1.1 These Terms of Sale and Delivery shall mean:
Contractor: Top Family Care.
Client: Top Family Care’s contractual counterparty.
1.2 These terms and conditions apply to all offers made by the Contractor, to all agreements entered into by the Contractor and to all agreements that may result therefrom.
1.3 The Contractor expressly rejects the applicability of any general terms and conditions of the Client.
2 Offer and establishment of agreement
2.1 An agreement is established by the Contractor sending a written confirmation of the Client’s order or assignment.
2.2 All Contractor’s offers are without obligation, unless expressly agreed otherwise.
2.3 If Client provides Contractor with data, drawings, etc., Contractor may assume their accuracy and will base its offer on them.
3.1 Contractor is entitled to increase the agreed price in the interim, if and insofar as unforeseen cost price increasing circumstances (such as VAT/taxes) occur after the conclusion of the agreement, or after the sending of the offer.
3.2 The price does not include travel and accommodation expenses, as well as all other expenses and advances.
4.1 The Client cannot derive any rights from opinions of the Contractor that do not relate to the assignment provided.
5 Intellectual Property
5.1 The Contractor shall at all times retain all rights to plans, documents, images, drawings, software and/or the information and “know-how” relating thereto created by him.
5.2 The items mentioned in the previous paragraph may not be copied in whole or in part without the written permission of the Contractor, nor shown to third parties, handed over or otherwise disclosed, nor used or made available by the Client other than for the purpose for which they were provided by the Contractor.
5.3 Client shall indemnify Contractor for infringements of intellectual property rights of third parties.
6 Payment terms
6.1 Unless otherwise agreed, the following payment terms apply: payment within 14 days of (partial) invoice date.
6.2 Irrespective of the agreed payment terms, Client shall be obliged, at Contractor’s request, to provide such security for payment as Contractor deems sufficient. If the Client fails to comply with this within the specified period, he shall be in default. The Contractor then has the right to terminate the contract and recover its damages from the Client.
6.3 The Client’s right to set off its claims against Contractor is expressly excluded, unless Contractor becomes insolvent. The full claim for payment is immediately due and payable if:
- a payment deadline has been missed;
- the Client is bankrupt, or in receivership;
- the Client as a corporation is dissolved or liquidated;
- the Client as a natural person is placed under guardianship or dies.
6.4 Client shall owe interest from 30 days after the invoice is received. If the invoice has already been sent before the contractor has provided the service, then a period of 30 days after receipt of the service applies. If payment has not been made within the agreed period of 30 days, the legal interest rate will take effect without the need for a reminder/notice of default.
6.5 Interest in business transactions: The interest payable on business transactions shall be equal to the level of statutory commercial interest determined in accordance with the Civil Code (Article 6:119a and 120 paragraph 2 of the Civil Code).
6.6 Interest in transactions with consumers: The interest payable in transactions with consumers is equal to the level of statutory interest determined in accordance with the Civil Code (Article 6:119 and 120 paragraph 1 of the Civil Code).
6.7 If payment has not been made within the agreed period, Client shall owe to Contractor all extrajudicial collection costs in accordance with Voorwerk II.
6.8 If the actual extrajudicial costs incurred exceed the above calculation, the actual costs incurred shall be payable by the Client.
6.9 If the Contractor is successful in legal proceedings, all legal costs incurred in connection with such proceedings shall be borne by the Client.
7 Impracticability of the assignment
7.1 The Contractor shall be entitled to suspend the agreed work if he is temporarily prevented from fulfilling his obligations due to circumstances beyond his control or of which he was not or could not have been aware at the time the agreement was concluded.
7.2 Shortcomings of suppliers, strikes and work stoppages, weather conditions, theft or other modes of loss of materials shall in any case be circumstances as referred to in the preceding paragraph.
7.3 If performance becomes permanently impossible, the contract can be dissolved for that part that has not yet been fulfilled. In such a case, the Client shall not be entitled to compensation for damages suffered as a result of the dissolution.
8 Changes to the assignment
8.1 If the scope of the assignment given to the Contractor changes for any reason after the conclusion of the relevant agreement, the Contractor is entitled to charge the Client for any additional work.
8.2 Additional work shall also exist if the information provided by the Client does not correspond to reality.
9.1 If Client does not, not properly or not timely fulfill any obligation under the agreement concluded with Contractor, as well as in case of bankruptcy, suspension of payments or receivership of Client or cessation or liquidation of its business, Contractor is entitled to terminate the agreement in whole or in part, or to suspend (further) performance of the agreement. In such cases, the Contractor shall further be entitled to demand immediate payment of what is due to it.
9.2 The foregoing shall not affect the other rights to which the Contractor is entitled, including the right to compensation for damage suffered as a result of the dissolution.
9.3 In the event of a dissolution as referred to in the first paragraph, the Contractor shall never be obliged to pay any compensation for damages to the Client.
9.4 If the Client prevents proper performance by Contractor even after notice of default, Contractor has the right to terminate the contract.
9.5 Circumstances, which constitute a force majeure situation for the Contractor are in any case: conduct, except for intent or gross negligence, of persons, which the Contractor uses in the performance of the obligation; unsuitability of goods, which the Contractor uses in the performance of the obligation.
9.6 Even in the event of dissolution by mutual consent, the Contractor retains its right to compensation for damages suffered as a result of such dissolution.
10 Cancellation Policy
10.1 In case of cancellation by the client, the following fee will be charged:
- 2 weeks before the start date: full amount as stated in the training agreement.
- 1 month to 2 weeks before start date: half the amount as stated in the training agreement.
11 Claims, Complaints
11.1 Claims must be made in writing and as soon as possible, but no later than 7 days after delivery or- in the case of non-visible defects within 7 days after the defects could reasonably be discovered.
11.2 Claims and defenses, based on facts that would justify the assertion that the delivered item does not comply with the agreement, shall expire 1 year after delivery.
12 Complaint and Appeals Procedure
12.1 In the event of (alleged) non-performance, a discussion will take place between the client and the contractor to resolve the problem.
12.2 If this interview is not satisfactory, the client may report their complaint in writing, within 2-4 weeks of the initial interview. Within 4 weeks, the complaint will be answered in writing.
12.3 If the complaint is then still not satisfactorily resolved, in consultation Mrs. Drs. P.M.G. Voermans, NMI certified mediator/court mediator of Voermans Mediaton , Coaching and Training, appointed as an independent mediator. The agreements made in mediation are binding.
12.4 As a last resort, recourse to the civil courts is possible.
12.5 A complaint will be treated confidentially by the Contractor at all times.
12.6 Complaints and how they are handled will be recorded by the contractor and kept for a period of 2 years.
13.1 Contractor is only liable for damage suffered by Client, which is the direct and exclusive result of a shortcoming attributable to Contractor, on the understanding that only that damage for which Contractor is insured, or should reasonably have been insured, in view of the customary practice in the industry, qualifies for compensation. In doing so, the following restrictions must be observed
13.2 Not eligible for compensation are trading losses, loss of income and the like, from whatever cause.
13.3. The Contractor is not liable for damage (of any kind) caused by or during the performance of the work or the assembly of delivered items or installations to items on which work is being performed or to items located in the vicinity of the place where work is being performed.
13.4 The Contractor shall never be liable for damage caused by intent or gross negligence of third parties.
13.5 The damage to be compensated by Contractor will be mitigated if the price to be paid by Client is small in relation to the extent of the damage suffered by Client.
13.6 If Contractor’s insurer does not pay out for any reason, Contractor’s liability will at all times be limited to no more than twice the contract sum.
14 Applicable law
14.1 Dutch law shall apply.