Terms and Conditions
ARTICLE 1. | DEFINITIONS
Echain Enterprise: Echain Enterprise, the user of these General Terms and Conditions, having its seat of business in Nijmegen, the Netherlands, registered at the Trade Register (Handelsregister) under number 70815089.
Principal: the natural or legal person, at least acting in the execution of a profession or enterprise with whom Echain Enterprise has concluded an agreement or envisages concluding an agreement.
Commission/agreement: any Agreement concluded between Principal and Echain Enterprise whereby Echain Enterprise commits itself to the provision of services or the execution of activities.
ARTICLE 2. | GENERAL STIPULATIONS
These General Terms and Conditions are applicable to each offer of Echain Enterprise each concluded Agreement.
These General Terms and Conditions are also applicable to Agreements for the execution of which third parties need to be involved by Echain Enterprise.
The applicability of the possible general terms and conditions or otherwise named terms and conditions of the Principal is explicitly rejected.
From the stipulations of these General Terms and Conditions can only be deviated in writing. If the stipulations of what Parties have agreed separately in writing deviates from the stipulations in these General Terms and Conditions, then shall apply what Parties have agreed separately in writing.
Invalidation or invalidity of one or more of the present stipulations leaves the validity of the other stipulations intact. In a prevalent case, Parties are obliged to enter into mutual consultation to agree upon new stipulations for the replacement of the affected stipulation. Thereby as much as possible, the purpose and the tenor of the original stipulation will be observed.
Services/activities: all services or activities to which Echain Enterprise has committed itself in the framework of the agreement towards Principal under which can be included the provision of business company advice and the execution of supporting and /or execution activities, the one and the other in the broadest sense of the word.
Written/In writing: both traditional written communication and communication per e-mail.
ARTICLE 3. | OFFER AND CONCLUSION OF THE AGREEMENT
Each offer of Echain Enterprise is non-binding. Echain Enterprise is never obliged to accept a Commission.
An offer of Echain Enterprise does not automatically apply to subsequent agreements.
Obvious errors and mistakes in the offer of Echain Enterprise do not bind it.
The Principal cannot derive any rights from an offer of Echain Enterprise that is based on data provided incorrectly or incompletely by Principal.
The Agreement is concluded by offer and acceptation. If the acceptation of the Principal deviates from the offer of Echain Enterprise, then the Agreement will not be concluded in conformity to this deviating acceptation, unless Echain Enterprise indicates differently. If from an offer in writing by Echain Enterprise it proves that for the conclusion of the agreement, a signing of that offer is required, then the agreement will only be concluded after the offer has been signed by the Principal and is brought in the possession of Echain Enterprise.
If the Principal concludes the Agreement (also) on behalf of another natural or legal person, then he declares upon the conclusion of the Agreement to be authorised to it. The Principal shall be jointly and severally liable next to this legal/natural person for the compliance with the obligations from that Agreement.
ARTICLE 4. | CONTENT OF THE AGREEMENT
Echain Enterprise shall execute the agreement to the best of its insights and abilities. Insofar the nature and/or tenor of the agreed Services or activities do not oppose to that, shall Echain Enterprise oblige itself however to an obligation to make an effort and Echain Enterprise cannot warrant that the results will be achieved that the Principal envisaged when concluding the agreement.
Echain Enterprise commits solely to the provision of those Services and /or activities that have explicitly been agreed between the parties. Echain Enterprise is never bound to execute activities or provide Services that are outside the content or scope of the agreement.
Echain Enterprise is always entitled to leave the execution of the agreement in its entirety or in part to third parties. The applicability of the articles 7:404 and 7:407 section 2 of Dutch Civil Code is excluded.
The Principal cannot cancel the Commission after the conclusion of the Agreement. If the Principal nevertheless terminates the Agreement prematurely, the agreed price shall remain due as if Echain Enterprise were enabled to fully comply with the agreement.
All execution terms and /or terms for completion of the Commission never concerns fatal terms. The Principal cannot sooner make a claim on the rights of him based on the law then after Principal has declared Echain Enterprise in default in writing, whereby Echain Enterprise is given a reasonable term to comply with the Agreement after all and compliance still remains absent after the expiration of the term mentioned last.
ARTICLE 5. | OBLIGATIONS OF DE PRINCIPAL
1. The Principal is required to provide Echain Enterprise, in the manner prescribed by it, timely all information that is relevant for the set-up and execution of the Agreement. Echain Enterprise shall rely for the execution of the activities or Services on the data provided by the Principal. If Echain Enterprise in accordance with the data provided incorrectly or incompletely by the Principal gives execution to the Commission, then this cannot be regarded as a shortcoming of Echain Enterprise and shall the Principal not have a claim to a waiver or restitution of the agreed price or any other compensation.
2. Furthermore the Principal shall inform Echain Enterprise always without delay about facts and circumstances that may be of importance in connection to the execution of the Agreement. The Principal takes all reasonable measures to optimise the execution of the Commission by or on behalf of Echain Enterprise.
3. If it has been agreed that employees of or managers within the organisation of the Principal will be involved in the provision of services by Echain Enterprise, then Principal warrants that these persons will timely be available to Echain Enterprise and that they will provide all cooperation in order to enable a proper execution of the Agreement.
4. All hours of delay or waiting caused by the non-compliance by Principal of one or more obligations from this article, will be charged to the Principal.
ARTICLE 6. | SUSPENSION AND DISSOLUTION
Echain Enterprise is authorised to suspend the execution of the Agreement or, if the circumstances justify so, to dissolve the Agreement with immediate effect, if the Principal does not, not timely or not completely comply with the obligations from the Agreement or circumstances to the knowledge of Echain Enterprise after the conclusion of the Agreement give good ground to fear that the Principal shall not comply with his obligations. .
If the Principal is in a state of bankruptcy, any seizure has been placed on his goods or the Principal otherwise cannot freely dispose over his assets, then Echain Enterprise is authorised to dissolve the Agreement with immediate effect, unless the Principal already placed sufficient surety for the payment.
Furthermore Echain Enterprise is authorised to dissolve the Agreement if circumstances emerge which are of such nature that compliance with the Agreement is impossible or an unchanged maintenance thereof cannot reasonably be required of it.
All extra costs to be made and incurred damage in relation to the suspension and/or dissolution of the Agreement shall be for the account of the Principal.
Principal never has any claim on any compensation for damages in relation to the right of suspension of dissolution exercised by Echain Enterprise on the ground of this article.
If Echain Enterprise dissolves the Agreement on the ground of this article, then all claims on the Principal are immediately payable on demand.
ARTICLE 7. | FORCE MAJEURE
Echain Enterprise is not bound to the compliance with any obligation from the Agreement if it is impeded thereto by a circumstance that cannot be imputed to it on the basis of the law, a legal act or the current views in the economic exchange in society.
If the Force Majeure situation lasts longer than three months or that it can reasonably be foreseen that the situation of Force Majeure will last longer than three months, or as a consequence of the Force Majeure it cannot reasonably be expected of one of the parties to let the Agreement continue any longer, then Parties are entitled to dissolve the Agreement with immediate effect.
If Echain Enterprise, at the time of the emergence of the situation of Force Majeure, has already partially complied with its obligations or can only comply with its obligations in part, then Echain Enterprise is authorised to separately invoice the already executed or executable part of the Agreement as if it were an independent Agreement.
Damage as a consequence of Force Majeure is never eligible for compensation.
ARTICLE 8. | PRICES AND PAYMENTS
The offer of Echain Enterprise gives a statement as precise as possible of the price factors, such as a fixed price for which the Commission is accepted and/or the applicable hourly rate, as well as the applicability of possible compensations for costs.
Unless explicitly stated differently, all prices stated by Echain Enterprise are exclusive of VAT and other levies by the government.
Echain Enterprise is always authorised to charge on price increases of cost price determining factors to the Principal.
Echain Enterprise is always authorised to request partial or full prepayment of the agreed price. Echain Enterprise is no sooner obliged to give (further) execution to the Agreement, then after the prepayment referred to here has been fully made.
Notwithstanding the stipulation in the previous section, the Principal is obliged to provide a proper surety upon the first request of Echain Enterprise for the payment(s) due by the Principal, if the circumstances give Echain Enterprise good ground to fear that the Principal shall not or not fully comply with the obligations from the Agreement.
Payments have to take place within the term stated in the invoice, in the way prescribed by Echain Enterprise.
In case of liquidation, bankruptcy or suspension of payment of the Principal, all claims on the Principal are immediately payable upon demand.
If the Principal does not timely comply with this payment obligation, then the default will emerge by law without a further notification of default being required. From the day on which the default emerges, the Principal is liable to pay over the outstanding amount and interest of 1% per month, whereby a part of a month will be regarded as a complete month.
All reasonable costs for the satisfaction of due amount with regard to which the Principal is or has been in default, will be for his account. The out-of-court costs will be calculated according to the Dutch Law Wet Incassokosten.
Echain Enterprise is authorised to keep the goods received in the framework of the Agreement or generated by it and proprietary rights under itself until the Principal has paid all compensations due to Echain Enterprise.
ARTICLE 9. | LIABILITY
Except for wilful intent and conscious negligence, Echain Enterprise will never carry any liability in relation to damage incurred by the Principal in connection to the execution of the Agreement. Echain Enterprise will carry in particular no liability for the cases as referred to elsewhere in these General Terms and Conditions.
The Principal will carry the damage that is caused by:
any incorrectness in the data, instructions and advices provided by him;
any other default in the compliance with the obligation as a principal that derive from the law, the Agreement or these General Terms and Conditions;
a circumstance that otherwise cannot be imputed to Echain Enterprise.
3. Notwithstanding the stipulation set forth in this article and the remainder of these General Terms and Conditions, the liability of Echain Enterprise for repairable shortcomings will not emerge sooner than after the Principal has protested about it within a proper time to Echain Enterprise, whereby a description as detailed as possible of the shortcoming is being stated and Echain Enterprise has been enabled to amend the damage within a reasonable term.
4. Echain Enterprise is never liable for damage as a consequence of activities or Services that have been commissioned to it, against the advice of Echain Enterprise.
5. For advice provided free of charge, Echain Enterprise shall never carry any liability.
6. Echain Enterprise is never liable for consequential damage, including missed profits, incurred losses and damage as a consequence of enterprise stagnation.
7. If, notwithstanding the stipulations of these General Terms and Conditions, a liability of Echain Enterprise still exists, then solely direct damage is eligible for compensation. Under direct damage will be exclusively understood:
the reasonable costs for the establishment of the cause and scope of the damage, insofar the establishment relates to damage that is eligible in the sense of the General Terms and Conditions;
the possible reasonable costs made to let the default performance of Echain Enterprise comply with the Agreement and to the extent that these can be imputed to Echain Enterprise;
reasonable costs, made for the prevention or limitation of damage, insofar the Principal demonstrates that these costs have lead to a limitation of direct damage as referred to in this section.
8. In case of a claim of the Principal on the basis of shortcomings of third parties employed by Echain Enterprise, is the Principal required to make an optimal effort to reach an amicable solution of the dispute with those third parties. If the Principal on the basis of such a claim wishes to commence a court proceeding, then he has to hold liable this third party, with the exclusion of Echain Enterprise, in court before he makes any claims towards Echain Enterprise valid.
9. The liability of Echain Enterprise is in any case limited to the height of the invoice value of the Agreement, at least to that part of the Agreement to which the liability of Echain Enterprise relates, it being understood that the liability of Echain Enterprise shall never be more than the amount that in the prevalent case shall be paid out on the basis of the liability insurance concluded by Echain Enterprise. If the Agreement has a tenor of more than six months, then the liability of Echain Enterprise, in deviation of the first sentence of this section and notwithstanding the remainder of these General Terms and Conditions, shall be limited to the maximum of the declared amount over the last six months.
10. In deviation of the statute of limitation by law and notwithstanding the stipulation in section 3, shall the statute of limitations of all claims and defenses against Echain Enterprise be one year only.
11. Except for in case of wilful intent or conscious negligence by Echain Enterprise, will the Principal safeguard Echain Enterprise from all claims by third parties, on whichever basis, with regard to compensation for damages, costs or interests, directly or indirectly related to the activities or Services provided by Echain Enterprise.
ARTICLE 10. | CONFIDENTIALITY
Unless the Principal gives permission thereto or if the nature or the tenor of the Services to be provided or the activities to be executed opposes to application, shall Echain Enterprise keep secret all information that directly relates to the enterprise of the organisation of the Principal.
The Principal is obliged to keep secret all knowledge, expertise and documentation that has been introduced by Echain Enterprise into the enterprise of the Principal and that relate to the execution of the Agreement, and to solely use it for the benefit of his own enterprise, to the extent that nothing different derives from the purpose and the tenor of the Agreement.
Information is deemed to be confidential if this has been stated by parties or if it derives from the nature of the information.
The previous sections do not apply if a prescription by law obliges one of the parties to the provision of the data referred to in this article to third parties.
Parties are obliged to impose the obligations on the basis of this article to third parties possibly employed by them.
Echain Enterprise reserves the right to use knowledge increased as a consequence of the execution of the Agreement for other purposes, to the extent that hereby no confidential information about the enterprise or the organisation of the Principal Is brought to the knowledge of third parties.
ARTICLE 11. | INTELLECTUAL PROPERTY
Echain Enterprise reserves all rights of intellectual property on the documents prepared by it and provided to the Principal and other information, such as reports, advices and ways of working.
It is forbidden for the Principal to disclose the matters referred to in section 1 without prior permission in writing by Echain Enterprise or make it otherwise available to third parties, unless it derives differently from the nature of the Agreement, the documents or other information.
ARTICLE 12. | FINAL CLAUSES
On each Agreement and all legal relations deriving there from, solely the laws of the Netherlands shall apply.
Before turning to the courts, parties are required to make an optimal effort to resolve the dispute in mutual consultation.
Solely the competent court within the district of the seat of business of Echain Enterprise shall be designated to treat disputes.
The Dutch text of these General Terms and Conditions is at all times determining the interpretation thereof.