General Terms and Conditions Triple A – Risk Finance
Article 1 Definitions
1. In these general terms and conditions, the following terms will have the meanings given below, unless explicitly stated otherwise.
User: the user of the general terms and conditions. Triple A – Risk Finance Holding B.V. and all its affiliated companies, including: Triple A – Risk Finance B.V., Triple A – Risk Finance Certification B.V. and Triple A – Risk Finance International B.V. ;
User: Triple A – Risk Finance;
Client: the counterparty of Triple A – Risk Finance;
Agreement: the agreement for the provision of services.
Article 2 General
1. These terms and conditions will apply to each and every offer, quotation and agreement between the user of these general terms and conditions and its client to which these terms and conditions have been declared applicable insofar as parties have not explicitly deviated from these terms and conditions in writing.
2. These terms and conditions will also apply to all agreements with the user, the execution of which requires the involvement of third parties.
3. Possible deviations from these general terms and conditions will only be valid if they have been explicitly agreed in writing.
4. Should one or more of the stipulations in these general terms and conditions be null and void or declared null and void, then the other stipulations of these general terms and conditions will remain fully applicable. Triple A – Risk Finance and client will then enter into negotiations to agree new stipulations to replace the null and void stipulations the stipulations declared null and void, whereby the purpose and the meaning of the original stipulations will be adhered to as far as possible.
Article 3 Offers and Quotations
1. The quotations submitted by Triple A – Risk Finance will be free of obligation; they will be valid for a period of 30 days, unless stated otherwise. Triple A – Risk Finance will only be bound by the quotations if the acceptance thereof is confirmed in writing by the counterparty within 30 days, unless stated otherwise.
2. The prices given in above-mentioned offers and quotations will exclude VAT and other government levies, as well as possible other expenses to be incurred within the scope of the agreement, unless Triple A – Risk Finance B.V. states otherwise.
3. If the acceptance deviates (on minor points) from the quotation given, Triple A – Risk Finance will not be bound by it. In such event, the agreement has not been effected in accordance with said deviating acceptance, unless Triple A – Risk Finance states otherwise.
4. A compound quotation will not oblige Triple A – Risk Finance to execute part of the assignment for a corresponding part of the price quoted.
5. Offers and quotations will not automatically apply to future assignments.
6. Within the framework of the agreement with client; a creditworthiness investigation /credit check can be carried out with respect to the financial position and/or the payment record of client. If necessary, client will grant its cooperation to this.
Article 4 Execution of the Agreement
1. Triple A – Risk Finance will execute the agreement to the best of its knowledge and ability and in accordance with high standards. All based on the knowledge available at the time.
2. If and insofar as is required for the proper execution of the agreement, Triple A Risk Finance is entitled to have specific work done by third parties.
3. The client will ensure that Triple A – Risk Finance is provided with all information required by Triple A – Risk Finance or which the client should reasonably understand to be necessary for the execution of the agreement, in good time. If Triple A – Risk Finance has not been provided with the information required for the execution of the agreement in good time, Triple A – Risk Finance will be entitled to suspend the execution of the agreement and/or to charge the client for the additional costs resulting from the delay at the usual rates.
4. If it has been agreed that the agreement will be executed in phases, Triple A – Risk Finance is entitled to suspend execution of the parts that belong to the next phase until such time as the client has approved the results of the preceding phase in writing.
5. If Triple A – Risk Finance or the third parties engaged by Triple A – Risk Finance must – within the framework of the assignment – carry out activities at client’s site or at a site designated by client, client will ensure that all reasonable facilities required by the employees working on site are made available to them free of charge.
Article 5 Amendment of the agreement
1. If during the execution of the agreement it appears that the work to be done must be amended or supplemented in order to ensure the proper execution of the agreement, parties will amend the agreement accordingly in good time and in mutual consultation.
2. If parties agree that the agreement must be amended or supplemented, this decision could influence the time of completion of the execution.
3. Should the amendment or addition to the agreement have any financial and/or qualitative consequences, Triple A – Risk Finance will inform client thereof.
4. If a fixed fee has been agreed Triple A – Risk Finance will indicate to what event the amendment or addition to the agreement will result in an increase of said fee.
5. Contrary to the conditions of paragraph 3, Triple A – Risk Finance will not be able to charge additional costs if the amendment or addition is the result of circumstances attributable to Triple A – Risk Finance.
Article 6 Duration of the Agreement; period for execution
1. The agreement between Triple A – Risk Finance and a client will be entered into for the period of time dictated by the nature of which parties explicitly agree in writing.
2. If a term has been agreed for completion of complete certain work within the duration of the agreement, such term may never be deemed to be a strict deadline. If the term of execution is exceeded, the client must give Triple A – Risk Finance written notice of default. GENERAL TERMS AND CONDITIONS FOR THE PROVISION OF SERVICES of Triple A – Risk Finance registered at the Chamber of Commerce under numbers: 34264867, 34251771, 34276341 and 34282861.
Article 7 Fee
1. For offers and agreements in which no fixed fee has been quoted or agreed, paragraphs 2, 4 and 5 of this article will apply. If no fixed fee has been agreed, the fee will be determined on the basis of the number of hours actually spent on the work.
2. Parties may agree a fixed fee at the time the agreement is concluded.
3. If no fixed fee has been agreed, the fee will be determined on the basis of the number of hours actually spent on the work. The fee will be calculated in accordance with usual hourly rates of Triple A – Risk Finance applicable for the period in which the work was done, unless another hourly rate is agreed.
4. With respect to assignments with a duration exceeding 2 months, the costs due will be invoiced at regular intervals.
5. If Triple A – Risk Finance agrees a fixed fee or an hourly rate with the client. In both cases Triple A – Risk Finance will be entitled to increase the fixed fee or hourly rate in accordance with an annual price indexation.
6. Triple A – Risk Finance will notify the client of its intention to increase the fee or rate in writing. In doing so, Triple A – Risk Finance will also communicate the extent of said increase and the date on which it will enter into force.
7. If the client does not wish to accept the increased fee or hourly rate communicated, the client is then entitled to give written notice of termination of the agreement within 7 working days after the aforementioned communication or to cancel the assignment as of the effective date of the price or rate increase referred to in such communication by Triple A – Risk Finance.
Article 8 Payment
1. Payment must be made within 30 days after the date of invoice as indicated by Triple A – Risk Finance and in the currency stipulated on the invoice. Any objections made with regard to the amount of the invoice will not suspend fulfilment of the payment obligation
2. If client fails to fulfil his payment obligation within the period of 30 days, the client will be in default by operation of law. In that event, client will owe an interest of 1% per month, unless the statutory interest rate is higher, in which case the statutory interest rate will apply. The interest on the amount due and payable will be calculated with effect from the date that the client is in default up to the time payment is made in full.
3. If Triple A – Risk Finance believes that it is necessary to request advance on basis of client’s financial position and/or payment history (whether or not based on a creditworthiness investigation/credit check), client is obliged on request by Triple A – Risk Finance’ to make an advance payment and/or provide sufficient security, by means of a bank guarantee, right of pledge or otherwise, for its obligations vis-à-vis Triple A – Risk Finance. The amount of the requested security and/or requested payment must be in proportion to client’s specific obligations. If client fails to make the advance payment or provide the requested security within the period stipulated by Triple A – Risk Finance, client will be in default without any further notice of default being required.
4. Triple A – Risk Finance’s claims against client will become due and payable in the event client’s company is wound up, attached, declared bankrupt, or a suspension of payments is granted.
5. Triple A – Risk Finance is entitled to use the payments made by the client to first reduce the costs, subsequently to reduce the interest still due and finally to reduce the principal sum and the current interest.
6. Triple A – Risk Finance will be entitled, without this causing Triple A – Risk Finance B.V. to be in default, to refuse a payment offer if the client designates a different sequence of allocation.
7. Triple A – Risk Finance will be entitled to refuse full payment of the principal sum, if said payment does not include the interest still due, the current interest and the costs.
Article 9 Retention of Title
1. All items delivered by Triple A – Risk Finance, possibly also including designs, sketches, drawings, films, software, electronic or other files, etc., will remain Triple A – Risk Finance’s property until client has fulfilled all of his obligations under all agreements concluded with Triple A – Risk Finance.
2. Client is not authorised to pledge or encumber the items under the retention of title in any way whatsoever.
3. Should third parties attach the items delivered, which are subject to retention of title, or wish to establish or invoke a right thereon, client is obliged to inform Triple A – Risk Finance thereof as soon as can reasonably be expected.
4. If Triple A – Risk Finance wishes to exercise its ownership rights as referred to in this article, client will grant Triple A – Risk Finance or third parties to be appointed by Triple A – Risk Finance, if this situation arises, its unconditional and irrevocable consent to enter all sites and locations where Triple A – Risk Finance’s property is held and to take these items back.
Article 10 Collection Charges
1. If the client fails to fulfil his obligations or fail to do so in good time, or defaults on them, then all reasonable extrajudicial costs incurred with a view to settlement thereof will be borne by the client. The client will, in any event owe debt collection costs in case of a money claim.
2. In the case of a commercial transaction, the collection costs are calculated at 15% of the principal default with a minimum of € 100. The debt collection costs are calculated in accordance with the debt collection rate advised by the Netherlands Bar Association.
3. If Triple A – Risk Finance incurs higher costs, which were reasonably necessary, these costs must also be reimbursed.
4. All possible judicial and execution costs incurred must also be paid by the client.
Article 11 Inspection & Complaints
1. The client must notify Triple A – Risk Finance in writing of complaints concerning the work done within 8 days after discovery thereof but, in any event, no later than within 14 days following completion of such work. The notice of default must include as detailed a description as possible of the shortcoming so that Triple A – Risk Finance is in a position to respond adequately.
2. If a complaint proves to be well-founded, Triple A – Risk Finance will still do the work as agreed, unless such work has in the meantime become demonstrably useless to the client. The client must notify Triple A – Risk Finance B.V. in writing if the latter is the case.
3. If it is no longer possible or useful to still do the work agreed, Triple A – Risk Finance is only liable within the boundaries of article 15.
Article 12 Termination
1. Both parties are at all times entitled to give written notice terminating the agreement, unless the agreement stipulates otherwise. GENERAL TERMS AND CONDITIONS FOR THE PROVISION OF SERVICES of Triple A – Risk Finance registered at the Chamber of Commerce under numbers: 34264867, 34251771, 34276341 and 34282861 If the agreement is terminated prematurely by the client, Triple A – Risk Finance will be entitled to compensation of the loss resulting from lower capacity utilization to be demonstrated, because of premature termination, unless the termination is based on facts and circumstances which can be attributed to Triple A – Risk Finance. In that event, client will furthermore be obliged to pay the invoices for the work done up to that time. The preliminary results of the work done to date will therefore be made available to client for approval.
2. If the agreement is terminated prematurely by Triple A – Risk Finance, Triple A – Risk Finance will – in conjunction with client – arrange for the work still to be done to be transferred to third parties, unless the termination is based on facts and circumstances which can be attributed to client.
Article 13 Suspension and Termination
1. Parties are entitled to suspend fulfilment of the obligations or to terminate the agreement, if:
– the counterparty does not fulfil or does not fully fulfil the obligations under the agreement;
– after the agreement has been concluded, Triple A – Risk Finance B.V. learns of circumstances which give good reason to fear that counterparty will not fulfil the obligations. If there is a good reason to fear that the counterparty will only partially or improperly fulfil its obligations, the suspension is only allowed insofar as justified by the shortcoming. A circumstance is in any event that the creditworthiness investigation shows a risk Triple A- Risk Finance does not reasonably wish to accept. At the discretion of Triple A- Risk Finance, it may in any event require further conditions and/or securities in addition to or instead of suspension, as stipulated in article 8 paragraph 3.
2. Triple A – Risk Finance B.V. will furthermore be authorized to terminate the agreement (have the agreement terminated) if circumstances arise of such a nature that fulfilment of the obligations becomes impossible or can no longer be required in accordance with the requirements of reasonableness and fairness, or if other circumstances arise of such a nature that the unchanged continuation of the agreement can in all reasonableness no longer be required.
3. If the agreement is terminated, the claims that Triple A – Risk Finance has against the client will become immediately due and payable. If Triple A – Risk Finance suspends fulfilment of its obligations, it will retain its rights under the law and the agreement.
4. Triple A – Risk Finance will always be entitled to claim compensation.
Article 14 Return of items placed at client’s disposal
1. If Triple A – Risk Finance has placed items at client’s disposal during and in connection with execution of the agreement, client is obliged to return the items delivered within 14 days in their original state, free of defects and in their entirety. If client fails to fulfil this obligation, client will be liable for all ensuing costs.
2. If, for any reason whatsoever, client remains in default of the obligations referred to under 1. above after having received a warning in this respect, Triple A – Risk Finance will be entitled to recover the resulting damage and costs, including replacement costs, from client.
Article 15 Liability
1. If Triple A – Risk Finance is exclusively liable for shortcomings in the execution of the assignment, to the extent that this is a consequence on the part of Triple A – Risk Finance’s failure to observe due care, or work according to high standards or lack of expertise which could be relied on in providing the advice within the framework of the relevant assignment. Triple A – Risk Finance’s liability for loss caused by the shortcomings will be limited to the amount of the fee that Triple A – Risk Finance B.V. has received for its activities within the framework of that assignment. For assignments with a duration exceeding 6 months, the aforementioned liability is further limited to the invoice amount for the last six months.
2. Any possible claims that the client might have in the aforementioned sense must be submitted within 6 months of discovery of the loss but in any event within 1 year after expiry of the assignment failing which client will have forfeited its rights.
3. The limitation (s) of liability referred to in Article 15.1 is of these terms (come) to apply if the liability for damage caused by intent or recklessness on the part of Triple A – Risk Finance committed by supervisors and / or subordinates or by third parties engaged by Triple A – Risk Finance.
Article 16 Indemnification
1. The client will indemnify Triple A – Risk Finance B.V. against third-party claims concerning intellectual property rights on material or data provided by the client used for and during the execution of the agreement.
2. If the client provides Triple A – Risk Finance with information carriers, electronic files or software etc., client guarantees that said information carriers, electronic files or software are free of viruses and defects.
Article 17 Transfer of Risk
1. The risk of loss or damage to the items under the agreement is transferred to client at the time said items are legally and/or actually delivered to client and are therefore at the disposal of client or third parties to be appointed by client.
Article 18 Force Majeure
1. Parties are not bound to fulfil any of their obligations if they are impeded from doing so as a result of a circumstance for which they are not to blame and for which they are not accountable by law, a legal act or according to generally accepted standards.
2. In these general terms and conditions, force majeure is, in addition to that provided for in legislation and case law, understood mean any external circumstances, whether envisaged or not, on which Triple A – Risk Finance B.V. has no influence but which prevents Triple A – Risk Finance B.V. from fulfilling its obligations. These circumstances include work strikes.
3. Triple A – Risk Finance B.V. will also be entitled to invoke force majeure if the circumstance rendering fulfilment or further fulfilment of the obligation(s) impossible commences after the point in time at which Triple A – Risk Finance B.V. should have fulfilled its obligation.
4. Parties will be entitled to suspend the fulfilment of their obligations under the agreement for the duration of the force majeure situation. If this period continues for more than two months, either party will be entitled to dissolve the agreement without any being obliged to compensate the counterparty for loss suffered.
5. Insofar Triple A – Risk Finance has partially fulfilled its obligations or will be able to fulfil its obligations arising out of the agreement at the time of commencement of the force majeure, and insofar separate value can be attributed to the part already fulfilled or still to be fulfilled, Triple A – Risk Finance B.V. is entitled to submit a separate invoice for the part fulfilled or still to be fulfilled. The client will be obliged to pay this invoice as if it were a separate agreement.
Article 19 Confidentiality
1. Both parties are obliged to keep secret all confidential information received from each other or from another source within the framework of their agreement. Information is deemed to be confidential if the counterparty has stated that it is so or if such confidentiality ensues from the nature of the information.
2. If a statutory provision or judicial decision compels Triple A – Risk Finance to convey confidential information to third parties designated by law or the court, and Triple A – Risk Finance cannot invoke legal right refuse to give evidence or such right is acknowledged or allowed by the competent court, Triple A – Risk Finance is not obliged to pay compensation for loss suffered and the counterparty will not entitled to terminate the agreement on the grounds of any loss ensuing therefrom.
Article 20 Intellectual Property and copyrights
1. Without prejudice to the other stipulations of these general terms and conditions, Triple A – Risk Finance reserves the rights and powers to which it is entitled under the Copyright Act.
2. All documents, such as reports, advice, agreements, designs, sketches, drawings, software, etc., provided by Triple A – Risk Finance, intended for client’s exclusive use.
3. Triple A – Risk Finance reserves the right to use the knowledge gained through execution of the work for other purposes, to the extent that no confidential information is disclosed to third parties when doing so.
4. Without the express consent of Triple A- Risk Finance, detailed invoices, plans, designs, advice, course material and other intellectual work of Triple A – Risk Finance cannot be reproduced in any way, made available to third parties for inspection and/or used in breach of any other intellectual right.
Article 21 Non-takeover of counterparty’s staff
1. For the duration of the agreement and for one year following termination thereof, the client may not in any way hire or employ the staff of Triple A – Risk Finance or of companies that Triple A – Risk Finance engaged to execute this agreement and who are or were involved in the execution of the agreement, or have such staff work for them either directly in indirectly without prior proper businesslike consultation on this matter.
Article 22 Disputes
1. The Court based in Triple A – Risk Finance’s place of establishment will have exclusive jurisdiction to settle disputes, unless the Subdistrict Court is the competent Court. Triple A – Risk Finance will nevertheless be entitled to submit the dispute to the Court deemed competent by the law.
2. Parties will only refer the matter to court if they have done their utmost to solve the dispute in mutual consultation.
Article 23 Applicable Law
1. Dutch law will apply to each and every agreement between Triple A – Risk Finance and the client.
Article 24 Changes to the Terms and Conditions, interpretation and their Location
1. These terms and conditions have been filed with the Chamber of Commerce in Amsterdam, the Netherlands.
2. The most recent filed version of these terms and conditions, or the version applicable at the time of conclusion of the agreement, will apply.
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