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General terms and conditions

Definitions

  1. EasyBrain: EasyBrain, established in 's-Hertogenbosch under KvK no. 73926256.
  2. Customer: the person with whom EasyBrain has entered into an agreement.
  3. Parties: EasyBrain and customer together.
  4. Consumer: a customer who is also an individual acting as a private person.

 

Applicability of general terms and conditions

  1. These terms and conditions shall apply to all quotations, offers, work, orders, agreements and deliveries of services or products by or on behalf of EasyBrain.
  2. The parties can only deviate from these terms and conditions if they have expressly agreed to do so in writing.
  3. The parties expressly exclude the applicability of additional and/or different general terms and conditions of the customer or third parties.

 

Offers and tenders

  1. Offers and quotations of EasyBrain shall be without obligation, unless expressly stated otherwise therein.
  2. An offer or quotation is valid for a maximum of 1 month, unless another acceptance period is stated in the offer or quotation.
  3. If the customer does not accept an offer or quotation within the applicable deadline, the offer or quotation shall lapse.
  4. Offers and quotations do not apply to repeat orders unless the parties have expressly agreed in writing.

 

Acceptance 

  1. In case of acceptance of an offer or quotation without engagement, EasyBrain reserves the right to withdraw the offer or quotation within 3 days after receipt of the acceptance, without giving any rights to Customer.
  2. Verbal acceptance by the customer shall bind EasyBrain only after the customer has confirmed it in writing (or electronically).

 

Prices

  1. All prices used by EasyBrain are in euros, are exclusive of VAT and exclusive of any other costs such as administration costs, levies and travel, shipping or transport costs, unless explicitly stated otherwise or agreed otherwise.
  2. All prices used by EasyBrain for its products or services, on its website or otherwise made known, EasyBrain may change at any time.
  3. The price relating to a service shall be determined by EasyBrain based on the actual hours spent.
  4. The price shall be calculated according to EasyBrain's usual hourly rates, valid for the period in which it performs the work, unless a different hourly rate has been agreed.
  5. In case parties have agreed on a total price for a service by EasyBrain, this shall always be a target price, unless parties have expressly agreed in writing on a fixed price, which cannot be deviated from.
  6. EasyBrain is entitled to deviate from the target price up to 10%.
  7. If the target price is going to exceed 10%, EasyBrain shall inform Customer in a timely manner why a higher price is justified.
  8. If the target price goes up by more than 10%, the customer is entitled to cancel the part of the order that exceeds the target price plus 10%.
  9. EasyBrain shall be entitled to adjust prices annually.
  10. Prior to its effective date, EasyBrain will communicate price adjustments to the customer.
  11. The consumer has the right to terminate the agreement with EasyBrain if he does not agree with the price increase.

 

Consequences of not paying on time

  1. If Customer does not pay within the agreed term, EasyBrain shall be entitled to charge interest of 1% per month from the day Customer is in default, with part of a month counting for a whole month.
  2. If the customer is in default, he shall also owe extrajudicial collection costs and possible damages to EasyBrain.
  3. Collection costs are calculated according to the Decree on compensation for extrajudicial collection costs.
  4. If the customer fails to pay on time, EasyBrain may suspend its obligations until the customer has fulfilled its payment obligation.
  5. In case of liquidation, bankruptcy, attachment or suspension of payment on the part of the customer, EasyBrain's claims against the customer shall be immediately due and payable.
  6. If Customer refuses to cooperate in EasyBrain's execution of the agreement, Customer shall still be obliged to pay EasyBrain the agreed price.

 

Suspension right
Unless the customer is a consumer, the customer waives the right to suspend the performance of any obligation arising from this agreement.

 

Settlement
Unless Customer is a consumer, Customer waives its right to set off a debt to EasyBrain against a claim against EasyBrain.

 

Insurance

  1. The customer undertakes to adequately insure and keep insured the following items against, among other things, fire, explosion and water damage as well as theft:
    • delivered items necessary for the performance of the underlying agreement
    • items from EasyBrain present at the customer's premises
    • goods delivered under retention of title
  2. Customer shall make the policy of such insurance available for inspection upon EasyBrain's first request.

 

Warranty
When parties have entered into an agreement with a service character, it shall only contain effort obligations for EasyBrain, not result obligations.

 

Execution of the agreement

  1. EasyBrain shall execute the Agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship.
  2. EasyBrain shall be entitled to have the agreed services (partially) performed by third parties.
  3. Execution of the agreement shall take place by mutual agreement and after written agreement and payment of any agreed advance by the customer.
  4. It is Customer's responsibility to ensure that EasyBrain can start executing the Agreement in a timely manner.
  5. If Customer has not ensured that EasyBrain can start executing the Agreement in a timely manner, the resulting additional costs and/or additional hours shall be borne by Customer.

 

Customer information 

  1. Customer shall make all information, data and documents relevant for the correct execution of the Agreement available to EasyBrain in due time and in desired form and manner.
  2. The customer guarantees the correctness, completeness and reliability of the information, data and documents made available, even if they originate from third parties, unless the nature of the agreement dictates otherwise.
  3. If and to the extent requested by Customer, EasyBrain will return the relevant documents.
  4. If Customer does not, does not timely or does not properly provide the information, data or documents required by EasyBrainred, and the execution of the Agreement is delayed as a result, the resulting additional costs and additional hours shall be borne by Customer.

 

Duration of the agreement

  1. The Agreement between EasyBrain and Customer shall be entered into for an indefinite period of time, unless the nature of the Agreement dictates otherwise or the parties have expressly agreed otherwise in writing.
  2. If a contract has been entered into for a definite period, it will be tacitly converted into a contract for an indefinite period of time after the expiry of the term, unless one of the parties cancels the contract with due observance of a notice period of 2 month(s), or a consumer cancels the contract with due observance of a notice period of 1 month then the contract ends by operation of law.
  3. If parties have agreed on a term for the completion of certain work within the term of the Agreement, this shall never be a deadline. If this term is exceeded, Customer must give EasyBrain written notice of default.

 

Termination of indefinite agreement

  1. The customer may terminate an agreement entered into for an indefinite period at any time subject to 2 months' notice.
  2. A consumer has the right to terminate an open-ended contract subject to 1 month's notice.

 

Intellectual property

  1. EasyBrain shall retain all intellectual property rights (including copyright, patent rights, trademark rights, drawing and model rights, etc.) to all designs, drawings, writings, carriers with data or other information, quotations, images, sketches, models, models, etc., unless the parties have agreed otherwise in writing.
  2. Customer may not copy, display and/or make available to third parties or otherwise use the said intellectual property rights without EasyBrain's prior written consent.

 

Penalty clause

  1. If Customer breaches the Article of these General Terms and Conditions regarding confidentiality or intellectual property, Customer shall forfeit to EasyBrain an immediately due and payable fine of €5,000 for each breach and, in addition, an amount of 5% of the aforementioned amount for each day that such breach continues.
  2. No prior notice of default or court proceedings are required for the forfeiture of this penalty. It also does not require any damages.
  3. The forfeiture of the fine referred to in the first paragraph of this article shall be without prejudice to EasyBrain's other rights including its right to claim damages in addition to the fine.

 

Indemnity
Customer shall indemnify EasyBrain against all claims of third parties related to the products and/or services provided by EasyBrain.

Complaints

  1. Customer shall examine a product or service provided by EasyBrain for any shortcomings as soon as possible.
  2. If a delivered product or provided service does not meet what the customer could reasonably expect from the agreement, the customer should inform EasyBrain as soon as possible, but in any case within 1 month after the shortcomings were found.
  3. Consumers should inform EasyBrain no later than 2 months after discovering the shortcomings.
  4. Customer shall provide as detailed a description of the shortcoming as possible, so that EasyBrain is able to respond adequately.
  5. The customer must demonstrate that the complaint relates to an agreement between the parties.
  6. If a complaint relates to work in progress, this cannot in any case lead to EasyBrain being held to perform other work than agreed upon.

 

Notice of default

  1. Customer must give written notice of default to EasyBrain.
  2. It is the customer's responsibility that a notice of default actually reaches EasyBrain (on time).

 

Joint and several liability customer
If EasyBrain enters into an agreement with several customers, each of them shall be jointly and severally liable for the full amounts due to EasyBrain under that agreement.

 

Liability EasyBrain

  1. EasyBrain shall only be liable for any damage suffered by Customer if and to the extent such damage was caused by intent or deliberate recklessness.
  2. If EasyBrain is liable for any damage, it shall only be liable for direct damage resulting from or related to the execution of an agreement.
  3. EasyBrain shall never be liable for indirect damage, such as consequential damage, loss of profit, missed savings or damage to third parties.
  4. If EasyBrain is liable, such liability shall be limited to the amount paid out by a (professional) liability insurance taken out, and in the absence of (full) payment by an insurance company of the amount of damage, liability shall be limited to the (part of the) invoice amount to which the liability relates.
  5. All illustrations, photos, colours, drawings, descriptions on the website or in a catalogue are only indicative and only apply approximately and cannot be a reason for compensation and/or (partial) dissolution of the agreement and/or suspension of any obligation.

 

Due date
Any right of Customer to compensation from EasyBrain shall in any event lapse 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 of rescission

  1. Customer shall have the right to rescind the agreement if EasyBrain fails imputably in the fulfilment of its obligations, unless such failure, in view of its special nature or minor importance, does not justify the rescission.
  2. If the fulfilment of the obligations by EasyBrain is not permanently or temporarily impossible, dissolution cannot take place until EasyBrain is in default.
  3. EasyBrain shall have the right to dissolve the Agreement with Customer, if Customer does not fulfil its obligations under the Agreement in full or in time, or if EasyBrain has become aware of circumstances giving it good reason to fear that Customer will not be able to fulfil its obligations properly.

 

Force majeure

  1. In addition to the provisions of Article 6:75 of the Dutch Civil Code, a shortcoming of EasyBrain in the fulfilment of any obligation towards Customer cannot be attributed to EasyBrain in a situation independent of EasyBrain's will, as a result of which the fulfilment of its obligations towards Customer is prevented in whole or in part, or as a result of which the fulfilment of its obligations cannot reasonably be required from EasyBrain.
  2. The force majeure situation mentioned in paragraph 1 also includes - but is not limited to - the following: state of emergency (such as civil war, insurrection, riots, natural disasters, etc.); non-performance 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 interruptions.
  3. If a force majeure situation occurs as a result of which EasyBrain cannot fulfil 1 or more obligations towards the customer, those obligations shall be suspended until EasyBrain can fulfil them again.
  4. From the moment a force majeure situation has lasted for at least 30 calendar days, both parties may dissolve the agreement in writing in whole or in part.
  5. EasyBrain shall not owe any compensation or damages in a force majeure situation, even if it enjoys any advantage as a result of the force majeure situation.

 

Modification of the agreement 
If, after the conclusion of the agreement, its execution proves necessary to amend or supplement its content, the parties shall adapt the agreement accordingly in good time and by mutual agreement.

 

Amendment of general terms and conditions

  1. EasyBrain shall be entitled to amend or supplement these general terms and conditions.
  2. Changes of minor importance can be made at any time.
  3. Major substantive changes will be discussed with EasyBrain in advance with the client whenever possible.
  4. Consumers are entitled to terminate the contract in the event of a material change to the general terms and conditions.

 

Transfer of rights

  1. Customer's rights from an agreement between the parties cannot be transferred to third parties without EasyBrain's prior written consent.
  2. This provision counts as a clause with effect under property law as referred to in Article 3:83(2) of the Civil Code.

 

Consequences of nullity or voidability

  1. Should one or more provisions of these general terms and conditions prove to be void or voidable, this shall not affect the remaining provisions of these terms and conditions.
  2. A provision that is void or voidable shall in that case be replaced by a provision that comes closest to what EasyBrain had in mind when drafting the terms and conditions on that point.

 

Applicable law and competent court

  1. Any agreement between the parties shall be governed exclusively by Dutch law.
  2. The Dutch court in the district where EasyBrain has its registered office/practice/office is exclusively competent to take cognisance of any disputes between the parties, unless otherwise required by mandatory law.