Algemene Voorwaarden

General terms and conditions:

GENERAL TERMS AND CONDITIONS ServerFIX

 
Definitions

1. ServerFIX: ServerFIX B.V., established in Lelystad under KvK number 76005763.
2. Customer: the person with whom ServerFIX has entered into an agreement.
3. Parties: ServerFIX and customer together.
4. Consumer: a customer who is also an individual and who acts as a private person.
   Applicability of general terms and conditions
5. These terms and conditions apply to all quotations, offers, work, orders, agreements and deliveries of services or products by or on behalf of ServerFIX.
6. Parties may only deviate from these terms and conditions if they have expressly agreed to do so in writing.
7. Parties expressly exclude the applicability of additional and/or deviating general terms and conditions of the customer or third parties.
   
   Prices
8. All prices used by ServerFIX are in euros, are inclusive of VAT and exclusive of any other costs such as administration costs, levies and travel, shipping or transport costs, unless expressly stated otherwise or otherwise agreed.
9. ServerFIX may change all prices used by ServerFIX for its products or services, on its website or otherwise made known, at any time.
10. The price with regard to a service is determined by ServerFIX on the basis of the hours actually spent.
11. The price is calculated according to the usual hourly rates of ServerFIX, applicable for the period in which it performs the work, unless a different hourly rate has been agreed.
12. If the parties have agreed on a total amount for a service provided by ServerFIX, this is always a guideline price, unless the parties have expressly and in writing agreed on a fixed price, from which no deviation is possible.
13. ServerFIX is entitled to deviate from the guideline price by up to 10%.
14. If the guideline price is more than 10% higher, ServerFIX must inform the customer in a timely manner why a higher price is justified.
15. If the target price is more than 10% higher, the customer has the right to cancel the part of the order that exceeds the target price plus 10%.
16. ServerFIX has the right to adjust prices annually.
17. Prior to their entry into force, ServerFIX will communicate price adjustments to the customer.
18. The consumer has the right to terminate the agreement with ServerFIX if he does not agree with the price increase.
    
    Payments and payment terms
19. The customer must pay invoices to ServerFIX within 7 days after the invoice date, unless the parties have made other agreements about this or a different payment term is stated on the invoice.
20. Payment terms are considered fatal payment terms. This means that if the customer has not paid the agreed amount by the last day of the payment term, he is legally in default and in breach, without ServerFIX having to send the customer a reminder or put him in default.
21. ServerFIX reserves the right to make a delivery dependent on immediate payment or to demand security for the total amount of the services or products.
    
    Consequences of late payment
22. If the customer does not pay within the agreed term, ServerFIX is entitled to charge interest of 1% per month from the day the customer is in default, whereby a part of a month is counted as a whole month.
23. If the customer is in default, he is also liable to ServerFIX for extrajudicial collection costs and any damages.
24. The collection costs are calculated on the basis of the Decree on compensation for extrajudicial collection costs.
25. If the customer does not pay on time, ServerFIX may suspend its obligations until the customer has fulfilled its payment obligation.
26. In the event of liquidation, bankruptcy, attachment or suspension of payment on the part of the customer, ServerFIX's claims on the customer are immediately due and payable.
27. If the customer refuses to cooperate with the execution of the agreement by ServerFIX, he is still obliged to pay the agreed price to ServerFIX.
    
    Right of suspension
    
    Unless the customer is a consumer, the customer waives the right to suspend the performance of any obligation arising from this agreement.
    
    
    Set-off
    
    Unless the customer is a consumer, the customer waives his right to set off a debt to ServerFIX against a claim on ServerFIX.
    
    
    Insurance
28. The customer undertakes to sufficiently insure and keep insured the following items against, among other things, fire, explosion and water damage as well as theft:
    o items delivered that are necessary for the execution of the underlying agreement
    o items of ServerFIX that are present at the customer's premises
    o items that have been delivered under retention of title  
29. The customer shall provide ServerFIX with the policy of these insurances for inspection at its first request.
    
    Warranty
    
    When the parties have entered into an agreement with a service-providing nature, this only contains obligations of effort for ServerFIX, not obligations of results.
    
    
    Execution of the agreement
30. ServerFIX will execute the agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship.
31. ServerFIX has the right to have the agreed services (partially) performed by third parties.
32. The agreement will be implemented in mutual consultation and after written agreement and payment of any agreed advance payment by the customer.
33. It is the customer's responsibility to ensure that ServerFIX can start implementing the agreement in a timely manner.
34. If the customer has not ensured that ServerFIX can start implementing the agreement in a timely manner, any additional costs and/or additional hours resulting from this will be charged to the customer.  
    
    Provision of information by the customer
35. The customer will make all information, data and documents relevant to the correct implementation of the agreement available to ServerFIX in a timely manner and in the desired form and manner.
36. The customer guarantees the correctness, 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.
37. If and to the extent that the customer requests this, ServerFIX will return the relevant documents.
38. If the customer does not, does not timely or does not properly provide the information, data or documents reasonably requested by ServerFIX and the execution of the agreement is delayed as a result, the resulting additional costs and additional hours will be charged to the customer.
    
    Duration of the agreement
39. The agreement between ServerFIX and the customer is entered into for an indefinite period, unless the nature of the agreement dictates otherwise or the parties have expressly agreed otherwise in writing.
40. If an agreement has been entered into for a fixed period, it will be tacitly converted into an agreement for an indefinite period after the term has expired, unless one of the parties terminates the agreement with due observance of a notice period of one month(s), or a consumer terminates the agreement with due observance of a notice period of one month, in which case the agreement will end by operation of law.
41. If the parties have agreed on a term for the completion of certain work within the term of the agreement, this is never a fatal term. If this term is exceeded, the customer must give ServerFIX written notice of default.
    
    Termination of an agreement for an indefinite period 
42. The customer can terminate an agreement that has been entered into for an indefinite period at any time, taking into account a notice period of  2 months.
43. A consumer has the right to terminate an agreement for an indefinite period, taking into account a notice period of 1 month.
    
    Confidentiality 
44. The customer shall keep confidential any information he receives (in whatever form) from ServerFIX.
45. The same applies to all other information concerning ServerFIX of which he knows or could reasonably suspect that it is secret or confidential, or of which he could expect that its distribution could harm ServerFIX.
46. The customer shall take all necessary measures to ensure that he also keeps confidential the information referred to in paragraphs 1 and 2.
47. The confidentiality obligation described in this article does not apply to information:
    o that was already public before the customer learned this information or that later became public without this being the result of a breach of the customer's confidentiality obligation
    o that is made public by the customer on the basis of a legal obligation
48. The confidentiality obligation described in this article applies for the duration of the underlying agreement and for a period of 3 years after its expiry.

Penalty clause

1. If the customer violates the article of these general terms and conditions on confidentiality or on intellectual property, he will forfeit to ServerFIX an immediately due penalty of €5,000 for each violation and in addition an amount of 5% of the above-mentioned amount for each day that the violation continues.
2. Forfeiture of this fine does not require prior notice of default or legal proceedings. Nor does it require any form of damage.
3. Forfeiture of the fine referred to in the first paragraph of this article does not affect the other rights of ServerFIX, including its right to claim damages in addition to the fine.
   
   Indemnification
   
   The customer indemnifies ServerFIX against all claims from third parties relating to the products and/or services supplied by ServerFIX.
   
   
   Complaints
4. The customer must examine a product or service delivered by ServerFIX as soon as possible for any shortcomings.
5. If a delivered product or service does not meet what the customer could reasonably expect from the agreement, the customer must inform ServerFIX of this as soon as possible, but in any case within 1 month after discovering the shortcomings.
6. Consumers must inform ServerFIX of this no later than 2 months after discovering the shortcomings.
7. The customer must provide as detailed a description as possible of the shortcoming, so that ServerFIX is able to respond adequately.
8. The customer must demonstrate that the complaint relates to an agreement between the parties.
9. If a complaint relates to ongoing work, this cannot in any case lead to ServerFIX being required to perform work other than that agreed upon.
   
   Notice of default
10. The customer must notify ServerFIX of any notice of default in writing.
11. It is the customer's responsibility to ensure that a notice of default actually reaches ServerFIX (in a timely manner).
    
    Joint and several liability of the customer
    
    If ServerFIX enters into an agreement with multiple customers, each of them is jointly and severally liable for the full amounts that they owe to ServerFIX under that agreement.

 
Liability ServerFIX

1. ServerFIX is only liable for any damage suffered by the customer if and to the extent that such damage is caused by intent or deliberate recklessness.
2. If ServerFIX is liable for any damage, it is only liable for direct damage resulting from or related to the performance of an agreement.
3. ServerFIX is never liable for indirect damage, such as consequential damage, lost profit, missed savings or damage to third parties.
4. If ServerFIX is liable, this liability is limited to the amount paid out by a concluded (professional) liability insurance and in the absence of (full) payment of the amount of damage by an insurance company, the liability is limited to the (part of the) invoice amount to which the liability relates.
5. All images, photos, colours, drawings, descriptions on the website or in a catalogue are only indicative and are only approximate and cannot give rise to compensation and/or (partial) termination of the agreement and/or suspension of any obligation.
   
   Expiry period
   
   Any right of the customer to compensation from ServerFIX expires in any case 12 months after the event from which the liability directly or indirectly arises. This does not exclude the provisions of article 6:89 of the Dutch Civil Code.

 
Right to termination

1. The customer has the right to terminate the agreement if ServerFIX is culpably in breach of its obligations, unless this breach, given its special nature or minor significance, does not justify termination.
2. If the fulfilment of the obligations by ServerFIX is not permanently or temporarily impossible, termination can only take place after ServerFIX is in default.
3. ServerFIX has the right to terminate the agreement with the customer if the customer does not fully or timely fulfil his obligations under the agreement, or if ServerFIX has become aware of circumstances that give it good reason to fear that the customer will not be able to properly fulfil his obligations.

Force majeure

1. In addition to the provisions of Article 6:75 of the Dutch Civil Code, a failure by ServerFIX to fulfil any obligation towards the customer cannot be attributed to ServerFIX in a situation beyond the control of ServerFIX, which prevents the fulfilment of its obligations towards the customer in whole or in part or which makes it unreasonable to expect ServerFIX to fulfil its obligations.
2. The force majeure situation referred to in paragraph 1 also includes – but is not limited to: emergency (such as civil war, uprising, riots, natural disasters, etc.); defaults and force majeure of suppliers, deliverers or other third parties; unexpected power, electricity, internet, computer and telecom failures; computer viruses, strikes, government measures, unforeseen transport problems, bad weather conditions and work stoppages.
3. If a force majeure situation occurs as a result of which ServerFIX cannot fulfil one or more obligations towards the customer, those obligations will be suspended until ServerFIX can fulfil them again.
4. From the moment that a force majeure situation has lasted for at least 30 calendar days, both parties may terminate the agreement in writing in whole or in part.
5. ServerFIX is not liable for any (damage) compensation in a force majeure situation, not even if it enjoys any benefit as a result of the force majeure situation.
   
   Amendment of the agreement 
   
   If, after the conclusion of the agreement, it appears necessary to amend or supplement its content for its implementation, the parties will amend the agreement accordingly in a timely manner and in mutual consultation.
   
   
   Amendment of general terms and conditions
6. ServerFIX is entitled to change or supplement these general terms and conditions.
7. Changes of minor importance can be implemented at any time.
8. ServerFIX will discuss major substantive changes with the customer in advance as much as possible.
9. Consumers are entitled to terminate the agreement in the event of a material change to the general terms and conditions.
   
   Transfer of rights
10. Rights of the customer under an agreement between the parties cannot be transferred to third parties without the prior written consent of ServerFIX.
11. This provision applies as a clause with property law effect as referred to in Article 3:83, paragraph 2, of the Dutch Civil Code.
    
    Consequences of nullity or voidability
12. If one or more provisions of these general terms and conditions prove to be null and void or voidable, this will not affect the other provisions of these terms and conditions.
13. A provision that is null and void or voidable will in that case be replaced by a provision that comes closest to what ServerFIX had in mind when drawing up the terms and conditions on that point.
    
    Applicable law and competent court
14. Dutch law applies exclusively to every agreement between the parties.
15. The Dutch court in the district where ServerFIX is established/practices/has an office has exclusive jurisdiction to hear any disputes between the parties, unless the law prescribes otherwise.

Drawn up on October 1, 2019.