General terms & conditions
a. These General Terms and Conditions apply to all offers, orders, and agreements concluded between Tinker Imagineers B.V., a private company with limited liability, hereafter referred to as "Tinker", and third parties.
b. Terms and agreements that deviate from these General Terms and Conditions are only legally valid if and insofar as these deviations have been confirmed in writing by Tinker.
c. Should any condition in these General Terms and Conditions deviate from the conditions in the agreement concluded between parties, the condition included in the agreement will prevail.
d. The General Terms and Conditions apply in equal measure to any additional or follow-up commissions.
2. Client’s details
a. The client undertakes to present Tinker with all documents deemed necessary by Tinker for the correct execution of the commission, in the desired form, manner, and time. The specifics of the ‘desired form, manner, and time’ are at the discretion of Tinker.
b. The client indemnifies Tinker against damage resulting from incorrect or incomplete documents.
c. The additional costs incurred and extra hours worked by Tinker, as well as any damage sustained by Tinker in connection with the failure of the client to provide the documents necessary for the execution of the work, or its failure to do so on time or properly, are at the risk and expense of the client.
d. Tinker is entitled to suspend the execution of the commission until the client has fulfilled the obligations referred to in paragraph a.
a. Tinker will carry out the order to the best of its ability and with due observance of the applicable laws and regulations.
b. Tinker determines the manner in which the commission is carried out and by which employee(s) and subcontractor(s).
c. Tinker is entitled to have the work carried out by a third party to be appointed by Tinker.
4. Laws and regulations
a. Tinker will take the appropriate measures to protect any personal data and other confidential information originating from the client. Tinker will inform employees and any third parties engaged by Tinker about the confidential nature of this information. The processing of personal data by Tinker is handled in accordance with the applicable laws and regulations.
b. Tinker excludes all liability for damage caused to the client as a result of Tinker's compliance with the applicable laws and regulations.
c. Parties will impose the obligations under this article on third parties to be engaged by them.
5. Intellectual property
a. Under no circumstances may the client reproduce, disclose, or exploit products which intellectual property rights are vested in Tinker, or products that are covered by the protection of intellectual property for which Tinker has acquired the right of use. These include (but are not limited to) designs, computer software, system designs, working methods, advice, (model) contracts, reports, templates, macros, and other intellectual products.
b. The client undertakes to refrain from making the products referred to in paragraph a available to third parties without Tinker's prior written consent.
6. Force majeure
a. If parties are unable to fulfil their obligations under the agreement, or are unable to do so in a timely manner or properly, due to force majeure within the meaning of Section 75 of Book 6 of the Dutch Civil Code, these obligations will be suspended until parties are able to fulfil them in the agreed manner.
b. If the situation referred to in paragraph a arises, the parties have the right to terminate the agreement in writing, wholly or partly and with immediate effect, without the right to any compensation.
c. If Tinker has partially fulfilled the agreed obligations by the time the force majeure event occurs, Tinker is entitled to charge the client separately and early for the work performed up to that point; the client undertakes to pay this invoice as if it were a separate transaction.
7. Fees and costs
a. The work performed by Tinker is charged on the basis of time spent and costs incurred, unless parties expressly agree otherwise, for instance on payment of a fixed price. Payment of the fees is not contingent on the result of the work unless otherwise agreed in writing. Travel time and accommodation costs in connection with the work are charged separately.
b. In addition to the fees, the costs incurred by Tinker and the invoices of third parties engaged by Tinker are charged on to the client.
c. Tinker may request an advance payment. Failure to pay the advance (on time) may cause Tinker to (temporarily) suspend the work.
d. If fees or prices change after the conclusion of the agreement, but before the commission has been carried out in full, Tinker is entitled to adjust the agreed rate, unless explicitly agreed otherwise.
e. If required by law, turnover tax will be charged separately on all amounts owed to Tinker.
f. All amounts quoted by Tinker are expressed in Euros.
a. The client undertakes to pay the amounts owed to Tinker within 30 days of the invoice date, unless agreed otherwise, without being entitled to any deduction, discount, suspension, or set-off. The date of payment is the date upon which the amount owed is credited to Tinker's account.
b. If the client fails to pay within the period referred to in paragraph a, the client will be in default by operation of law and Tinker will be entitled to charge the statutory commercial interest rate from that moment on.
c. If the client fails to pay within the period referred to in paragraph a, the client will be liable to pay all judicial and extrajudicial (collection) costs actually incurred by Tinker. Reimbursement of the costs incurred is not limited to the costs awarded by the court but extends to the lawyer's fees actually incurred.
d. Should, in the opinion of Tinker, the financial position or the payment record of the client give cause to do so, or should the client fail to pay an advance or invoice within the set term of payment, Tinker will be entitled to require the client to immediately provide (additional) security in a form to be determined by Tinker. Should the client fail to provide the required security, Tinker will be entitled, without prejudice to its other rights, immediately to suspend further performance of the agreement, and all amounts owed by the client to Tinker for whatever reason will immediately become due and payable.
a. If the client and Tinker have agreed on a period within or date on which the commission is to be carried out, and the client a) fails to make an advance payment - if this has been agreed upon - or b) fails to make the necessary documents available on time, in full, in the desired form, and in the desired manner, the client and Tinker will consult on a new period or date for completion of the work.
b. Dates by which the work must be completed will only be regarded as final deadlines if this has been agreed expressly and in so many words, in writing, between the client and Tinker.
10. Liability and indemnities
a. Tinker is not liable for any damage sustained by the client as a result of the fact that the client has failed to provide Tinker with documents or has provided documents which are incorrect or incomplete or have not been provided on time.
b. Tinker is not liable for indirect damage, including but not limited to loss of profits, lost savings, damage due to business interruption and other consequential damage or indirect damage resulting from Tinker's failure to perform, to perform on time, or to perform properly.
c. Tinker’s liability is limited to compensation for the direct damage that is the direct result of an attributable shortcoming or coherent series of attributable shortcomings in the execution of the work. Direct damage includes but is not limited to the reasonable costs incurred to determine the cause and extent of the damage, the reasonable costs incurred to have Tinker's performance comply with the agreement and the reasonable costs incurred to prevent or limit the damage. This liability is limited to a maximum of one time the fee for the work performed on the other parts of the project concerned up to the moment of the attributable shortcoming or shortcomings. If the execution of these other parts of the project covers a period longer than six months, the amount referred to above will be set at one time the fee for the work performed in the last six months on the other parts of the project.
d. A coherent series of attributable failures in the performance will be regarded as a single attributable failure in the performance.
e. The limitations of liability contained in this article do not apply if and in so far as there is intent or deliberate recklessness on the part of Tinker.
f. The client is obligated to take measures to mitigate the damage. Tinker has the right to undo or limit the damage by repairing or improving on the work carried out.
g. The client indemnifies Tinker against third-party claims due to damage caused by the fact that the client has failed to provide Tinker with documents or has provided documents that are incorrect or incomplete.
h. The client indemnifies Tinker against claims by third parties (including Tinker’s employees or third parties engaged by Tinker) who have sustained damage in the execution of the project that is the result of the client's acts or omissions or of unsafe conditions at its site.
i. If the client makes materials or parts available for further processing or assembly, Tinker or its subcontractor may be held responsible for their correct processing and assembly, but not for the materials or parts themselves.
j. Tinker is not liable for any design carried out by third parties hired by the client, nor for the specification of the dimensions and materials given. In such a case, Tinker is only responsible for the correct assembly, and it guarantees the soundness of the materials. However, this does not apply if the client or third parties have prescribed a particular brand or treatment of materials.
k. The provisions in paragraphs a to j of this article see to both the contractual and the non-contractual liability of Tinker towards the client.
a. Since Tinker works with subcontractors, the warranty period is the warranty period of the subcontractor or the manufacturer’s warranty on the equipment. After delivery, the warranty will be transferred to the client. Tinker’s involvement ends with the final invoice of its after-sales service. Further warranty agreements after completion of the work are to be concluded with third parties directly, as are service contracts.The client will not be able to make any claims under the warranty before it has met its obligations to Tinker.
b. Should the work be delivered in parts, the warranty period starts at the delivery of the relevant part.
12. Right of suspension
a. After careful consideration of the interests involved, Tinker will be entitled to suspend performance of all its obligations until all amounts due and payable by the client have been paid in full.
13. Applicable law and choice of forum
a. The agreement is governed by Dutch law.
b. Any disputes are subject to the jurisdiction of the competent court in Utrecht.
14. Nullity repair clause
a. Should any provision of these General Terms and Conditions or the underlying agreement prove wholly or partly void or invalid or unenforceable due to a statutory provision, court ruling, or otherwise, this will not affect the validity of all other provisions of these General Terms and Conditions or the underlying agreement.
15. Dutch version
If a difference of opinion should arise over the text of the Dutch version and this translation, the Dutch version will prevail.