General terms and conditions 2.0 (deprecated)
Version 2.0 (deprecated), October 16, 2007
Article 1 Definitions
- In the present General Terms and Conditions, the following Terms are used in the sense given below, unless explicitly indicated otherwise.
- Fingertips bv
- Client of the provision of services.
- The Agreement concerning the provision of services.
- Terms and Conditions
- The present General Terms and Conditions
Article 2 General
- The Terms and Conditions shall apply to each and every offer, tender and Agreement whereby Fingertips delivers services of any nature to the Client, insofar as parties have not explicitly deviated from the Terms and Conditions in writing.
- The Terms and Conditions shall also apply to all Agreements with Fingertips, the performance of which calls for the services of third parties.
- Possible deviations from the Terms and Conditions shall only be valid provided they have been explicitly agreed upon in writing whereby deviations are expressly mentioned.
- The applicability of Client’s and/or of a third party possible purchase or other Conditions is explicitly rejected unless they have been explicitly agreed upon in writing.
- In case of conflict between the definitions of Terms and Conditions and the Agreement, the definition of the Terms and Conditions will prevail.
- If one or more stipulations in the Terms and Conditions should be null and void or declared null and void, then the other stipulations of the Terms and Conditions shall remain fully applicable. The case ensuing, Fingertips and Client shall enter into negotiations to agree upon new stipulations replacing the null and void Conditions, or, as the case may be, the Conditions declared null and void, whereby the purpose and the meaning of the original Conditions shall be applied as far as possible.
- Fingertips reserves the right to modify the Terms and Conditions with immediate effect by means of a written notification to the Client.
Article 3 Offers and Tenders
- All offers and tenders of Fingertips shall be free of obligation and shall be valid for a period of 30 days, unless indicated otherwise. Fingertips shall only be bound by the offers if the acceptance thereof is confirmed in writing by the opposite party within 30 days, unless indicated otherwise.
- The prices given in above-mentioned offers and tenders shall be exclusive of VAT and other government levies, as well as of the other expenses to be incurred within the scope of the Agreement, including shipment and administration costs, unless Fingertips indicates otherwise.
- If the Client changes the acceptance (on secondary items) from the offer given, Fingertips shall not be bound by it. The Agreement shall in such event not be concluded in accordance with said changed acceptance, unless Fingertips indicates otherwise.
- A compound quotation shall not oblige Fingertips to execute part of the assignment against a corresponding part of the given quotation.
- Offers and tenders shall not apply to future assignments.
Article 4 Performance of the Agreement
- Fingertips shall execute the Agreement to the best of his knowledge and ability.
- If required for the proper performance of the Agreement, Fingertips shall have the right to have certain work done by third parties, without prior consent from the Client.
- The Client shall ensure that Fingertips shall be provided when due with all data which Fingertips has said to be necessary or which the Client must in all reasonableness understand to be necessary to perform the Agreement. If Fingertips has not been provided in due time, or not according to the arrangements made, with the data necessary to perform the Agreement, or if Client will not observe its obligations in any other way, Fingertips shall have the right to suspend the performance of the Agreement and/or to charge the Client for the additional costs resulting from the delay at the generally accepted rates.
- The Client shall ensure that Fingertips shall be provided when due with all necessary items and information which Fingertips has said to be necessary or which the Client must in all reasonableness understand to be necessary to perform the Agreement and client takes care that the items and information are usableby Fingertips. If Fingertips has not been provided, not been provided in due time or not according to the arrangements made, with the items and information necessary to perform the Agreement or if Client will not observe its obligations in any other way Fingertips shall have the right to suspend the performance of the Agreement and/or to charge the Client for the additional costs resulting from the delay at the generally accepted rates.
- Fingertips shall not be liable for damages of whatever nature caused by the fact that Fingertips worked on the basis of incorrect and/or incomplete data and/or items provided by the Client.
- If parties have agreed that the Agreement will be performed in stages, Fingertips can suspend the performance of the parts belonging to a following stage until the Client has approved in writing the results of the stage prior to it.
- If Fingertips or third parties engaged by Fingertips within the scope of the assignment to work at Client’s site or at a site designated by Client, Client shall provide the said service providers having to work there free of charge with all facilities desired in all reasonableness by said service providers.
- Client shall safeguard Fingertips against possible claims filed by third parties who may sustain damage attributable to Client in connection with the performance of the Agreement.
Article 5 Changes to the Agreement
- If it is shown during the performance of the Agreement that the work to be done needs to be changed and supplemented in order to ensure its proper performance, parties shall adapt the Agreement accordingly in due time and throughmutual consultations.
- The Client accepts that as a result of any change in or extension of the Agreement, the agreed or expected time of completion of the obligations may be extended. Fingertips shall inform the Client thereof as soon as possible the new expected time of completion.
- The Client accepts that as a result of any change in or extension of the Agreement, Fingertips may incur financial consequences and/or quality variations. Fingertips shall inform the Client thereof on a timely basis of any thing in this effect.
- If a fixed fee has been agreed upon then Fingertips shall indicate the degree to which the change or supplement to the Agreement will result in an increase of said fees.
- In the event that Fingertips, at the request of or with the prior consent of the Client has undertaken any work which are outside the content or scope of the agreed activities, these performances or these deliveries shall be reimbursed by the Client to Fingertips in accordance with the usual tariffs charged by Fingertips.
- In the event of any cost-increasing circumstances, Fingertips shall notify the Client thereof as soon as possible.
- Any cost-increasing circumstances that cannot be attributed to Fingertips shall be settled as additional work. Variations to the agreement shall in any case mean in the event of any agreed change in the scope of the products or services to be delivered and any deviations from the amounts of agreed provisional sums and amounts that can be settled and/or estimated.
- Contrary to the Conditions of paragraph 3, Fingertips shall not be able to charge additional costs if the change or supplement is the exclusive result of circumstances attributable to Fingertips.
Article 6 Duration of the Contract; Term of Execution
- The Agreement between Fingertips and a Client shall be entered into for an indefinite period of time, unless the nature of the Agreement dictates otherwise or if parties have explicitly agreed otherwise in writing.
- If a term has been agreed to complete certain work within the term of the Agreement, then this term shall never be a term to be observed on penalty of forfeiture of rights. Fingertips will not be in default if the term will be exceeded. If the term of execution is exceeded, the Client must consequently declare Fingertips to be in default in writing.
Article 7 Fee
- Parties can agree upon a fixed fee the moment the Agreement is concluded. This fixed fee will be based on normal working hours.
- If no fixed fee has been agreed upon, the fee shall be determined on the basis of the number of hours actually spent on the work. The fee shall be calculated in accordance with Fingertips’s usual hourly rates, valid for the period in which the work is being done, unless a different hourly rate has been agreed upon. Invoicing shall take place in arrears on the basis of actual costs.
- The fee, rate, offers and a possible cost estimate shall be exclusive of VAT.
- With respect to assignments with a duration of more than two months, the costs owed shall be charged periodically.
- If Fingertips and the Client agree upon a fixed fee or an hourly rate, Fingertips shall nevertheless be entitled to increase this fee or rate.
- Fingertips shall be allowed to charge on price increases, if changes in price have occurred between the time of offer and the time of delivery with respect to, e.g., amongst others, salaries and wages as well as if the power to increase the price is the result of a power given to Fingertips by law or other changes or if Fingertips is obligated to increase the price by (virtue of) law.
- Fingertips shall furthermore be able to increase the fee when it is shown during the performance of the work that the volume of work initially agreed upon or expected when the contract was concluded increased, and this through no fault of Fingertips. In that case Fingertips shall notify the Client in writing of the increasing of the fee or the hourly rate.
Article 8 Payment
- Payment must be made within 14 days from the date of invoice, in a way to be indicated by Fingertips and in the currency in which the statement of expenses was drawn up. Contestation of the amount of the statements of expenses shall not suspend the fulfilment of the payment obligation.
- If Client fails to fulfil his payment obligation within the term of 14 days, then Client shall be in default by operation of law. In that event, Client shall owe an interest of 1% per month, unless the statutory interest rate is higher, in which case the statutory interest rate shall apply. The interest on the amount due and payable shall be calculated as from the day the Client is in default until the moment he has paid the amount in full.
- Fingertips’s claims against Client shall become due on demand in the event that Client’s company is wound up, attached, declared bankrupt, or if a suspension of payment is granted.
- Fingertips shall be entitled to have the payments made by the Client to first be applied to the costs incurred, subsequently to be applied to the interest still due and finally to be applied to the principal sum and the current interest. Fingertips shall have the right, without this leading Fingertips to be in default, to refuse an offer for payment, if the Client designates a different sequence of attribution. Fingertips shall be entitled to refuse full payment of the principal sum, if said payment does not include the interest still due, the current interest and the costs.
- Fingertips has the possibility to charge a credit limitation surcharge of 2%. This surcharge will not be charged if payment is made within 7 days from the date of invoice.
Article 9 Retention of Title
- All goods delivered by Fingertips, possibly also including designs, sketches, drawings, films, software, (electronic) files, etc., shall remain Fingertips’s property until Client has fulfilled all of his obligations under all Agreements concluded with Fingertips.
- Client shall not be authorised to pledge or encumber in any way the goods falling under the retention of title.
- If third parties seize goods delivered subject to retention of title or wish to establish or assert a right to them, Client shall be held to inform Fingertips thereof immediately.
- The Client shall undertake to insure the goods delivered subject to retention of title and to keep them insured against damage caused by fire, explosion and water as well as against theft and make this insurance policy available for inspection on first demand.
- In the event that Fingertips wishes to exercise his ownership rights mentioned in the present article, Client shall give Fingertips or third parties to be appointed by Fingertips, at anytime, unconditional and irrevocable permission to access all sites and locations where Fingertips’s property might be found and to take these goods back.
- Fingertips shall reserve the right to display all goods delivered, as mentioned under 1. of the present article, as part of the Fingertips’s portfolio.
Article 10 Collection Charges
- If the Client fails to fulfil his obligations (in due time) or defaults on them, then all reasonable costs made by Fingertips incurred to have all extrajudicial costs and debts paid shall be borne by the Client. If the Client remains in default of payment within the set time period, Client incur an immediately payable fine of 15% on the amount due at that moment. This with a minimum of € 50.
- The reasonable judicial and execution costs possibly incurred shall completely be borne by Client.
- The Client shall owe interest over the collection charges.
Article 11 Inspection and Complaints
- The Client must notify Fingertips in writing of complaints about the work done within 8 days following their detection, but no later than within 14 days following completion of the work concerned. The notice of default must give as detailed a description as possible of the shortcoming, so that Fingertips is in a position to respond adequately.
- If a complaint proves to be well-founded, Fingertips shall do the work as agreed upon, unless such has become demonstrably useless in the meantime to the Client. The Client must notify Fingertips in writing if the latter is the case.
- If it is no longer possible or useful to still do the work with respect to the provision of services agreed upon, Fingertips shall only be liable within the limits as stated in Article 15.
Article 12 Cancellation
- Both parties shall be entitled to cancel the Agreement at all times in writing with observing a notice period of one month.
- If the Agreement is terminated prematurely by Client, Fingertips shall be entitled to compensation of the loss of capacity utilisation to be demonstrated caused by among others said premature termination, unless the termination is based on facts and circumstances which can be attributed exclusive to Fingertips. Client shall furthermore be held in that event to pay the statement of expenses for the work done up till that moment in case of prematurely termination. The preliminary results of the work done up till that moment shall therefore be put at Client’s disposal subject to approval.
- If the Agreement is terminated prematurely by Fingertips, Fingertips shall see to it in conjunction with Client that the work still to be done be transferred to third parties, unless the termination is based on facts and circumstances which can be attributed to Client.
- If the transfer of the work still to be done entails extra costs for Fingertips, said costs shall be charged to Client.
Article 13 Suspension and Dissolution
- Fingertips shall be authorised to suspend the fulfilment of the obligations under the Agreement or to terminate the Agreement with immediate effect, in part of in whole, in the event that:
- Client does not fulfil or does not fully fulfil his obligations resulting from the Agreement;
- after the Agreement has been concluded, Fingertips learns of circumstances giving good ground to fear that the Client will not fulfil his obligations;
- Client was asked to furnish security to guarantee the fulfilment of his obligations resulting from the Agreement when the contract was concluded and that this security is not provided or insufficient.
- Fingertips shall furthermore be authorised to terminate the Agreement (have the Agreement terminated) if circumstances arise of such a nature that fulfilment of the obligations becomes impossible or can no longer be demanded in accordance with the requirements of reasonableness and fairness, or if other circumstances arise of such a nature that the unaltered maintenance of the Agreement can no longer be demanded in all reasonableness.
- Client shall pay Fingertips the fixed fee, as agreed in the now terminated Agreement or the expected fee based on the dissolved Agreement. If parties have not agreed a fixed fee for the term of the Agreement, Fingertips can claim the fee as paid in the period of 12 months before the termination of the Agreement.
- If the Agreement is terminated, Fingertips’s claims against the Client shall be forthwith due and payable. If Fingertips suspends fulfilment of his obligations, he shall retain his rights under the law and the Agreement.
- Fingertips shall always retain the right to claim (complementary-) damages.
Article 14 Return of Goods Put at Client’s Disposal
- If Fingertips has put goods at Client’s disposal during and in connection with the performance of the Agreement, Client shall be held to return the delivered goods within 14 days after written request of Fingertis in their original state, free of defects and in their entirety. If Client fails to fulfil this obligation, all resulting damages and costs, wherein the costs of substitution shall be at Client ’s expense.
Article 15 Liability
- Should Fingertips be liable, then said liability shall be limited to the stipulations of the present condition.
- Fingertips’s liability due to culpable shortcoming in the performance of an agreement will only arise if the Client notifies Fingertips immediately and properly of default, stating a reasonable term to rectify the shortcoming and after this term Fingertips continues to not comply with its obligations.
- Fingertips total liability, for whatever reason, shall be limited to the payment of the direct damages up to a maximum of twice the amount of the statement of expenses as invoiced, at any rate the fee of that part of the assignment to which the liability relates, at any rate to a maximum of € 10 000 (In words: euro ten thousand). Fingertips’s liability shall at all times be limited to a maximum equalling the amount of the payment to be made by Fingertips’s insurer in the occurring event.
- In the event of an assignment with a duration of more than 6 months, the liability shall, contrary to the stipulations under 3. of the present article, furthermore be limited to the part of the fee still due for the last six months, at any rate the fee of that part of the assignment to which the liability relates.
- Direct damage shall be understood to be exclusively:
- The proved reasonable costs incurred to establish the cause and the volume of the damage, in so far as said establishment relates to direct damage in the sense of the Terms and Conditions;
- the proved reasonable costs possibly incurred to have Fingertips’s faulty performance meet the Conditions of the Agreement, unless such faulty performance cannot be attributed to Fingertips. This damage, however, shall not be compensated for in the event that the agreement is terminated;
- the proved reasonable costs incurred to prevent or limit the damage, in so far Client demonstrates that said costs have led to the limitation of direct damage as meant in the present general Terms and Conditions.
- Fingertips shall never be liable for indirect damage, including consequential damage, loss of profit, lost savings and damage due to business stagnation.
- The limitations of liability for direct damage contained in the Terms and Conditions shall not apply if the damage is due to intentional act on the part of Fingertips or his subordinates.
- The condition for the creation of any right to the payment of damages shall be that the Client notifies Fingertips of such damage as soon as possible (within one year at the latest).
Article 16 Safeguarding and Indemnification
- The Client shall safeguard (Indemnify) Fingertips against claims filed by third parties concerning intellectual property rights on material or data provided or items by the Client, which shall be used for and during the performance of the Agreement.
- If the Client provides Fingertips with information carriers, electronic files or software etc., the former shall guarantee that said information carriers, electronic files or software are free of viruses and defects.
Article 17 Transfer of Risk
- The risk of loss of, or damage to the goods being the subject of the Agreement, shall be transferred to Client the moment said goods are judicially and/or actually delivered to Client and therefore fall into the power of Client or of third parties to be appointed by Client.
Article 18 Force Majeure
- Parties shall not be held to fulfil any of their obligations if they are hindered to do so due to a circumstance through no fault of their own and which cannot be attributed to them by virtue of law, a legal action or generally accepted practice.
- In addition to the provisions of the law and the judge-made law in this respect, force majeure shall in the Terms and Conditions furthermore be understood to be any external circumstance, be it envisaged or not, on which Fingertips cannot have any influence but which prevents Fingertips from fulfilling his obligations. Industrial action at Fingertips’s company shall also be understood to be a circumstance of force majeure.
- Fingertips shall also be entitled to invoke force majeure if the circumstance rendering (further) fulfilment of the obligation(s) impossible, commences after the point in time on which Fingertips should have fulfilled his obligation.
- Throughout the duration of the circumstances of force majeure, parties shall be entitled to suspend the fulfilment of their obligations. If this period lasts for more than two months, either of the parties shall be entitled to terminate the Agreement without any obligation to pay the opposite party damages.
- Insofar Fingertips has already partially fulfilled his obligations resulting from the Agreement at the moment the circumstance of force majeure commenced or shall be able to fulfil them and insofar separate value can be attributed to the part already fulfilled or still to be fulfilled respectively, Fingertips shall be entitled to submit a separate statement of expenses of the part already fulfilled or still to be fulfilled respectively. The Client shall be held to pay this statement of expenses as if it were a separate Agreement.
Article 19 Secrecy
- Both parties shall be bound to secrecy of all confidential information they have received within the scope of their Agreement from each other or from another source. Information shall be considered to be confidential if the other party has indicated so or if the confidential character results from the nature of the information. The obligation to confidentiality shall end five years after the termination of the agreement, unless agreed upon otherwise.
- The Contracting Parties shall not disclose or have disclosed in any way directly or indirectly any information and/or data from the other Party or make such information and/or data available to any third party without the other Party’s prior and explicit consent. If a statutory provision or a judicial decision compels parties to convey confidential information to third parties designated by law or by the court and the partie cannot for that purpose invoke a legal right to refuse to give evidence or such a right acknowledged or allowed by the competent court, the other party shall be informed immediately about this and the party shall not be held to pay damages or compensation and the opposite party shall not be entitled to demand the dissolution of the Agreement on the ground of any damage resulting from said circumstance.
Article 20 Intellectual Property and Copyrights
- Without prejudice to the other stipulations of the Terms and Conditions, Fingertips shall reserve the rights and authorities to which Fingertips is entitled under the Copyright Act.
- All documents, such as reports, advice, Agreements, designs, sketches, drawings, software, etc., provided by Fingertips, shall be destined to be used by Client exclusively and must not be reproduced, made public or brought to the notice of third parties by Client.
Article 21 Samples and Models
- If a sample or model has been given to Client, then the assumption is that such has been given by way of indication only, unless parties agree explicitly that the product to be delivered shall correspond with it.
Article 22 Non-employment of the opposite party’s personnel
- Throughout the duration of the Agreement and for one year following termination thereof, Client shall not in any way, hire or employ in any other way, be it directly or indirectly, staff of Fingertips or of enterprises whom Fingertips has engaged to execute the present Agreement and who are (were) involved in the performance of the Agreement, without prior permission of Fingertips on this matter,.. In the event that the Client violates the provisions contained in this article, it shall forfeit to the Fingertips an immediately payable penalty of € 1 000 for each day on which the violation continues.
Article 23 Disputes
- The Dutch Court located in the Fingertips’s place of business shall have exclusive jurisdiction to hear actions, unless the District Court is the competent Court. Fingertips shall nevertheless be entitled to submit the dispute to the Court deemed competent by the law.
Article 24 Applicable Law
- Dutch law shall apply to each and every Agreement between Fingertips and the Client.
Article 25 Changes to the Terms and Conditions, interpretation and their Location
- The Terms and Conditions have been filed at the office of the Chamber of Commerce in Amsterdam under number 34171975.
- The Dutch version of these Terms and Conditions prevails at all time in case of disputes with regard to the interpretation and purpose of these Terms and Conditions.
- The most recently filed version shall always apply, or, as the case may be, the version valid at the time the Agreement was concluded.
- he most recent version of the Terms and Conditions can be found at http://www.fngtps.com/terms, the most recent Dutch version can be found at http://www.fngtps.com/voorwaarden.