Terms and Conditions

1. Applicability

1.1 All offers from, agreements with, and deliveries by Fynch with counterparties other than natural persons not acting in the exercise of a profession or business – hereinafter referred to as the customer – are exclusively subject to these terms and conditions unless expressly deviated from in writing.

1.2 A customer who has previously entered into a contract under these terms and conditions is deemed to have tacitly agreed to the applicability of the terms and conditions to agreements concluded with Fynch at a later date.

1.3 The agreement is always entered into for a period specified in the agreement. The agreement is tacitly renewed for a period of one year (12 months). Termination of the agreement must take place with due observance of 3 months before the end of the agreed or extended period.

2. Offers

2.1 All offers from Fynch, including quotations, brochures, and price lists, are always without obligation and can be revoked without any form, even after the acceptance of the offer by the buyer, which will then take place without delay.

2.2 Fynch is not bound by images and/or data in Fynch documentation and/or third-party documentation made available by Fynch.

2.3 Agreements with customers only bind Fynch after they have been confirmed in writing by Fynch.

2.4 If a customer explicitly requests the submission of a quotation, but the agreement to which the quotation relates has not been concluded within 3 months after the quotation was made, Fynch is entitled to charge the costs that were made to provide the quotation to the customer.

3. Prices

3.1 Unless otherwise agreed in writing, the agreements are carried out at the prices and conditions that generally apply at the time of delivery or performance by Fynch in euros.

3.2 All rates are exclusive of VAT and other government levies. Any levies and/or taxes applicable to the agreement are for the account of the customer.

3.3 Fynch reserves the right to adjust the rates annually in accordance with the CBS price index for business services.

3.4 If, after the agreement has been concluded or before the time when the agreement has been performed by Fynch, an increase of more than 5% should occur in the price-determining factors, such as an increase in labor material, transport costs, and price increases at Fynch’s suppliers, which differs from the price index, Fynch is entitled to increase the agreed price accordingly.

3.5 If Fynch makes use of its authority to change the price as stated in Article 3.4, the customer has the right to dissolve the agreement within 14 days after being informed of this price increase by means of a written notification to Fynch.

4. Delivery times

4.1 Delivery times are not fatal. Exceeding the specified delivery time does not entitle the customer to compensation, dissolution of the agreement, or suspension of any obligation arising for the customer from the agreement. If the specified delivery time is exceeded, the customer is entitled to set a new, reasonable term for delivery by means of a written reminder, in which a reasonable term will never be shorter than 21 days. Fynch is always entitled to deliver after the expiry of the specified delivery time.

5. Delivery

5.1 The goods to be delivered to the customer related to the agreement are for the account and risk of the customer from delivery onwards.

5.2 Fynch is authorized to deliver in parts, whereby each partial delivery is regarded as an independent delivery.

5.3 Unless expressly agreed otherwise, the goods will be shipped at the buyer’s expense and risk, even if the transport is by or on behalf of Fynch.

6. Payment

6.1 All payments to Fynch must be made within the term stated on the invoice or, whenever there is no term stated on the invoice, within 30 days of the invoice date, without discount or set-off, unless a different agreement has been made in writing.

6.2 Fynch is at all times entitled to demand full or partial advance payment or security in the form it desires before performing. As long as the customer has not complied with a request to that effect from Fynch, Fynch’s obligations towards the customer will be suspended. If, after a reminder, the customer fails to comply with the request for advance payments/or security within 24 hours, Fynch is entitled to dissolve the agreement in whole or in part by means of a written statement to that effect. The customer is entitled to compensation to Fynch for the profits lost and costs incurred.

6.3 The customer is in default, without prior notice of default being required if:

6.4 The term stated for payment has expired.

6.5 If the customer applies for a moratorium before the expiry of this term, is declared bankrupt, or offers its creditors a private agreement.

6.6 If the customer is in default with any payment to Fynch, all claims of Fynch against the customer are immediately due without further notice of default.

6.7 With effect from the day on which the customer is in default, the customer owes interest of 1.5% per month on the amount owed to Fynch, whereby a part of a month is counted as a full month. In the event of non-compliance, late or incomplete fulfillment of obligations by the customer, the customer is obliged to reimburse Fynch for all costs that Fynch must incur to collect the outstanding amounts, including invoices from lawyers and solicitors, both in and extrajudicial, whereby the extrajudicial costs are calculated according to the collection rate of the Dutch Bar Association with a minimum of € 125.

7. Non-attributable shortcomings

7.1 A non-attributable shortcoming is understood to mean any circumstance that is independent of Fynch’s will, of whatever nature. Even if this could already be foreseen at the time of the conclusion of the agreement, as a result of which Fynch cannot, not in a timely manner or not without, in Fynch’s opinion, disproportionately onerous extra effort and/or costs, as well as insofar as this does not already include mobilization, war, the danger of war, civil war, riot, strike, lock-out, transport difficulties, stagnation due to weather influences, fire, explosion and other serious disruptions in the business of Fynch or its supplier, or not, not timely or not properly complying by third parties required by Fynch for the implementation of the agreement, or on whom Fynch otherwise depends, fulfill their obligation to Fynch. This also applies to any information carrier to be used.

7.2 In the event of a non-attributable shortcoming, Fynch has the right to suspend and/or dissolve the agreement in whole or in part by means of an oral or written notification to that effect (including telefax) to the customer without paying any compensation for whatever reason.

7.3 In the event of a non-attributable shortcoming on the side of Fynch, it will inform the customer of this. Fynch is not bound by any time limit for making this notice.

7.4 The late, incorrect, or incomplete delivery of data or information by the supplier of the customer which Fynch processes in its services, is a non-attributable shortcoming on the side of Fynch and will never lead to claims by the customer against Fynch.

8. Liability and Indemnification

8.1 Fynch and the persons working on behalf of Fynch in the execution of the agreement can in no way be held liable by the customer for damage of any nature whatsoever, trading loss and other consequential damage suffered by anyone whatsoever, arising from or related to goods or services supplied or made available by Fynch, unless such damage is due to intent or gross negligence attributable to Fynch.

8.2 The customer indemnifies Fynch and the persons referred to in the first paragraph against claims from third parties against which Fynch cannot invoke the present terms and conditions.

8.3 Fynch is in no way liable for consequential damage resulting from the loss of files or data as a result of software of Fynch or third parties that do not function (properly).

8.4 A condition for the existence of any right to compensation is always that the customer has reported the damage in writing to Fynch as soon as reasonably possible after it has arisen. In addition, the customer is obliged to give Fynch the opportunity, if and insofar as possible, to undo the damage, failing which Fynch will not be liable.

8.5 Any liability of Fynch towards the customer will at all times be limited to the amount actually charged to the customer.

8.6 Without prejudice to the provisions of the previous paragraphs of this article, Fynch is never obliged to pay compensation that exceeds the insured amount, insofar as the damage is covered by an insurance policy taken out by Fynch.

9. Retention of title and security

9.1 All goods delivered to the customer remain the property of Fynch until all amounts owed by the customer to Fynch under the agreement have been paid in full.

9.2 If and insofar as Fynch has not received payment for a due claim in respect of a delivery for which it has reserved ownership, Fynch is entitled to take back these goods without notice of default and without judicial intervention and to enter the customer’s business premises for that purpose, for which it – insofar as necessary – is irrevocably authorized by the customer now and then.

9.3 The customer is obliged, at Fynch’s first request, to provide security to Fynch’s satisfaction for all existing and future claims of Fynch against the customer, including collection costs and interest.

10. Confidential information

10.1 Each of the parties guarantees that all information received from the other party that is known or should be known to be of a confidential nature will remain secret unless a legal obligation requires disclosure of that information. The party receiving the confidential information will only use it for the purpose for which it was provided. Information is in any case considered confidential if it has been designated as such by one of the parties.

10.2 The customer indemnifies Fynch against claims from persons whose personal data have been registered or is processed in the context of a personal registration held by the customer or for which the customer is otherwise responsible by law unless the customer proves that the facts to which the claim is based are solely attributable to Fynch.

10.3 The customer and its users hereby give permission to Fynch to include his or her personal data in Fynch’s personal records, which are required for its administration and management tasks. This information is only accessible to Fynch and will not be provided to third parties unless Fynch is required to do so by law or court order.

 

11. Customer cooperation

11.1 The customer is obliged to provide Fynch with the information required for the execution of the agreement and to cooperate.

11.2 As long as the customer does not comply with the obligation from the first paragraph, Fynch is entitled to suspend the execution of the agreement and to recover the damage it suffers as a result from the customer.

11.3 The customer is responsible for clear and complete written formulations when providing the required information.

11.4 The customer and its users are responsible for the necessary hardware and software configuration, peripheral equipment, and connections to enable access to the delivered goods.

12. Dissolution

12.1 If the customer does not fulfill one or more obligations, does not fulfill one or more obligations on time or properly, is declared bankrupt, applies for a (provisional) suspension of payments, proceeds to liquidation of its business, as well as if its assets are seized in whole or in part, Fynch has the right to suspend the execution of the agreement or to regard the agreement as dissolved in whole or in part, without providing a prior written statement to this end to the other party. In these cases, Fynch is also entitled to compensation for the costs, damage, and interest. In the aforementioned cases, any claim that Fynch has or will acquire against the customer is immediately due without further notice of default being required.

13. Industrial and Intellectual Property Rights

13.1 Upon delivery of software, the ownership and rights of industrial and intellectual property remain with the owners thereof.

13.2 The customer is only entitled to use software supplied by Fynch on behalf of the owner for purposes for which the customer has been expressly granted permission. This right granted to the customer is not transferable.

13.3 Unless prior written permission has been obtained from Fynch, the customer may not copy and/or disclose the supplied software and documentation. In the event of a violation of this provision, the customer’s right of use is withdrawn.

13.4 When copying is permitted, the customer must adhere to the further conditions specified in the agreement, whereby he is not entitled to remove any references to the owner made in the software during the copying.

13.5 When delivering software, Fynch is at all times entitled to build a protection mechanism in the software, so that the software cannot be used by unauthorized persons.

14. Software development

14.1 If Fynch develops software for a customer, the necessary information will be specified in writing by the customer.

14.2 The information to be provided by the customer is the basis for the software to be developed, whereby the customer guarantees its correctness.

14.3 An agreed acceptance test in writing gives the customer the right to test the software for 14 days unless the customer indicates earlier that it accepts the software.

14.4 If this has been agreed upon, the developed software will be installed by Fynch at the customer before delivery. Acceptance presupposes delivery, as does the expiry of the acceptance period without notice of defects.

14.5 All defects must be reported to Fynch in writing and in detail.

14.6 If the defects do not significantly impede the functioning of the program, the customer is deemed to have accepted the software upon the expiry of the acceptance period.

14.7 Defects that have been notified to Fynch as a result of the previous paragraph will be repaired by Fynch, if possible, within a reasonable period of time.

15. Warranty

15.1 If a fixed price for the development of the software has been agreed upon, Fynch guarantees to the best of its ability to remedy the defects found free of charge for a period of 3 months after delivery of the software unless the defects are not attributable to Fynch or could have been revealed during the agreed acceptance test.

15.2 Fynch does not provide any warranty against loss of data.

15.3 Changes made to the software by the customer will invalidate the warranty.

16. Governing Law and Disputes

16.1 Dutch law applies to all offers from, agreements with, and deliveries by Fynch. The application of the uniform law on international sales (Ween’s Sales Convention) is excluded.

16.2 If the customer of Fynch is established in a country that is a party to the Convention on Jurisdiction and the Enforcement of Judgments in Civil Matters (EEC Treaty), the court in Amsterdam has exclusive jurisdiction to hear any dispute that may arise in connection with the agreement, without prejudice to Fynch’s right to sue the buyer in the court of his place of residence and subject to appeal and/or cessation.

16.3 If the customer is established in a country other than the countries referred to in paragraph 2, then the Netherlands Arbitration Institute in Rotterdam has exclusive jurisdiction to hear disputes arising in connection with the agreement, without prejudice to Fynch’s right to sue the court of his place of residence. Rotterdam will be the place of arbitration and the arbitration will be conducted in Dutch.

17. Change and reference

These terms and conditions have been filed at the office of the Chamber of Commerce in Utrecht. The most recently filed version or the version that applied at the time of the conclusion of the agreement is always applicable.