Article 1 Definitions
In these standard terms and conditions, the following terms shall have the following meanings, unless expressly otherwise stated.
Client: the contracting partner of Acato.
Agreement: the services agreement or any other form of supply of products.
Article 2 General provisions
- These terms and conditions shall apply to all offers, quotes and agreements between Acato and a client to which Acato has declared these terms and conditions applicable, except as expressly otherwise agreed in writing by the parties.
- These terms and conditions shall also apply to all agreements with Acato for the performance of which third parties must be engaged.
- Any variations to these standard terms and conditions are valid only if expressly agreed in writing. The applicability of any standard terms and conditions of purchase or other standard terms of business of the client is expressly rejected.
- If one or more provisions of these standard terms and conditions are void or voided, the remaining provisions of these standard terms and conditions remain in full force and effect. Acato and the client shall then enter into consultations with a view to replacing the void or voided provisions with new provisions which most closely approximate the spirit and intent of the original provisions.
Article 3 Offers and quotes
- All offers are without obligation, unless an offer specifies a time limit for acceptance.
- Quotes given by Acato are without obligation and are valid for a period of 30 days, unless otherwise stated. Acato shall be bound by a quote only if the other party confirms its acceptance of the quote in writing within 30 days, unless otherwise stated.
- The prices stated in the said offers and quotes are exclusive of VAT and other government levies, unless otherwise stated.
- If a quote is accepted subject to (minor) derogations from the offer included in the quote, Acato will not be bound thereby. In that case, the agreement is not formed in accordance with such derogations, unless otherwise stated by Acato.
- In case of a combined quote, Acato is not obliged to perform part of the work for a pro rata portion of the price quoted.
- Offers or quotes do not automatically apply to future projects.
- Orders for work must be confirmed by the client in writing. If the client fails to do so but nevertheless consents to Acato commencing the performance of the work, the terms of the quote will be deemed to have been agreed. Any subsequent oral
agreements and stipulations will not be binding on Acato unless they have been confirmed by Acato in writing.
Article 4 Performance of the agreement
- Acato will perform the agreement to the best of its knowledge and ability and in accordance with applicable professional standards, on the basis of the current state-of-the-art.
- Acato has the right to have certain activities carried out by third parties if and to the extent that this is necessary for the proper performance of the agreement.
- Except as otherwise agreed, orders or instructions to be placed or given to third parties in the context of creating the design will be placed or given by or on behalf of the client. At the client’s request Acato may act as an agent at the client’s expense and risk.
- The standard terms and conditions of third-party suppliers shall apply to goods and services provided by such third-party suppliers.
- The client shall ensure that all information in respect of which Acato indicates that it is necessary for the performance of the agreement or which the client should reasonably understand to be necessary for the performance of the agreement is provided to Acato in a timely manner. If information necessary for the performance of the agreement is not provided to Acato in a timely manner, Acato will have the right to suspend performance of the agreement and/or to charge the client for the extra costs arising from the delay on the basis of the usual rates.
- Acato does not accept any liability for any loss or damage whatsoever caused by Acato relying on incorrect and/or incomplete information provided by the client, unless Acato ought to have been aware of such incorrectness or incompleteness.
- If it is agreed that the agreement will be performed in phases, Acato may suspend the performance of those parts that belong to a subsequent phase until the client has approved the results of the preceding phase in writing.
- If Acato or third parties engaged by Acato undertake activities, in the context of an order for work, at the client’s location or at a location designated by the client, the client shall provide the facilities reasonably requested by the staff in question, free of charge.
- The client indemnifies, defends and holds Acato harmless from and against any claims by third parties who suffer loss or damage in connection with the performance of the agreement that is attributable to the client.
- Unless the work is not suitable for that purpose, Acato is always entitled to state or have stated its name on or with the work or to remove or have its name removed from the work.
Article 5 Amendments to the agreement
- If it transpires during the performance of the agreement that changes or supplements to the work to be performed are required for the proper performance of the agreement, the parties shall correspondingly amend the agreement in joint consultation in a timely manner.
- If the parties agree to amend or supplement the agreement, this may affect the time of completion of the work. Acato shall notify the client accordingly as soon as possible.
- If the amendment or supplement to the agreement will have financial and/or qualitative consequences, Acato shall inform the client accordingly in advance.
- If a fixed fee has been agreed, Acato shall indicate to what extent the amendment or supplement to the agreement will result in an increase in such fee.
- In derogation of Paragraph 3, Acato shall not be entitled to charge additional costs if the amendment or supplement is due to circumstances attributable to Acato.
Article 6 Term of agreement; implementation period
- The agreement between Acato and a client is entered into for an indefinite period, unless the nature of the agreement requires otherwise or the parties expressly agree otherwise in writing.
- Any timeline agreed within the term of the agreement for the completion of certain activities shall not be of the essence of the agreement. The client should consequently serve written notice of breach on Acato if the implementation period is exceeded and Acato shall not be in default before the expiration of a reasonable remedy period.
Article 7 Fee
- Paragraphs 2., 5. and 6. to 11. of this Article shall apply to offers and agreements in which a fixed fee is offered or agreed. If no fixed fee is agreed, Paragraphs 3 to 11 of this Article shall apply.
- The parties may agree a fixed fee at the time of conclusion of the agreement.
- If the parties do not agree a fixed fee, the fee shall be calculated on the basis of the number of hours actually worked. The fee shall be calculated on the basis of Acato’s usual hourly rates applicable in the period in which the work is performed, unless a different hourly rate has been agreed upon.
- Fees and any cost estimates are stated exclusive of VAT.
- In case of agreements for terms in excess of 3 months, the amounts due may be
invoiced in instalments.
- If Acato and the client agree a fixed fee or a fixed hourly rate, Acato shall nevertheless be entitled to increase such fee or rate.
- Acato may pass on price increases to the client if Acato can demonstrate that significant price increases occurred between the time of the offer and the time of performance of the agreement, for example with respect to wages.
- Moreover, Acato may increase the fee if it transpires during the performance of the work that the amount of work initially agreed or anticipated was underestimated to such a degree at the time of conclusion of the agreement, through no fault of Acato, that Acato cannot reasonably be expected to perform the agreed work at the originally agreed fee.
- In case of a price increase the client will be entitled to cancel the agreement if the fee or rate is increased within three months of the date of conclusion of the agreement. After this period the client may cancel the agreement if the increase is greater than 10%. The client is not entitled to cancel the agreement if the increase in the fee or rate results from a statutory right.
- Acato shall notify the client in writing of its intention to increase the fee or rate, specifying by how much the fee or rate will be increased and on what date the increase will take effect.
- If the client does not wish to accept the increase in the fee or rate announced by Acato, the client is entitled to terminate the agreement by notice in writing within seven working days of the aforesaid notification, or to cancel the order for work with effect from the effective date of the price or rate increase specified in Acato’s notification.
Article 8 Payment
- Payment must be made within 14 days of the invoice date, in the manner indicated by Acato and in the currency stated in the invoice. Objections to invoiced amounts will not suspend the payment obligation.
- If the client fails to make payment within the payment term of 14 days, the client shall be in default by operation of law. In that case the client shall be liable to pay interest at the higher of 1% per month or the statutory interest rate. The interest payable on the amount overdue shall be calculated from the day on which the client is in default until the day of payment in full.
- If the client is liquidated, wound up, declared bankrupt, placed into liquidation, obtains court protection from creditors (moratorium) or if the client’s assets are seized, all amounts owed by the client to Acato will be payable on demand.
- Acato is entitled to apply the payments made by the client first to the costs, then to accrued interest and finally to the principal amount and accruing interest.
Acato may refuse an offer to pay, without being in default as a result thereof, if the client indicates that payments should be applied in a different order.
Acato may refuse payment of the full principal amount if the accrued and accruing interest and the costs are not paid at the same time.
Article 9 Retention of title
- The client is not permitted to pledge or otherwise encumber items supplied or provided by Acato, including, where applicable, designs, drafts, sketches, drawings, films, software, (digital) files, etc.
- If third parties seize or seek to establish or enforce rights to the goods delivered subject to retention of title, the client is obliged to inform Acato accordingly as soon as reasonably practicable.
- Goods delivered by Acato that are subject to retention of title pursuant to Paragraph 1 of this Article may never be resold or be used as a means of payment.
Article 10 Use
- Once the client has fulfilled all his obligations under the agreement with Acato, it will acquire an exclusive licence to use the design, with the restriction that the right of publication is limited to the purposes agreed when the work was commissioned. If no such purposes have been agreed, the licence will be limited to the use of the design in accordance with the parties’ firm intentions at the time when the work was commissioned. Such intentions must have been verifiably stated to Acato prior to the conclusion of the agreement.
- Without Acato’s written permission, the client is not entitled to use the design for purposes broader than those agreed.
- Except as otherwise agreed, the client is not permitted to change or have changed the provisional or final designs without Acato’s written permission.
- The client is not permitted to transfer or assign to third parties any of the rights under an agreement concluded with Acato, save in the event and as part of a transfer of the whole of the client’s business.
- Acato may use the design for its own publicity or promotion activities, with due regard for the client’s interests.
- As soon as the client fails to (fully) meet his payment obligations under the agreement or is otherwise in default, the client will not (or no longer) be permitted to use the results made available, and any licence granted to the client in the context of the work commissioned will lapse, except if the client’s default is of subordinate significance in relation to the overall scope of the work commissioned.
Article 11 Debt collection costs
- If the client fails to fulfil his obligations on time or at all, the client shall be liable for all costs reasonably incurred in enforcing those obligations out of court. In the event of a monetary claim, the client shall in any case be liable to pay debt collection costs. The debt collection costs will be calculated on the basis of the debt collection rates recommended by The Netherlands Bar ( Nederlandse Orde van Advocaten) .
- If Acato was reasonably forced to incur higher costs, such costs shall also qualify for reimbursement.
- Any reasonable judicial and enforcement costs incurred shall also be payable by the client.
Article 12 Complaints
- The client must notify Acato in writing of any complaints about the work performed within 8 days of their discovery, but no later than 14 days after completion of the work in question. The notice of default must describe the non-conformity in as much detail as possible to allow Acato to respond in an appropriate manner.
- If a complaint is found to be justified, Acato shall re-perform the work as agreed, unless this has by then demonstrably become useless to the client, of which the client must notify Acato in writing.
- If re-performance of the agreed work is no longer possible or useful, Acato’s liability shall not exceed the limits of liability specified in Article 15.
Article 13 Termination, suspension and cancellation
- If the client terminates the agreement before the end of its term, Acato will be entitled to compensation for the resulting demonstrable capacity utilization loss, unless the termination is due to facts and circumstances that are attributable to Acato. In that case, the client shall also be required to pay the invoices for work performed until then. The preliminary results of the work performed until then will then be made available to the client on an ‘as is’ basis, without guarantees.
- Acato has the right to suspend fulfilment of its obligations or to cancel the agreement:
– if the client fails to meet or to fully meet his obligations under the agreement;
– if Acato becomes aware, after the conclusion of the agreement, of circumstances that give Acato good reason to fear that the client will not meet his obligations. If there is good reason to fear that the client will not meet his obligations or will meet them only in part, the suspension will be permitted only to the extent that this is justified by the non-performance.
– if the client is requested on conclusion of the agreement to provide security for the fulfilment of his obligations under the agreement and fails to provide such security or to provide sufficient security.
- Acato also has the right to cancel (or have cancelled) the agreement if circumstances arise that are of such a nature that performance of the agreement is impossible or can no longer be required according to the standards of fairness and reasonableness,
or if other circumstances arise that are of such a nature that it would be unreasonable to expect the agreement to remain in force without change.
- If the agreement is cancelled, the amounts due to Acato by the client shall be payable on demand. If Acato suspends fulfilment of its obligations, it will retain its rights and entitlements under the law and the agreement.
- If the agreement is terminated early, regardless of the reason, the client will not (or no longer) be permitted to use the designs made available to him, and any licence granted to the client in the context of the work commissioned will lapse.
- Acato will always retain the right to seek compensation for any loss or damage suffered.
Article 14 Return of items made available
- Any items made available by Acato to the client in the context of the performance of the agreement must be returned by the client in their original condition, free from defects and in their entirety within 14 days. If the client fails to meet this obligation, any resulting costs shall be payable by the client.
- If the client, despite having received a reminder, still fails to meet the obligation set out in Paragraph 1 for any reason, Acato will have the right to recover any resulting loss, damage and costs, including the costs of replacement, from the client.
Article 15 Liability
- Any liability on the part of Acato is limited as set out in this Article.
- Acato accepts no liability for (any loss or damage arising out of) any of the following:
– misunderstandings or errors in the performance of the agreement if such misunderstandings or errors arise from or are caused by actions on the part of the client, such as late provision or non-provision of complete, reliable and clear data, information and/or materials;
– errors made by third parties engaged by or on behalf of the client
– inaccuracies in quotes from third-party suppliers, or prices quoted by third-party
suppliers being exceeded;
– errors in the design or in the text/data/information if the client has given his
approval or if the client has had the opportunity to carry out an inspection and
has declined to do so.
- Any liability on the part of Acato for direct loss or damage is limited to the sum paid
out by Acato’s insurance company, and at any rate to twice the invoice amount or, as the case may be, the invoice amount for the part of the commissioned work to which the liability relates. Acato’s liability for direct loss or damage is always limited to € 5,000 (five thousand euros).
- In derogation of Paragraph 3. of this Article, the liability will be further limited to the fee payable for the most recent six-month period in case of a project with a duration of more than six months.
- Only the following shall constitute direct loss or damage:
– reasonable costs incurred to determine the cause and extent of the loss or damage to the extent that such determination concerns loss or damage within the meaning of these terms and conditions;
– any reasonable costs incurred to ensure that the defective performance by Acato satisfies the agreement, to the extent that such costs are attributable to Acato;
– reasonable costs incurred to prevent or limit loss or damage, to the extent that the client demonstrates that such costs resulted in limitation of direct loss or damage within the meaning of these standard terms and conditions.
- Acato will never be liable for indirect loss or damage, including consequential loss or damage, loss of profits, unrealized savings and loss or damage due to interruption of business operations.
- The limitations of liability for direct loss or damage contained in these terms and conditions shall not apply to any loss or damage caused by wilful intent or gross negligence on the part of Acato or the staff under its control.
- Any liability will expire one year from the date of completion of the work commissioned.
Article 16 Indemnification
- The client indemnifies, defends and holds Acato harmless from and against any claims by third parties with respect to intellectual property rights to materials, data or information provided by the client that are used in the performance of the agreement.
- If the client provides data carriers, electronic files or software etc. to Acato, the client warrants that such data carriers, electronic files and software are free from viruses and defects.
Article 17 Risk transfer
The risk of loss of or damage to the items covered by the agreement transfers to the client when those items come into actual possession of the client or a third party designated by the client, i.e. at the time of transfer of legal ownership and/or actual delivery of those items.
Article 18 Force majeure
- The parties are not required to fulfil any obligation if they are prevented from doing so by circumstances for which they are not to blame and for which they cannot be held accountable by law, on account of a juristic act or according to generally accepted standards and practice.
- For the purposes of these standard terms and conditions, force majeure means – in addition to the meaning ascribed thereto in statutory and case law – any external factors, whether anticipated or not, that are beyond the control of Acato and as a result of which Acato is unable to meet its obligations. This includes strikes in Acato’s business.
- Acato may also claim force majeure if the circumstance preventing (further) performance arises after Acato should have fulfilled its obligations.
- The parties may suspend the performance of their obligations under the agreement for the duration of the force majeure event. If this period lasts longer than two months, either party may cancel the agreement without being liable to the other party for compensation.
- To the extent that Acato has already performed or is still able to perform part of its obligations under the agreement when a force majeure event occurs, and if an independent value can be attributed to the part that has been or will be performed, Acato is entitled to charge the client separately for the part that has been or will be performed. The client is obliged to pay the invoice as if it were payable under a separate agreement.
Article 19 Non-disclosure and confidentiality
- Both parties are obliged to maintain the confidentiality of any confidential information which they receive from each other or from other sources in the context
of the agreement. Information is considered confidential if it is designated as confidential by the other party or if this follows from the nature of the information.
- If Acato is required by law or a court order to disclose confidential information to third parties designated by law or a competent court and if Acato is unable to invoke a privilege of non-disclosure acknowledged or granted by law or by a competent court, Acato will not be liable for compensation or indemnification, and the other party will not be entitled to cancel the agreement on account of any resulting loss or damage.
Article 20 Intellectual property rights and copyrights
- Without prejudice to the other provisions of these standard terms and conditions, Acato reserves all rights and powers vested in Acato under the Dutch Copyright Act (A uteurswet) .
- All materials provided by Acato, such as reports, recommendations, agreements, designs, drafts, sketches, drawings, software etc., are intended for sole use by the client and may not be reproduced, published or disclosed to third parties by the client without Acato’s prior permission, unless the nature of the materials in question implies otherwise.
- Acato reserves the right to use the knowledge gained from the performance of the work for other purposes to the extent that this does not result in any confidential information being disclosed to third parties.
Article 21 Samples and designs
If a sample or design has been shown or provided to the client, it will be deemed to have been shown or provided for indication purposes only, unless it is expressly agreed that the product to be delivered will correspond thereto.
Article 22 Non-solicitation clause
During the term of the agreement and for a period of one year after its termination, the client shall not be permitted, without proper substantive prior consultation with Acato, to employ or otherwise seek the services (whether directly or indirectly) of staff members of Acato or of businesses engaged by Acato for the performance of the agreement who are or were involved in the performance of the agreement.
Article 23 Disputes
- Any disputes shall be submitted to the exclusive jurisdiction of the courts in Acato’s place of business, unless the Subdistrict Court ( kantonrechter) has jurisdiction to hear the dispute. Notwithstanding this provision, Acato has the right to submit disputes to the court having jurisdiction according to the law.
- The parties shall not institute legal proceedings until it is evident that they are unable to settle the dispute in question out of court despite making every effort to do so.
Article 24 Governing law
All agreements between Acato and the client shall be governed by the laws of the Netherlands.
In the event of any inconsistencies between the original Dutch-language version of these standard terms and conditions and this English translation, the Dutch-language version shall prevail.