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Algemene voorwaarden

Version August 18, 2022

1. Definitions

In these General Terms and Conditions, the definitions below, always written with an initial capital letter, used in both the singular and plural, have the following meaning:

  • General Terms and Conditions: these General Terms and Conditions;

  • Quotation: the Quotation drawn up by the Contractor, which specifies what the Assignment to be carried out consists of, as well as the compensation that the Customer owes for this;
    Assignment: the services agreed upon by the Parties;

  • Client: the Party that enters into the Agreement with the Contractor;

  • Contractor: the entrepreneur, affiliated as a franchisee with FINANCIERINGSGILDE, who provides services to the Client on the basis of an agreement with the Client;

  • Agreement: the Assignment Agreement as agreed between the Parties

  • Party: Contractor or Customer;

  • Parties: Contractor and Customer jointly;

2. Applicability

  1. These General Terms and Conditions apply to all legal relationships between Contractor and Client to which Contractor has declared these General Terms and Conditions applicable.

  2. These General Terms and Conditions also apply to all agreements with the Contractor for the execution of which third parties are involved.

  3. If one or more of the provisions in these General Terms and Conditions are null and void or are annulled, the other provisions of these General Terms and Conditions will remain fully applicable. The Contractor and the Client will then enter into consultations in order to agree on new provisions to replace the null and void or annulled provisions, whereby the purpose and scope of the original provision will be taken into account as much as possible.

3. Conclusion of agreement

  1. Een Offerte verplicht Klant tot niets.

  2. Een Offerte van Opdrachtnemer is 30 dagen geldig, tenzij anders is aangegeven.

  3. Een Overeenkomst komt tot stand op het moment dat de door Klant ondertekende Offerte door Opdrachtnemer retour is ontvangen. Het staat Opdrachtnemer vrij te bewijzen dat de Overeenkomst op andere wijze tot stand is gekomen.

  4. Indien de aanvaarding (op ondergeschikte punten) afwijkt van het in de Offerte opgenomen aanbod is Opdrachtnemer daaraan niet gebonden. De Overeenkomst komt dan niet overeenkomstig deze afwijkende aanvaarding tot stand, tenzij Opdrachtnemer anders aangeeft.

  5. Een samengestelde Offerte verplicht Opdrachtnemer niet tot het verrichten van een gedeelte daarvan tegen een overeenkomstig deel van de opgegeven prijs.

  6. Offertes gelden niet automatisch voor toekomstige opdrachten.

  7. Ingeval deze Algemene Voorwaarden en de Overeenkomst tegenstrijdigheden bevatten, gelden de in de Overeenkomst opgenomen voorwaarden.

4. Amendment of the agreement

  1. If during the performance of the Agreement it appears that it is necessary to change or supplement the work to be performed for proper performance, the Parties will adjust the Agreement accordingly in a timely manner and in mutual consultation.

  2. If the amendment or addition to the Agreement will have financial and/or qualitative consequences and/or consequences for the time of completion, the Contractor will inform the Client of this in advance.

  3. Notwithstanding paragraph 2, the Contractor may not charge additional costs if the change or addition is the result of circumstances that can be attributed to the Contractor.

  4. The Contractor may first perform more work and charge the Client additional costs than stated in the Agreement, if the Client has given prior permission for this, unless this work falls within the Contractor's duty of care.

5. Execution of the agreement

  1. The Contractor shall execute the Agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship. All this on the basis of the state of science known at that time. However, the Contractor cannot guarantee the achievement of any intended result.

  2. The Contractor shall determine the manner in which and by whom the Agreement shall be executed, but shall take into account the wishes expressed by the Client as much as possible. If and to the extent that proper execution of the Assignment so requires, the Contractor shall have the right to have certain work performed by third parties. Any related (additional) costs shall be borne by the Client.

  3. The Client shall ensure that all data and documents which the Contractor indicates are necessary for the correct performance of the Agreement or which the Client should reasonably understand are necessary for this purpose, are provided to the Contractor in a timely manner in the desired form and in the desired manner.

  4. The Client guarantees the correctness, completeness and reliability of the data and documents provided to the Contractor, even if these originate from third parties.

  5. The Contractor shall not be liable for any damage of any nature whatsoever resulting from the Contractor relying on incorrect and/or incomplete information provided by the Client, unless the Contractor should have been aware of such incorrectness or incompleteness.

  6. If the data required for the performance of the Agreement are not provided to the Contractor or are not provided on time or properly, the Contractor shall have the right to suspend the performance of the Agreement and/or charge the Client for the additional costs and additional compensation resulting from the delay in the performance of the Agreement at the usual rates.

  7. If it has been agreed that the Agreement will be executed in phases, the Contractor may suspend the execution of those parts belonging to a subsequent phase until the Client has approved the results of the preceding phase in writing.

  8. Deadlines within which work must be completed are never fatal deadlines, unless this has been expressly agreed in writing.

6. Execution period

  1. If the Customer is required to make an advance payment or to provide information and/or materials required for the execution, the period within which the work must be completed will not commence until the advance payment has been received in full or the information and/or materials have been provided.

  2. If a term has been agreed within the term of the Agreement for the completion of certain activities, this is never a fatal term. If the execution term is exceeded, the Client must therefore give the Contractor written notice of default.

7. Compensation

  1. The prices in the offers and Quotations mentioned are exclusive of VAT and other government levies, as well as any costs to be incurred under the Agreement, including disbursements, shipping and administration costs, unless otherwise stated.

  2. If no fixed fee is agreed, the fee will be determined on the basis of actual time spent and the hourly rate of the Contractor.

  3. If, after the Agreement has been concluded but before the Agreement has been fully executed, wages and/or prices change, the Contractor is entitled to adjust the compensation or hourly rate.

  4. Customer is entitled to terminate the Agreement if the fee or hourly rate is increased within three months after entering into the Agreement. After this period, Customer is entitled to terminate the Agreement if the increase amounts to more than 10%. Customer is not entitled to terminate if the increase in the fee or hourly rate results from a power under the law.

8. Payment

  1. Contractor shall send an electronic invoice to Client for the amount owed by Client. Client agrees to electronic invoicing.

  2. Payment of the invoice sent by the Contractor must be made, without deduction, discount or settlement, within 14 days after the invoice date. Objections to the amount of the invoice, or complaints within the meaning of article 10, do not suspend the Customer's payment obligation.

  3. In the event of liquidation, bankruptcy, attachment, suspension of payments or debt restructuring of the Customer, all amounts owed by the Customer to the Contractor shall also be immediately due and payable.

  4. The Contractor is always entitled to request an advance payment or full prepayment for its work and/or costs.

  5. The Contractor has the right to apply payments made by the Client first to reduce costs, then to reduce accrued interest and finally to reduce the principal and current interest.

  6. The Contractor may, without thereby being in default, refuse an offer of payment if the Customer specifies a different order for the allocation.

  7. The Contractor may refuse full repayment of the principal sum if the accrued and current interest and costs are not also paid.

  8. In the event of a joint assignment, Clients are jointly and severally liable for payment of the amounts due, insofar as the work has been carried out for the benefit of the joint Clients.

9. Interest and collection costs

If Customer has not or has not fully complied with the payment obligation after the expiry of the first payment term, as stated in article 8 paragraph 2, Customer shall owe the statutory commercial interest from the first day after the expiry of the payment term, without any further notice of default being required. In such a case, Customer shall also be obliged to fully reimburse all extrajudicial and judicial (collection) costs, including but not limited to the costs of lawyers, bailiffs and collection agencies.

10. Klachten

  1. Complaints about the work performed or about an invoice must be reported in writing to the Contractor by the Client within 8 days of discovery, but no later than 30 days after completion of the work in question or within 30 days after the invoice date. The complaint must contain a description of the shortcoming that is as detailed as possible, so that the Contractor is able to respond adequately.

  2. In the event of a justified complaint, the Contractor may choose between adjusting the fee charged, improving or re-performing the agreed work free of charge or, if the latter is no longer possible or meaningful, ceasing to perform the Assignment in whole or in part against reimbursement in proportion to a fee paid by the Client.

  3. If it is no longer possible or meaningful to perform the agreed work, the Contractor will only be liable within the limits of Article 14.

11. Termination and cancellation

  1. Agreements with a pre-agreed duration cannot be terminated prematurely.

  2. If the Customer cancels the Order in whole or in part after acceptance thereof, the Contractor is entitled to charge the Customer the entire amount quoted.

  3. Continuous management can be cancelled annually before the end of the calendar year.

12. Privacy

  1. Contractor processes personal data within the meaning of the General Data Protection Regulation of Client in the context of the Agreement. This personal data will be processed in accordance with Contractor's Privacy Statement and applicable laws and regulations.

  2. If the Contractor processes personal data, this article will apply as a processing agreement between the Contractor and the Client, whereby the Client is regarded as the controller within the meaning of the General Data Protection Regulation (“GDPR”) and the Contractor as the processor.

  3. The Contractor acts in accordance with the provisions of the GDPR and adequately protects the personal data provided to it. The Contractor will take appropriate technical and organizational measures to protect the personal data against loss and any form of unlawful processing. These measures guarantee, taking into account the state of the art and the costs of implementation, an appropriate level of security, given the risks involved in the processing and the nature of the data to be protected. These measures will include, among other things:

  4. Physical and equipment security;

  5. Developing an information security policy document;

  6. Assigning security responsibilities;

  7. Maintaining access security (procedures to allow authorized employees access to information systems and services);

  8. Employees are required in their employment contract and/or a confidentiality agreement to maintain confidentiality of confidential information, including at least personal data.

  9. The personal data will be kept separate from other information.

  10. Contractor processes the personal data it obtains from Client solely for the purpose of delivering agreed Services or Products. Contractor shall not use the personal data for its own purposes or the purposes of third parties without the express written consent of Client.

  11. To the extent that the Contractor engages third parties in the performance of the Agreement, such third parties will be bound by obligations similar to those of the Contractor.

  12. Client grants Contractor permission to share personal data with potential financing providers for the purpose of obtaining financing by Client.

  13. The following data can be processed:

  14. Data from the Chamber of Commerce of the organization and related entities and persons

  15. Name, address, place of residence, date of birth

  16. Contact details

  17. Indicative figures, namely turnover, profit, investment (target and commitment), balance sheet

  18. Financial information, namely annual figures, budgets, loan overview including details per loan, bank statements, debtor lists

  19. Financing explanation/information memorandum

  20. Valuation report(s)

  21. Rental agreements

  22. Proof of purchase of business assets

  23. Income Tax Return

  24. Quotes from lenders

  25. Proof of identity for submission to (intended) lenders

13. Dissolution

  1. The Contractor is authorized to terminate the Agreement if circumstances arise that are of such a nature that compliance with the Agreement is impossible or can no longer be reasonably expected, or if circumstances otherwise arise that are of such a nature that continued existence of the Agreement without changes cannot reasonably be expected.

  2. Either Party may terminate the agreement in whole or in part by registered letter with immediate effect, without notice of default and without judicial intervention, if the other party is granted a suspension of payments – provisionally or otherwise – the bankruptcy of the other party is requested, the other party’s company is liquidated or terminated other than for the purpose of reconstruction, reorganization or merger of companies. The Party that terminates the agreement in this way shall never be liable to pay damages to the other party.

  3. If the Contractor has already performed services with regard to the termination of the agreement as referred to in the previous paragraphs, these services and the resulting payment obligations shall not be subject to cancellation, unless the Contractor is in default with regard to those services. Amounts that the Client owes to the Contractor as a result of services received shall remain due in full, regardless of whether the Client has already been invoiced for them, and shall become immediately due and payable at the time of termination.

14. Liability and indemnity

  1. The Contractor accepts statutory and contractual obligations to pay damages only to the extent that this is apparent from this article.

  2. Contractor shall only be liable to Client (a) in the event of an attributable failure to perform the Agreement, and then exclusively for compensatory damages, i.e. compensation for the value of the performance not provided, or (b) in the event of an unlawful act attributable to Contractor that causes damage or bodily injury to persons.

  3. Any liability of the Contractor for any other form of damage is excluded, including additional compensation in any form whatsoever, as well as compensation for indirect damage or consequential damage or damage due to lost turnover or profit, damage due to delay, damage due to loss of data, damage due to exceeding deadlines as a result of changed circumstances and damage due to information or advice provided by the Contractor, the content of which does not expressly form part of the Assignment.

  4. The Contractor shall at all times have the right to prevent or reduce, to the extent possible, any damage suffered or incurred by the Client.

  5. Liability for all damages arising from or in connection with the agreed work is limited to the amount paid by the Client to the Contractor for the work in connection with which the damage occurred.

  6. The liability of Contractor for attributable failure to perform an agreement shall only arise if Customer immediately and properly notifies Contractor in writing of default, setting a reasonable term for remedying the failure, and Contractor continues to fail to perform its obligations after that term. The notice of default must contain as detailed a description of the failure as possible, so that Contractor is able to respond adequately.

  7. The exclusion and limitation of liability, as referred to in the previous paragraphs, shall not apply if and to the extent that the damage is the result of intent or deliberate recklessness on the part of the Contractor or its management.

  8. Client indemnifies Contractor against all claims from third parties related to the performance of the Agreement.

  9. The limitations of liability set out in this provision are also stipulated for the benefit of third parties engaged by the Contractor, who therefore have a direct claim to these limitations of liability.

  10. If the Customer provides the Contractor with information carriers, electronic files or software, etc., the Customer shall indemnify the Contractor against damage caused by viruses and defects.

  11. The Client indemnifies the Contractor against any claims by third parties who suffer damage in connection with the performance of the Agreement and which is attributable to the Client.

15. Force Majeure

  1. In the event of force majeure, which in any case includes disruptions or failures of the internet, the telecommunications infrastructure, power failures, civil unrest, mobilization, war, disruption of transport, strike, lockout, business disruptions, illness of the Contractor or personnel, stagnation in supply, fire, flooding, import and export restrictions as a result of which the execution of the Assignment cannot reasonably be expected of the Contractor, the execution of the Assignment will be suspended or the Agreement will be terminated if the force majeure situation has lasted longer than ninety (90) days, all without any obligation to pay damages on either side.

  2. The Contractor also has the right to invoke force majeure if the circumstance that prevents (further) performance occurs after the Contractor should have fulfilled its obligations.

  3. If, at the time of the occurrence of force majeure, the Contractor has already partially fulfilled its obligations under the Agreement or will be able to fulfil them, and the part that has been fulfilled or is yet to be fulfilled has an independent value, the Contractor is entitled to invoice the part that has already been fulfilled or is yet to be fulfilled separately. The Customer is obliged to pay this invoice as if it were a separate agreement.

16. Confidentiality

  1. Both Parties are obliged to maintain confidentiality of all confidential information that they have obtained from each other or from other sources in the context of their Agreement. Information is considered confidential if this has been communicated by the other Party or if this results from the nature of the information. The Contractor will impose its obligations under this provision on third parties engaged by it.

  2. Notwithstanding the first paragraph of this article, if the Contractor acts on its own behalf in disciplinary, civil or criminal proceedings, it shall be entitled to use the data and information provided by or on behalf of the Client, as well as other data and information of which it has become aware during the performance of the Assignment, insofar as it deems these to be of importance in its defence.

  3. Any obligation of confidentiality shall lapse at the time the information is available from public sources. Furthermore, a Party is entitled to make confidential information available to government agencies if this is required by law or authorised order. In that case, the Party shall inform the other Party thereof as soon as possible. The obligations under this article shall also continue to exist after termination of the Agreement for whatever reason, and for as long as the providing Party can reasonably claim the confidential nature of the information.

17. Intellectual property and copyrights

  1. All documents provided by the Contractor, such as advice, (model) agreements and other intellectual property, are exclusively intended for use by the Client and may not be reproduced, made public, exploited or brought to the attention of third parties by the Client without the prior written consent of the Contractor, unless the nature of the documents provided dictates otherwise.

  2. The copyrights and other intellectual property rights to all materials developed or made available by or on behalf of Contractor in the context of the Assignment, including but not limited to analyses, documentation, advice, reports, Quotations, as well as preparatory material thereof, are vested in Contractor and/or its licensors. Client shall only obtain the user rights and powers that arise from the scope of the Agreement or that are subsequently granted.

  3. The Contractor reserves the right to use the knowledge acquired through the performance of the work for other purposes, provided that no confidential information is disclosed to third parties.

18. Expiry period

  1. Unless otherwise provided in these General Terms and Conditions, claims and other rights of the Client against the Contractor on whatever grounds in connection with the performance of work by the Contractor shall in any event lapse one year after the moment at which the Client became aware or could reasonably have been aware of the existence of these rights and powers.

19. Applicable law, disputes and choice of forum

  1. All agreements between Contractor and Client are governed by Dutch law.

  2. A dispute exists if at least one of the Parties believes that this is the case. All disputes will be resolved as much as possible through proper consultation.

  3. If the Parties fail to reach a solution, the disputes will be settled by the competent court.

20. Other provisions

  1. Where these General Terms and Conditions refer to “written”, electronic communication such as e-mail and fax may also be used, provided that the identity of the sender and the authenticity of the communication are sufficiently established. The burden of proof regarding receipt of electronic communication lies at all times with the Customer.

  2. The Customer must notify the Contractor of any relevant changes to its details, such as changes in address and billing details, as soon as possible, but in any case at the Contractor's first request.

  3. A Party shall only be entitled to transfer its rights and obligations under the Agreement to a third party with the prior written consent of the other Party's Contractor. However, the Contractor may transfer its rights and obligations under the Agreement to a parent, sister or subsidiary company without further consent from the Client.

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