Firely Terms of Service for Consultancy
The following terms (hereafter: “Services Terms”) apply to all services provided by Firely, such as consultancy, secondment and Customer training.
- Services Terms: the present terms;
- Contract: a written agreement between Parties for Services;
- Customer: the party that entered into a Contract for Services with Firely;
- Firely: Firely B.V., with its registered offices at Westerdok 442, 1013 BH Amsterdam, The Netherlands;
- Parties: Customer and Firely;
- Services: all services provided by Firely to Customer related to consultancy, secondment and training.
- These terms apply to all Services provided by Firely to Customer;
- Firely is entitled to amend these Services Terms. The most recent version of the Services Terms is published on the corporate website http://www.fire.ly. Customer is notified by email of any upcoming changes in the Services Terms. Amendments become effective on the date referred to in the relevant publication. Any provisions varying from the Services Terms will only be valid if explicitly agreed on in writing and laid down in a document signed by both Parties.
- The Services Terms apply to the exclusion of Customer’s general terms or purchase terms, if any; Firely does not accept, now for then, Customer’s terms being declared applicable; neither does it accept any referral by Customer to any other terms being applicable, whether to its own purchase terms or to any terms applied by a third party.
- Firely is entitled to transfer any rights and obligations under the Services Terms or a Contract to third parties.
Advisory and consultancy services
- The completion time of an assignment for Services depends on various factors and circumstances, such as the information provided and the cooperation rendered by Customer and relevant third parties. Unless otherwise agreed in writing, Firely does not commit itself to any assignment completion timetable in advance.
- The use that Customer makes of Services rendered by Firely is always at Customer’s risk. The burden of proof with respect to the Services not being in conformity with whatever has been agreed on in writing, is entirely on Customer, without prejudice to Firely’s right to furnish evidence, in whatever way, to the contrary.
- Without Firely’s prior written permission, Customer may not disclose Firely’s way of working, methods and techniques and/or the content of Firely’s Services, advice or reports to third parties. Customer may not pass on Firely’s advice or reports to any third party or otherwise make Firely’s advice or reports public, unless agreed otherwise.
- Firely makes the consultant specified in the Contract available to perform Services under Customer’s direction and supervision. The results of these Services are at Customer’s risk. Firely does not accept any liability for the quality of the results produced by Services performed under Customer’s direction and supervision.
- Unless otherwise agreed in writing, the consultant is made available to Customer for 40 hours a week, during Firely’s usual working days.
- Customer may not deploy the consultant made available to perform any activities other than the Services agreed on, unless Firely has agreed to the performance of these activities in advance and in writing.
- Firely will ensure that the consultant made available remains available to perform Services for the duration of the Contract, on the days agreed on, except in the event of the consultant’s illness or if the consultant leaves Firely’s employment. Furthermore, if the Contract has been entered into with a view to one particular consultant performing the Services, Firely will always be entitled to replace this consultant with one or more consultants who have the same qualifications.
- Customer is entitled to request that the consultant made available should be replaced (i) if the consultant made available demonstrably fails to meet the expressly agreed on quality requirements and Customer informs Firely about this, stating reasons, within three working days following commencement of the work, or (ii) in the event of prolonged illness of the consultant made available or if the consultant leaves Firely’s employment. Firely will handle such request without delay, as a matter of priority. Firely does not guarantee that the consultant can be replaced. If the consultant in question cannot be replaced or cannot be replaced immediately, Customer’s rights with respect to further performance of the Contract will cease to have effect, as will any claim by Customer arising from non-performance of the Contract. Customer’s payment obligations with respect to Services performed will continue to apply in full.
Secondment: length of the working week and working hours
- The working hours, rest periods and length of the working week of the consultant made available is the same as Customer’s usual working hours, rest periods and length of the working week. Customer guarantees that the working hours, rest periods and length of the working week are in compliance with the relevant legislation and regulations.
- Customer will inform Firely about any intended temporary or permanent closure of its company or organisation. Customer is obliged towards Firely and the consultant made available to comply with the relevant legislation and regulations pertaining to workplace safety and working conditions.
- If, on the instructions or at the request of Customer, the consultant made available works more hours per day than the agreed or usual number of working hours or works on days other than Firely’s usual working days, the agreed on overtime rate for these hours will be payable by Customer or, in the absence of an agreed overtime rate, Firely’s usual overtime rate. If so requested, Firely will inform Customer about the current overtime rates.
- Customer is charged for expenses and travel time in accordance with Firely’s usual rules and standards as specified in the Contract.
- All intellectual rights and intellectual property rights that may or will be exercised – wherever and whenever – are exclusively vested or will be exclusively vested in Firely, its licensors or suppliers. Firely never transfers any rights of intellectual property that belong to Firely, its licensors or suppliers.
- Any intellectual property rights that arise during the secondment Services as a result of the Services performed under Customer’s direction and supervision are acquired by Customer.
- Customer is obliged to pay invoices within thirty (30) days of the invoice date in the way and into the account indicated by or on behalf of Firely. Payment is to take place without any discount or setoff. Payment is non-refundable.
- Customer is neither liable for payment of wages to Firely’s consultants nor for payment of social insurance premiums and wage taxes.
- All fees are in euros and exclusive of all taxes, levies, or duties imposed by the tax authorities.
- In the event Customer defaults on the (timely) performance of its obligations, Firely may pass on the claim for collection, in which case Customer will be obliged to pay, apart from the total amount due, including default interest, all judicial and extrajudicial costs, including the costs charged by external experts. All of this does not affect any of the other statutory and contractual rights Firely may have.
- For as long as Customer should fail to meet any of its obligations towards Firely and has not remedied this failure, even after having been served a default notice, Firely is entitled either to suspend the performance of its obligations towards Customer for as long as Customer continues failing to meet its obligations towards Firely as referred to above, or to discontinue the performance of Services until Customer has furnished adequate security – at Firely’s discretion – for the performance of its obligations. Firely is also entitled, without being obliged to pay any compensation of damages and if there is probable cause (such as Customer’s repeated failure to meet its payment obligations), to change the payment terms and/or to demand sufficient security before performing any other or new Services.
- Firely’s total liability for an attributable failure to meet its obligations under the Services Terms, or on any other legal basis, explicitly including every failure to meet guarantee commitments and indemnity obligations agreed on with Customer, is limited to the compensation of direct damages to the maximum of the aggregate amount of fees (exclusive of VAT) Customer has paid to Firely under the Services Terms over the last year. Firely’s total liability for direct damages, or on whatever legal basis, will never exceed €50,000 (fifty thousand euros).
- Parties are not liable for indirect damages, consequential damages, lost profits, missed savings, damage to goodwill, damage as a result of business interruptions, damage arising from claims filed by Customer’s Customers, damage related to the use of third party property, materials or software that Customer advised Firely to use and damage related to Firely’s engaging certain suppliers at Customer’s request. Firely is not liable either for corruption, destruction or loss of data, content and documents, nor for any modification, price change, suspension or discontinuance of the Services.
- Any right to compensation of damages is conditional on the Party’s notifying the other Party in writing of the damage as soon as it has occurred, but no later than five (5) working days after it occurred. Any claim for compensation of damages lapses by the mere expiry of a period of twelve (12) months after the claim has arisen, unless the Party in question has instituted legal action for compensation of the damages suffered before the lapse of that period.
- Customer indemnifies and holds Firely harmless against all third party claims, of whatever nature and regardless of the cause, that may arise in relation to the performance of the Services by Customer and Firely, unless and in so far as Customer proves that the damage was caused by an imputable act or omission on the side of Firely, for which act or omission Firely would have been liable towards Customer under these Services Terms if the damage had been suffered by Customer itself.
- Neither Party is obliged to meet any of its obligations, including any statutory and/or contractual guarantee commitments, if it is prevented from doing so as a result of circumstances beyond its control. Circumstances beyond Firely’s control are understood to mean, amongst other things: (i) circumstances beyond Firely’s suppliers’ control, (ii) suppliers that Customer advised Firely to engage not properly meeting their obligations, (iii) the defective condition of items, hardware, software or material of third parties which Customer advised Firely to use, (iv) government measures, (v) electricity failures, (vi) failures of internet, data network or telecommunication facilities, (vii) war and (viii) general transportation problems.
- If such force majeure event lasts for more than sixty (60) days, each Party is entitled to terminate (ontbinden) the Contract in writing. Services that have already been performed under the Contract will then be settled proportionally, without anything being payable by either Party to the other Party in any other respect. For the period of sixty (60) days referred to, performance of the obligations affected by the force majeure event will be suspended, but the Contract entered into between Parties will remain in effect as much as possible.
- Customer can terminate (opzeggen) a Contract with no end date by written notice of termination to Firely. The notice period must be received at least one month before the intended end date. If the Contract is entered into for a specific period of time, the Contract cannot be terminated (opzeggen) before the end date of the Contract.
- Either Party may terminate a Contract by serving written notice of termination (ontbinden), without a notice of default, either in full or in part, with immediate effect if the other Party is granted suspension of payments – either provisionally or not – if a petition is filed for the other Party’s liquidation or a liquidation order is given, if the other Party’s enterprise is liquidated or terminated other than for the purpose of a reconstruction or of a merger of enterprises. Parties will never be obliged to refund any money received or to compensate damages because of termination as referred to in the present paragraph. In the event Customer’s assets are being liquidated, Customer’s right to use the software, websites and so on made available and Customer’s right to access and/or use the Services performed by Firely end without Firely having to perform any act to terminate the Contract.
- Any provisions in these Services Terms and in a Contract that are meant to survive the termination of the Contract, will remain in effect after the termination – such as provisions on liability, intellectual property rights and the dispute settlement rules.
Applicable law and disputes
- These Services Terms and/or any Contract and/or any additional contract arising from them between Firely and Customer are exclusively governed by the laws of the Netherlands. Applicability of the Vienna Convention for the Sale of Goods 1980 is excluded.
- Any dispute that arises in connection with these Services Terms and/or any Contract and/or any additional contract arising from them is subject to arbitration proceedings in accordance with the Arbitration Regulations of the Foundation for the Settlement of Automation Disputes (Stichting Geschillenoplossing Automatisering), (www.sgoa.org), which Foundation has its registered offices in Heemstede, without prejudice, however, to either Party’s right to request preliminary relief in preliminary relief proceedings, in arbitral proceedings or in a court of law, and without prejudice to either Party’s right to take conservatory measures (e.g. to attach property before judgment).
- Either Party is always entitled to initiate an ICT Mediation procedure in accordance with the Mediation Regulations of the Foundation for the Settlement of Automation Disputes (Stichting Geschillenoplossing Automatisering) in the event of a dispute arising from these Services Terms and/or a Contract and/or any other, additional contract arising from them. The other Party is then obliged to actively participate in the ICT Mediation initiated, which legally enforceable obligation entails that the other Party should at least attend one joint meeting of mediators and Parties in order to give this extrajudicial form of dispute resolution a chance. Each Party is entitled to end the ICT Mediation procedure at any time following this joint meeting of mediators and Parties. The provisions in this article do not affect the right of either Party, in so far as this Party should think this is necessary, to request preliminary relief in preliminary relief proceedings, in arbitral proceedings or in a court of law, or to take conservatory measures (e.g. to attach property before judgment).