General Terms and Conditions FeniksGroup BV
In these General Terms and Conditions, the following terms are used in the following meanings unless expressly stated otherwise:
Offer: An offer or quotation of FeniksGroup addressed to a potential client concerning a specific or determinable proposal to conclude an agreement.
General Terms and Conditions: These clauses which have been drawn up for inclusion in agreements between FeniksGroup and clients.
Cancellation(s): The written termination of an agreement in accordance with the provisions of these General Terms and Conditions.
Service provision: The provision, on the basis of an agreement between FeniksGroup and customer, of (general and customised) courses, education and training by FeniksGroup in the field of company emergency response, communication and evacuation, VCA, fire safety, fire prevention, all in the broadest sense of the word.
Rebooking: The rescheduling of performance dates planned between FeniksGroup and the customer.
Customer: The other party or customer of FeniksGroup who, by signing a writing or otherwise, has accepted the validity and operation of these General Terms and Conditions.
Agreement(s): The agreement(s) (of assignment) for the provision of services between a client and FeniksGroup.
Performance: The execution of the rights and obligations of an agreement to provide services.
2 Applicability of General Terms and Conditions
2.1 These General Terms and Conditions apply to every offer, quotation and agreement between FeniksGroup, and a client to which FeniksGroup has declared these terms and conditions applicable, insofar as these terms and conditions have not been expressly deviated from by the parties in writing.
2.2 The present terms and conditions shall also apply to all agreements with FeniksGroup, for the execution of which third parties need to be involved.
2.3 Any deviations from these Terms and Conditions shall only be valid if expressly agreed in writing.
2.4 The applicability of any purchase or other (general) terms and conditions of the Client is expressly rejected.
2.5 If one or more of the provisions of these General Terms and Conditions are null and void or may be annulled, the remaining provisions of these General Terms and Conditions will remain fully applicable. FeniksGroup and the customer will then consult to agree new provisions to replace the void or nullified provisions, whereby if and to the extent possible the purpose and purport of the original provision will be observed.
3.1 An agreement comes into effect only by written acceptance of an offer of FeniksGroup by the client. If an acceptance differs from the offer made by FeniksGroup, FeniksGroup shall not be bound by it.
3.2 The conclusion of an agreement implies that the General Terms and Conditions of FeniksGroup have been accepted by the client.
3.3 Quotations and offers are without obligation; they are only valid for 30 days, unless expressly stated otherwise. FeniksGroup is only bound to the quotations and offers if the acceptance thereof is confirmed by the other party in writing within 30 days, unless expressly indicated otherwise.
3.4 All prices in offers and quotations are exclusive of VAT and other government levies. A compound quotation does not oblige FeniksGroup to perform part of an order at a corresponding part of the quoted price.
3.5 Offers and/or quotations do not automatically apply to future agreements.
A term agreed between the client and FeniksGroup with respect to the performance is never a deadline for FeniksGroup. If a (performance) period is exceeded, the client must therefore give FeniksGroup written notice of default.
5 House rules FeniksGroup
The house rules applicable to (the staff of) FeniksGroup are also applicable to clients. A client accepts the aforementioned house rules upon entering into an agreement. A copy and/or explanation of the aforementioned house rules will be made available and/or communicated to a client upon request, without prejudice to a client’s compliance with the house rules, prior to the commencement of the performance of an agreement by FeniksGroup.
6 Cancellations and re-booking
6.1 Cancellations must be notified and confirmed in writing to FeniksGroup before the start of the originally planned course, education and/or training date. If a course, education and/or training remains unoccupied without written cancellation, this is considered a cancellation and 100% of the agreed price or rate will be charged. The reason for cancellation does not affect the arrangement as mentioned in this article.
6.2 For cancellation between 21 and 10 working days before the start of the course, education and/or training, 50% of the agreed price will be charged.
6.3 For cancellations within 10 working days before the start of the course, education and/or training, 100% of the agreed price will be charged.
6.4 Movements of confirmed training places, or course and/or training dates are called re-bookings. Re-bookings must be reported and confirmed in writing to FeniksGroup before the start of the originally planned course, education and/or training date. The reason for rebooking does not affect the arrangement mentioned in this article.
6.5 For re-bookings, extra costs will be charged over the full (course) price. Hereby 100% of the price on the originally planned day and on the changed course date the 50% extra of the course price will be charged if the rebooking falls within 21 working days of the planned course, education and/or training.
6.6 There are conditions to this rebooking. The FeniksGroup will make a proposal for the new course date. In principle, the new date is never further than 42 days after the original date.
7 Execution of the agreement
7.1 FeniksGroup shall perform agreements to the best of its knowledge and ability and in accordance with the requirements of good craftsmanship. All this on the basis of the state of knowledge known at that time.
7.2 If and to the extent required for the proper performance of agreements, FeniksGroup is entitled to have certain work performed by third parties.
7.3 The Client shall ensure that all data, which FeniksGroup indicates to be necessary or which the Client should reasonably understand to be necessary for the performance of agreements, are provided to FeniksGroup in a timely manner. If the data required for the performance of agreements are not provided to FeniksGroup in a timely manner, FeniksGroup shall be entitled to suspend the performance of the agreement and/or to charge the additional costs resulting from the delay to the client according to the usual rates.
7.4 FeniksGroup shall not be liable for damage, of whatever nature, due to FeniksGroup having relied on incorrect and/or incomplete data provided by the client, unless FeniksGroup should have been aware of such incorrectness or incompleteness.
7.5 If it has been agreed that agreements will be performed in phases, FeniksGroup may suspend the performance of those parts that belong to a subsequent phase until the client has approved the results of the preceding phase in writing.
7.6 If work is performed by FeniksGroup or third parties engaged by FeniksGroup in the context of the assignment at the client’s location or a location designated by the client, the client will provide the facilities reasonably required by those employees free of charge.
7.7 The client indemnifies FeniksGroup against any claims of third parties, who suffer damage in connection with the performance of agreements and which is attributable to the client.
8 Modifications of the agreement
8.1 If, during the performance of agreements, it appears that for proper performance it is necessary to amend or supplement the agreed services, the parties shall promptly and in mutual consultation amend the agreement accordingly.
8.2 If the parties agree that the agreement will be amended or supplemented, the time of completion of the performance may be affected as a result. FeniksGroup will inform the client as soon as possible.
8.3 If the amendment or supplement to the agreement will have financial and/or qualitative consequences, FeniksGroup will inform the client in advance.
8.4 If a fixed rate has been agreed, FeniksGroup shall thereby indicate the extent to which the amendment or supplement to the agreement will result in an excess of this rate.
9 Suspension and dissolution
9.1 FeniksGroup is entitled, without prejudice to its right to claim (additional) damages, to suspend the performance of its obligations under agreements or to dissolve agreements if:
– Customer does not fulfil or does not fully fulfil its obligations under the agreements;
– After the agreements have been concluded, FeniksGroup learns of circumstances that give good reason to fear that the Customer will not fulfil its obligations. In case there are good grounds to fear that the client will only partially or improperly fulfil its obligations, suspension is only allowed to the extent the shortcoming justifies it;
– upon entering into the agreement, the customer was requested to provide security for the fulfilment of its obligations under the agreement and such security is not provided or is insufficient.
9.2 Furthermore, FeniksGroup is authorised, without prejudice to its right to claim (additional) damages, to dissolve agreements (or have them dissolved) if circumstances arise that are of such a nature that fulfilment of the agreement is impossible or can no longer be required according to standards of reasonableness and fairness, or if other circumstances arise of such a nature that unaltered continuation of the agreement can no longer reasonably be expected.
9.3 If agreements are dissolved, FeniksGroup’s claims against the client shall be immediately due and payable. If FeniksGroup suspends fulfilment of its obligations, it retains its claims under the law and agreement, as well as the right to claim damages.
10.1 The liability of FeniksGroup towards a customer for direct damage suffered by the customer as a result of an attributable failure to fulfil an obligation under agreements or as a result of an unlawful act, insofar as the same results from the performance of agreements, is limited to the provisions of this article.
10.2 FeniksGroup’s liability for direct damage suffered by the customer as referred to in paragraph 11.1 of this article is limited to a maximum of the amount of the payment to be provided by FeniksGroup’s insurer. The liability of FeniksGroup vis-à-vis the client for direct loss as a result of an attributable breach of an obligation under agreements or as a result of an unlawful act is therefore at all times limited to a maximum of €1,135,000.
10.3 In these General Terms and Conditions, direct damage is exclusively understood as
– the reasonable costs incurred to determine the cause and extent of the damage, insofar as the determination relates to damage within the meaning of these General Terms and Conditions;
– any reasonable costs incurred to have FeniksGroup’s defective performance conform to the agreement, unless they cannot be attributed to FeniksGroup;
– reasonable costs incurred to prevent or limit damage, insofar as the customer demonstrates that these costs have led to the limitation of direct damage as referred to in these General Terms and Conditions.
10.4 FeniksGroup shall never be liable for indirect damage, including consequential damage, loss of profit, missed savings and damage due to business stagnation on the part of the customer.
10.5 FeniksGroup is never liable for damage, of whatever nature and in whatever capacity, that arises or results from the implementation of advice or business emergency plans written by FeniksGroup.
10.6 FeniksGroup is never liable for damage, of whatever nature and in whatever capacity, resulting from theft, loss or damage of goods of persons participating or visiting courses, trainings or education.
10.7 The limitations of liability for damage included in these terms and conditions do not apply if the damage is due to intent or gross negligence of FeniksGroup or its subordinates.
11 Force majeure
11.1 FeniksGroup and client are not obliged to fulfil any obligation if they are prevented from doing so as a consequence of a circumstance that is not due to fault, and for which they cannot be held accountable by virtue of the law, a legal act or generally accepted practice.
11.2 In these General Terms and Conditions, force majeure means, in addition to what is understood in this respect by law and case law, all external causes, foreseen or unforeseen, on which FeniksGroup cannot exert influence, but which prevent FeniksGroup from being able to fulfil its obligations. This includes strikes at FeniksGroup’s company.
11.3 FeniksGroup also has the right to invoke force majeure if the circumstance that prevents (further) fulfilment occurs after FeniksGroup should have fulfilled its obligations.
11.4 FeniksGroup and client may suspend the obligations under the agreement during the period that the force majeure continues. If this period lasts longer than two months, either party shall be entitled to dissolve the agreement, without any obligation to pay damages to the other party.
11.5 Insofar as FeniksGroup has already partially fulfilled its obligations under the agreement at the time of the occurrence of force majeure or will be able to fulfil them, and independent value can be attributed to the fulfilled or to the part to be fulfilled respectively, FeniksGroup is entitled to separately invoice the part already fulfilled or to be fulfilled respectively. Customer is obliged to pay this invoice as if it were a separate agreement.
11.6 If an agreement changes substantially from the FeniksGroup’s side, in price or in performance, due to causes beyond the FeniksGroup’s sphere of influence, such as, for example, legal obligations and reorganisation, the customer is entitled to dissolve the agreement in writing without this resulting in financial consequences for the customer.
12.1 Unless expressly agreed otherwise, payment must be made within 14 days of the invoice date, in a manner to be indicated by FeniksGroup, in the currency in which the invoice was drawn up. Objections to the amount of the invoices do not suspend the payment obligation.
12.2 In the event of late payment within the meaning of Article 13.1, the client shall owe interest from the date of default until the date of payment of the entire amount due, as well as administrative costs reasonably incurred by FeniksGroup.
12.3 In the event of liquidation, bankruptcy, attachment or suspension of payment of the Customer, FeniksGroup’s claims against the Customer shall be immediately due and payable.
12.4 FeniksGroup is entitled to apply payments made by the customer firstly to reduce the costs, then to reduce the interest due and finally to reduce the principal sum and current interest. FeniksGroup may, without thereby being in default, refuse an offer of payment if the client designates a different order of allocation. FeniksGroup may refuse full repayment of the principal sum, if this does not also include the accrued and current interest as well as the costs.
13 Research, advertisements
13.1 Complaints about the services provided must be reported in writing to FeniksGroup by the client within 8 days of discovery, but at the latest within 14 days of completion of the services concerned. The notice of default must contain a description of the shortcoming that is as detailed as possible, so that FeniksGroup is able to respond adequately.
13.2 If a complaint is well-founded, FeniksGroup will still perform the service as agreed, unless this has meanwhile become demonstrably pointless for the client. The latter must be made known by the client in writing.
13.3 If the subsequent performance of the agreed service is no longer possible or useful, FeniksGroup shall only be liable within the limits of Article 10 of these General Terms and Conditions.
14 Retention of title
14.1 All goods delivered by FeniksGroup, which may also include designs, sketches, drawings, (electronic) files, etc., remain the property of FeniksGroup until the client has fulfilled all obligations under all agreements concluded with FeniksGroup.
14.2 The customer is not authorised to pledge or in any other way encumber the goods covered by the retention of title.
14.3 If third parties seize the goods delivered under retention of title or wish to establish or assert rights thereon, the customer is obliged to inform FeniksGroup thereof as soon as can reasonably be expected.
14.4 The customer undertakes to insure and keep insured the goods delivered under retention of title against fire, explosion and water damage and against theft, and to make the policy of this insurance available for inspection on demand.
14.5 Goods delivered by FeniksGroup that fall under the retention of title pursuant to the provisions of paragraph 15.1 of this Article may only be resold in the context of normal business operations and may never be used as a means of payment.
Customer shall provide FeniksGroup with all information deemed necessary by FeniksGroup and requested by FeniksGroup for the purposes of the services to be provided by FeniksGroup. The Customer shall at all times promptly inform FeniksGroup of any change in the information provided by it to FeniksGroup.
16.1 Both FeniksGroup and Customer are obliged to keep confidential all confidential information that they have obtained from each other or from other sources in the context of their agreement(s). Information is deemed to be confidential if it has been notified by the other party or if it arises from the nature of the information.
16.2 If, on the basis of a statutory provision or a judicial decision, FeniksGroup is obliged to disclose confidential information to third parties designated by the law or the competent court, and FeniksGroup cannot in this respect invoke a right to refuse to give evidence, recognised or permitted by law or by the competent court, FeniksGroup shall not be obliged to pay compensation or indemnification and the other party shall not be entitled to dissolve the agreement on the basis of any damage caused by this.
17 Intellectual property and copyright
17.1 Without prejudice to the other provisions of these General Terms and Conditions, FeniksGroup reserves the rights and powers vested in FeniksGroup under the Copyright Act.
17.2 All documents provided by FeniksGroup, such as reports, advice, agreements, designs, sketches, drawings, files, etc., are exclusively intended to be used by the client and may not be reproduced, made public, or disclosed to third parties by the client without FeniksGroup’s prior written consent.
18.1 The client indemnifies FeniksGroup against claims of third parties regarding intellectual property rights on materials or data provided by the client, which are used in the performance of the agreement.
18.2 If the client provides FeniksGroup with information carriers, electronic files or software etc., the client guarantees that the information carriers, electronic files or software are free of viruses and defects.
19 Collection rates
19.1 If the client is in default or omission in the (timely) fulfilment of its obligations, all reasonable costs incurred to obtain satisfaction out of court shall be borne by the client. In any case, the client shall owe collection costs in the event of a monetary claim.
19.2 The collection costs will be calculated in accordance with the collection rate as advised by the Netherlands Bar Association in collection cases. If FeniksGroup has incurred higher costs, which were reasonably necessary, such costs will be eligible for reimbursement by the client. Any reasonable judicial and execution costs incurred will also be borne by the client.
20 Non-acquisition of staff
During the term of agreements as well as one year after termination thereof, the client shall not in any way, except after agreement has been reached with FeniksGroup on the matter, employ or otherwise, directly or indirectly, allow employees of FeniksGroup or of companies or institutions that FeniksGroup has called upon for the execution of agreements and that have been involved in the execution of agreements, to work for it.
21 Applicable law
Any agreement between FeniksGroup and a client is governed by Dutch law.
22 Amendment and location of the General Terms and Conditions
22.1 The Dutch version of the General Terms and Conditions have been filed at the office of the Chamber of Commerce Northwest Holland in Alkmaar.
22.2 The most recently filed version or, as the case may be, the version valid at the time the agreement was concluded always applies.
D. Maassen, managing director FeniksGroup B.V. – version January 2023