CHAPTER 1. GENERAL PROVISIONS
Article 1. Definitions
In these general terms and conditions, the following definitions shall apply:
1Focus Engineering BV: the private company with limited liability Focus Engineering B.V., located at Herengracht 252 in (1016BV) Amsterdam, registered with the Chamber of Commerce in Amsterdam under number 56972954.
2Consultant: the natural or legal person who:
11has an employment agreement with Focus Engineering BV and performs or will perform work on behalf of the Client at the Client in the context of the performance of the Services;
22independently, pursuant to an agreement of assignment concluded with Focus Engineering BV, performs services on behalf of the Client in the context of the execution of the Services;
33under an employment agreement with a third party through Focus Engineering BV, performs work for the benefit of the Client at the Client in the context of the performance of the Services.
3Services: the services whereby Focus Engineering BV deploys one or more Consultants on behalf of the execution or support of an assignment, usually on location at the Client, or at one of its clients.
4Candidate: the natural or legal person introduced by Focus Engineering BV as (prospective) Consultant to the Client, introduced, put forward by Focus Engineering BV or in any way engaged by Focus Engineering BV in the execution of the agreement.
5Originator: any natural or legal person who uses Focus Engineering BV’s services and enters into an agreement with Focus Engineering BV for that purpose.
Article 2. Applicability
1These general terms and conditions are applicable to all offers, quotations and agreements to which Focus Engineering BV has declared these terms and conditions applicable, unless such applicability is explicitly excluded entirely or in parts in writing or explicitly agreed otherwise.
2Eventual terms and conditions of the Client are explicitly rejected. Deviations from and additions to these terms and conditions are only applicable if and insofar as they are explicitly accepted by Focus Engineering BV in writing.
3If Focus Engineering BV allowed deviations from these general terms and conditions for a short or longer period of time, tacitly or not, this does not affect its right to still demand direct and strict compliance with these terms and conditions. Customer can never assert any right on the basis of the fact that Focus Engineering BV applies these terms and conditions leniently.
4If several (legal) persons or companies are referred to as Customer, each of these (legal) persons or companies will be jointly and severally bound to fulfil all obligations under the agreement concluded with Focus Engineering BV.
5If one or more of the provisions of these general terms and conditions or any other agreement with Focus Engineering BV should be in conflict with a mandatory statutory provision or any applicable legal regulation, only the provision concerned will lapse and will be replaced by a new, legally permissible and comparable provision to be determined by Focus Engineering BV.
6Focus Engineering BV reserves the right to amend these terms and conditions at any time. With the applicability of these general terms and conditions, the applicability of all previous (versions of) general terms and conditions will lapse.
7The Client with whom these terms and conditions were once contracted on, is deemed to tacitly agree to the applicability thereof to a subsequent agreement concluded with Focus Engineering BV.
8These terms and conditions also apply to all agreements with Focus Engineering BV, for the execution of which third parties must be involved. Third parties can equally appeal to the provisions of these general terms and conditions towards the Customer.
Article 3. Offers and quotations
1All offers and quotations of Focus Engineering BV are revocable and made without engagement, unless otherwise indicated in writing.
2The Customer warrants the accuracy and completeness of the requirements, specifications and other data provided by or on behalf of him to Focus Engineering BV on which Focus Engineering BV bases its offer.
3Faults or mistakes in Focus Engineering BV’s offer do not bind Focus Engineering BV.
4A composite quotation does not oblige Focus Engineering BV to supply part of the delivery or to perform part of the assignment at a corresponding part of the stated price.
5The prices in Focus Engineering BV’s offers and quotations are exclusive of VAT and other government levies, as well as any costs to be incurred within the scope of the order, including any travel and accommodation expenses, unless otherwise indicated.
6Focus Engineering BV is not obliged to keep the Consultant available for the acceptance of the offer by the Client. If the Client accepts the offer and the Consultant turns out to be no longer available, Focus Engineering BV has a best-efforts obligation to ensure replacement. If necessary, Focus Engineering BV will do its utmost to replace the Consultant in question with a Consultant with comparable knowledge and skills.
Article 4. Conclusion of the Agreement
1Subject to what is stated below, an agreement with Focus Engineering BV is only concluded after Focus Engineering BV has accepted or confirmed an assignment in writing. The order confirmation is deemed to accurately and completely reflect the agreement, unless Client immediately protests against it in writing.
2The content of the agreement is exclusively determined by the description of the assignment given in the quotation and order confirmation.
3Eventual later made additional agreements or modifications only bind Focus Engineering BV, if these are confirmed by Focus Engineering BV in writing within fourteen (14) days and the Client has not protested against them in writing within three (3) working days.
4For agreements, work or transactions for which, according to their nature and scope, no written offer or order confirmation is sent, the invoice is deemed to reflect the agreement correctly and completely, unless objected to in writing within seven (7) working days after the invoice date.
5Each agreement is entered into by Focus Engineering BV under the suspensive condition that Focus Engineering BV is authorised to verify the creditworthiness of the Client, such in connection with the financial fulfilment of the agreement. Should Focus Engineering BV be of the opinion, such on reasonable grounds, that the Customer is not (sufficiently) creditworthy, Focus Engineering BV is entitled to temporarily suspend its obligations. If there is such suspension, Focus Engineering BV will notify the Client of this immediately in writing and offer the Client the opportunity to provide security.
6At or after entering into the agreement, Focus Engineering BV is entitled, before performing (any further), to demand security from the Client that both payment obligations and other obligations will be met.
Article 5. Execution of the agreement
1Unless expressly agreed otherwise in writing, the agreement entered into between Focus Engineering BV and the Client only entails an obligation of effort for Focus Engineering BV. Focus Engineering BV does not guarantee that the result intended by the Client will actually be achieved by Focus Engineering BV or the deployment of the Consultant.
2Focus Engineering will perform the agreement to the best of its knowledge and ability and in accordance with the care of a good contractor and the requirements of good workmanship, taking into account the state of knowledge and science known at the time the agreement was concluded.
3Focus Engineering BV is entitled to have all or part of the Services performed by subcontractors. Focus Engineering BV will supervise the progress of the Services. To this end, the Consultant will provide Focus Engineering BV with (monthly) timesheets showing the hours worked, with the approval of the Client.
4Focus Engineering BV will use its best efforts to ensure that the Consultant is available for the duration of the agreement concluded with Focus Engineering BV. However, Focus Engineering BV does not guarantee that the Consultant will be available for the full duration of the agreement. The Client accepts that, subject to reasonable notice, a Consultant may be replaced. Focus Engineering BV will, in the event of replacement of a Consultant, do its utmost to replace the Consultant with a Consultant with comparable training, knowledge, experience and skills.
5The (manner of) execution of the work is in principle the responsibility of Focus Engineering BV. The Client is nevertheless entitled, at its own expense and risk, to give instructions to the Consultant regarding the execution of the work to be performed. The agreement concluded between the parties will lay down the extent of the Client’s authority to give such instructions.
Article 6. Delivery and execution period
1If Focus Engineering BV requires data from the Customer in the context of the execution of the agreement, the delivery time starts after the Customer has made all necessary data available to Focus Engineering BV.
2If Focus Engineering BV has stated a term for the execution, this is only indicative. A stated term is therefore never to be considered as a deadline. If a term is exceeded, the Customer must therefore give Focus Engineering BV written notice of default. Focus Engineering BV must be given a reasonable time to still comply with the agreement. Focus Engineering is not liable for any damages suffered by the Customer or penalties imposed on the Customer if the order is not completed or delivered within the stated term.
Article 7. Modification and supplementation of the agreement
1If, during the execution of the agreement, it appears that amendment or supplementation of the agreement is necessary for a proper execution of the agreement, Focus Engineering BV and the Customer will consult with each other in order to amend or supplement the agreement accordingly.
2Amendments and supplements to the agreement entered into between the parties are only valid insofar as they are recorded in writing.
3If an amendment or supplement to the agreement has financial or qualitative consequences, Focus Engineering BV will inform the Customer in advance.
Article 8. Invoicing
1Unless otherwise agreed, Focus Engineering BV’s invoices are partly based on the completed time sheets that have been approved by the Client.
2The Client is responsible for the correct, timely and complete completion and approval of the time sheets. Approval takes place via (digital) signing of the timesheets unless agreed otherwise.
3If there is a discrepancy between the time sheet submitted to Focus Engineering BV and the data thereof retained by the Client, the time sheet submitted to Focus Engineering BV will be deemed correct, unless the Client proves otherwise.
4If the Consultant disputes the data of the time sheet, Focus Engineering BV may invoice the number of hours worked and other costs according to the Consultant’s statement, unless the Client proves that the time sheet is correct.
5If the Client does not comply with the provisions of paragraph 2 of this article, Focus Engineering BV may decide to invoice the Client on the basis of the facts and circumstances known to it. Focus Engineering BV will not proceed to do so as long as no reasonable consultation regarding this has taken place with the Client.
6Tariff changes as a result of CAO obligations and changes in or as a result of legislation and regulations such as fiscal and social legislation and regulations, will be charged to the Client as of the time of these changes and are due accordingly by the Client, even if these changes occur during the term of an agreement.
Article 9. Payment (term) and objection
1Payment of invoices must take place within fourteen (14) days after invoice date, on a bank or giro account to be indicated by Focus Engineering BV in the currency in which was invoiced and without settlement, discount and/or suspension.
2Only direct payments to Focus Engineering BV or a third party appointed by it shall be liberating for the Client. Direct payments or provision of advances by the Client to the Consultant are not permitted, regardless of the reason why or the manner in which this is done. Such payments and provisions do not concern Focus Engineering BV and provide no ground for any debt repayment or set-off.
3After the expiry of fourteen (14) days after the invoice date, the Client is legally in default without further notice of default being required.
4The Client shall owe interest of 1% per month on the due and payable amount from the moment of default, unless the statutory (commercial) interest rate is higher, in which case the statutory (commercial) interest rate shall apply. All (extra)judicial costs incurred by Focus Engineering BV to obtain satisfaction – both in and out of court – are for the account of Client from that moment. In that case, Customer owes compensation of at least 15% of the outstanding amount, with a minimum of € 150.00 (in words: one hundred and fifty euros). If the actual costs incurred and to be incurred by Focus Engineering BV exceed this amount, they are also eligible for compensation.
Objections against (the amount of) an invoice must be communicated in writing to Focus Engineering BV by Customer at the latest within eight (8) days after the date of dispatch of the invoice concerned, at the risk of forfeiting the right to contest. Disputing the invoice does not suspend the Client’s payment obligation.
6In case of liquidation, bankruptcy or suspension of payment of the Customer, Focus Engineering BV’s claims and the Customer’s obligations towards Focus Engineering BV are immediately due and payable.
7Payments made by the Client will always serve as settlement in the first place of all interest and costs due, in the second place of payable invoices that have been outstanding the longest, even if the Client states that the payment relates to a later invoice.
8Focus Engineering BV is entitled to refuse full repayment of the principal sum, if said repayment does not include the interest and current interest as well as costs.
Article 10. Dissolution of the agreement
1If the Client fails to fulfil his obligations under the agreement, Focus Engineering BV is entitled – in addition to what is stipulated in the agreement – to dissolve the agreement extrajudicially by means of a registered letter. The dissolution will only take place after Focus Engineering BV has given the Client written notice of default and the Client has been offered a reasonable period to remedy the serious shortcoming.
2Furthermore, Focus Engineering BV is entitled, without any demand or notice of default being required, to dissolve all or part of the agreement extrajudicially with immediate effect by means of a registered letter if:
11the Client applies for (provisional) suspension of payment or the Client is granted (provisional) suspension of payment;
22the Client files for its own bankruptcy or is declared bankrupt;
33the Client’s company is liquidated;
44the Client ceases its current business;
55 a considerable part of the Client’s capital is seized through the fault of Focus Engineering BV, or if the Client must otherwise no longer be considered capable of meeting the obligations under the agreement.
3Amounts which Focus Engineering BV has invoiced to the Client before the dissolution in connection with what it has already performed in the execution of the agreement, remain due to Focus Engineering BV by the Client without prejudice and become immediately payable at the moment of dissolution.
4If the Customer, after having been given notice of default in this respect, does not comply with any obligation arising from the agreement, or does not comply in full or in a timely manner, Focus Engineering BV is entitled to suspend its obligations towards the Customer without thereby being bound to any compensation towards the Customer, or the Customer will provide Focus Engineering BV with financial security by means of an advance payment or (bank) guarantee. The size of the advance payment or (bank) guarantee is in proportion to the obligations of the Customer under the agreement. The foregoing also applies in the circumstances referred to in paragraph 2 of this article.
5If, in the opinion of Focus Engineering BV, there are reasonable doubts regarding the financial position of the Customer, the Customer will provide Focus Engineering BV with the financial security as mentioned in paragraph 4 of this article at the latter’s request.
Article 11. Confidentiality and protection of personal data
1Personal and other data provided to Focus Engineering BV will be processed in accordance with the law, the applicable code(s) of conduct and in a proper and careful manner.
2Focus Engineering BV will take all reasonable precautions in the context of the agreement to protect the interests of the Consultant and the Client.
3The Client will not, without Focus Engineering BV’s consent, disclose to third parties Focus Engineering BV’s approach, its working methods and the like, or make Focus Engineering BV’s advice/reports available to third parties.
4Focus Engineering BV and the Client will take such measures that all information received from the other party before and after entering into the agreement will remain confidential. In any case, information will be considered confidential if it is designated as such by either party.
Article 12. Liability
1The liability of Focus Engineering BV is at all times limited to a maximum of the compensation actually paid by Focus Engineering BV’s insurer in the specific case with a maximum of € 50,000.00 (in words: fifty thousand euros). Focus Engineering BV does not accept any liability for damages that, for whatever reason, are not covered by its insurer.
2Focus Engineering BV is never liable for indirect damage, including personal injury, consequential damage, loss of profit, missed savings, damage due to business stagnation and damage as a result of fines imposed due to not meeting (delivery) deadlines.
3The Customer is obliged to take out adequate, fully comprehensive liability insurance for all damage which may arise for it under this agreement.
Article 13. Entering into an employment relationship or agreement by the Client with the Consultant
1If a candidate or consultant is introduced to Client by Focus Engineering B.V. and Client interviews the candidate on the basis of that introduction, Client is only permitted to offer, or hire, the candidate directly or indirectly for employment through Focus Engineering B.V.. The mentioned in this article applies for the duration of 12 months, counting from the introduction of the candidate.
2It is not permitted for the Client or its affiliated company(ies) and third parties, in the broadest sense of the word, to enter into an employment agreement with the Consultant or a Candidate during the term of this agreement, or within a period of twelve (12) months after the expiry thereof, either directly or through the mediation of a third party, or, in the event that the Consultant or Candidate is self-employed, to have such work or services performed by the Consultant or Candidate on behalf of or for the benefit of the Client.
3If the Client nevertheless concludes an agreement, as described in paragraph 1 of this article, with the Consultant or Candidate within the aforementioned term, the Client shall owe Focus Engineering BV an immediately payable penalty, not subject to judicial moderation, in the amount of €25,000.00 (in words: twenty-five thousand euros). This penalty is without prejudice to Focus Engineering BV’s right to charge the actual damages suffered by it to the Client.
Article 14. Force majeure
1In case of force majeure of Focus Engineering BV, its obligations under the agreement will be suspended for as long as the force majeure situation continues. Under force majeure is understood any circumstance independent of the will of Focus Engineering BV, which permanently or temporarily impedes the fulfilment of the agreement and which neither by law nor by the standards of reasonableness and fairness should come at its risk.
2As soon as Focus Engineering BV experiences a force majeure situation as referred to in paragraph 1 of this article, it will notify the Client.
3 Insofar as not already included therein, force majeure also includes: strike, occupation, blockades, embargo, government measures, war, revolution and/or any similar situation, power failures, failures in electronic communication lines, fire, explosion and other calamities, water damage, flooding, earthquake and other natural disasters, as well as extensive illness of epidemiological nature of personnel.
4As long as the force majeure situation continues, Focus Engineering BV’s obligations will be suspended. However, this suspension will not apply to obligations to which the force majeure does not relate and which have already arisen before the force majeure situation occurred.
5If the state of force majeure has lasted for three (3) months, or as soon as it is established that the state of force majeure will last longer than three (3) months, each of the parties is entitled to terminate the agreement prematurely without observing any notice period. Even after such termination of the agreement, the Client is obliged to pay Focus Engineering BV the fees owed by him to Focus Engineering BV, which relate to the period prior to the force majeure condition.
6Focus Engineering BV is not obliged to compensate any damage from or to the Client during the force majeure situation, nor is it obliged to do so after termination of the agreement as referred to in paragraph 5 of this article.
Article 15. Applicable law and choice of forum
1All agreements entered into and to be entered into by Focus Engineering BV are subject to Dutch law.
All disputes – including those which are only considered as such by one of the parties – which arise as a result of an agreement to which the present terms and conditions fully or partially apply, or as a result of other agreements which are a consequence of such an agreement, will be settled by the competent court of Focus Engineering BV’s place of business, unless a mandatory provision of law prevents this. This does not affect the fact that Focus Engineering BV can agree with Client to have the dispute settled by independent arbitration.