1. Definitions:
1.1 In these general terms and conditions the following terms have the following meanings:
1.2 Marelex: a sole trader with its registered office in Spijkenisse, the Netherlands, listed in the commercial register of the Chamber of Commerce under number 84291206.
1.3 Client: the natural person, partnership, legal entity or any other entity who/which gives the Assignment to the Contractor.
1.4 Contractor: Marelex.
1.5 Assignment: every verbal or written arrangement between the Client and the Contractor for the provision of Services by the Contractor for the benefit of the Client.
1.6 Services: all work for which an assignment is given, or that ensues from or is directly related to the assignment, all in the broadest sense.
2. Applicability:
2.1 Unless this is derogated from in writing in a joint agreement between the Client and Marelex, the General Terms and Conditions below will apply to every offer, assignment or agreement related to services to be provided or already provided by Marelex, including but not limited to advice to be provided and/or recourse actions or recovery of loss.
2.2 If an Assignment is given by or on behalf of several Clients, all Clients will be bound by these General Terms and Conditions and will be jointly and severally liable for the obligations arising from and/or related to the Assignment.
2.3 The agreement between the Client and Marelex constitutes an agreement for services as referred to in Book 7, article 400 et seq. of the Dutch Civil Code.
2.4 Notwithstanding the provisions of Book 7, articles 404 and 407, paragraph 2 of the Dutch Civil Code, all Assignments will exclusively be accepted and performed by Marelex.
2.5 These General Terms and Conditions also apply for the benefit of the personnel and auxiliary persons of Marelex who are engaged in the performance of the Assignment, as well as for the benefit of third parties engaged by Marelex for the performance, wholly or partly, of the agreement.
2.6 Marelex will never be liable for any shortcoming, act or omission on the part of such auxiliary persons or third parties.
2.7 If one or more provisions of these General Terms and Conditions is/are null and void or declared void, the other provisions of these General Terms and Conditions will continue to apply in full. In that case, the Client and Marelex will enter into consultations in order to agree on new provisions to replace the null and void or voided provisions, if and insofar as possible with due observance of the purpose and purport of the original provisions.
2.8 The applicability of any other (general) terms and conditions of the Client(s) is hereby expressly rejected.
2.9 The text of these General Terms and Conditions in the Dutch language prevails over the text of these General Terms and Conditions in the English language and/or any other language.
3. Commencement and duration of the agreement:
3.1 Prior to the formal approval of the Assignment and bearing in mind the data provided by the Client on the basis of Article 4.1 of these General Terms and Conditions, Marelex will verify whether there may be a conflict of interest. If there is a conflict of interest, Marelex will reserve the right to refuse the Assignment wholly or partly, always provided that Marelex will promptly inform the Client of this.
3.2 The agreement will be formed at the time at which Marelex verbally or in writing accepts the assignment provided to it, or if Marelex has commenced the performance thereof in a manner that is apparent to the Client.
3.3 The agreement is entered into for an indefinite period of time, unless it ensues from the nature or purport of the Assignment provided that it was entered into for a fixed period.
3.4 Any agreed period will never be regarded as a final deadline and only serves as an indication.
4. Client data:
4.1 The Client will be obliged to make all data, information and documents that Marelex in its opinion requires – and/or all data, information and documents regarding which the Client knew or could reasonably have understood that Marelex would require these – for the correct performance of the Assignment provided, available to Marelex in a timely manner and in the form and manner as required by Marelex. Data, information and documents shall also be taken to mean the documents required by Marelex for verifying the identity of the Client on the basis of the Identification (Provision of Services) Act.
4.2 All costs and/or damage resulting from or related to the Client’s failure to provide Marelex with the data, information and documents required by Marelex, or to provide such data, information and documents in a timely and/or proper manner, will be fully at the risk and expense of the Client.
4.3 Marelex will never be liable for any damage and/or costs, of whatever nature, suffered and/or incurred by the Client because Marelex proceeded from incorrect and/or incomplete data provided by or on behalf of the Client(s).
4.4 Marelex has the right to suspend the performance of the Assignment until the time at which the Client has fulfilled the obligations referred to in Article 4.1.
4.5 The Client guarantees the accuracy, completeness and reliability of the data, information and documents provided to Marelex by or on behalf of the Client. This also applies if such data, information and documents originate from third parties.
4.6 After the performance of the Assignment has ended, Marelex will not be obliged to retain the data and documents made available by the Client to Marelex for any longer than for the retention period applicable to Marelex.
5. Performance of the Assignment:
5.1 Marelex will perform the Assignment with the due care and expertise that may reasonably be expected of it under the given circumstances, but does not guarantee the achievement of the intended result; always provided that Marelex therefore, when performing the Assignment, at all times enters into no more than a best-efforts obligation with the Client. Marelex will therefore not be obliged to pay any compensation whatsoever if the Client is disappointed in its expectations, or is of the opinion that it has been disadvantaged in any form and any way.
5.2 Third parties cannot derive any rights from the contents of the Assignment. The Client indemnifies Marelex against all claims by third parties who claim that they have suffered and/or will suffer damage, of whatever nature and in whatever form, due to and/or related to the Assignment performed or to be performed by Marelex for the benefit of the Client. If there are several Clients, they will be jointly and severally liable for such indemnity if the previous sentence applies.
5.3 Marelex and the Client may use digital tools to communicate with each other and with third parties and to provide each other and third parties with documentation and information. Marelex and the Client acknowledge the risk attached thereto including, but not limited to, interception, hacking, delay, mutilation, viruses, damage to software and hardware, etc. Marelex will not be liable for damage resulting from the use of such digital tools.
5.4 Marelex will, in consultation with the Client, determine the contents of the Assignment provided by the Client. Marelex is authorised in advance, in the context of the assistance to be provided or provided, to perform such factual acts and/or legal acts on behalf of Client as it deems desirable or necessary for the correct performance of the Assignment provided. If necessary, the Client will, immediately on a request from Marelex, provide the required (financial) power(s) of attorney; all this without prejudice to Article 4 of these General Terms and Conditions.
5.5 The Client agrees that Marelex may pass on confidential information and documents to the other party/parties, insofar as this is important in Marelex’s opinion for the correct performance of the Assignment provided.
5.6 Unless expressly agreed otherwise in writing, all correspondence with the Client will take place in the Dutch language.
6. Interim termination:
6.1 Each of the Parties is entitled to terminate the Assignment (in the interim) by giving notice of termination in writing, if required with immediate effect.
6.2 If the Assignment is terminated (in the interim) due to circumstances that can be attributed to the Client, Marelex will reserve the right to claim payment of the services provided until that time, bearing in mind Article 9.2 of these General Terms and Conditions concerning commission and fee.
6.3 On the basis of any cause that is urgent in Marelex’s opinion, Marelex will be permitted to terminate (in the interim) the further performance of the Assignment already accepted without being obliged to compensate any damage that the Client may suffer as a result thereof and subject to issuing a verbal or written report to the Client regarding the services already provided.
7. Termination:
7.1 The Assignment will end as soon as, in Marelex’s opinion, no (further) recourse action against the other party seems possible, or the recourse claim has already been wholly or partly recovered from the other party/parties and the recovered amount, possibly after set-off against the commission or fee of Marelex, has been transferred to the bank account designated by the Client.
7.2 The Assignment will in any case end if the Client and/or (the natural person of the sole proprietorship) Marelex:
- is declared bankrupt, assigns its estate, submits an application for a suspension of payments, or attachment is levied on the whole or a part of its assets, or wholly or partially liquidates its business;
- dies or is placed under guardianship, or if it concerns a legal entity, a resolution for dissolution has been adopted;
- in the event of an attachment of whatever nature;
- fails to fulfil any obligation resting with it pursuant to the law or these General Terms and Conditions;
- fails to pay an invoice amount, or a part thereof, within the period set out for this payment;
- discontinues, merges or transfers its enterprise or an important part thereof, including the contribution of its enterprise to a company to be formed, or changes the objective of its enterprise;
- in a general sense in all cases in which, after concluding the agreement, Marelex becomes aware of circumstances that give it good grounds to fear that the Client will not fulfil its obligations.
8. Liability:
8.1 With the exception of other provisions regarding liability in these General Terms and Conditions, any liability on the part of Marelex will be limited to a maximum of the amount paid out in the case concerned under the professional indemnity insurance taken out by Marelex; plus the amount of the excess that is at the expense of Marelex under the aforementioned insurance contract. If, for any reason whatsoever, no payment is made under that insurance, any and all liability will always be limited to the amount that Marelex has or would have charged in the context of the Assignment concerned in the event of a (wholly or partly) successful recourse action, which at all times will be no more than an amount of EURO 10,000 (in words: ‘ten thousand euro’) without owing any turnover tax and/or statutory interest over this amount. Liability for intangible loss or indirect damage is entirely excluded. Indirect damage is also, but not exclusively, taken to mean: consequential damage, loss due to business interruption, lost turnover, lost profit, lost savings, loss due to delay, loss of data, and reduced or affected goodwill.
8.2 Without prejudice to the provisions of Book 6, article 89 of the Dutch Civil Code, all rights of claim and other entitlements on the part of the Client, on whatever basis, in respect of Marelex in connection with the performance of the Assignment will in any case lapse after 12 (in words: ‘twelve’) months after the Client became aware or reasonably could be aware of the event on which these rights and entitlements are based.
8.3 The limitations of liability included in this article are also stipulated for the benefit of every auxiliary person or third party who/which is engaged in the performance of an Assignment, or who/which can be held liable in connection therewith.
9. Commission and Fee:
9.1 Unless the Client and Marelex have agreed otherwise in writing, all recourse actions by Marelex will take place on a “no cure, no pay” basis; which means that Marelex will only charge its (recourse) commission to the Client in the case of a (wholly or partly) successful recourse action; being 10% (in words: ‘ten percent’) of the amount actually recovered; excluding VAT. No office expenses will be charged.
9.2 In the event of termination in the interim as referred to in Article 6.2 of these General Terms and Conditions, the (recourse) commission of Marelex will be determined on the basis of the price agreement in question, assuming the situation that the intended result would have been fully achieved. The amount of the claim as submitted to the other party will be the determining factor in this context. If a fee has been agreed, Article 9.3 of these General Terms and Conditions will apply.
9.3 If the recourse actions of Marelex do not take place on the basis of ‘no cure, no pay’ under Article 9.1 of these General Terms and Conditions, the fee will be determined on the basis of the hours spent multiplied by the agreed hourly rate, or in the absence thereof, the usual hourly rate. The usual (basic) hourly rate of Marelex amounts to EUR 180 (in words: ‘one hundred and eighty euro’), excluding turnover tax. No office expenses will be charged.
10. Payment, interest and costs:
10.1 Payment of the (recourse) commission, fees or any disbursements of Marelex shall be made by the Client, without suspension or set-off, within the payment term of no later than 14 days of the invoice date, by means of transfer of the amount owed to account number NL75ABNA0105545783 in the name of MARELEX.
10.2 The Client and Marelex may agree in writing that Marelex’s (recourse) commission, fee and disbursements will be set off against the sum(s) related to the same Assignment that is/are recovered from the other party/parties and that has/have temporarily been deposited in Marelex’s business bank account.
10.3 On expiry of the deadline for payment, the Client will be in default by operation of law, without any demand or notice of default being required. The Client will in that case owe an interest of 2% per month, unless the Client is a consumer, in which case the statutory interest will be owed. As soon as the Client is in default, all claims of Marelex against the Client will become immediately due and payable and the default will also occur with regard to such claims without notice of default or other prior statement within the meaning of Book 6, article 80 et seq. of the Dutch Civil Code. In that case, Marelex will be entitled to suspend its obligations on the basis of any agreement concluded with the Client until payment in full of all amounts owed has been received.
10.4 If the Client fails to fulfil any (payment) obligation (in a timely manner), all costs incurred for obtaining an out-of-court settlement will be borne by the Client, in addition to the principal sum and interest. The extrajudicial collection costs will amount to at least 15% of the principal sum owed and interest with a minimum of EUR 250, unless the Client is a consumer, in which case the collection costs will be estimated in conformity with the Extrajudicial Collection Costs (Fees) Decree.
10.5 In the cases as referred to in Article 7.2 of these General Terms and Conditions, all obligations of the Client under any agreement will become immediately due and payable. In that case, Marelex will be entitled to suspend the performance of any agreement concluded with the Client, or terminate such agreement.
10.6 No interest will be paid over the funds received for the benefit of the Client and deposited in the business bank account of Marelex.
10.7 Foreign currency will have the exchange rate of the day of settlement. Exchange rate differences or conversion differences arisen during the processing of the payment order will be at the expense and risk of the Client.
11. Copyright:
11.1 Unless expressly agreed otherwise in writing, Marelex reserves the rights and entitlements accruing to it on the basis of the Copyright Act to the works produced in the context of the performance of the Assignment, such as advice, letters, contracts, manuals, procedural documents, and other products of the human mind.
11.2 The Client only acquires a non-exclusive right to use the produced works in its own organisation for the objective agreed in the Assignment.
11.3 Without prior permission in writing from Marelex, the Client will not be permitted to reproduce, disclose, or otherwise bring the produced works to the knowledge of third parties.
12. Applicable law and choice of forum:
12.1 Dutch Law applies to all legal relationships between Marelex and the Client(s).
12.2 In the first instance the Court of Rotterdam, the Netherlands, has exclusive jurisdiction to hear all disputes that may arise between Marelex and the Client(s).