Any natural or legal person to whom Marcel Hoekstra makes an offer for the delivery of goods or services, or the contracting of work, as well as the person with whom an agreement is established for the delivery of goods or services. Agreement: Any agreement to which these general terms and conditions apply.
1.1 – These conditions apply, with the exception of third-party conditions, to all deliveries of goods or services from Marcel Hoekstra to the client, as well as to all agreements and legal acts relating thereto.
1.2 – If any provision in these general terms and conditions or the agreement is not legally valid, the parties will negotiate on the content of a new provision; such a provision will reflect the content of the original provision as closely as possible.
2.1 – All offers (quotations) by Marcel Hoekstra are non-binding, unless explicitly indicated otherwise in writing by Marcel Hoekstra.
2.2 – If client accepts an offer (quotation) from Marcel Hoekstra, Marcel Hoekstra is entitled to revoke the offer or quotation within fourteen working days of receipt of the acceptance.
§3. Prices & Rates
3.1 – If prices and rates of price-determining factors, such as wages, materials, or currency changes, undergo an increase for whatever reason, Marcel Hoekstra is entitled to increase the price or rate accordingly.
3.2 – Should work that was not included in the original order or order confirmation be carried out at the request of, or in consultation with, the client, Marcel Hoekstra will charge the ensuing costs at the prices or rates applicable at that time.
4.1 – Delivery times as indicated by Marcel Hoekstra will never be regarded as a fatal deadline. In the event of untimely delivery, Marcel Hoekstra must be given written or electronic notice of default within fourteen days, whereby Marcel Hoekstra must still be offered a reasonable period for delivery.
4.2 – Marcel Hoekstra is entitled to postpone new deliveries until the client has fulfilled all of his outstanding payment obligations towards Marcel Hoekstra and the customer has been informed of the outstanding payment obligations.
4.3 – Marcel Hoekstra will deliver the product within five working days of receipt of payment.
All information provided to the client by Marcel Hoekstra in any form whatsoever is exclusively intended for internal use by the client. This information may not be used for any purpose other than the purpose for which it was supplied. This information will be treated as strictly confidential by the client.
6.1 – The date indicated on Marcel Hoekstra’s bank statements is decisive and will be regarded as the day of payment.
6.2 – The client is not permitted to offset claims made by Marcel Hoekstra towards them with what they believe to be their own claims towards Marcel Hoekstra.
§7. Intellectual Property
7.1 – All intellectual property rights on the delivered goods are vested in Marcel Hoekstra. The client is therefore not permitted to use Marcel Hoekstra’s works, which are protected by these rights, without Marcel Hoekstra’s permission, other than in the context of the normal use provided for in the agreement. For this normal use, Marcel Hoekstra grants the client a non-exclusive, non-transferable licence, subject to the conditions set out in the agreement and these General Terms and Conditions. This license is not granted (in whole or in part) to companies or institutions affiliated with the client unless otherwise agreed in writing.
7.2 – If the client infringes the intellectual property rights of Marcel Hoekstra and/or third parties, the client is liable for all ensuing damage.
7.3 – The client indemnifies Marcel Hoekstra against any liability on account of (alleged) infringement of those rights. In such cases, Marcel Hoekstra is entitled to suspend delivery to the client until clarity about the alleged infringement has been obtained.
8.1 – The client is obliged to cooperate with the delivery, as well as to accept delivery of the goods. If the client fails to accept delivery of the goods, Marcel Hoekstra reserves the right to pass on any associated costs to the client.
8.2 – Insofar as services/goods delivered by Marcel Hoekstra must be installed on hardware made available by the client, this hardware must always meet all the technical requirements set by Marcel Hoekstra, as well as the requirements set in normal usage.
8.3 – In cases such as those referred to in this article, Marcel Hoekstra does not consider himself liable for any damage incurred at or towards the client or third parties.
9.1 – The client is aware that the goods delivered by Marcel Hoekstra contain confidential information and business secrets of Marcel Hoekstra. The client commits not to disclose the confidential information and business secrets delivered to any third parties or to give them in use. The client will instruct his staff when necessary for the execution of the agreement, and ensure staff is only informed when their involvement is in the interest of the client.
9.2 – Marcel Hoekstra is obliged to observe confidentiality vis-à-vis third parties with respect to the details provided to them by the client and to regard these as confidential. Marcel Hoekstra will instruct his staff when necessary for the execution of the agreement and ensure that only those of his staff members are aware of the client’s activities and details when their involvement is necessary for Marcel Hoestra.
9.3 – Marcel Hoekstra and the client guarantee that all data received from one another, of which both parties know or should reasonably know that such data are of a confidential nature, remain secret, unless a legal obligation prohibits the disclosure of those data. The party receiving confidential information will use it only for the purpose for which it was provided. Information will, in any case, be regarded as confidential if it has been designated as such by the parties.
§10. Prohibition on transfer
The rights and obligations arising from the agreement may not be transferred by the client to third parties.
§11. Non-Solicitation staff
During the term of the agreement and one year after the termination of the agreement, the client will not employ personnel who are employed by Marcel Hoekstra or who carry out work for Marcel Hoekstra in any other way, unless otherwise agreed with Marcel Hoekstra. In the event of violation of this provision, the client will be liable to an immediate and uncompensatable penalty of EUR 25,000 per occurrence.
§12. Force Majeur
Neither Marcel Hoekstra nor the client is obliged to fulfil any obligation if he is prevented from doing so as a result of force majeure. Force majeure includes but is not limited to failures in telecommunication connections (including the internet), failure of the power supply, faults in Marcel Hoekstra’s equipment, failure of suppliers to properly fulfil their obligations, which have been prescribed by the client to Marcel Hoekstra; as well as defects in goods, materials, and third party software, the use of which has been prescribed to Marcel Hoekstra by the client.
13.1 – Marcel Hoekstra is not liable for damages suffered by the client, of whatever nature, in connection with the goods delivered, unless such damages are caused by intent or gross negligence on the part of Marcel Hoekstra. Intent or gross negligence does not include damages suffered by the client or a third party as a result of inaccuracy or incompleteness in the information provided.
13.2 – The client is familiar with the limitations and risks of the use of the internet or any other medium with which the delivered goods are made available now and in the future. He is also familiar with the risks of digitally storing and transferring information, including the loss of data. The client acknowledges that Marcel Hoekstra is not liable for any damage as a result of the risks described above.
13.3 – Damages that, in the client’s opinion, are the result of intent or gross negligence on the part of Marcel Hoekstra must be reported to Marcel Hoekstra in writing as soon as possible but no later than thirty (30) days after it occurs. Damages that are not notified to Marcel Hoekstra within this period will only qualify for compensation if the client has made it plausible that he could not have reported the damages earlier.
13.4 – If and insofar as Marcel Hoekstra is liable on account of an attributable failure in the performance of the agreement, this liability is limited to compensation of direct damages up to a maximum of the amount of the price stipulated for that agreement (excluding VAT) for the duration of one calendar year. However, under no circumstances will the total compensation for direct damage exceed EUR 5,000.
13.5 – Any liability on the part of Marcel Hoekstra for business damages or other indirect damages, including loss of profit, missed savings, loss of data, time invested by the client, or costs of engaged third parties, without Marcel Hoekstra’s prior written consent, is expressly excluded.
14.1 – Marcel Hoekstra is entitled to amend these general terms and conditions unilaterally. Amendments also apply to agreements that have already been concluded. Changes will go into force within one month of publication by means of a written notice. 14.2 – Following the time after which the change has gone into force, the client will be deemed to have tacitly accepted the changes.
§15. Applicable law and competent court
15.1 – The agreement is governed by Dutch law.
15.2 – The Court of Alkmaar is exclusively competent to judge disputes arising from the agreement.