 1 January, by at least 2.5%, unless the parties have made other agreements.
Article 6 Annulment of the Agreement
6.1 Annulment / cancellation of an agreement must be made in writing to Burdock no later than 5 working days before the execution date, failing which the other party will owe Burdock an amount of turnover in the amount of a calendar month.
6.2 The other party must ensure that Burdock has confirmed the receipt of the cancellation in writing to the other party.
6.3 If Burdock owes or has already paid any accommodation costs and / or other costs directly related to the assignment to a third party in the event of cancellation by the other party, these costs will be entirely for the other party’s account.
Article 7 Suspension and Dissolution
7.1 Burdock is authorized to suspend fulfilment of the obligations or to dissolve the agreement, if:
the other party does not or not fully comply with the obligations under the agreement.
o After the conclusion of the agreement Burdock has been informed of circumstances that give good reason to fear that the other party will not fulfil its obligations.
o If there is good reason to fear that the other party will only partially or improperly fulfil its obligations, the suspension is only permitted insofar as the shortcoming justifies it.
o the other party was requested when entering into the agreement to provide security for the fulfilment of its obligations under the agreement and this security is not provided or is insufficient.
7.2 Furthermore, Burdock is entitled to dissolve the agreement (or have it dissolved) if circumstances arise that are of such a nature that fulfilment of the agreement has become impossible or can no longer be required according to standards of reasonableness and fairness, or if circumstances arise otherwise occur which are of such a nature that unaltered maintenance of the agreement cannot reasonably be expected.
7.3 If the agreement is dissolved, Burdock’s claims against the other party will become immediately due and payable. If Burdock suspends fulfilment of the obligations, Burdock will retain its rights under the law and the agreement.
7.4 Burdock always reserves the right to claim damages.
Article 8 Implementation of the Agreement
8.1 Burdock will carry out its services with great care, if applicable in accordance with the established agreements and procedures agreed upon in writing with Client. Burdock will only contact sufficiently qualified personnel for the implementation of the Agreement.
8.2 Burdock appoints the persons who will carry out an assignment. If necessary, Burdock can replace these persons, where this is in the interest of the assignment and if desired by Client, upon consultation with Client.
8.3 Client should always indicate the objective of the assignment, in default whereof Burdock will carry out the assignment within the standards and procedures it has set.
8.4 If Client intends a certain result, this result should be described extensively, so that Burdock can assess in advance whether the desired result can be achieved.
8.5 A result guaranteed by Burdock can only be achieved if Client has observed all advice, recommendations and instructions and has provided all the necessary information and has given cooperation with the implementation of the Agreement. If Burdock is hindered at the implementation, the consequences resulting thereof are at the expense of Client.
8.6 An assignment is always regarded as a best-effort obligation, since a possible result also depends on many external factors that Burdock cannot influence, so that an intended result/objective cannot be guaranteed 100%.
8.7 If, and in as far as is proper, implementation of the Agreement requires it, Burdock has the right to have certain activities carried out by third parties.
8.8 Client sees to it that all data, documents or files which Burdock indicates are necessary, or of which the client in all fairness should understand to be necessary for the implementation of the Agreement, are provided to Burdock in a timely manner. If Burdock has not been provided with the data necessary for the implementation of the Agreement in a timely manner, Burdock has the right to suspend the implementation of the Agreement and/or to on-charge the extra costs as a result of the suspension to the Client, in accordance with the usual rates.
8.9 If Burdock or third parties contacted by Burdock within the framework of the assignment carry out activities at the location of Client or at a location indicated by Client, Client provides the facilities that are in all fairness required by the employees of Burdock free of charge.
8.10 The location and the time of the implementation of the Agreement are determined upon consultation. However, Burdock can change the location and the time, on the condition that Client has been informed in a timely manner. In general, this means that intended modification is passed on in a timely manner if this takes place at the latest 48 hours before the implementation of the Agreement, or a part thereof.
Article 9 Contract Duration/Implementation Term
9.1 The agreement between Burdock and a counterparty is entered into for an indefinite period, unless the nature of the agreement dictates otherwise, or the parties expressly agree otherwise in writing.
9.2 If the other party wishes to terminate the agreement prematurely, before Burdock has fully executed the assignment or before the project has been completed, Burdock is entitled to compensation for the loss that can be made and can be made plausible, unless there are facts and circumstances underlying the cancellation. that are attributable to Burdock. Upon termination, the other party is obliged to pay the invoices for work carried out up to that time, the costs incurred, and the hours worked.
9.3 Premature termination is when an agreement or project is completely and definitively halted by the other party, or interrupted or postponed for longer than a month, unless the parties agree otherwise.
9.4 If the agreement is terminated prematurely by Burdock, Burdock will arrange for the transfer of work still to be performed to a third party in consultation with the other party, unless there are facts and circumstances underlying the cancellation that are attributable to the other party.
9.5 Termination, dissolution and premature termination of the agreement must be made in writing by registered letter.
Article 10 Cooperation between Burdock Employee and Client
10.1 If the other party wishes to make use of an employee, the parties will draw up an agreement for this. This agreement specifies for how many hours, for which period, for which price, for which position, for which project he wishes to use an employee.
10.2 The costs of the employee will be charged based on a fixed hourly rate unless the parties have agreed otherwise in writing.
10.3 Unless otherwise agreed, Burdock will provide the other party with an hourly statement for the work performed every four weeks. If comments about the hours overview have not been made by the other party within 8 days after provision, Burdock can draw up its invoice as a result of the hours overview and the number of hours is fixed.
10.4 The employee will carry out the assignments to the best of his knowledge and ability and in accordance with the requirements of good workmanship. When carrying out the work, the goal or the intended result is always kept in mind. This may only be deviated from if the other party has agreed this in advance with Burdock.
10.5 Employee will carry out the assignment on normal working days and under normal circumstances. Normal working days are understood to mean: all workable working days from 8:00 AM to 6:00 PM, except for Saturdays, Sundays and ADV days, as well as recognized Christian, local and national holidays, as well as public holidays determined by the government.
10.6 If there is a difference of opinion about the performance of the assignment between the other party and the employee, the other party must immediately report this to Burdock.
10.7 In accordance with article 7: 658 BW, the other party is obliged to guarantee the safety of the employee and to prevent the employee from suffering damage in any way. In the event of an accident at work or an occupational disease, the other party must inform the employer, which in turn will engage all competent authorities in accordance with the regulations in force at that time. Barring intent or deliberate recklessness on the part of the employee, the other party is obliged to compensate all damage suffered by the employee when performing his work, including judicial and extrajudicial costs. If an employee dies, the damage, including compensation for damage due to loss of living costs and the costs of transportation of the body by the other party, will be reimbursed to the entitled parties described in Article 6: 108 BW.
10.8 If the employee suffers damage because an item belonging to the employee is damaged or destroyed in the context of the agreed assignment, the other party is obliged to fully compensate the employee, including the judicial and extrajudicial costs incurred by the employee.
10.9 The other party is obliged to be adequately insured against liability under this article. The other party indemnifies Burdock against all claims as described in this article, should these claims be recovered from Burdock.
10.10 Burdock’s liability for damage caused by an employee to the other party or third parties is expressly excluded. If Burdock is nevertheless held liable for any damage caused by the employee, the other party indemnifies Burdock against that liability. The other party is also obliged to be adequately insured under the indemnity and the underlying liabilities.
Article 11 Complaints
11.1 Complaints about the services provided must be reported by the other party directly to Burdock in writing, in any case within 2 days of the other party’s discovery. The notice of default must contain as detailed a description as possible of the shortcoming, so that Burdock is able to respond adequately.
11.2 If a complaint is well-founded, Burdock will still perform the services or have them performed as agreed, unless this has become demonstrably pointless for the other party. The other party must notify the latter in writing.
11.3 The right to complain lapses if the other party has not informed Burdock during the execution of the work or within 5 working days after the complaint arose.
11.4 Complaints about invoices must also be submitted in writing within 30 days of the invoice date.
11.5 After the above terms have expired, the other party is deemed to have approved the performance and the invoice.
11.6 If it is no longer possible or useful to perform the agreed work, Burdock will only be liable within the limits of the provisions of the article “Liability”.
Article 12 Liability
12.1 If Burdock should be liable, this liability is limited to what is arranged in this provision.
12.2 If Burdock is liable for direct damage, that liability is limited to a maximum of the quotation amount or the agreed price. In all cases, however, the liability is capped to the amount of € 1,000,000.00.
12.3 Contrary to the provisions under paragraph 2 of this article, in the case of an assignment with a term longer than six months, liability is further limited to the price owed over the last six months.
12.4 Direct damage exclusively means:
- the reasonable costs for determining the cause and extent of the damage, insofar as the determination relates to damage within the meaning of these conditions.
- any reasonable costs incurred to have the faulty performance of Burdock comply with the agreement unless these cannot be attributed to Burdock.
- the reasonable costs incurred to prevent or limit damage, insofar as the other party demonstrates that these costs have led to the limitation of direct damage as referred to in these general terms and conditions.
12.5 If the agreement is terminated prematurely, the other party cannot hold Burdock liable for the results achieved up to the date of termination, because an intended result or goal can only be achieved if Burdock can execute the entire agreement.
12.6 Burdock is not liable for damage of any kind, because Burdock has based on the incorrect and / or incomplete information provided by the other party.
12.7 Burdock is never liable for damage resulting from advice given. Advice is always given based on facts and circumstances known to Burdock and in mutual consultation, whereby Burdock always takes the intention of the other party as a guideline and starting point.
12.8 Burdock is never liable for indirect damage, including consequential damage, loss of turnover and profit, missed savings and damage due to business interruption.
12.9 The other party must make copies of all documents, information carriers, electronic files, or software, etc. provided to Burdock, in case these items are lost or damaged. The other party cannot hold Burdock liable for the loss or damage of these items.
12.10 The limitations of liability for direct damage included in these conditions do not apply if the damage is due to intent or gross negligence of Burdock or its employees.
Article 13 Force Majeure
13.1 The party that thinks it is in force majeure is obliged to immediately inform the other party.
13.2 The parties are not obliged to comply with any obligation if they are hindered to do so as a result of a circumstance that is not due to fault and is not for their account under the law, a legal act or prevailing opinions.
13.3 Force majeure in these general terms and conditions means, in addition to what is understood in this respect in law and case law, all external causes, foreseen or not foreseen, over which Burdock can have no influence, such as fire, theft, illness of personnel, electricity and computer disruptions and delays in traffic, but as a result of which Burdock is unable to fulfil its obligations. This includes strikes at Burdock’s company.
13.4 Burdock is also entitled to invoke force majeure if the circumstance preventing (further) fulfilment occurs after Burdock should have fulfilled its obligations.
13.5 Parties can suspend the obligations under the agreement during the period that the force majeure continues. If this period lasts longer than two months, each of the parties is entitled to dissolve the agreement, without obligation to pay compensation to the other party.
13.6 To the extent that Burdock has partially fulfilled or will be able to fulfil its obligations under the agreement at the time of the occurrence of force majeure, and the part that has been fulfilled or to be fulfilled has independent value, Burdock is entitled to fulfil or already fulfil to declare the part separately. The other party is obliged to pay this invoice as if it were a separate agreement.
Article 14 Indemnities
14.1 The other party indemnifies Burdock against claims by third parties regarding intellectual property rights on documents and data provided by the other party that are used in the execution of the agreement.
14.2 The other party indemnifies Burdock against any claims from third parties that suffer damage in connection with the execution of the agreement and which is attributable to the other party.
14.3 The indemnity as referred to in this article also includes all judicial and extrajudicial costs of Burdock.
14.4 If the other party provides Burdock with information carriers, electronic files, or software, etc., the other party guarantees that these information carriers, electronic files, or software are free from viruses and defects.
Article 15 Return of goods and equipment
15.1 All goods delivered by Burdock, including any designs, budgets, brochures, books, photos, reports, advice, software, (electronic) files, film, demos, etc., remain the property of Burdock until the other party fulfils all obligations under all Agreements concluded with Burdock have been fulfilled.
15.2 The other party must use the software provided by Burdock for the execution of the agreement as a good family man and may only be used by the other party for the agreed purpose. The damage resulting from the use of this software to the equipment or software of the other party will be for the account and risk of the other party.
15.3 If Burdock has made goods available to the other party in the performance of the agreement, the other party is obliged to return the delivered goods, in original condition, free of defects and in full, within 14 days after termination or completion of the agreement. If the other party does not fulfil this obligation, all replacement costs arising from this will be for its account.
Article 16 Intellectual property and copyrights
16.1 Without prejudice to the provisions in these general terms and conditions, Burdock reserves the rights and powers vested in Burdock under the Copyright Act and intellectual property law.
16.2 All documents provided or used by Burdock, such as reports, forms, advice, agreements, designs, sketches, course books, drawings, brochures and aids, demos, photos, films, videos, software, software, etc. are exclusively intended to be used by Burdock and the other party and may not be reproduced, published, rented, sold or brought to the attention of third parties by the other party without prior permission from Burdock, unless the nature of the documents provided dictates otherwise.
16.3 Burdock reserves the right to use the knowledge gained through the execution of the work for other purposes, insofar as no confidential information is disclosed to third parties.
Article 17 Confidentiality
17.1 Both parties are obliged to maintain the confidentiality of all confidential information that they have obtained from each other or from another source in the context of the agreement. All information is considered confidential, unless one of the parties has informed the other party in writing that the said information is not confidential.
17.2 If, based on a statutory provision or a court decision, Burdock is obliged to provide confidential information to third parties designated by law or the competent court, and Burdock cannot rely on a legal or competent court in this regard. recognized or permitted right of refusal, Burdock is not obliged to pay compensation or compensation and the other party is not entitled to dissolve the agreement based on any damage resulting from this.
Article 18 Personnel
18.1 The other party is not authorized, without Burdock’s written consent, to enter an employment relationship with an employee who is employed by Burdock, during and within 1 year after the performance of the agreement.
18.2 The Other Party is not authorized, without Burdock’s written consent, to enter an employment relationship with an employee, other than in the employment of Burdock, during and within six months after the performance of the agreement.
18.3 If the other party, without Burdock’s consent, enters into a direct or indirect employment relationship with the employee as referred to in Articles 18.1 and 18.2, the other party will be reimbursed at least the equivalent of six times the employee’s gross monthly income, based on a 40-hour per week period, due to Burdock. In addition, the other party is obliged to fully fulfil its obligations arising from the agreement existing between the parties.
18.4 The other party is not authorized to enter into agreements directly with an employee, failing which the other party must pay Burdock the resulting damage.
18.5 Burdock is never liable on account of the obligations entered into or arising by an employee with the other party or third parties without Burdock’s knowledge. The other party indemnifies Burdock against all claims in this respect, including the liability of Burdock as the employee’s employer.
Article 19 Payment
19.1 Payment must be made within 30 days of the invoice date in a manner to be indicated by Burdock in the currency in which it has been declared unless the parties have agreed otherwise. Objections to the amount of the invoices do not suspend the payment obligation.
19.2 Burdock is entitled to demand full or partial advance payment of the amount due. After payment of the advance amount, Burdock will start with the execution of the agreement.
19.3 Parties can agree on a payment arrangement.
19.4 If the other party fails to pay within the agreed term, the other party will be in default by law. The other party will then owe interest of 1.5% per month or part of a month, unless the statutory (commercial) interest is higher, in which case the highest interest applies. The interest on the claimable amount will be calculated from the moment that the other party is in default until the moment of payment of the full amount.
19.5 In the event of liquidation, (petition for) bankruptcy, admission of the other party to statutory debt rescheduling under the Natural Persons Debt Rescheduling Act, under receivership, attachment or (provisional) suspension of payment of the other party, the claims of Burdock on the other party are immediately due and payable. .
19.6 The payments made by the other party will firstly be used to reduce the costs, then to reduce the interest still due and finally to reduce the principal and accrued interest.
Article 20 Collection costs
20.1 If the other party is in default or omission in the (timely) fulfilment of its obligations, all reasonable costs incurred in obtaining payment out of court will be borne by the other party. In any case, the other party will owe collection costs in the event of a monetary claim. The collection costs are calculated in accordance with the collection rate as advised by the Dutch Bar Association in collection cases, with a minimum of € 350.00.
20.2 If Burdock has incurred higher costs, which were reasonably necessary, these will also be eligible for reimbursement. Judicial and execution costs are also for the account of the other party.
Article 21 Translations of these conditions
Only the Dutch language version of these conditions is authentic. If a translation differs in any way, the Dutch text will prevail.
Article 22 Applicable law / competent court
Dutch law applies to every agreement between Burdock and the other party. The judge in the place of business of Burdock has exclusive jurisdiction to hear disputes between the parties. Nevertheless, Burdock has the right to submit the dispute to a competent court in the Netherlands.
Article 23 Location of the conditions
These conditions have been filed at the office of the Chamber of Commerce under number 27165113 as of August 21, 2009 and can also be consulted on the Burdock website.