Terms and Conditions Essing Performance Center B.V.
Article 1 - Definitions
• Offer: any offer by Essing Performance Center to the Client;
• General Terms and Conditions: the whole of the provisions as included below;
• Day: calendar day;
• Employee(s): persons employed by Essing Performance Center or one of the companies affiliated with Essing Performance Center as well as auxiliary persons engaged by Essing Performance Center;
• Additional and less work: additions or reductions desired by the Client to what has been agreed in the Agreement;
• Client: the party with whom Essing Performance Center negotiates about the conclusion of the Agreement and/or with whom Essing Performance Center concludes the Agreement;
• Essing Performance Center: Essing Performance Center B.V., also trading under the trade name Essing Performance Center, with business address Keizersveld 71 C, 5803 AP in Venray, registered with the Chamber of Commerce under number 14102805, VAT number: NL819502273B01;
• Agreement: an agreement that is concluded between Essing Performance Center and the Client, including any changes(s) agreed after the conclusion, and the agreed additional or less work;
• Performance: all work to be performed and/or goods and services to be delivered offered by Essing Performance Center, which are the subject of an offer, agreement or other legal act. This includes, among other things, the sale, delivery and/or installation of hardware or software and installation of upgrades for the purpose of optimizing engine management systems for improving, among other things, the performance of vehicles, cleaning of particulate filters and vehicle power measurements and all related work and affairs;
• Party(ies): Client or Essing Performance Center. When the term is used in plural form, Client and Essing Performance Center are meant;
• Provisional item: an estimated amount of money stated in the quotation and/or the Agreement for the purchase of certain items and/or the execution of work (or having it carried out), the exact size of which cannot yet be determined.
Article 2 - Applicability
2.1 These General Terms and Conditions apply to all Offers and/or all Agreements concluded with Essing Performance Center and to all other legal relationships between the Client and Essing Performance Center. Deviating provisions are only valid if they have been expressly agreed in advance in writing between the Client and Essing Performance Center.
2.2 The applicability of any purchase and/or other conditions of the Client is expressly rejected. In the event that the Client refers to its own terms and conditions and declares those terms and conditions applicable, the Parties expressly agree by accepting these General Terms and Conditions of Essing Performance Center that Essing Performance Center is not bound by those terms and conditions of the Client.
2.3 Only persons who are authorized to do so according to the trade register of the Chamber of Commerce are authorized to perform legal acts on behalf of Essing Performance Center. Legal acts performed by persons other than authorized persons can only be invoked against Essing Performance Center and third parties if Essing Performance Center has confirmed this in writing.
2.4 Prior to the conclusion of the Agreement, the text of these General Terms and Conditions will be made available to the Client. If this is not reasonably possible, Essing Performance Center will indicate before the Agreement is concluded how the General Terms and Conditions can be viewed at Essing Performance Center and that they will be sent free of charge by e-mail as soon as possible at the request of the Client. .
2.5 Essing Performance Center is at all times unilaterally authorized to make changes or additions to these General Terms and Conditions. The amended General Terms and Conditions will continue to apply. The change will be communicated to the Client by e-mail (or text message). There will be at least 30 Days between the notification of the change to the Client and the entry into force of the change. A change that results directly from a change in law or regulation takes effect at the time when the change in law or regulation comes into effect. If the change results in a performance being provided to a consumer Client that differs substantially from the original Performance, the Consumer Client has the option of dissolving the Agreement as of the date on which the amended General Terms and Conditions come into effect.
2.6 These General Terms and Conditions also apply to anyone engaged by Essing Performance Center, and anyone for whose acts or omissions Essing Performance Center is or may be liable.
Article 3 - The Offering
3.1 An Offer by Essing Performance Center is entirely without obligation. The price calculations and conditions included in the Offer apply exclusively to the specified Performance. If an Offer has a limited period of validity, or is made under other conditions, this will be explicitly stated in the Offer.
3.2 The Offer contains a complete and accurate description of the Performance offered. The description is sufficiently detailed to enable a proper assessment of the Offer by the Client.
3.3 If an Offer from Essing Performance Center is (partly) based on information provided by the Client, the Client is responsible for the completeness and accuracy of the information. The consequences of providing incomplete and/or inaccurate information, including information that does not correspond to reality, are at the expense and risk of the Client.
3.4 All information, illustrations, data and/or other characteristics provided with the Offer are always approximate and are only binding for Essing Performance Center if this has been expressly indicated in writing by Essing Performance Center.
3.5 Essing Performance Center cannot be held to its Offer if the Client should have understood that the Offer, or a part thereof, contained an obvious mistake or error.
3.6 Upon acceptance of an Offer without obligation by the Client, Essing Performance Center reserves the right to revoke or deviate from the Offer immediately after receipt of the acceptance.
3.7 Oral promises only bind Essing Performance Center after they have been confirmed explicitly and in writing by Essing Performance Center.
3.8 If a provisional sum is included in the Offer, the actual hours and costs worked by Essing Performance Center will be passed on to the Client.
3.9 The Offer of Essing Performance Center does not automatically apply to subsequent Offers.
3.10 A composite Offer does not oblige Essing Performance Center to perform part of the Offer against a corresponding part of the price specified in the Offer.
3.11 Additions, changes and/or further agreements are only valid if expressly agreed in writing between the Parties.
Article 4 – The Agreement
4.1 An Agreement between Essing Performance Center and the Client is concluded after it has been assessed for feasibility by Essing Performance Center and Essing Performance Center confirms the conclusion and content of the Agreement in writing. If an Offer is accepted by the Client within the period for acceptance as stated in the Offer, an Agreement will be concluded at the moment that the Client accepts the Offer.
4.2 If the Client has accepted the Offer electronically, Essing Performance Center will immediately confirm receipt of the acceptance of the Offer electronically, subject to the provisions of paragraphs 1, 3, 5 and 6.
4.3 Insofar as the acceptance by the Client of an Offer made by Essing Performance Center deviates from the Offer on any point, an Agreement will only be concluded when Essing Performance Center expressly confirms the formation and content of the Agreement in writing.
4.4 If the communication was exclusively oral, the Agreement will still be concluded at the moment that Essing Performance Center actually starts the implementation of the Agreement or gives instructions to third parties to do so. In this case, the invoice is deemed to fully and correctly reflect the content of the Agreement.
4.5 Essing Performance Center reserves the right, without stating reasons, not to accept the acceptance of an Offer made by it without obligation or to accept it only under (additional) condition(s).
4.6 Essing Performance Center is authorized to engage third parties for the implementation of the Agreement and to charge the costs thereof to the Client in accordance with the Agreement.
4.7 The Performance will be delivered as specified in the Agreement, on the understanding that slight or minor changes made by Essing Performance Center that do not affect the quality and/or specifications of the Performance are permitted. This also applies with regard to an increase in extra power and/or the fuel consumption savings stated by Essing Performance Center as stated on its website or otherwise. Declared savings and extra power are for indication only. Values differ in practice per vehicle, type of engine and nature of the work. Essing Performance Center is free to apply up to 5% lower and upper margin to all its activities. Deviations within these margins do not lead to a right to compensation or price reduction or to non-performance.
Article 5 - The price
5.1 The prices and rates stated by Essing Performance Center are exclusive of turnover tax and other levies, ex warehouse of Essing Performance Center. If the Client is a Consumer, all prices and rates are stated including sales tax, shipping costs and any statutory levies.
5.2 The prices and rates stated are based on the prices, wages and levies at the time the Offer was made.
5.3 Price increases that are the result of statutory regulations or provisions may be passed on to the Client immediately and in full by Essing Performance Center.
5.4 Essing Performance Center is authorized to pass on price increases to the Client if they take place after the conclusion of the Agreement. A price increase can be caused by, among other things (not exhaustive): increase in transport costs, operating costs, auxiliary materials used, materials, means of transport, war, weather conditions, calamities, scarcity a change in the collective labor agreement concerned, or as a result of laws, decrees or orders of government. If the price change amounts to more than 20%, the Client is authorized to dissolve the Agreement by registered letter or by sending an e-mail within 7 days after notification from Essing Performance Center that the price will be increased. If the Client is a Consumer, the Client is authorized to dissolve the Agreement if the price increase takes place within 3 months after entering into the agreement by sending an e-mail or a registered letter. A dissolution as mentioned above does not entitle the Client to compensation for any damage.
5.5 All prices are subject to printing and typesetting errors. No liability is accepted for the consequences of printing and typesetting errors.
Article 6 - Performance of Agreement - Terms
6.1 Essing Performance Center will observe the care of a good contractor in the performance of the Agreement and will perform the Performance to the best of science and expertise.
6.2 The Client will always, solicited and unsolicited, provide Essing Performance Center with all relevant and essential information in a timely and truthful manner that is necessary for the design, implementation and completion of the Agreement. The client is obliged to report defects in the vehicle and/or the engine management system in advance. The Client guarantees and bears the (financial) risk of the correctness, completeness and reliability of the information provided to Essing Performance Center, even if it originates from third parties.
6.3 If the necessary data and/or the vehicle are not made available by the Client for the implementation of the Agreement, or are not made available on time or not in accordance with the agreements made, or if the Client has not fulfilled its obligations in any other way, Essing Performance is Center is authorized to suspend the performance of the Agreement and to charge the resulting damage, including damage due to delay, to the Client in accordance with its usual rates.
6.4 If it has been explicitly agreed in writing that the Performance to be performed must be performed at the Client's location, the Client is obliged to ensure in a timely manner:
a. the data required for the performance of the Performance;
b. the vehicle where the Performance is to be performed;
c. sufficient opportunity for the supply, storage and/or removal of materials and work tools or tools;
d. connection options for electrical work tools or work machines, lighting, heating, gas, water, internet and other energy and/or connection options required for the performance of the work;
e. a clean space free of dust and other dirt.
f. access to the site during normal office hours;
6.5 If the Client itself is responsible for the delivery of certain materials and data and/or execution of certain parts of the Performance, the Client will be liable for the resulting delay costs if this is not done on time or does not comply with the standard. These additional costs will be charged to the Client in accordance with the usual rates of Essing Performance Center.
6.6 The agreed or specified delivery period is always indicative and therefore never a strict deadline, unless the Parties have expressly agreed otherwise in writing.
6.7 If a delivery period has been agreed, this period will commence on the working day following the Day on which all information and data necessary in connection with the execution of the Agreement, in the opinion of Essing Performance Center, have been made available by the Client in the correct format and the other necessary formalities have been complied with.
6.8 If the execution of the Agreement by Essing Performance Center cannot take place within the agreed delivery period, Essing Performance Center will inform the Client as soon as possible of the delivery period within which the Agreement can be performed.
6.9 Exceeding the agreed delivery period, for whatever reason, does not entitle the Client to compensation or reimbursement of any other costs.
6.10 Tests on the power test bench of Essing Performance Center are carried out at the request of the Client at its own risk and for its own account. A power bench test measures up to high speed and at full throttle, which carries the risk of damage to the engine and vehicle. The Client accepts the associated risks and the possible harmful consequences thereof.
6.11 Increase in extra power and/or the fuel consumption savings stated by Essing Performance Center as stated on our website or otherwise are only indicative. Values differ in practice per vehicle, type of engine and nature of the work. Essing Performance Center is free to apply up to 5% lower and upper margin to all its activities. Deviations within these margins do not entitle to compensation or purchase price reduction.
Article 7 - Amendment or addition to the Agreement
7.1 The Performance only includes the activities, services and items specified in the Agreement.
7.2 Changes and/or additions to the implementation of the Agreement that are still required by the Client after the Agreement has been concluded must be notified to Essing Performance Center in writing and in a timely manner. Changes requested by the Client 48 hours before the start of the performance of the Agreement will not be taken into consideration unless otherwise agreed in writing between the Parties. The last sentence also applies to changes to the agreed time or the agreed date of performance of the Agreement.
7.3 If the Parties have reached agreement on a certain change, additional or less work, extension or limitation of the Agreement, Essing Performance Center will confirm the change to the Client in writing. This written confirmation will in any case show what the substantive, financial and time-related consequences of the change are.
7.4 All costs associated with changing the Agreement will be reimbursed by the Client to Essing Performance Center, such as but not limited to: purchased materials and/or services, auxiliary persons engaged, cancellation costs, etc.
7.5 If Essing Performance Center otherwise believes that there is additional work due to unforeseen circumstances, Essing Performance Center will notify the Client of this as soon as possible (in writing), unless immediate action is required. Essing Performance Center will give the Client an indication of the consequences for the term of completion of the implementation of the Agreement, as well as of the costs associated with the additional work.
7.6 There is also talk of additional work if, as a result of the provision of incorrect or incomplete data by the Client, Essing Performance Center has to organize the planned work again and/or differently. Essing Performance Center is entitled to charge the costs for additional work to the Client on the basis of the rates applicable at the time of the delivery/completion for the hours worked and materials used.
Section 8 – Termination of the Agreement
8.1 The Client can cancel the Agreement free of charge up to 48 hours before the date on which the vehicle is scheduled to perform the agreed Performance. Goods already purchased by Essing Performance Center for the performance of the Agreement must always be purchased by the Client, also in the event of termination or cancellation.
8.2 If the Client terminates or cancels the Agreement within 48 days before the date of the agreed Performance to be performed, the Client will owe compensation. The compensation amounts to 30% of the agreed Price or target price with a minimum of € 225.00. If Essing Performance Center can demonstrate that the damage exceeds 30%, the Client will owe this higher amount. The compensation consists of the gross profit margin (fixed and variable costs and profit mark-up) less the variable costs not incurred, such as shipping costs. The provisions of the last sentence of Article 8.1 also apply.
Article 9 - Payment
9.1 Payment must be made to the Client immediately after performance and delivery of the Performance by cash or debit card unless expressly agreed otherwise in writing.
9.2 Contrary to paragraph 1 and if expressly agreed in writing between the Parties in the Agreement or additional conditions, the amounts and/or advances owed by the Client must be paid within 14 Days after the invoice date to an account to be designated by Essing Performance Center. The value day stated on the bank statements of Essing Performance Center on which a payment has been received will be regarded as the day on which the payment was made.
9.2 Claims are deemed not to have been paid until the Client has demonstrated payment thereof.
9.3 An objection with regard to an invoice must be reported to Essing Performance Center in writing within 7 Days after the invoice date by sending an email to [[email protected]
]. The payment term is not suspended by a written objection.
9.4 The Client is not authorized to deduct any amount from the price by way of set-off due to a discount or due to a counterclaim made by it, unless stipulated otherwise by mandatory law.
9.5 Deviating payment arrangements must be expressly agreed in writing between the Parties.
9.6 In the event of late payment by the Client within the set term, the Client will be in default by operation of law without a prior written demand and notice of default being required. If the Client is a consumer, Essing Performance Center will send a payment reminder free of charge with the request to pay the outstanding amount in full within fourteen days. If the consumer fails to do so, the consumer is legally in default.
9.7 Each payment from the Client – if applicable – will firstly be used to pay the interest, collection costs and administrative costs owed by it to Essing Performance Center, and then to pay the outstanding claims in order of age.
9.8 If the Client does not meet its payment obligation(s) in time, Essing Performance Center will increase the principal sum due and payable by the statutory commercial interest per month, a part of a month calculated for a whole, to be calculated from the initial due date until the Day of overall satisfaction. If the Client is a consumer, the statutory interest applies.
9.9 If the Client does not meet its payment obligation in time, and Essing Performance Center is forced to carry out collection activities in order to enforce payment of the outstanding claim, Essing Performance Center is also entitled to charge all costs actually incurred for judicial and extrajudicial collection to the Client. To be passed on to the client. The extrajudicial collection costs amount to 15% of the amount due, with a minimum of € 250.00. For consumers, the legal limits to extrajudicial collection costs apply.
9.10 Complaints, complaints or reported defects do not release the Client from its payment obligations.
Article 10 – Warranty and Complaints
10.1 The Client is obliged to check immediately upon delivery whether the Performance meets the Agreement. After delivery, the delivered work is for the account and risk of the Client and Essing Performance Center is no longer liable for shortcomings, defects, damage, etc., which the Client should reasonably have discovered at the time of delivery.
10.2 Essing Performance Center undertakes to remedy shortcomings identified and acknowledged upon delivery within a reasonable period of time.
10.3 Complaints about a) shortcomings with regard to the delivered goods, which the Client could not reasonably have discovered at the time of delivery, must be reported by the Client in writing by registered letter or by e-mail to Essing Performance within 14 Days after discovery. Centre. If the Client is a Consumer, a term of 2 months applies instead of 14 Days. If the Client fails to do so, any warranty claim will lapse. The complaint must contain as detailed a description as possible, accompanied by images of the shortcoming(s), so that Essing Performance Center is able to respond adequately.
10.4 Essing Performance Center guarantees that any defects in the Performance performed will be remedied after delivery, unless the defect is not a result of the Performance performed.
10.5 Essing Performance Center gives the following guarantees on the delivered performance:
Power or ECO upgrades with bypass modules - 4 year product warranty, no engine warranty;
Software upgrade and hardware upgrade with the aim of generating an extreme amount of extra power - 6 months warranty on the parts installed by Essing Performance Center, excluding labor costs, 4 years software warranty;
Cleaning of diesel particulate filters - no warranty
Power Measurements – No Warranty
The guarantee of Essing Performance Center is personal and therefore never transferable.
10.6 No right to claim exists if:
- the delivered or part thereof has been exposed to circumstances that may influence the quality of the delivered or completed;
- the delivered or part thereof is otherwise carelessly or incompetently processed, treated and/or used and/or not used and/or treated in accordance with the specifications or instructions of Essing Performance Center and/or the manufacturer and/or in accordance with what has been agreed in the Agreement
- the damage was caused by errors, incompleteness or inaccuracies in data, materials, information carriers, documents, etc. provided and/or prescribed by or on behalf of the Client to Essing Performance Center;
- the damage was caused by the characteristics of the vehicle and/or engine management system;
- the damage has arisen because the Client itself or a third party on behalf of the Client has carried out repairs or other work on the Performance or a part thereof, without the prior express written permission of Essing Performance Center.
10.7 As long as the Client has not fulfilled all its financial obligations arising from the Agreement, the Client cannot claim any guarantee.
10.8 If the Client does not complain in a timely manner, no obligation arises for Essing Performance Center from such a complaint on the part of the Client.
10.9 After receipt of the complaint, Essing Performance Center will investigate the merits as soon as possible. The Client must assist Essing Performance Center in this investigation.
10.10 In the event of a justified complaint, Essing Performance Center will have the choice to:
(i) repair or replace the goods;
(ii) remedy the complaint (or have it remedied);
(ii) credit a reasonable price reduction.
All costs that exceed the single obligation as described in points (i to iii) are for the account of the Client. For repaired or replaced parts, no new warranty period applies, but the current warranty period.
10.11 The claim based on a shortcoming by the Client is not admissible if it is brought 48 months after delivery, dissolution or termination of the Agreement.
10.12 Unless expressly agreed otherwise in writing between the Parties, Essing Performance Center does not provide any warranty other than the manufacturer's warranty that the supplier provides to Essing Performance Center. The manufacturer's warranty is transferred to the Client by means of a warranty certificate.
Article 11 – Retention of title
11.1 As long as Essing Performance Center has not received full payment (including any damage, costs and interest charged by Essing Performance Center) from the Client, the delivered goods remain the property of Essing Performance Center.
11.2 Essing Performance Center has the right to reclaim and take possession of the delivered goods if the negligent Client files for bankruptcy or is declared bankrupt, if the Client offers its creditors a (private) settlement or (for this purpose ) convenes a meeting of creditors, applies for or obtains suspension of payments, the debt rescheduling scheme under the Natural Persons Debt Rescheduling Act is declared applicable to him or all or part of his property or assets are seized.
11.3 All acts of disposal, including pledging, mixing, resale, with regard to the sold and/or delivered goods, are prohibited to the Client as long as it has not fulfilled its payment obligations.
11.4 The client is obliged to store all that has been delivered under retention of title carefully and as recognizable property of Essing Performance Center and to insure it sufficiently at its own expense and to keep it insured for the duration of the retention of title against, in any case, theft, fire and water damage. As soon as Essing Performance Center so wishes, all claims of the Client against the insurer(s) under the insurance(s) referred to here will be assigned to it, or a right of pledge will be granted to it.
11.5 Essing Performance Center is entitled to take back all that has been delivered under retention of title, even if the Client has proceeded to process or mix it with other goods and is still present at the Client, or to claim it or have it reclaimed, if the Client is not in default for timely payment of takes care of the invoices or is in payment difficulties or threatens to be. The Client will at all times grant Essing Performance Center free access for inspection and/or to exercise the rights of Essing Performance Center.
11.6 All costs incurred by Essing Performance Center that are related to and ensue from the retention of title will be charged to the Client, without prejudice to the legal possibilities to recover the damage, direct and/or indirect, from the Client, plus all costs and the legal commercial interest.
11.7 If the Client does not or does not fully comply with the obligations as stated in this article, it will owe Essing Performance Center an immediately due and payable fine of € 5,000 per event, which is not subject to judicial moderation, for each violation. increased by € 250 for each Day that this violation continues, without prejudice to the legal possibilities to recover the actual damage suffered from the Client, all plus costs and the statutory commercial interest.
Article 12 - Dissolution and/or suspension power
12.1 If the Client fails to fulfill one or more of its obligations towards Essing Performance Center, fails to do so in time or properly, Essing Performance Center is entitled – without prejudice to all other rights accruing to Essing Performance Center – to suspend the fulfillment of its obligations towards the Client. until the Client has fully fulfilled its obligations towards Essing Performance Center.
12.2 Essing Performance Center has, in addition to all other rights accruing to it, the right to dissolve the Agreement concluded with the Client, without (further) prior notice of default or judicial intervention, by means of a written extrajudicial statement if:
a. there is permanent force majeure;
b. ` the Client is granted a (provisional) suspension of payment, the bankruptcy of the Client is requested or the Client itself files for bankruptcy, the Client offers its creditors a (private) settlement or (for this purpose) convenes a meeting of creditors or if application is requested or granted with regard to the Client of the Natural Persons Debt Rescheduling Act;
d. the Client's company is liquidated and/or the Client's business activities are actually discontinued or moved to a place outside the Netherlands;
e. At the conclusion of the Agreement, the Client has been requested to provide security for the fulfillment of his/her obligations under the Agreement and this security is not forthcoming or is insufficient, including the down payment obligation if applicable;
f. circumstances arise that are of such a nature that fulfillment of the Agreement is impossible or if other circumstances arise that are of such a nature that unaltered maintenance of the Agreement cannot reasonably be expected of Essing Performance Center.
12.3 In the cases referred to in paragraph 2 above, the Client will immediately inform Essing Performance Center and, pending further instructions from Essing Performance Center, take appropriate measures to protect the interests of Essing Performance Center.
12.4 In the event of default on the part of the Client, Essing Performance Center has the right to dissolve the Agreement (extrajudicially), in which case the goods or a part thereof can be retrieved or claimed from the Client and the term(s) remaining after termination and/or the remaining amount can be claimed as damage, without prejudice to Essing Performance Center's right to additionally or instead claim (additional) compensation and the Client's obligation to reimburse Essing Performance Center for the resulting costs.
12.5 If Essing Performance Center proceeds to suspension or dissolution, it is in no way obliged to pay compensation for damage or costs incurred in any way as a result.
12.6 If Essing Performance Center proceeds to dissolve the Agreement, the claims of Essing Performance Center against the Client are immediately due and payable.
12.7 If Essing Performance Center suspends the performance of the Agreement, the Client is liable for the damage suffered by Essing Performance Center as a result of this delayed delivery.
12.8 In the event of default by the Client, all claims of Essing Performance Center against the Client are immediately due and payable.
Article 13 - Liability
13.1 Essing Performance Center is not liable for damage of any nature whatsoever caused by Essing Performance Center relying on incorrect and/or incomplete information provided by or on behalf of the Client.
13.2 Anyone who gains access or gains access to the business location and/or work location of Essing Performance Center, enters the location exclusively at his own risk and for his own account, at least never at the risk and/or for the account of Essing Performance Center.
13.3 If the Performance to be performed also includes the (dis)assembly of parts of the vehicle, Essing Performance Center will never be liable in the event that parts and/or the vehicle break down and/or become damaged. The (dis)assembly and removal is done entirely at the Client's own risk and expense.
13.4 Essing Performance Center is only liable for direct damage to works and property of the Client insofar as this has been caused by or during the performance of the Agreement and can be attributed to gross negligence or gross carelessness on the part of Essing Performance Center and/or its Employees.
13.5 The liability of Essing Performance Center for damage resulting from an attributable shortcoming in the fulfillment of the Agreement, or from an unlawful act or otherwise, is excluded, unless the Client is a Consumer.
13.6 Insofar as exclusion of liability is not possible by law, Essing Performance Center Client is only liable for direct damage as a result of an attributable shortcoming in the fulfillment of the Agreement. Direct damage is exclusively understood to mean all damage consisting of damage caused directly to material goods (“property damage”), reasonable and demonstrable costs that the Client has had to incur to urge Essing Performance Center to properly comply with the Agreement (again), reasonable costs to determine the cause and extent of the damage insofar as it relates to the direct damage as referred to here and/or reasonable and demonstrable costs incurred by the Client to prevent or limit the direct damage as referred to in this article.
13.7 Essing Performance Center is under no circumstances liable for compensation for indirect damage or consequential damage or damage due to loss of turnover or profit, damage to image, damage due to delay, damage due to loss of data, damage due to exceeding of terms as a result of changed circumstances, damage as a result of the provision of inadequate cooperation, information or materials by the Client and damage due to information or advice provided by Essing Performance Center, the content of which does not explicitly form part of the Agreement.
13.8 In the event of late, incorrect or defective delivery or defects in or to the Performance and/or performance of the Agreement, Essing Performance Center is in no way liable for the indirect, additional or consequential damage caused by this, including loss of profit. to the Client and/or third parties, except insofar as there is intent or willful recklessness on the part of Essing Performance Center, its employees, or auxiliary persons engaged by it.
13.9 The Client indemnifies and indemnifies Essing Performance Center, its employees, and the auxiliary persons engaged by it with regard to all claims from the Client and/or third parties for compensation of damage suffered by these third parties as a result of an item or service supplied by the Client to these third parties that also consisted of goods and/or services supplied by Essing Performance Center. The compensation also includes the procedural and related costs to be incurred.
13.10 Essing Performance Center is not liable for damage and/or harmful consequences if this is the result of extraordinary circumstances against which Essing Performance Center did not have to take appropriate measures in connection with the nature of the Performance to be performed and it would be unreasonable to at her expense.
13.11 In the event that Essing Performance Center proves to be liable and the aforementioned exclusion of liability does not appear to apply, the contractual and/or non-contractual liability of Essing Performance Center is limited to direct damage (in separate and descending order):
• a maximum of the costs of repairing the damage duly demonstrated by the Client. The compensation can under no circumstances exceed 10% of the agreed price;
• a maximum of the amount that Essing Performance Center has invoiced to the Client for the Performance excluding VAT, at least up to that part of the amount to which the liability relates, less the out-of-pocket business costs;
• a maximum of the amount that can be recovered from engaged third parties and/or auxiliary persons;
• maximum the amount of the payment from the insurer of Essing Performance Center where appropriate.
13.12 The provisions of this article also apply for the benefit of employees employed by Essing Performance Center and all (legal) persons that Essing Performance Center uses in the performance of the Agreement and for the benefit of the group of which it forms part.
Article 14 – Force majeure
14.1 Essing Performance Center is in no way liable or obliged to compensate any form of damage, if and insofar as it cannot fulfill its obligations as a result of force majeure.
14.2 Force majeure is in any case understood to mean any strange cause, as well as any circumstance, which should not reasonably be for its risk and which prevents the fulfillment of the obligations, such as an epidemic, a pandemic, fire, theft, death, strikes, personnel problems, weather conditions, government measures, operational problems, transport problems, as well as non-performance by suppliers of Essing Performance Center, and/or internet failures, electricity failures, e-mail traffic failures and failures or changes in goods supplied by third parties and financial crisis. Defects in aids or means of transport are expressly regarded as force majeure.
14.3 In the event of permanent force majeure, Essing Performance Center is entitled to dissolve the Agreement with the Client by means of a written statement and without judicial intervention. Essing Performance Center is not liable towards the Client in this respect for any damage suffered by the Client, of whatever nature and extent.
14.4 In the event of temporary force majeure, Essing Performance Center is entitled to extend the terms within which the Agreement must be performed by the time during which the temporary impediment applies. If the aforementioned impediment lasts longer than 3 months, the Client may demand (partial) dissolution of the Agreement, without the Client being entitled to compensation, without prejudice to the (payment) obligations of the Client with regard to the work already performed by Essing Performance Center. performed part of the Agreement.
14.5 If Essing Performance Center is prevented from fulfilling its obligations towards one or more of its Clients due to force majeure, but not the obligations towards all Clients, Essing Performance Center is entitled to decide at its own discretion which of the obligations and to which Clients it will perform, as well as the order in which this will be done.
14.6 If Essing Performance Center has already partially fulfilled its obligations when the force majeure occurs, or can only partially fulfill its obligations, it is entitled to invoice the part already delivered or the part that can be delivered separately and the Client is obliged to pay this invoice as it was a separate Agreement.
Article 15 – Confidentiality and intellectual property rights
15.1 Parties undertake to observe secrecy regarding all confidential information they receive from or about the other Party and the results obtained by processing it. The Parties also impose this obligation on their employees as well as on third parties engaged by them for the implementation of the Agreement between the Parties.
15.2 Information is in any case considered confidential if it has been designated as such by one of the Parties, and the confidential nature of which is known or should reasonably be understood.
15.3 Essing Performance Center is permitted to take photos of the Performances it has performed and to use these photos for promotional purposes without owing any compensation to the Client for this. The Client expressly agrees to this.
Article 16 - Other provisions
16.1 Essing Performance Center is entitled to transfer all rights and obligations arising from the Agreement to third parties. The Client expressly agrees to this.
16.2 If the Client's company or part thereof, for whatever reason, in whatever way, and in whatever form, is continued in or brought together with another company, then with regard to the fulfillment of the obligations arising from the Agreement with Essing Performance Center, a joint and several liability for the original Client and the successor company.
16.3 If the Agreement is entered into with two or more Clients, they are each jointly and severally liable for the full performance thereof.
16.4 If any provision of these General Terms and Conditions proves to be wholly or partly void or voidable, or otherwise proves to be invalid, the remaining provisions will remain in full force and effect. The provisions that are not legally valid or cannot be legally applied will be replaced by provisions that are as close as possible to the purport of the provisions to be replaced.
16.5 All Agreements concluded under these General Terms and Conditions are exclusively governed by Dutch law. The Dutch text of these General Terms and Conditions is binding and prevails over translations thereof.
16.6 Disputes, including those that are only regarded as such by one Party, arising from or related to (the implementation of) these General Terms and Conditions, the Agreement and/or the agreements arising from or related thereto, as well as other legal acts , will be submitted to the competent court in the district in which Essing Performance Center is located, unless stipulated otherwise by rules of mandatory law.