(Version march 2012)
These General Terms and Conditions have been filed at the Chamber of Commerce “Noord-Nederland” under number 04067236
Article 1 - User and counterparty
1. These General Terms and Conditions are used by Branche Benefits B.V., having its legal seat in Assen at Dr. Nassaulaan 5, hereinafter: "Contractor”.
2. These General Terms and Conditions have also been stipulated for the benefit if the directors of Contractor and all persons working for it. The applicability thereof continues to exist of the aforementioned directors and/or persons are no longer working for Contractor anymore.
3. The counterparty of Contractor is the person to whom he has provided any designated offer, has made an offer or with whom he has concluded an agreement. This can be both a legal person and a natural person and this counterparty shall hereinafter be designated at “Principal”.
Article 2 - Applicability
1. These General Terms and Conditions are applicable to all offers, designated offers made by Contractor and acceptations thereof and/or agreements concluded by Contractor whereby Contractor commits to the delivery of services or the execution of a commission.
Possible purchase conditions or other terms and conditions to which Principal refers at the acceptation of a (designated) offer or the conclusion of an agreement are not applicable, unless Contractor has accepted these in writing and without precondition.
2. Deviations from and/or additions to these General Terms and Conditions only bind Contractor insofar these have been agreed explicitly in writing between Contractor and Principal.
3. If any stipulation of these General Terms and Conditions proves to be invalid, then only the concerned stipulation is excluded from application. All other stipulations will retain their applicability without restriction.
Article 3 - Offers, agreement, commission etc.
1. Offers and rates of Contractor are, unless stated therein explicitly differently, non-binding and, if relevant, under precondition of acceptation by the insurer.
2. Commission granted to Contractor solely lead to obligations to make an effort by Contractor, not to obligations to achieve a result. This is only different if from the nature of the commission or by promises made in writing by Contractor it shows differently.
3. An agreement is deemed to have been concluded on the moment that Contractor has accepted a commission in writing or has started with the execution thereof. Contractor is authorised to refuse commissions without stating reasons.
Article 4 - Employment third parties
1. It is permitted for Contractor to make use of external advisors in the execution of the commission granted to him.
Costs related to the employment of these external advisors will be charged onward to Principal.
2. Insofar Contractor in the execution of the commission granted to him will make use of advices of an external advisor, including advices of accountants, lawyers, tax experts etc., he shall at the employment of the concerned advisor as much as possible enter into consultation in advance with Principal and for the selection of the concerned advisor observe the necessary diligence. Contractor is not liable for (imputable) shortcomings of an employed external advisor.
3. Contractor is, similar as for his own employees, responsible for the third parties by him at the execution of the commission granted to him that are not to be regarded as external advisor in the sense of the stipulations above in section 1 and 2, such as temp workers, external back office bureaus etc.
Article 5 – Fees and payment
1. Parties agree before the conclusion of the agreement of which the fees of Contractor shall consist. The fees can be included in the premiums and amounts to be brought into account to Principal (whether or not on behalf of an insurer); a fixed fee can be agreed or an hourly rate can be agreed.
2. Changes in taxes and/or levies imposed by the government will always be charged onwards to Principal. Contractor may increase the agreed rates in between if after the conclusion of the agreement increases occur in the costs of services that are necessary for the execution of the agreement and/or of other costs which influence the cost price of Contractor.
3. Payments by Principal must be made within 14 days after the date of the invoice in the manner prescribed by Contractor, unless agreed differently in writing or the invoice states differently.
4. Principal is aware that the not, or not timely, payment of premiums brought into account to him can have the consequence that the insurances and/or provisions concluded by him, after mediation of Contractor, offer no cover for the insured risk.
5. Set-off by Principal of the premiums and amounts invoiced by Contractor with a counter claim alleged by Principal, or suspension of payment by Principal in connection with a counter claim presented by this, is only permitted insofar the counter claim is acknowledged by Contractor explicitly and without precondition or has been established irrevocably in court.
6. If Principal does not pay the due premiums and/or amounts within the agreed term, then Principal shall because of it, without that prior notification of default is necessary, become liable to pay the trade interest by law over the outstanding amount. If Principal also after having been declared in default remains negligent to pay the outstanding amount to Contractor, the claim can be handed over, in which case Principal in addition to the then due total amount also shall be liable to pay the out-of-court collection costs. The height of the out-of-court collection costs will be set at 15% of the due principal amount.
7. Payments made by Principal serve each time for the payment of all due interest and costs and subsequently of invoices payable upon demand that stand out the longest, even when Principal states that the payment concerns a later invoice.
8. If the creditworthiness of Principal gives cause thereto in the opinion of Contractor, then Contractor is authorised to suspend the provision of his services, until Principal has provided sufficient surety for his payment obligations.
Article 6 - Terms
1. Unless agreed differently in writing terms stated by Contractor within which he shall execute the commission granted to him, is never to be regarded as a fatal term.
Article 7 - Cooperation by Principal
1. Principal shall each time, requested and not requested, provide all relevant information to Contractor that he needs for a correct execution of the commission granted to him.
2. If for the execution of the agreed service or commission necessary data have not, not timely or not in compliance with the made agreements been made available by Principal to Contractor, or if Principal in another manner has not complied with his (information) obligations, then Contractor is authorised to proceed to suspension of the execution of the agreement.
3. Principal must check by himself the correctness of the data stated on the policy, including the height of the premium to be paid.
4. If a situation occurs on the basis of which Principal, or the party for whom Principal with the aid of mediation by Contractor has purchased any financial product, possibly makes a claim to distribution by an insurer or financial entity, then Principal must notify Contractor thereof immediately after said situation has emerged. Principal is required to provide any cooperation to the further processing by Contractor, such as the (letting) recording of the damage by an expert, the provision of relevant and correct information etc.
5. Principal is fully responsible for the correctness and completeness of all information provided by him to Contractor.
Article 8 - Liability of Contractor
1. Any liability of Contractor, under whichever name, as well as of his directors, under whichever name, his employees and the persons employed by Contractor in the execution of the commission is limited to the amount that in the concerned case is paid out under the professional liability insurance of Contractor inclusive of the own risk to be borne by Contractor. Upon request to interested parties further information about the cover of the professional liability insurance shall be provided.
2. If the professional liability insurance of Contractor referred to in section 1 in a specific case provides no cover, then the liability of Contractor, in whichever manner, as well as that of his directors, his employees and the persons employed by Contractor in the execution of the commission, limited to the maximum of the total of the annual fees brought into account to Principal regarding the commission that is the basis of the emerged damage. Furthermore the liability is limited to the direct damage of Principal, so that consequential damage, enterprise damage, missed profits etc. shall never be compensated by Contractor.
3. The execution of the granted commission takes place solely for the benefit of Principal. Third parties can derive no rights from the content of the executed activities for Principal.
4. Contractor is never liable for damage which is suffered by Principal or third parties as a consequence of incorrect, incomplete or untimely information provided by Principal.
5. Contractor is never liable for whichever damage that derives from errors in software or other computer programs used by Contractor, unless this damage can be recovered by Contractor from the supplier of the concerned software or computer programs.
6. Contractor is never liable for whichever damage that derives from the circumstance that (email) messages sent by Principal to Contractor have not reached Contractor.
7. Contractor is never liable for whichever damage that derives from the circumstance that Principal has not or not timely paid premiums brought into account to him for insurances or provisions concluded by him after mediation of Contractor.
8. The stipulations in this article leave unaffected the liability of Contractor for damage which is caused by the wilful intent or conscious negligence of his subordinates.
Article 9 - Force Majeure
1. Contractor is not required to compliance with any obligation if this is for Contractor reasonably not possible as a consequence of changes emerged outside of the actions of Contractor in the circumstances existing at the time of the conclusion of the obligations.
2. A shortcoming in the compliance with an obligation of Contractor is deemed in any case not as imputable and will not be for his risk in case of default and/or shortcoming by or at his suppliers, subcontractors, transporters and/or other employed third parties, in case of fire, work strike or exclusion, riots or uproar, war , government measures, including export, import or transit bans, frost and all other circumstances which are of such a nature that the compliance can no longer be required from Contractor anymore.
Article 10 - Complaints and forfeit of rights
1. Complaints with regard to the activities executed by Contractor or the height of the amounts brought into account by him must, at the peril of forfeit of rights, be made known in writing and within 60 days after Principal has received the documents, information or invoice to which his complaint relates, or reasonably could have taken knowledge of the defect on the performance of Contractor established by him, be made known to Contractor. The submission of a complaint never suspends the payment obligations of Principal.
2. All claims and other authorities of Principal on whichever basis towards Contractor in connection with activities executed by Contractor, become void in any case two years after the moment on which Principal became familiar with or reasonably could be familiar with the existence of these rights and authorities.
Article 11 - Change General Terms and Conditions
1. The content of these General Terms and Conditions can be changed unilaterally by Contractor. Changes will be made known via a general publication on the website of Contractor to Principal. If Principal not within 30 days after he has become familiar with the circumstance that the General Terms and Conditions have been changed and has been able to take knowledge of the content of the changed General Terms and Conditions, rejects in writing the applicability of the changed General Terms and Conditions, then Principal is deemed to have tacitly accepted the applicability thereof.
2. If between parties a difference of opinion exists regarding the text of the General Terms and Conditions applicable at any moment, then the text applies as filed by Contractor on the moment on which the difference of opinion relates to.
Article 12 - Miscellaneous
1. In the case that the content of agreements made in writing between Contractor and Principal deviate from what has been stipulated in these General Terms and Conditions, then the agreements made in writing shall prevail.
2. Until Principal has made a change of address known in writing, Contractor may rely that Principal can be reached at the address stated by him at the start of the commission, including his email address.
3. The Laws of the Netherlands are applicable to all offers, designated offer and agreements of Contractor.
4. Contractor is affiliated with the Klachteninstituut Financiële Dienstverlening (KIFID). Any dispute deriving from (designated) offers and agreements to which the present General Terms and Conditions are applicable, can at the choice of Principal, if he is regarded as a consumer, either be submitted for an advice to the Geschillencommissie Financiële Dienstverlening, or to the civil court. Contractor has not conformed in advance with the advice of the KIFID.