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General terms and conditions BAEKEN

E-mail: [email protected]
Website: baeken.com

 

Definitions

  1. BAEKEN: Baeken b.v., established in Eindhoven under KvK nr. 91018692.
  2. Client: the person with whom BAEKEN has entered into an Agreement.
  3. Parties: BAEKEN and client combined.
  4. Consumer: a client who is also an individual acting as a private person.

Article 1 – Applicability of general conditions

  1. These terms and conditions apply to all quotations, offers, work, orders, agreements, and deliveries of services or products by or on behalf of BAEKEN.
  2. The Parties may deviate from these terms and conditions only if they have expressly agreed to do so in writing.
  3. The Parties hereby explicitly exclude the applicability of additional and/or different general terms and conditions of the Client or third parties.

Article 2 – Offers and tenders

  1. Offers and quotations from BAEKEN are without obligation, unless explicitly stated otherwise therein.
  2. An offer or quotation is valid for a maximum of 1 month, unless another acceptance period is stated in the offer or quotation.
  3. If the Client does not accept an offer or quotation within the applicable time period, the offer or quotation shall be void.
  4. Offers and quotations do not apply to repeat orders unless the Parties have explicitly agreed so in writing.

Article 3 – Acceptance

  1. Upon acceptance of an offer or quotation without obligation, BAEKEN reserves the right to still withdraw the offer or quotation within 3 days of receiving the acceptance, without the Client being able to claim any rights from this.
  2. Verbal acceptance by the Client only binds BAEKEN after the Client has confirmed such acceptance in writing (or electronically).

Article 4 – Rates

  1. All rates charged by BAEKEN are in Euros, are exclusive of VAT, and exclusive of any other costs such as administration costs, levies and travel, shipping, or transport costs, unless otherwise explicitly stated or agreed upon.
  2. BAEKEN may change all rates charged for its services, on its website, or otherwise made known, at any time.
  3. The rate with respect to a service is set by BAEKEN based on actual hours spent.
  4. The rate is calculated according to BAEKEN’s usual hourly rates, valid for the period in which the Work is performed, unless a different hourly rate has been agreed upon.
  5. If the Parties have agreed on a total amount for a service provided by BAEKEN, this is always a target rate, unless the Parties have explicitly agreed in writing on a fixed rate, which cannot be deviated from.
  6. BAEKEN is entitled to deviate up to 10% from the target rate.
  7. If the target rate is to exceed 10%, BAEKEN must inform the Client in a timely manner as to why a higher rate is justified.
  8. If the target rate exceeds by more than 10%, the Client has the right to cancel the part of the order that exceeds the target rate by 10%.
  9. BAEKEN has the right to adjust rates annually.
  10. Prior to commencement, BAEKEN will communicate rate adjustments to the client.
  11. The Consumer has the right to cancel the Agreement with BAEKEN if they do not agree to the rate increase.

Article 6 – Payments and terms of payment

  1. BAEKEN may request a deposit of up to 50% of the agreed amount when entering into the Agreement.
  2. The Client must have made payments in arrears within 1 month of delivery.
  3. Terms of payment are considered to be strict deadlines. This means that if the Client has not paid the agreed amount by the final day of the terms of payment at the latest, the Client is legally in arrears and in breach of contract, without BAEKEN having to send the Client a reminder or give notice of breach.
  4. BAEKEN reserves the right to make delivery subject to immediate payment or to require a security deposit for the total amount of the services or products.

 

Article 7 – Consequences of not paying on time

  1. If the Client does not pay within the agreed term, BAEKEN is entitled to charge the statutory interest rate of 8% per month for commercial transactions from the day the Client is in breach, whereby part of a month is counted as a whole month.
  2. If the Client is in breach, the Client shall also owe extrajudicial collection costs and any damages to BAEKEN.
  3. Debt recovery costs are calculated according to the Decree on Compensation for Extrajudicial Collection Costs (Besluit vergoeding voor buitengerechtelijke incassokosten).
  4. If the Client fails to pay on time, BAEKEN may suspend its own obligations until the Client has fulfilled their payment obligation.
  5. In the event of liquidation, bankruptcy, attachment, or suspension of payments on the part of the Client, BAEKEN’s claims against the Client are immediately due and payable.
  6. If the Client refuses to cooperate in BAEKEN’s execution of the agreement, the Client is still obliged to pay BAEKEN the agreed rate.

Article 8 – Right of suspension

Unless the Client is a Consumer, the Client waives the right to offset a debt owed to BAEKEN against a claim against BAEKEN.

Article 9 – Setoff

Unless the Client is a Consumer, the Client waives their right to set off a debt owed to BAEKEN against a claim against BAEKEN.

Article 10 – Insurance

  1. The Client is obliged to adequately insure and maintain insurance coverage for the following items against, among other things, fire, explosion, water damage, and theft:
    • items delivered that are necessary for the performance of the underlying agreement;
    • items belonging to BAEKEN that are in the Client’s possession;
    • items delivered under retention of title.
  2. At BAEKEN’s first request, the Client shall provide access to the policy of these insurances

Article 11 – Warranty

If the Parties have entered into an agreement of a service-oriented nature, BAEKEN is only subject to a best-efforts obligation and not an obligation to achieve a specific result.

Article 12 – Execution of the Agreement

  1. BAEKEN shall execute the agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship.
  2. The employees of BAEKEN shall at all times remain under the direction and supervision of BAEKEN and not of the Client, unless explicitly agreed otherwise.
  3. BAEKEN reserves the right to have the agreed services (partially) performed by third parties.
  4. The execution of the agreement shall take place in mutual consultation and after written approval and payment of any agreed advance by the Client.
  5. It is the responsibility of the Client to ensure that BAEKEN can commence the execution of the agreement in a timely manner.
  6. If the Client fails to ensure that BAEKEN can commence the execution of the agreement in a timely manner, any resulting additional costs and/or extra hours shall be borne by the Client.

Article 13 – Provision of Information by the Client

  1. The Client shall provide BAEKEN, in a timely manner and in the desired format and manner, with all information, data, and documents that are relevant for the proper execution of the agreement.
  2. The Client guarantees the accuracy, completeness, and reliability of the information, data, and documents provided, even if these originate from third parties, unless the nature of the agreement dictates otherwise.
  3. If and insofar as the Client requests, BAEKEN shall return the relevant documents.
  4. If the Client fails to provide the information, data, or documents reasonably requested by BAEKEN, or fails to do so in a timely or proper manner, and the execution of the agreement is thereby delayed, the resulting additional costs and extra hours shall be borne by the Client.

Article 14 – Duration of the Agreement for a Service

  1. The agreement between BAEKEN and the Client concerning a service or services is entered into for an indefinite period, unless the nature of the agreement indicates otherwise or the parties have expressly and in writing agreed otherwise.
  2. If an agreement is entered into for a fixed term, it shall automatically convert into an agreement for an indefinite period upon expiry of the term, unless one of the parties terminates the agreement, observing a notice period of two months, or, in the case of a Consumer, a notice period of one month, whereby the agreement shall terminate by operation of law.
  3. If the parties have agreed on a deadline for the completion of specific work during the term of the agreement, this deadline shall never be considered final. If this deadline is exceeded, the Client must provide BAEKEN with written notice of default.

Article 15 – Termination of Agreement for Indefinite Services

  1. The Client may terminate an agreement for a service entered into for an indefinite period at any time, subject to a notice period of two months.
  2. A Consumer has the right to terminate an agreement for a service entered into for an indefinite period, subject to a notice period of one month.

Article 16 – Intellectual Property

  1. BAEKEN retains all intellectual property rights (including copyright, patent rights, trademark rights, rights to designs and models, etc.) to all designs, drawings, writings, data carriers containing information, quotations, images, sketches, models, maquettes, etc., unless the parties have agreed otherwise in writing.
  2. The Client may not, without prior written consent from BAEKEN, copy, show to third parties, make available, or otherwise use the aforementioned intellectual property rights.

Article 17 – Confidentiality

  1. The Client shall keep all information (in any form) received from BAEKEN confidential.
  2. The same applies to all other information concerning BAEKEN that the Client knows or can reasonably suspect is confidential, or that the Client can expect would cause damage to BAEKEN if disclosed.
  3. The Client shall take all necessary measures to ensure that the information referred to in paragraphs 1 and 2 remains confidential.
  4. The confidentiality obligation described in this article does not apply to information:
    • that was already public before the Client became aware of it or that later became public without a breach of the Client’s confidentiality obligation;
    • that is disclosed by the Client due to a legal obligation.
  5. The confidentiality obligation described in this article applies for the duration of the underlying agreement and for a period of 3 years after its termination.

Article 18 – Penalty Clause

  1. If the other party breaches the articles of these general terms and conditions concerning confidentiality or intellectual property, they shall forfeit an immediately payable penalty to BAEKEN for each violation.
    • If the other party is a Consumer, the penalty amounts to €1,000.
    • If the other party is a legal entity, the penalty amounts to €5,000.
  2. In addition, the other party shall forfeit an amount equal to 5% of the penalty mentioned in paragraph 1 for each day the violation continues.
  3. No prior notice of default or legal proceedings are required for the forfeiture of this penalty. Nor is any proof of damage required.
  4. The forfeiture of the penalty referred to in paragraph 1 does not affect BAEKEN’s other rights, including its right to claim compensation for damages in addition to the penalty.

Article 19 – Indemnification

The Client indemnifies BAEKEN against all claims from third parties related to the products and/or services provided by BAEKEN.

Article 20 – Complaints

  1. The Client must inspect any product delivered or service provided by BAEKEN as soon as possible for potential shortcomings.
  2. If a delivered product or provided service does not meet what the Client could reasonably expect from the agreement, the Client must notify BAEKEN as soon as possible, but no later than 1 month after discovering the shortcomings.
  3. Consumers must notify BAEKEN no later than 2 months after discovering the shortcomings.
  4. The Client must provide as detailed a description of the shortcomings as possible to enable BAEKEN to respond adequately.
  5. The Client must prove that the complaint relates to an agreement between the parties.
  6. If the complaint concerns ongoing work, this can never result in BAEKEN being required to perform work other than that agreed upon.

Article 21 – Notice of Default

  1. The Client must communicate notices of default to BAEKEN in writing.
  2. It is the Client’s responsibility to ensure that a notice of default actually reaches BAEKEN in a timely manner.

Article 22 – Joint and Several Liability of the Client

If BAEKEN enters into an agreement with multiple Clients, each of them shall be jointly and severally liable for the full amounts owed to BAEKEN under that agreement.

Article 23 – Liability of BAEKEN

  1. BAEKEN is only liable for damages suffered by the Client if and to the extent that the damages were caused by intent or deliberate recklessness.
  2. If BAEKEN is liable for any damages, it is only liable for direct damages arising from or related to the execution of an agreement.
  3. BAEKEN is never liable for indirect damages, such as consequential damages, lost profits, missed savings, or damages to third parties.
  4. If BAEKEN is liable, such liability is limited to the amount paid out under its (professional) liability insurance, or at most 3 times the consultancy fees charged and paid for the assignment in question, up to a maximum of €500,000.
  5. If no insurance payout occurs for any reason, BAEKEN’s liability (regardless of its basis) is limited to the fees charged and paid for the relevant assignment in the applicable calendar year. All claims expire if they are not submitted to BAEKEN in writing and with supporting evidence within one year of the facts and circumstances on which the claim is based becoming known or reasonably becoming known to the Client or third party.
  6. All images, photos, colors, drawings, descriptions on the website or in a catalog are merely indicative and approximate and cannot serve as grounds for damages and/or (partial) dissolution of the agreement and/or suspension of any obligation.

Article 24 – Limitation Period

Any right of the Client to claim damages from BAEKEN expires in any case 12 months after the event giving rise to the liability, either directly or indirectly. This does not affect the provisions of Article 6:89 of the Dutch Civil Code (artikel 6:89 van het Burgerlijk Wetboek).

Article 25 – Right of Termination

  1. The Client has the right to terminate the agreement if BAEKEN culpably fails to meet its obligations, unless the failure, given its special nature or minor significance, does not justify termination.
  2. If the performance of BAEKEN’s obligations is not permanently or temporarily impossible, termination can only occur after BAEKEN is in default.
  3. BAEKEN has the right to terminate the agreement with the Client if the Client does not fully or timely meet their obligations under the agreement, or if BAEKEN becomes aware of circumstances giving it good reason to fear that the Client will not properly fulfill their obligations.

Article 26 – Force Majeure

  1. In addition to Article 6:75 of the Dutch Civil Code (artikel 6:89 van het Burgerlijk Wetboek), a failure by BAEKEN to fulfill any obligation to the Client cannot be attributed to BAEKEN in a situation beyond its control, which prevents the fulfillment of its obligations to the Client in whole or in part, or which makes the fulfillment of its obligations unreasonable to demand.
  2. Such force majeure situations include, but are not limited to: states of emergency (such as civil war, insurrection, riots, natural disasters, etc.); non-performance or force majeure by suppliers, delivery personnel, or other third parties; unexpected power, internet, or telecom outages; computer viruses; strikes; government measures; unforeseen transport problems; poor weather conditions; and work interruptions.
  3. If a force majeure situation prevents BAEKEN from fulfilling one or more obligations to the Client, these obligations are suspended until BAEKEN can fulfill them.
  4. If a force majeure situation lasts at least 30 calendar days, either party may terminate the agreement in whole or in part in writing.
  5. In a force majeure situation, BAEKEN is not liable for any compensation, even if it derives benefits as a result of the force majeure situation.

Article 27 – Amendment of the Agreement

  1. If it becomes necessary to amend or supplement the agreement after it has been concluded for its proper execution, the parties shall amend the agreement in a timely manner by mutual consultation.
  2. The preceding paragraph does not apply to products purchased in a physical store.

Article 28 – Amendment of General Terms and Conditions

  1. BAEKEN is entitled to amend or supplement these general terms and conditions.
  2. Minor changes may be made at any time.
  3. BAEKEN will discuss substantial changes with the Client as much as possible in advance.
  4. Consumers are entitled to terminate the agreement if there is a material change to the general terms and conditions.

Article 29 – Transfer of Rights

  1. The Client’s rights under an agreement between the parties cannot be transferred to third parties without prior written consent from BAEKEN.
  2. This provision has effect as a property law clause as referred to in Article 3:83(2) of the Dutch Civil Code (artikel 3:83, tweede lid, Burgerlijk Wetboek).

Article 30 – Consequences of Nullity or Voidability

  1. If one or more provisions of these general terms and conditions are found to be null or voidable, this does not affect the validity of the remaining provisions.
  2. A null or voidable provision shall, in that case, be replaced by a provision that comes closest to what BAEKEN intended at the time the conditions were drafted.

Article 31 – Governing Law and Jurisdiction

  1. All agreements between the parties are governed exclusively by Dutch law.
  2. The Dutch court in the district where BAEKEN is established has exclusive jurisdiction to hear any disputes between the parties, unless mandatory law provides otherwise.

Dated: 18-03-2024.