Free Spirit General terms and conditions
Drafted on 18 March 2024
General Terms and Conditions of Free Spirit, established at Grote Kruisstraat 22B, 9712TT, Groningen, the Netherlands, registered with the Chamber of Commerce under number 88614476.
Article 1. Definitions
1. In these General Terms and Conditions, the following terms are used as defined below, unless explicitly stated otherwise.
General Terms and Conditions: The General Terms and Conditions as stated below.
Free Spirit: Free Spirit, registered with the Chamber of Commerce under number 88614476.
Service: All work, of whatever form, that Free Spirit has carried out for, or for the benefit of, the Client.
Honorarium: The financial reimbursement that is agreed with the Client for the performance of the assignment.
Assignment: The contract of instruction to provide services.
Client: The one who has accepted the validity of these General Terms and Conditions and given instructions for the provision of the Service.
Consumer: The Client not acting in the exercise of a trade or profession.
Contract: Any contract entered into between Free Spirit and the Client.
Article 2. General
1. These General Terms and Conditions apply to every quotation and Contract entered into between Free Spirit and the Client, unless the parties are departed from the General Terms and Conditions explicitly and in writing.
2. These General Terms and Conditions are also applicable to contracts with Free Spirit for the implementation of which third parties must be involved.
3. The applicability of any of the Client’s purchasing conditions or other general terms and conditions is expressly excluded.
4. If one or more provisions of these General Terms and Conditions are void or voidable, the other provisions of these General Terms and Conditions remain in effect. In this event, Free Spirit and the Client will consult with each other to agree new provisions to replace the void or voided ones.
5. Departures from the Contract and the General Terms and Conditions are only valid if they are explicitly agreed with Free Spirit in writing.
6. If Free Spirit not always require the strict compliance of these General terms and Conditions, this will not mean that the provisions of the General terms and Conditions will not apply, or that Free Spirit to any degree would lose the right in other cases to demand the strict compliance of these General terms and Conditions.
Article 3. Quotations
1. Quotations should preferably be made in writing and/or electronic form, unless pressing circumstances make this impossible.
2. Quotations are valid for 30 days. Quotations lapse after this period has expired.
3. Free Spirit cannot be held to its quotations if the Client, in accordance with the requirements of reasonableness and fairness and generally accepted standards, should have understood that the quotation or an element there of contains a manifest fault or clerical error.
4. If the acceptance departs from the offer included in the quotation, whether or not on points of minor importance, then Free Spirit is not bound by this. The Contract then does not come into being in accordance with this differing acceptance, unless Free Spirit indicates otherwise.
5. A composite quotation does not oblige Free Spirit to perform an element of the Assignment for a corresponding part of the stated price.
6. Quotations do not automatically apply to future orders or reorders.
Article 4. Formation of the contract.
1. The Contract comes into being through the timely acceptance by the Client of Free Spirit’s quotation.
Article 5. Duration of the contract
1. The Contract will be concluded for a definite period or an indefinite period, unless the nature of the Contract states otherwise or if parties have agreed otherwise explicitly and in writing.
Article 6. Ending of the contract
1. The Contract cannot be terminated unilaterally unless Free Spirit expressly agrees in writing to the termination.
Article 7. Amendments to the contract
1. If, during the implementation of the Contract, it becomes apparent that it is necessary to amend or supplement the Contract to ensure its proper implementation, then Free Spirit will inform the Client of this as soon as possible. The parties will then amend the Contract in a timely manner and in mutual consultation.
2. If the parties agree that the Contract will be amended or supplemented, this can influence the time of the completion of the implementation. Free Spirit will inform the Client of this as soon as possible.
3. If the amendment or supplementation of the Contract will have financial, quantitative and/or qualitative consequences, then Free Spirit will inform the Client of this in advance.
4. If a fixed Honorarium and/or fee is agreed, then Free Spirit will indicate the extent to which the amendment or supplementation of the Contract will influence the price. In this event Free Spirit will attempt, as far as possible, to issue a quotation in advance.
5. Free Spirit may not make any additional charges if the amendment or supplementation is a consequence of circumstances that can be attributed to Free Spirit.
6. Amendments to the Contract originally entered into between the Client and Free Spirit are only valid from the time at which these amendments are accepted in writing by both parties by means of a supplementary or amended Contract.
Article 8. Implementation of the contract
1. Free Spirit will implement the Contract to the best of its knowledge and ability, and in accordance with the requirements of good workmanship.
2. Free Spirit is entitled to arrange for certain work to be carried out by third parties. The applicability of articles 7:404, 7:407, paragraph 2 and article 7:409 of the Dutch Civil Code is explicitly excluded.
3. Free Spirit is entitled to implement the Contract in phases.
4. If the Contract is implemented in phases, Free Spirit is entitled to invoice and require payment for each implemented element separately. If and for as long as this invoice is not paid by the Client, Free Spirit is not obliged to implement the following phase, and is entitled to suspend the contract.
5. If the Contract is implemented in phases, Free Spirit is entitled to suspend the implementation of those elements that belong to the following phase or phases until the Client has approved in writing the results of the preceding phase.
6. The Client will issue all information or instructions that are necessary for the implementation of the Contract, or which the Client can be reasonably expected to understand are necessary for implementation of the Contract, to Free Spirit in a timely manner.
7. If the above-mentioned information and instructions are not issued, or not issued in a timely manner, then Free Spirit is entitled to suspend the implementation of the Contract. The additional expenses that are incurred through the delay will be borne by the Client.
Article 9. Honorarium
1. The Honorarium and/or the fees are expressed in euros, exclusive of VAT and other government levies for Consumers and Companies, unless indicated otherwise.
2. The Honorarium and/or the fees are expressed in euros, exclusive of travel, accommodation, packaging, delivery, transportation costs and administration costs, unless indicated otherwise.
3. If there isn’t a Honorarium and/or fee expressly agreed, the Honorarium and/or fee will determined by the actual amount of hours and the usual hourly fee of Free Spirit.
4. Free Spirit will provide a statement of all associated costs, or provide information on the basis of which these costs can be calculated by the Client, in a timely manner before the Contract is entered into.
Article 10. Amendment of honorarium.
1. If Free Spirit agrees a fixed Honorarium and/or fee when the Contract is entered into, then Free Spirit is entitled to increase this Honorarium or fee, also when the Honorarium or fee is not originally specified provisionally.
2. If Free Spirit has the intention of amending the Honorarium and/or fee, it will inform the Client of this as soon as possible.
3. If the increase of the Honorarium or fee takes place within three months of the Contract being entered into, the Client can terminate the Contract by means of a written statement, unless:
- the increase arises from a right of Free Spirit or an obligation resting upon Free Spirit in accordance with the law;
- the increase is due to a rise in the price of raw materials, wages etc. or on other grounds that could not reasonably have been foreseen when the Contract was entered into;
- Free Spirit is still prepared to implement the Contract on the basis of that which was originally agreed;
- it is stipulated that the implementation will be carried out more than three months after the Contract was entered into.
4. The Client is entitled to terminate the Contract if the Honorarium or the fee are increased more than three months after the Contract was entered into, unless it is stipulated in the Contract that the implementation will be carried out more than three months after the Contract was entered into.
5. Free Spirit will inform the Client in the event of the intention to increase the Honorarium or the fee, stating the extent of the increase and the date upon which it will take effect.
Article 11. Implementation periods
1. The work will be carried out within a period stated by Free Spirit.
2. If a period is agreed or stated for the performance of particular work, then this period is only indicative and is not to be regarded as a strict deadline.
3. If Free Spirit needs information or instructions from the Client that are necessary for the implementation of the Contract, then the implementation period will commence after the Client has provided these to Free Spirit.
4. If an implementation period is exceeded, the Client must issue Free Spirit with a written notice of default, whereby Free Spirit will be offered a reasonable period to nonetheless implement the Contract.
5. A notice of default is not necessary if the implementation has become permanently impossible, or it otherwise becomes apparent that Free Spirit will not meet its obligations arising from the Contract. If Free Spirit does not commence implementation within this period, then the Client is entitled to terminate the Contract without judicial intervention and/or seeking compensation.
Article 12. Payment
1. Payment will take place by means of transfer to a bank account specified by Free Spirit, unless agreed otherwise. Transfer will take place by means of an invoice.
2. Payment can be made both in advance and afterwards.
3. Payment afterwards must be made within 14 days of the invoice date, in a manner to be specified by Free Spirit and in the currency in which the invoice is issued, unless agreed otherwise.
4. The Client is not authorised to deduct any amount from the payable amount by reason of a counterclaim made by the Client.
5. Free Spirit is entitled to invoice the Client for work carried out in the period in question.
6. Objections to the level of the invoice do not have the effect of suspending the payment obligations.
7. After the expiry of a period of 14 days after the invoice date, the Client will be, without a notice of default, by operation of law in default. The Client has to bear from the moment of default on the immediately claimable amount an interest at the rate of 2% per month, unless the statutory interest rate is higher.
8. In the event of bankruptcy, suspension of payment or placement under conservatorship, the amounts owed to Free Spirit and the obligations of the Client towards Free Spirit are immediately claimable.
Article 13. Collection costs
1. If the Client is in default or in breach of the Contract in fulfilling its obligations (in a timely manner) then all reasonable costs incurred to obtain an out-of-court settlement are payable by the Client. The Client is in any event liable to pay the collection costs.
2. With regard to the extrajudicial (collection) charges, Free Spirit is entitled to a payment of the maximum sum that is determine in the Payment of Extrajudicial Collection Charges Decree.
3. Free Spirit is only entitled to a reimbursement of extrajudicial collection charges after the Free Spirit send the client a reminder to pay within 14 days the outstanding invoice or invoices after the client came into default.
4. Any reasonable legal costs and execution costs incurred are also payable by the Client.
Article 14. Suspension
1. If the Client does not fulfil an obligation arising from the Contract, or does not meet it fully or in a timely manner, then Free Spirit is entitled to suspend the corresponding obligation. In the event of partial or inadequate fulfilment, suspension is only permitted in so far as this is justified by the shortcoming.
2. Moreover, Free Spirit is entitled to suspend the fulfilment of the obligations if:
- after the Contract is entered into, Free Spirit becomes aware of circumstances that give good grounds to fear that the Client will not fulfil its obligations;
- the Client is requested, on entering into the Contract, to provide security for the fulfilment of its obligations arising from the Contract, and this security is not provided or is insufficient;
- circumstances arise of such a nature that fulfilment of the Contract is impossible, or that the unamended maintenance of the Contract cannot be reasonably required of Free Spirit.
- 3. Free Spirit reserves the right to claim compensation.
Article 15. Termination
1. If the Client does not fulfil an obligation arising from the Contract, or does not meet it fully, in a timely manner or properly, then Free Spirit is entitled to terminate the Contract with immediate effect, unless the shortcoming, in view of its limited significance, does not justify the termination.
2. Moreover, Free Spirit is entitled to terminate the Contract with immediate effect if:
- after the Contract is entered into, Free Spirit becomes aware of circumstances that give good grounds to fear that the Client will not fulfil its obligations;
- the Client is requested, on entering into the Contract, to provide security for the fulfilment of its obligations arising from the Contract, and this security is not provided or is insufficient;
- due to a delay on the part of the Client, Free Spirit can no longer be required to fulfil the Contract under the originally agreed conditions;
- circumstances arise of such a nature that fulfilment of the Contract is impossible, or that the unamended maintenance of the Contract cannot be reasonably required of Free Spirit;
- the Client is declared bankrupt, submits an application for a suspension of payment, requests the application of debt rescheduling for natural persons or is served with a writ of sequestration on all or part of its property;
- the Client is placed under conservatorship;
- the Client deceases.
3. Termination will take place by means of a written declaration, without judicial intervention.
4. If the Contract is terminated, the Client’s debts to Free Spirit become immediately due and payable.
5. If Free Spirit terminates the Contract on the above-mentioned grounds, Free Spirit is not liable for any costs or compensation.
6. If the termination is attributable to the Client, the Client is liable for the damage suffered by Free Spirit.
Article 16. Force majeure
1. Breaches may not be attributed to Free Spirit or the Client is they are not their fault, or if they are not accountable by law, juristic act, or according to the generally accepted standards. In this case the parties are also not bound to fulfil the obligations arising from the Contract.
2. In these General Terms and Conditions, the term “force majeure” is defined as – in addition to what is understood in law and jurisprudence in this regard – all external causes, foreseen or unforeseen, upon which Free Spirit can exercise no influence and through which Free Spirit is not able to fulfil its obligations.
3. Circumstances regarded as resulting in force majeure include strikes, lockouts, fire, water damage, natural disasters or other external contingencies, mobilisation, war, traffic congestion, blockades, import or export restrictions or other government measures, stagnation or delay in the supply of raw materials or machinery components and lack of labour forces, as well as any circumstances through which normal business operations are impeded, as a result of which the fulfilment of the Contract by Free Spirit cannot be reasonably sought by the Client.
4. Free Spirit is also entitled to invoke force majeure if the circumstance that hinders (further) fulfilment of the Contract occurs after Free Spirit should have fulfilled its obligations.
5. In case of force majeure the parties are not obliged to proceed with the Contract, and are not bound to pay any compensation.
6. During the period that the force majeure continues, both Free Spirit and the Client can fully or partly suspend the obligations arising from the Contract. If this period lasts for a longer time, both parties are entitled to terminate the Contract with immediate effect, by means of a written notification, without judicial intervention and without the parties being able to claim any damages.
7. If the situation of force majeure is of a temporary nature, Free Spirit reserves the right to suspend the agreed service for the duration of the situation of force majeure. In the event of permanent force majeure both parties are entitled to terminate the Contract without judicial intervention.
8. If at the time of the occurrence of force majeure Free Spirit has already partly fulfilled, or will fulfil, its obligations arising from the Contract, and independent value accrues to the part fulfilled or to be fulfilled, then Free Spirit is entitled to separately invoice the part already fulfilled or to be fulfilled. The Client is bound to pay this invoice as if there were a separate Contract.
Article 17. Examination and claims
1. The Client is obliged to examine the Service at the moment of performance, but in any case within 7 days after the performance of the Service. The Client must examine whether the quality and quantity of the Service comply with what the parties agreed, at least meet the requirements that are common in trade.
2. Visible defects and shortcomings have to be reported within 7 working days after the performance of the Service in writing to Free Spirit.
3. Non-visible defects and shortcomings have to be reported within 7 working days after its discovery to Free Spirit.
4. The right to (partial) restitution of the price, repair or replacement or compensation lapses, if the defects will not be reported within the prescribed period, unless the nature of the Service states otherwise or from circumstances of the case a broader period arises.
5. The payment obligation will not be suspended if the Client reports the defect to Free Spirit within the prescribed period.
Article 18. Liability
1. The implementation of the Contract is entirely at the risk and responsibility of the Client. Free Spirit is only liable for direct damage that has arisen through wilful recklessness or an intentional act or omission of Free Spirit.
2. The liability of Free Spirit is excluded for indirect damage, including in any event consequential damage, loss of profit, lost savings and loss due to business interruption, or immaterial damage to the Client.
3. Free Spirit is not liable for damage, of whatever nature, resulting from Free Spirit basing its actions upon inaccurate and/or incomplete information provided by the Client, unless this inaccuracy or incompleteness ought to have been known to Free Spirit.
4. If Free Spirit is liable for any damage, then the liability of Free Spirit is limited to an amount equal to the amount stated in the invoice.
5. The Client must report the damage for which Free Spirit can be held liable to Free Spirit as soon as possible, but in any event within 14 days of the damage having arisen, on penalty of the forfeiture of any right to compensation for this damage.
6. Any liability claim against Free Spirit lapses within one year of the Client having become aware, or possibly reasonably having become aware, of the harmful event.
Article 19. Indemnity
1. The Client indemnifies Free Spirit against any claims by third parties who suffer damage in connection with the implementation of the Contract which is attributable to the Client.
2. If Free Spirit may be sued for this reason, then the Client is bound to provide Free Spirit with both judicial and extrajudicial support. Furthermore, all costs and damage on the part of Free Spirit and third parties will be at the expense and risk of the Client.
Article 20. Limitation period
1. In departure from the legal limitation period, a limitation period of one year applies to all claims against Free Spirit and any third parties brought in by Free Spirit.
Article 21. Intellectual property
1. Free Spirit reserves the rights and powers accruing to it under the provisions of the Copyright Act and other intellectual property legislation and regulations.
2. Free Spirit reserves the right to utilise the knowledge acquired for the performance of the work and general information for other purposes and other work, in so far as no confidential information is hereby communicated to third parties.
Article 22. Confidentiality
1. Both Free Spirit and the Client are obliged, for the duration of and after the termination of the Contract, to maintain confidentiality regarding all facts and particulars concerning the business which they know or can reasonably suspect are confidential. This duty of confidentiality also includes all details of employees, clients, commissioning bodies and other business contacts which are learned of by reason of the Assignment.
Article 23. Privacy and cookies
1. Free Spirit will store the details and information that the Client provides to Free Spirit carefully and confidentially.
2. Free Spirit acts in accordance with the General Data Protection Regulation (GDPR) which is effective from May 25, 2018. Free Spirit will keep a register of processing activities on the basis of the GDPR.
3. Free Spirit will only use the personal details and information of the Client when dealing with a complaint.
4. It is not permitted for Free Spirit to lend out, rent, sell or in any other way make public the personal data of the Client.
5. The information that Free Spirit collects through cookies may only use this personal data for necessary specific purposes.
6. Free Spirit is not permitted to lend out, hire out or sell the personal details of the Client, or to publicise them in any other manner.
7. Free Spirit will not keep the personal data longer than necessary.
8. The Client is entitled to file a complaint with the Dutch Data Protection Authority regarding his/her personal data. The Dutch Data Protection Authority is obliged to handle this complaint.
9. The Client agrees that Free Spirit may approach the Client for statistical or customer satisfaction research. If the Client does not wish to be approached for research, the Client may make this known.
Article 24. Amendment of the general terms and conditions
1. Free Spirit is entitled to amend the general terms and conditions unilaterally.
2. Amendments will also apply to Contract that are already concluded.
3. Free Spirit will inform the Client by e-mail about the amendments.
4. The amendments to the general terms and conditions will be in force thirty days after the Client is informed of the amendments.
5. If the Client does not agree with the announced amendments, the Client is entitled to terminate the Contract.
Article 25. Interpretation, translation
1. As well as the original Dutch version of these General Terms and Conditions, there is one other version of the General Terms and Conditions, translated into English.
2. The Dutch version of the General Terms and Conditions of Free Spirit is the authentic version. This version of the General Terms and Conditions will take precedence in the event of the explanation or interpretation of the General Terms and Conditions. In the event of a difference in meaning or interpretation between the two versions, then the Dutch version of the General Terms and Conditions will prevail.
Article 26. Applicable law, disputes
1. Dutch law is exclusively applicable to all legal relationships to which Free Spirit is a party. This also applies if an obligation is wholly or partly fulfilled outside of the Netherlands or if the Client has its place of business outside of the Netherlands.
2. Disputes between Free Spirit and the Client will only be submitted to the competent court in the Groningen district, unless the law mandatorily prescribes otherwise.
Article 27. Location General Terms and Conditions
1. These General Terms and Conditions are published on the Free Spirit website and also filed at the Chamber of Commerce under number 88614476.