General Terms and Conditions Firely B.V.
7 February 2018
In these General Terms and Conditions (the GTC) the following Definitions shall apply:
- Firely: Firely B.V. from Amsterdam, the Netherlands;
- Principal: the counterparty of Firely in a Commission, Agreement or other legal relation;
- Commission: each to Firely commission provided to the execution of activities;
- Agreement: each agreement between Principal and Firely, each change thereof or addition thereto, and all (legal) acts for the preparation on and/or for the execution of that Agreement;
- Specialist: the person that is deployed by Firely in the framework of the Commission;
- GTC: these General Terms and Conditions.
- These GTC are applicable to all legal relations between Firely and Principal.
- Deviations from and/or additions to these GTC only apply if and insofar these have been accepted in writing by Firely. An agreed deviation or addition only concerns the specific Commission for which this is agreed and not for possible following Commissions with the same Principal.
3. Offer, acceptation and Commission
- Designated offers have a maximum validity of 30 days.
- Firely only binds verbal promises after it has confirmed these in writing.
- Agreements and changes therein are solely concluded on the moment that Firely (1) has accepted these in writing; and/or (2) actually starts with the execution of the Commission; and/or (3) sends thereto an invoice. Firely is not obliged to accept a commission granted to it.
- A designated offer of Firely is based on the information that has been provided by Principal. The Principal warrants the correctness and completeness of the provided information.
- Commissions are granted to Firely. This applies also if it is the explicit or tacit intention that the Commission will be executed by a certain person. The working of the articles 7:404 and 7:407 section 2 Dutch Civil Code is excluded.
- The Principal is forbidden to make the results of the Commission available to third parties. Third parties can furthermore derive no rights from the content or results of the executed activities. Principal can transfer no rights or obligations from this agreement to third parties without the prior written consent of Firely.
4. Obligations of Firely
- Firely executes all Commissions on the basis of an obligation to make an effort, unless Firely in the Agreement has promised a result and the concerned result also is described with sufficient determination. Firely shall make an effort to the best of its abilities to execute Commissions.
- Firely is entirely free in the manner in which it executes the Commission.
- If a Commission has been concluded with a view on execution by a certain person, then Firely is each time authorised, after consultation with Principal, to replace this person by one or more other persons with comparable qualifications.
- If Firely, upon request or with prior consent of Principal, has executed activities that fall outside the Commission, then these activities shall be compensated by Principal according to the usual rates of Firely.
5. Obligations Principal
- Principal shall grant his full cooperation to the execution of the Commission. If Principal in the framework of a Commission deploys own personnel, then this personnel shall have the disposition over the necessary knowledge, experience and quality.
- Principal shall provide Firely each time timely all data or information useful and necessary for the execution of the Commission, and warrants that the provided data are correct and complete. If data necessary for the Commission are not, not timely or not in accordance with the agreements available to Firely (or if Principal in another manner does not comply with his obligations), then Firely has the right to suspension of its activities and Firely has the right to bring extra costs into account according to the usual rates of Firely. The one and the other applies notwithstanding the right of Firely to exercise any other lawful right.
- In case employees of Firely execute activities on location of Principal, then Principal will ensure free of charge, the facilities desired in reasonableness by those employees, such as a work space with computer and telecommunication facilities. The work space and facilities shall comply with all applicable (lawful) requirements and prescriptions concerning labour conditions.
- Firely can make a claim on Principal for the training of employees of Firely, in which case an employee on costs of Firely runs along in a commission.
- Principal is responsible for the purchase, the management, the maintenance, the compliance with lawful and contractual stipulations and the security of equipment, programs, websites, data files and other products and materials suitable for the Commission that belong to Principal and will be used by Firely in the Commission. If Principal makes data files available to Firely on an information carrier, with as objective to process these outside the building of Principal, then Principal warrants that these data files have been made anonymous adequately and according to lawful regulations. Principal safeguards Firely from all damage, should Principal not (fully) comply with the responsibilities of these stipulations.
- Principal is responsible for the choice and adequate availability of telecommunication facilities, including internet, except for those facilities which are under management of Firely.
- Access codes will be treated confidential and with care and will only be made known to authorised members of personnel.
- All terms applicable for Firely (stated or agreed) have been stated to the best of knowledge and shall be observed as much as possible. Firely comes solely in default because of an exceeding of a term after written notification of default by Principal, whereby a further and reasonable term for final delivery will be set, that at least is equal to 90 days. Principal is thereby obliged to describe in the notification of default the nature and scope of the shortcoming in sufficient detail, as well as the contractual stipulations on which the notification of default is based.
- Firely is not bound to terms that cannot more be achieved anymore by circumstances that lie outside the control of Firely and/or by a change of the content or scope of the Commission (extra-work, change of specifications and so forth).
7. Duration and termination of a Commission
- If the Commission has been concluded for a defined time or for a duration that is dependent on achieving a certain result, then no in-between cancellation of the Commission is possible. If this Commission after expiry of the defined duration (whether or not tacitly), is continued, then this will be deemed to have been extended for an undefined time.
- A Commission concluded for an undefined time, can be cancelled by both parties in writing by registered letter in compliance with a notice period of a minimum of three months.
- In deviation of the stipulations in section a and b of this article, the one party is authorised to cancel this agreement with immediate effect and without observing of a notice period in writing by registered mail on the moment that:
- The other party is declared in a state of bankruptcy, files for suspension of payment, is put under supervisor ship or otherwise loses the disposition over its capital or parts thereof;
- The other party terminates its enterprise dissolves and/or liquidates its company; and/or
- The other party in default is in the compliance with any obligation that derives from the Commission and/or from these GTC.
- If Firely terminates the Commission legally valid as a consequence of section c of this article, then Principal is required to compensate Firely for all damage that Firely suffers or shall suffer as a consequence thereof.
- Principal can only dissolve or cancel the Commission for that part, that has not yet been executed by Firely. Amounts that Firely has invoiced before the dissolution in connection with what it already has executed or delivered for the execution of the Commission, remain due notwithstanding.
- The end of the Commission does explicitly not release parties from the stipulations with regard to secrecy, liability, intellectual property, take-over clause, applicable law and competent court.
8. Rates and invoicing
- For the execution of the Commission, Principal is liable to pay to Firely a fee, which is based on the agreed hourly rate or daily rate, multiplied by the time spent actually to the Commission (subsequent calculation).
- Firely is authorised to adapt the rate periodically. Firely shall communicate an increase of the rate timely to Principal.
- All rates and prices will be increased with turnover tax (VAT) and other levies which will be imposed by the government.
- Agreed daily rates apply for working days between 7.00 and 19.00. A daily rate concerns working days of eight hours, exclusive of possible breaks. If upon request of Principal, work must be done outside aforementioned office hours, then a surcharge of 50% applies on the rate for weekdays and a surcharge of 100% for weekends.
- In case the Specialist is changed, then Firely shall conduct consultation with the Principal about the rate for the Specialist to be deployed new.
- Travel expenses for commuting of the Specialist within the Netherlands are for the account of Firely. Travel and board and other expenses in the framework of the Commission are for the account of Principal.
- Invoicing by Firely of activities in the framework of a Commission takes place monthly afterwards.
9. Registration of hours
- If the Commission has been taken on the basis of a rate per worked hour, then the persons deployed by Firely shall once per month give account of the hours worked by them for the benefit of the Commission, on a form for Registration of hours. The Registration of hours’ form will be submitted to Principal for verification and approval.
- Principal is required to check the submitted Registration of hours’ form as soon as possible for correctness. If Principal has not reported, within ten working days after receipt of the Registration of hours’ form, possible errors in writing to Firely, then the correctness of the Registration of hours’ form is established.
- Invoicing takes place on basis of the approved Registration of hours’ form.
- Principal is obliged to full payment of the invoices of Firely within fifteen days after date of the invoice without suspension, discount and/or set-off.
- Upon exceeding of this term, Principal is in default by law (without that a notification of default is necessary). With effect of the date of default, Principal is liable to pay to Firely over the outstanding amount of the invoice inclusive of VAT, an interest of 1.5 % per month. Furthermore, in that case all payment obligations of Principal shall immediately be payable upon demand and Firely is authorised to cease or suspend its activities for Principal, without that therewith the obligations of Principal on the basis of the Agreement will be forfeit.
- If a good ground exists to fear that Principal shall not strictly comply with his payment obligations, then Principal is obliged to, upon first request of Firely, provide satisfactory surety and in the form desired by the Firely and to supplement this if necessary, for the compliance with all of his obligations.
- If Principal does not (timely) comply with his payment obligations, then all collection costs (both the in-court and the out-of-court) will be for the account of Principal. The out-of-court collection costs are thereby equal to the amounts as represented in Rapport Voorwerk II (Nederlandse Vereniging voor Rechtspraak inzake de
- buitengerechtelijke kosten) with a minimum of € 1,500 (exclusive of VAT).
- Principal can solely make an objection in writing against the invoice within thirty days after date of the invoice. After expiry of that date, Principal will be deemed to have consented with the concerned invoice.
- Payments by or on behalf of Principal serve subsequently for the payment of the out-of-court collection costs due by Principal, the in-court costs, the due interests and thereafter, in order of age, the outstanding principal amounts.
11. Secrecy and PR
- Each of the parties warrants that it shall keep secret all information received from the other party of which one knows or can assume that this is of a confidential nature, unless a lawful duty to disclosure of this information applies. The party that receives confidential information, shall only use this for the purpose for which this has been provided. Information shall in each case be regarded as confidential, if this has been designated as such by one of the parties.
- Principal grants in reasonableness his cooperation to PR-expressions of Firely, such as stating of a Commission in a newsletter and on the website of Firely. Firely shall present (the text of) expressions in advance for approval to Principal.
12. Data security, privacy and terms for keeping
- Insofar the protection of data is not explicitly commissioned to Firely, Principal warrants that he complies with all lawful prescriptions concerning the processing of personal data, including the prescriptions that have been given in or on the basis of the Dutch Law Wet Bescherming Persoonsgegevens.
13. Transfer risk and retention of title
- The risk of loss, theft or damaging of goods, products, programs and/or data that are delivered by Firely to Principal in the framework of Commission, is transferred to Principal over as soon as these have been brought into control of Principal.
- All goods and matters delivered by Firely to Principal remain property of Firely until the Principal has integrally paid all amounts due to Firely. Rights will be granted or transferred to Principal in a prevalent case, each time under the condition that Principal pays the fees agreed thereto, timely and fully.
14. Intellectual property rights
- All rights of intellectual property (including copyright) on the results developed or made available on the basis of the Commission, belong to Firely. Principal acquires the rights of use for the results. Any other right of Principal (for instance to multiplication of programs, websites, data files or other materials) is excluded. A right to use belonging to Principal is not-exclusive of and not-transferable to third parties.
- If parties agree in writing that rights of intellectual property on results of a Commission shall transfer to Principal, then this leaves unaffected the authority of Firely to apply and exploit the parts, general principles, ideas, designs, documentation, works, programming languages and so forth, lying as a foundation to such development, without any limitation for other purposes, either for itself or for third parties. Neither a transfer of rights of intellectual property shall affect the right of Firely to undertake for the benefit of itself or third party’s developments that are similar to those which are or have been made for the benefit of Principal.
- Principal warrants that no rights of third parties object against making available in the framework of a Commission to Firely of equipment, programs, material destined for websites (image material, text, music, domain names, logo’s etc.), data files, or other materials, including design material, with the purpose of use, treatment, installation or incorporation (e.g. in a website). Principal shall safeguard Firely against each action that is based on the allegation that such making available, use, treatment, installing or incorporation constitutes an infringement on any right of third parties.
- The rights mentioned in this article remain property of Firely, irrespective of the suggestions and/or ideas provided by Principal and/or by third parties for the improvement and/or change of the products.
- Principal is obliged to return within one week after termination of the Commission all goods that belong to Firely.
- Firely shall safeguard Principal from legal claims of third parties, which are based on the allegation that works made by Firely constitute an infringement on a property right valid in the Netherlands, insofar this can be imputed to Firely and under the condition that Principal notifies Firely without delay in writing about the existence and the content of the legal claim and as long as Principal grants the cooperation required for the defence.
- If the works made by Firely constitute infringement on any property right belonging to a third party, then Firely shall insofar possible ensure that Principal can continue to use the delivered, or functionally equivalent other works without disruption, for instance by modification of the infringing parts or by acquiring of a right of use for Principal.
- If Firely in its sole opinion cannot or not otherwise than in a manner unreasonably (financially) cumbersome for him, ensure that Principal can continue to use the delivered, then Firely shall take back the delivered against crediting of the acquisition costs. Firely shall not make its choice in this framework than after consultation with Principal.
- Each other liability of Firely because of violation of the property rights of a third party is excluded.
15. Take-over personnel
- The Principal is forbidden to take a person, that has been deployed by Firely on a Commission, both during the duration of the Commission and during a period of two years thereafter, into his employment or to let him execute directly or indirectly activities without the intervention of Firely for Principal or legal persons affiliated to Principal.
- In case of violation of the stipulations in section a of this article, Principal shall forfeit to Firely a contractual fine immediately payable upon demand of € 25,000 per violation, to be increased with € 2,500 for each day that the violation continues. Furthermore, Firely has the right to claim full compensation of damages.
16. Liability, Force Majeure and release
- Firely is solely liable for damage suffered by Principal on the basis of a shortcoming imputable to Firely in the compliance with an agreement, if Principal has declared Firely without delay and proper in writing in default, whereby a reasonable term for the amendment of the shortcoming is given, and Firely also after that term continues to imputably come short in the compliance with his obligations. The notification of default must encompass a description as fully and detailed as possible of the shortcoming, so that Firely is able to respond adequately.
- Condition for the emergence of any right to compensation of damages is each time that Principal reports the damage as soon as possible after the emergence thereof in writing to Firely. Each claim to compensation of damages against Firely is forfeit if this is not reported within twelve months after the emergence thereof to Firely.
- Should Firely be liable towards Principal for suffered damage (on whichever basis), then the liability of Firely is limited to the direct damage suffered by Principal. Under direct damage will solely be understood:
- reasonable costs that Principal would have to make to let the result of Firely comply with the commission; this replacement damage will however not be compensated if the damage has emerged because the Commission is dissolved by Principal;
- reasonable costs, made for the establishment of the cause and the scope of the damage, insofar the establishment concerns direct damage in the sense of this agreement;
- reasonable costs, made for the prevention or limitation of damage, insofar Principal demonstrates that these costs have led to limitation of direct damage in the sense of this agreement.
- Firely is not liable for indirect damage, immaterial damage, consequential damage suffered by Principal, missed profit or turnover, missed savings, reduced goodwill, image damage, damage by enterprise stagnation, damage suffered by third parties, damage as a consequence of claims of customers of Principal, mutilation or loss of data, damage suffered by transmission errors and/or disruptions or not-availability of telecommunication facilities (including internet), damage related to the use of goods, materials or software of third parties prescribed by Principal to Firely, damage related to the deployment of suppliers prescribed by Principal to Firely and/or other damage than defined in section c of this article.
- Notwithstanding the stipulations in the previous sections of this article, each liability of Firely for damage is limited to the amount that in the concerned case will be paid out by the insurer under the enterprise liability insurance of Firely, including the amount of the own risk. The policy conditions will be sent upon request. If for whichever reason regarding the suffered damage no pay-out under any insurance should take place, then the liability of Firely is limited to a maximum of the agreed amount of the invoice of the Commission from which the obligation to compensation of damage derives, such with a maximum of € 250,000. If the damage cannot be linked to a specific Commission, then the maximum liability of Firely is equal to € 250,000.
- Firely stipulates all lawful and contractual means of defence, which it can claim for the aversion of its liability towards Principal, also for its subordinates and the non-subordinates for whose behaviour Firely is liable as a consequence of the law.
- Principal safeguards Firely from all claims of third parties because of product liability as a consequence of a defect in a product or system that is delivered or made available by Principal to a third party and that in part consisted of programs or other materials delivered by Firely.
- Notwithstanding the previous, Firely is not liable for damage that emerges as a consequence of activities that have been executed by employees of Firely under management of or upon direction of Principal.
- Firely is not liable for any shortcoming in the compliance with its obligations, if this shortcoming is a direct or indirect consequence of Force Majeure. Under Force Majeure will be understood in each case (but not limited to) each circumstance outside the will and action of Firely, that impedes the normal execution of the agreement to such an extent, that this reasonably cannot be required of Firely, such as among others strike, fire, flooding, illness, government measures including import and export measures, disruptions in the supply of provision of goods, software, energy and/or enterprise necessities required for the execution; shortcomings on the side of third parties and suppliers involved by Firely, defects to or damaging of computers, network, means of production, transport impediments or enterprise disruptions.
- Notwithstanding rights furthermore belonging to parties, Force Majeure gives both parties the authority to dissolve the agreement for the part not executed yet thereof, after the situation of Force Majeure has continued for three months, without that parties mutually shall be required to any compensation of damages.
17. Applicable law and disputes
- Solley the Laws of the Netherlands are applicable to all legal relations between Principal and Firely (inclusive of Commissions and Agreements). The applicability of the Vienna Purchase treaty 1980 (CISG) is explicitly excluded.
- The District Court in Amsterdam is also (relatively) competent to take knowledge of all disputes between Principal and Firely, from whichever legal relation.
The following stipulations apply in addition to the above stated general stipulations and are solely applicable to Commissions between Principal and Firely to the execution of activities in the area of development of programs.
- Firely shall execute a Commission to the design of programs on the basis of the specifications agreed with Principal.
- Firely shall execute a Commission to the development of programs on the basis of a signed design and/or the agreed specifications and in compliance with data provided by Principal.
- The specifications, contract price, rates and related stipulations have been recorded in the specifications of the commission.
- If the Commission has been contracted on the basis of a fixed price, the fixed price shall be invoiced as follows: 40% upon commission, 40% upon final delivery and 20% upon acceptation.
19. Start, duration and termination
- An agreement of commission to development of programs enters into force upon signing and runs until the moment of acceptation of the result by Principal or if there is an instance of a warranty period, until the end of that warranty period.
20. Software development
- Firely is authorised, but not obliged, to examine the correctness, completeness or consistency of the data made available by Principal to it, specifications or designs and upon establishment of possible imperfections, to suspend the agreed activities until Principal has taken away the concerned imperfections.
- If the program development takes place in phases, then Firely is authorised to postpone the start of the activities for a following phase, until Principal has approved the results of the immediately preceding phase(s) in writing.
21. Changes and extra-work
- If Firely upon request of (or with consent of) Principal executes activities that fall outside the content or scope of the original Commission (extra-work), then these activities or results shall be compensated by Principal according to the rates of Firely applicable on that moment. There is also an instance of extra-work, if specifications that are the foundation of the Commission, will be extended or changed. Firely is not obliged to comply with such a request and can require that thereto a separate written agreement of commission will be concluded.
- Principal accepts that extra-work can have the consequence that the agreed or expected moment in time of completion of the Commission can change. Extra-work is for Principal no ground for dissolution or termination of the Commission.
- If for the Commission a fixed price is agreed, Firely shall inform Principal in advance about the consequences of extra-work for the fixed price.
22. Final delivery and acceptation
- Final delivery of Programs takes place on the moment that the programs are made available to Principal or, if this is agreed, after installation of the programs at Principal.
- After final delivery an acceptation test period starts, in which Principal has the possibility to examine defects and to report these to Firely. Unless agreed otherwise, the acceptation test period lasts 15 working days, immediately following the date of final delivery.
- The programs will be deemed to have been accepted against the end of the acceptation test period if no defects have been reported.
- If at the execution of the acceptation test it shows, that defects occurring in the programs impede the progress of the acceptation test, then Principal shall inform Firely about this in writing and in detail, in which case the acceptation test period will be interrupted until the program functions in essence in accordance with the specifications recorded in writing.
- If at the execution of the acceptation test it shows that the programs demonstrate defects, then Principal shall inform Firely before the end of the acceptation test period in an acceptation report in writing and in detail about the defects. Firely shall in that case repair the reported defects within a reasonable term.
- Repair of defects found in an acceptation period, takes place free of charge if the programs have been developed for a fixed price. By means of subsequent calculation, the execution of repair will be charged onward in accordance with the rates of the Commission.
- For the acceptation of repaired programs, applies between parties a new acceptation test period in accordance with the original acceptation test period.
- The right of Principal to withhold acceptation in a second and following period is limited to the defects mentioned prior to that period.
- Acceptation of the programs cannot be withheld on other grounds than those which relate to the specifications explicitly agreed between parties for the concerned Commission.
- Acceptation of the program cannot be withheld because of the existence of small defects, being defects that reasonably do not stand in the way of operational or productive taking into use of the program, notwithstanding the obligation of Firely to repair these small defects.
- If the programs are delivered and tested in phases or parts, then the not-acceptation of a certain phase or part leaves a possible acceptation of an earlier phase or another part, unaffected.
- Acceptation of the programs has the consequence that Firely is fully discharged for the compliance with its obligations concerning the development and the making available of the programs and, if in a prevalent case also the installation by Firely is agreed, of its obligations concerning the installation of the programs.
- If defects cannot be imputed to Firely or the defects can be imputed to Principal, such as the delivery of incorrect or incomplete information, then Firely shall bring the costs of repair necessary thereto bring into account to Principal according to the usual rates.
- If repair of defects imputable to Firely is technically or reasonably not possible, then Firely shall credit the amounts due by Principal for the concerned part, without being liable furthermore or otherwise towards Principal.
- Firely gives during a warranty period of three months after the date of acceptation, a warranty on that (parts of) program, that has/have been developed, modified and/or extended by it for Principal.
- During the warranty period, Firely shall to the best of its abilities repair possible defects in the programs. Firely does not warrant that the programs (whether or not after repair) shall work without interruption or defects or that all defects can be improved.
- Repair of possibly lost data does not fall under the warranty.
- Solely if the program is developed for a fixed price, repair falling under warranty shall be executed free of charge, unless there is an instance of use errors by Principal or of other causes not imputable to Firely or if the defects reasonably could have been established in the execution of the acceptation test. If defects cannot be imputed to Firely or the defects are to be imputed to Principal, such as the delivery of incorrect or incomplete information, then Firely shall bring the costs of repair necessary thereto into account to Principal according to the usual rates.
- The warranty obligation is forfeit if Principal, or a third party, without written permission of Firely, introduces changes in the programs by himself.
- Parts of the programs that have not been developed by Firely, but form a part thereof or relate therewith, do not fall under the warranty. Firely accepts for these parts no liability.
- Repair of defects shall take place on a location to be determined by Firely. Firely is authorised to introduce temporary solutions or program detours or problem-avoiding restrictions in the programs.
- Firely has after expiry of the warranty period no obligation to repair defects under warranty.