Article 1 Applicability
These general terms and conditions apply to every contract of assignment or legal relationship between Spigthoff NV (hereinafter referred to as ‘Spigthoff’) and a counterparty (hereinafter referred to as ‘client’) in which Spigthoff must perform or have performed work.
Article 2 Care standard
In carrying out the work to be performed in connection with an assignment, Spigthoff will take care of a good contractor as much as reasonably possible. All agreements relate to best efforts obligations and never to result commitments. All assignments are deemed to have been accepted exclusively by Spigthoff, even if they have been accepted by an employee or representative of Spigthoff. The client can not hold any other natural person or legal entity than Spigthoff liable for performance of the agreement or make it liable for damages, even if an assignment has been provided by the client with the intent that it be performed by that specific person. Unless explicitly stated otherwise in writing by the relevant adviser, an advice from a tax adviser / lawyer-tax expert will only relate to tax law aspects and matters and an advice provided by a lawyer will only relate to civil or administrative aspects and matters. The client can not assume that advice from a tax advisor / attorney-tax expert pays attention to possible civil or administrative implications or that advice from a lawyer takes into account any tax-related implications, unless explicitly stated otherwise by the relevant adviser in writing. or lawyer is indicated.
Article 3 Third parties to be engaged
Spigthoff is entitled to engage third parties in the execution of assignments, if and insofar as it deems this necessary. Spigthoff accepts no liability for any shortcomings of these third parties nor for damage related thereto. If, in the absence of this provision, Spigthoff should have a claim against this third party in the event of a shortcoming by this third party, this provision shall be deemed to have not been written and Spigthoff’s liability vis-à-vis its client shall be limited to the assignment of the claim. which it has or claims to have on this third party, without Spigthoff guaranteeing that this claim can be successfully collected by its client.
Article 4 Electronic communication
If communication between the client and Spigthoff takes place by using electronic techniques, including e-mail and internet, then both parties will have to provide security for this by using standard virus protection. Neither of the parties is – if satisfied – liable to the other party for damage in connection with transferred viruses, including damage in connection with resulting damage to data files to be transferred, damage to other files or data on the computer systems at the other party or costs for solving or repairing them. The sending of messages shall be unencrypted unless explicitly agreed otherwise by the parties before shipment. If, in his opinion, important messages have been sent to Spigthoff by the client, he must verify whether these messages have reached the addressee at Spigthoff in time and in undamaged condition.
Article 5 Confidential data
Spigthoff will treat data of the client that must reasonably be assumed to be confidential. If in the execution of the agreement – in accordance with the provisions of Article 3 – third parties are called in by Spigthoff, it is permitted to bring this information to the knowledge of those third parties, unless the client has indicated in advance that this must first be approved. requested. Pursuant to certain legal obligations, Spigthoff may provide information about the client or transactions executed by it to third parties without Spigthoff being allowed to report this to its client.
Article 6 Rates and invoicing
Invoicing of the work performed takes place monthly in accordance with the hourly rate that applies to Spigthoff at the time of the execution of the work, plus a reasonable surcharge for office expenses. This hourly rate and the aforementioned reasonable surcharge can be periodically adjusted by Spigthoff, also for current assignments, when an increase in these rates is decided throughout the entire office, which takes place at least once per calendar year. For certain types of work or when work is to be carried out under great time pressure, Spigthoff is allowed to charge higher rates than the usual rates. Spigthoff will charge costs that are not included in its rates such as (but not limited to) courier costs, attorney fees, translation costs and court fees, separately to the client. Payment by the client must take place within 14 days of the invoice date. If it has been agreed with the client that it must pay an advance before the work will commence, this advance will be settled with the last invoice in connection with the assignment. All invoices are increased by the applicable sales tax percentage. Should Spigthoff for any reason incorrectly not charge turnover tax where afterwards it appears that sales tax should have been charged, then it can still charge the amount charged as turnover tax, still charged to the client and the client is obliged to pay that amount to Spigthoff.
Article 7 Limitation of liability and indemnity
Any liability of Spigthoff for damage resulting from, or related to, an attributable shortcoming or wrongful act, or that is based on any other legal grounds, is limited to the amount paid by the insurer of Spigthoff in this respect, increased by the excess. from Spigthoff under that insurance. If in any case the insurer does not pay out, then the total liability arising from, or in connection with, the agreed work is limited to the amount for the activities in connection with which the damage occurred, by the client to Spigthoff. is payed. Spigthoff will not invoke this limitation of liability if damage is the result of intent or willful recklessness on the part of Spigthoff or its managerial subordinates. Any claim for damages against natural persons, employees, directors, or companies that are employed by Spigthoff or with which Spigthoff has entered into agreements in connection with its business operations, and that can be held (jointly) responsible for the occurrence of the damage, is excluded. . Said natural or legal persons can – as a third party clause – invoke these general terms and conditions and therefore this Article 7 in relation to the client.
Article 8 Bee termination
Each party is entitled to terminate the agreement by giving notice, if desired with immediate effect. In the event of termination, the client must pay at least the services that have been performed up to the moment of cancellation.
Article 9 Divers
All claims of the client expire 12 months after the activities to which those claims relate, have been performed, unless the rights of the client in accordance with the law have already expired at an earlier time. Dutch law applies to all agreements and legal relationships with the client. All disputes between the client and Spigthoff are submitted to the competent court in Amsterdam, without prejudice to the authority of Spigthoff to submit a dispute to a court to whom – in the absence of this provision – jurisdiction would accrue.
These general terms and conditions have been filed with the District Court in Amsterdam on 28 November 2006 under number 151/2006.