General Terms and Conditions of Amstel Engineering B.V. Version: 01-01-2021
Chapter I
Applicability
1.1. This Chapter I of the General Terms and Conditions applies to all offers issued by Amstel Engineering and to all agreements entered into between Amstel Engineering and any Counterparty.
1.2. Depending on the nature of the agreement concluded with the Counterparty, the following additional terms shall apply:
- If Amstel Engineering supplies and/or manufactures products: the Delivery Terms (Chapter II);
- If Amstel Engineering provides secondment services: the Secondment Terms (Chapter III).
1.3. The applicability of any general terms and conditions of the Counterparty is expressly rejected.
1.4. In the event of a conflict between an offer issued by Amstel Engineering and an order confirmation from the Counterparty, the offer shall prevail.
1.5. In the event of a conflict between the offer and these General Terms and Conditions (Chapters I through III), the offer shall prevail.
Offer
2.1. Any offer made by Amstel Engineering may be accepted by the Counterparty within one month from the date of issuance, unless a different acceptance period is specified in the offer. Offers are made based on the laws and regulations in force at the time of issuance.
Rates and payment
3.1. If the duration of the agreement exceeds six months, Amstel Engineering reserves the right to adjust its rates. Any rate adjustment shall take effect on the first day of the month following the month in which the change was announced. Such adjustments will be communicated to the Counterparty in writing.
3.2. Unless otherwise agreed, Amstel Engineering shall invoice its services on a monthly basis. Invoices shall be issued electronically. Amstel Engineering may issue advance invoices.
3.3. Payment must be made no later than 30 days from the invoice date. Without prejudice to its other rights, Amstel Engineering shall be entitled to suspend or terminate its services and/or work in the event of non-payment within the specified term.
3.4. The Counterparty shall be liable for all taxes levied on or in connection with the invoicing, including but not limited to value-added tax (VAT).
3.5. Payments received from the Counterparty shall first be applied to cover outstanding costs and accrued interest (in that order), and subsequently to the principal amounts due, with older debts being settled before newer ones.
Cooperation with third parties
4.1. If, at the request of the Counterparty, Amstel Engineering cooperates with one or more auxiliary persons, Amstel Engineering shall not be liable for the part of the assignment performed by such auxiliary persons, unless such liability has been explicitly accepted in writing. In such cases, the Counterparty shall be responsible for coordination and for ensuring that all necessary information from such auxiliary persons is made available to Amstel Engineering.
4.2. If Amstel Engineering engages one or more auxiliary persons in the execution of an assignment, it shall only be liable for the part of the assignment performed by such third parties to the extent that the auxiliary persons are themselves liable to Amstel Engineering for any resulting damages.
Provision of information, items and goods
5.1. If the information provided by the Counterparty in relation to the assignment proves to be incomplete, inaccurate, outdated, or provided too late—or if the Counterparty possesses relevant information but fails to disclose it—then the Counterparty shall reimburse all costs incurred by Amstel Engineering as a result, and compensate any damages arising therefrom.
Confidentiality
6.1. If information is exchanged between the parties, both Amstel Engineering and the Counterparty shall treat such information as strictly confidential and shall use it solely for the purpose of executing the assignment. Amstel Engineering is entitled to refer to the assignment for reference purposes.
AVG and data breaches
7.1. If applicable, the Other Party, acting as either a “processor” or a “controller,” shall ensure that personal data of employees and any auxiliary personnel of Amstel Engineering are processed properly and carefully, in accordance with the Algemene Verordening Gegevensbescherming (AVG), also known as the General Data Protection Regulation (GDPR). Such data may only be used for the execution of the agreement concluded with the Other Party.
7.2. If applicable, Amstel Engineering, acting as either a “processor” or a “controller,” shall ensure that personal data processed in the context of the Performance are handled properly and carefully, in accordance with the Algemene Verordening Gegevensbescherming (AVG), also known as the General Data Protection Regulation (GDPR).
7.3. In the event of a data breach, the Other Party shall notify Amstel Engineering within 24 hours of becoming aware of the incident.
Supervision
8.1. If the assignment includes that Amstel Engineering provides project management and/or supervision without day-to-day oversight, it shall only be liable for damages incurred during the periods in which it actually exercised such supervision, in accordance with the agreed assignment.
Liability
9.1. Amstel Engineering’s liability is limited to direct damages and shall in no event exceed the contract value as specified in the agreement, partial agreement, or amendment with the Counterparty, with an absolute maximum of €1,000,000. Amstel Engineering shall not be liable for any indirect, unforeseeable, or consequential damages, including but not limited to loss of income or profits, production delays, financing costs, loss of clientele, data loss or corruption, loss of contracts, additional costs, or expenses that could have been avoided if the assignment had been correctly executed from the outset.
9.2. The Counterparty shall indemnify and hold harmless Amstel Engineering and any personnel it engages from any third-party claims arising from the execution of the agreed performance.
Intellectual property and retention of title
10.1. Amstel Engineering retains all intellectual property rights and all comparable rights for the protection of information in relation to goods it has created. Ownership of delivered goods and/or physical results of the assignment shall not transfer to the Counterparty until all of its obligations have been fulfilled. Furthermore, Amstel Engineering retains ownership of all delivered and yet-to-be-delivered goods until the full purchase price for those goods has been paid.
Personnel
11.1. During the execution of the assignment and for a period of one year thereafter, the Counterparty shall not employ or otherwise engage any Amstel Engineering personnel involved in the assignment, in any capacity. In case of non-compliance, the Counterparty shall owe an immediately due and payable penalty equal to the gross annual salary of the employee concerned, without prejudice to Amstel Engineering’s right to claim full compensation for the actual damages incurred. Any deviation from this clause requires written agreement by both parties.
Approval of data
12.1. Documents or other data carriers (including drawings) sent by Amstel Engineering to the Counterparty for approval shall be deemed approved unless the Counterparty provides written and unambiguous notice to the contrary within two weeks from the date of dispatch.
Software and related ICT services
13.1. Where software is delivered or made available, the Counterparty shall receive a user right as described in the offer or, in its absence, a non-exclusive, non-transferable user right for the duration of the agreement. Intellectual property rights remain with the rightful owner(s). No transfer of intellectual property shall occur unless explicitly agreed upon in writing.
13.2. Amstel Engineering is not responsible for the accuracy or reliability of software, systems, networks, or databases used by the Counterparty or third parties.
13.3. The Counterparty is responsible for the confidentiality and proper use of all assigned access credentials, as well as for any units or products obtained through their use.
13.4. Unless explicitly agreed otherwise, provision of information, management, maintenance, or further development of software, apps, etc., is not included in the agreement. Amstel Engineering shall make reasonable efforts to ensure the uninterrupted availability and continuity of such services but does not guarantee them. It is not liable for data loss or damage, nor for resulting damages. The Counterparty shall provide Amstel Engineering access — including remote access if necessary — to the systems where the software, apps, etc., are operated.
13.5. Upon termination of the agreement, the Counterparty shall cease use of the software, apps, etc., and promptly delete and return all relevant documentation to Amstel Engineering. Amstel Engineering reserves the right to verify compliance, and the Counterparty shall cooperate accordingly.
Severability
14.1. If any provision of these general terms and conditions or of the agreement with the Counterparty is declared null and void or annulled by a court, the remaining provisions shall remain in full force and effect. The parties shall consult to replace the invalid or annulled provision with a legally valid alternative, preserving the purpose and intent of the original clause.
Disputes
15.1. In the event of a dispute, the civil court in the jurisdiction where Amstel Engineering has its registered office shall have exclusive competence. The agreement between the parties is governed by Dutch law.
Chapter II
Additional delivery conditions
16.1. Any stated delivery time or execution period is indicative only.
16.2. The delivery time or execution period will commence only once all commercial and technical details have been agreed upon, all required information—including final and approved drawings and similar documents—has been provided to Amstel Engineering, the agreed (instalment) payment has been received, and all other conditions necessary for the performance of the agreement have been fulfilled.
16.3. The delivery time or execution period shall be extended in the following cases:
a. If unforeseen circumstances arise that were not known to Amstel Engineering at the time the delivery time or execution period was determined, it shall be extended by the amount of time Amstel Engineering reasonably requires, taking its schedule into account, to complete the work under the new circumstances;
b. In the event of additional work, the delivery time or execution period shall be extended by the time Amstel Engineering reasonably needs to procure the necessary materials and components and to carry out the extra work;
c. If Amstel Engineering suspends its obligations, the delivery time or execution period shall be extended by the time Amstel Engineering reasonably requires, taking into account its schedule, to resume and complete the work once the reason for the suspension has ceased.
Unless proven otherwise by the Counterparty, the duration of the extension is presumed necessary and attributable to one of the circumstances listed under a through c.
16.4. The Counterparty shall reimburse all costs incurred and compensate Amstel Engineering for any losses suffered as a result of delays as referred to in paragraph 3.
16.5. Exceeding the delivery time or execution period shall under no circumstances entitle the Counterparty to claim compensation or to terminate the agreement. The Counterparty shall indemnify Amstel Engineering against any third-party claims arising from such delays.
Delivery and transfer of risk
17.1. Delivery shall be deemed to have occurred when Amstel Engineering makes the goods available to the Counterparty at its business premises and has informed the Counterparty that the goods are ready for collection. From that moment on, the risk of storage, loading, transport, and unloading shall rest with the Counterparty.
17.2. The parties may agree that Amstel Engineering will arrange transport. Even in that case, the risk for, among other things, storage, loading, transport, and unloading shall remain with the Counterparty. The Counterparty is entitled to insure itself against these risks.
Force majeure
18.1. Amstel Engineering shall not be liable for any failure to perform its obligations if such failure is the result of force majeure.
18.2. Force majeure shall include, but is not limited to, situations in which third parties engaged by Amstel Engineering—such as suppliers, subcontractors, or transport companies—or other parties on whom Amstel Engineering depends, fail to meet their obligations in whole or in part or do so late; adverse weather conditions; natural disasters; terrorism; cybercrime; disruption of digital infrastructure; fire; power failure; loss, theft, or destruction of tools, materials, or information; roadblocks; strikes or work stoppages; and import or trade restrictions.
18.3. In the event of temporary force majeure, Amstel Engineering shall have the right to suspend its obligations. Once the force majeure has ceased, Amstel Engineering shall fulfil its obligations as soon as its schedule reasonably allows.
18.4. If force majeure renders performance permanently impossible or if the force majeure situation continues for more than six months, Amstel Engineering is entitled to dissolve the agreement in whole or in part with immediate effect. The Counterparty shall also have the right to dissolve the agreement with immediate effect, but only with respect to the portion of the obligations that has not yet been fulfilled by Amstel Engineering.
18.5. Neither party shall be entitled to any compensation for damages resulting from force majeure, suspension, or termination pursuant to this article.
Changes
19.1. Any changes to the agreement initiated by the Counterparty shall result in additional work if:
a. the design and/or specifications are altered;
b. the information provided by the Counterparty proves to be inaccurate.
19.2. Any changes to the agreement initiated by the Counterparty shall result in additional work if:
Execution of the work
20.1. The Counterparty shall ensure that Amstel Engineering can carry out its work without hindrance and at the agreed time, and that the necessary facilities are made available, including:
a. gas, water, electricity, and internet;
b. heating;
c. lockable, dry storage space;
d. facilities required under the Dutch Working Conditions Act and related regulations.
20.2. The Counterparty bears the risk and is liable for damage to, or theft or loss of, property belonging to Amstel Engineering, the Counterparty, or third parties—such as tools, materials intended for the work, or equipment used during the execution—that is located at or near the worksite or another agreed location.
20.3. Without prejudice to paragraph 2, the Counterparty shall maintain adequate insurance coverage for the risks mentioned therein. The Counterparty must also insure against operational risks associated with equipment used. Upon request, the Counterparty shall provide Amstel Engineering with a copy of the relevant insurance policy or policies and proof of premium payment. In the event of damage, the Counterparty is obliged to immediately notify its insurer for further handling and resolution.
Completion of the work
21.1. The work shall be deemed completed in the following cases:
a. when the Counterparty has approved the work;
b. when the Counterparty has put the work into use. If only part of the work is used, that part shall be deemed completed;
c. when Amstel Engineering has notified the Counterparty in writing that the work is complete and the Counterparty has not submitted a written objection within 14 days of the notice;
d. when the Counterparty refuses approval solely due to minor defects or missing components that can be remedied or delivered within 30 days and do not prevent use of the work.
21.2. If the Counterparty does not approve the work, it must inform Amstel Engineering in writing, stating the reasons. The Counterparty must provide Amstel Engineering with the opportunity to complete the work.
21.3. The Counterparty indemnifies Amstel Engineering against third-party claims for damage to parts of the work not yet completed, resulting from the use of parts already delivered.
Warranty and other claims
22.1. Unless otherwise agreed in writing, Amstel Engineering guarantees the proper performance of its obligations for a period of six months following (completion or) delivery, as further detailed in this article.
22.2. If the parties have agreed on different warranty terms, this article shall continue to apply unless it conflicts with those terms.
22.3. If the agreed performance proves to be defective, Amstel Engineering shall, within a reasonable time, choose either to remedy the defect or to issue a proportionate credit on the contract price.
22.4. If Amstel Engineering opts to remedy the defect, it shall determine the method and timing. The Counterparty must allow Amstel Engineering to do so. If the agreed performance involved the processing of materials supplied by the Counterparty, the Counterparty must supply new materials at its own expense and risk.
22.5. Parts or materials repaired or replaced by Amstel Engineering must be returned by the Counterparty.
22.6. The following costs shall be borne by the Counterparty:
a. all transport or shipping charges;
b. costs for disassembly and assembly;
c. travel expenses, accommodation costs, and travel time.
22.7. Amstel Engineering is not obligated to provide warranty services until the Counterparty has fulfilled all its obligations.
22.8. The warranty excludes defects resulting from:
a. normal wear and tear;
b. improper use;
c. lack of or incorrect maintenance;
d. installation, assembly, alteration, or repair by the Counterparty or third parties;
e. defects in or unsuitability of goods provided by or specified by the Counterparty;
f. defects in or unsuitability of materials or tools used by the Counterparty.
No warranty shall apply to:
a. goods not new at the time of delivery;
b. inspection and repair of items owned by the Counterparty;
c. parts covered by a manufacturer’s warranty.
22.9. Paragraphs 3 through 8 of this article shall also apply to any claims by the Counterparty on the grounds of breach of contract, non-conformity, or any other legal basis.
Obligation to complain
23.1. The Counterparty can no longer invoke any defect in the performance if it has not submitted a written complaint to Amstel Engineering within fourteen days after it discovered or reasonably should have discovered the defect.
23.2. Complaints regarding invoices must be submitted in writing to Amstel Engineering within the payment term, under penalty of forfeiture of all related rights. If the payment term exceeds thirty days, the complaint must be submitted in writing no later than thirty days after the invoice date.
Non-Collection of Goods
24.1. The Counterparty is obliged to physically collect the goods that are the subject of the agreement at the agreed location upon expiry of the delivery or execution period.
24.2. The Counterparty shall provide all cooperation free of charge to enable Amstel Engineering to complete the delivery.
24.3. Goods that are not collected will be stored at the expense and risk of the Counterparty.
24.4. In the event of a breach of paragraphs 1 or 2 of this article, and after notice of default has been issued by Amstel Engineering, the Counterparty shall owe Amstel Engineering a penalty of €250.00 per day per breach, up to a maximum of €25,000.00. This penalty is without prejudice to Amstel Engineering’s right to claim additional damages under applicable law. Additional secondment conditions apply.
Chapter III
The following additional secondment terms and conditions shall apply:
Secondment
25.1. Prior to the commencement of the assignment, the Counterparty shall provide Amstel Engineering with an accurate description of the position, job requirements, working hours, workload, job responsibilities, work location, working conditions, and the intended duration of the assignment.
25.2. Based on the information provided by the Counterparty and its own assessment of the qualifications, knowledge, and skills of suitable candidates, Amstel Engineering shall propose one or more candidates for the assignment.
25.3. The Counterparty has the right to reject a proposed candidate, in which case the secondment shall not proceed.
25.4. If a proposal from Amstel Engineering results in secondment, the Counterparty shall owe the agreed fee as stated in the assignment confirmation. If the proposed candidate is employed in a different role within the Counterparty’s organization (including its parent, affiliate, or subsidiary companies), the Counterparty shall also owe the agreed fee for each such engagement.
25.5. Without prior written consent from Amstel Engineering, no candidate proposed by Amstel Engineering may be employed by the Counterparty or any affiliated entity for a period of twelve (12) months from the date of introduction. The Counterparty must notify Amstel Engineering in writing if it wishes to employ any such candidate.
25.6. During the assignment and for a period of twelve (12) months after its termination, the Counterparty and its affiliates may not, without prior written consent from Amstel Engineering, enter into any form of employment relationship with a seconded employee.
25.7. The Counterparty may not disclose any details regarding candidates proposed by Amstel Engineering to third parties without prior written consent.
25.8 In the event of a breach of Articles 25.5, 25.6, or 25.7, the Counterparty shall owe Amstel Engineering an immediately payable penalty of €25,000 per breach, without prejudice to Amstel Engineering’s right to claim full compensation for damages.
25.9. The assignment confirmation may specify whether and after what period the Counterparty is entitled to employ a seconded employee.
Assignment Confirmation
26.1. Each assignment resulting in the secondment of a candidate to the Counterparty shall be confirmed in writing by Amstel Engineering, with reference to these general terms and conditions.
26.2. The assignment confirmation shall include, among other things:
a. the assignment number and description of the work;
b. the agreed rate (excluding VAT) for a 40-hour workweek within the Netherlands;
c. the start date and, if applicable, the expected end date;
d. the estimated number of hours for the entire assignment;
e. the weekly working hours, rest periods, and working times;
f. the name of the seconded employee;
g. terms regarding travel expenses or company car, if agreed;
h. agreed notice period and trial period, if applicable;
i. terms regarding the potential transfer of the employee, if applicable;
j. any other conditions relevant to the assignment.
26.3. The fee may consist of a fixed amount and/or hourly rate, and may include material costs, travel expenses, and other related costs.
26.4. Unless the Counterparty submits a written objection within five (5) days after the assignment confirmation has been sent, the confirmation shall be deemed accurate and binding.
26.5. Amendments to the assignment confirmation are only valid if confirmed in writing by Amstel Engineering.
26.6. Amstel Engineering shall not be liable for deviations from the estimated duration of the assignment.
Execution of the work
27.1. The Counterparty shall treat the seconded employee with the same level of care as it applies to its own employees, including supervision and instruction.
27.2. The Counterparty shall grant the employee access to the workplace and allow the work to be performed under conditions customary in its organization.
27.3. Before the assignment begins, the Counterparty shall provide information on the required qualifications and shall instruct the seconded employee on its internal Risk Inventory & Evaluation (RI&E).
27.4. If required, the Counterparty shall provide documentation outlining specific workplace characteristics. Working hours, duration, and rest times shall match those customary at the Counterparty, unless otherwise agreed.
27.5. The Counterparty shall ensure compliance with all legal requirements regarding working time and rest periods. The employee may not exceed agreed or legally permitted working hours.
27.6. The Counterparty must inform Amstel Engineering of any planned company closures or mandatory collective leave before the assignment begins. If such closures are planned afterward, they must be reported immediately. If the Counterparty fails to notify in time, it remains obligated to pay the full agreed fee for the affected period.
27.7. The seconded employee shall schedule vacation days in consultation with the Counterparty where possible.
27.8.Before work commences, the Counterparty shall provide the employee with appropriate personal protective equipment and related instructions.
27.9. The seconded employee may not be made available to third parties to perform work under their supervision, unless Amstel Engineering has provided prior written consent.
27.10. Secondment abroad by a Dutch-based Counterparty is only permitted under its direct supervision and with prior written consent from both Amstel Engineering and the employee.
Working conditions
28.1. The Counterparty acknowledges that it qualifies as the employer under the Dutch Working Conditions Act (Arbowet). The Counterparty is responsible, both towards the seconded employee and Amstel Engineering, for complying with all obligations arising from Article 7:658 of the Dutch Civil Code, the Working Conditions Act, and all related regulations concerning workplace safety and sound working conditions in general.
28.2. If a seconded employee is involved in a workplace accident or develops an occupational illness, the Counterparty shall, where legally required, promptly notify the competent authorities and ensure that a written report is prepared without delay. This report must describe the circumstances of the incident in such detail that it can be reasonably assessed whether and to what extent the incident resulted from insufficient preventive measures. The Counterparty shall inform Amstel Engineering of the incident as soon as possible and provide a copy of the report. Amstel Engineering reserves the right to conduct an independent investigation.
28.3. The Counterparty shall indemnify and hold Amstel Engineering harmless against all damages (including actual legal costs) incurred by the seconded employee in the course of their work, insofar as the Counterparty and/or Amstel Engineering is liable under Article 7:658 and/or Article 7:611 of the Dutch Civil Code.
28.4. If a workplace incident results in the death of the seconded employee, the Counterparty shall compensate the damages (including actual legal costs) in accordance with Article 6:108 of the Dutch Civil Code to the beneficiaries listed in that article.
28.5. The Counterparty shall maintain adequate insurance coverage for all liabilities arising from this article and shall, upon request, provide Amstel Engineering with proof of such insurance.
Administration of work
29.1. To monitor the progress of the agreed work under the assignment, the employee provided by Amstel Engineering shall maintain a weekly timesheet (in written or digital form) to record the hours worked. The Counterparty is responsible for ensuring that the hours worked, overtime, and days off are accurately and clearly recorded and approved. By signing the timesheet and/or entering the hours into the system, the Counterparty also acknowledges the accuracy, content, and quality of the work performed during the relevant week.
29.2. If the Counterparty provides the time records, it must ensure that Amstel Engineering receives the timesheet immediately after the week worked by the seconded employee.
29.3. The Counterparty guarantees that its personnel are duly authorized to approve and sign the timesheets and accepts full responsibility for the approvals given.
29.4. In the event of any discrepancy between the timesheet submitted to Amstel Engineering and the copy retained by the Counterparty, the version submitted to Amstel Engineering shall be deemed correct, unless the Counterparty can prove otherwise.
Compensation
30.1. Invoicing of the compensation shall take place weekly, based on post-calculation of the hours worked and/or other billable hours as specified in the assignment and these general terms and conditions.
30.2. Amstel Engineering’s weekly invoices shall be based on the timesheets approved and signed by the Counterparty or its personnel, or on the hours recorded in the relevant system. Each invoice shall specify the relevant period, the seconded personnel, any equipment used, and materials consumed.
30.3. Expenses incurred by Amstel Engineering employees in the execution of the assignment shall be charged to the Counterparty if not included in the hourly rate or assignment confirmation. If the Counterparty requires the employee to undertake training, the training costs shall be borne by the Counterparty, and the hourly rate shall remain payable for the time spent on the training.
30.4. If the hirer’s remuneration becomes applicable, Amstel Engineering shall adjust the seconded employee’s remuneration and the applicable rate based on the information provided by the Counterparty.
30.5. If the employee’s remuneration and/or the applicable rate have been set too low due to reasons attributable to the Counterparty, Amstel Engineering shall be entitled to retroactively correct the remuneration and rate to the appropriate level.
Interim modification and termination
31.1. Any modification, extension, or restriction of the agreement as recorded in the assignment confirmation shall only be binding if confirmed in writing by Amstel Engineering.
31.2. The first month of the secondment shall serve as a trial period, during which either party may terminate the agreement with immediate effect. Prior consultation between the parties shall take place before such termination. The terminating party shall not be required to compensate the other party for any resulting damages. No trial period shall apply in the event of an extension or continuation of the agreement.
31.3. The agreement may be terminated by either party with a notice period of one calendar month. Termination must be communicated in writing.
31.4. Both parties shall have the right to terminate the agreement with immediate effect if the other party is declared bankrupt or files for suspension of payment. In such cases, settlement shall be made based on the current project status and costs incurred. Any outstanding claims Amstel Engineering may have against the Counterparty shall become immediately and fully due and payable.
31.5. The Counterparty shall not be entitled to suspend the seconded employee’s deployment, either in whole or in part, on a temporary basis.
31.6. Amstel Engineering shall be entitled to adjust the applicable rate, in whole or in part, to reflect cost increases resulting from changes in government measures or other binding regulations,
changes in the remuneration or employment conditions of seconded employees, changes in social security contributions or premiums, amendments to tax legislation, new levies or contributions introduced under collective agreements or applicable laws, increases in the consumer price index published annually by Statistics Netherlands (CBS).
31.7. The agreement shall automatically terminate—without any liability for damages on the part of Amstel Engineering—if Amstel Engineering is no longer able to provide the seconded employee due to termination of the employment contract between Amstel Engineering and that employee. However, the agreement shall not terminate if Amstel Engineering can provide an equivalent replacement.
31.8. If the agreement is terminated prematurely without observing the agreed notice period, or if Amstel Engineering terminates the agreement prematurely due to circumstances wholly or mainly attributable to the Counterparty, the Counterparty shall owe Amstel Engineering an immediately due and payable penalty equal to 100% of the most recently applicable rate of the seconded employee, for the period between the actual termination date and the originally agreed termination date.
31.9. If the Counterparty fails to fulfill its payment obligations to Amstel Engineering, it shall be in default immediately. In such event, Amstel Engineering shall be entitled to terminate the assignment with immediate effect and suspend the deployment of the employee, without releasing the Counterparty from its payment obligations.
Replacement of an Employee
32.1. As long as the employee’s incapacity for work due to illness has not lasted longer than eight weeks, Amstel Engineering is not obliged to provide a replacement.
32.2. In the case of incapacity for work lasting longer than eight weeks, Amstel Engineering and the Counterparty will consult each other about the possible replacement of the seconded employee.
32.3. Amstel Engineering shall never be liable for any damages to the Counterparty resulting from the employee’s incapacity due to illness.
32.4. If an Amstel Engineering employee has acted in violation of the rules and policies customary at the Counterparty, direct consultation shall take place with Amstel Engineering. Depending on the severity of the violation, Amstel Engineering shall take appropriate action, which may include issuing a warning, a reprimand, or replacing the employee.
Liability
33.1. Amstel Engineering shall make every effort to properly execute the assignment. If and insofar as Amstel Engineering fails to fulfill this obligation, it shall, subject to the provisions of this article and other applicable provisions, be liable for direct damages suffered by the Counterparty, provided that the Counterparty files a written complaint as soon as possible—but no later than two weeks after the damage occurred or became known—and can demonstrate that the damage is a direct result of an attributable shortcoming by Amstel Engineering.
33.2. Any liability of Amstel Engineering arising from the assignment is limited to the amount invoiced to the Counterparty for execution of the assignment. In the case of secondment, liability is additionally limited to the average invoice amount over a period of three calendar months.
33.3. Amstel Engineering shall not be liable for indirect damages under any circumstances. This includes consequential damages, loss of profit, missed savings, and business interruption.
33.4. Amstel Engineering is not in breach and shall not be liable for any damages if the contact between the Counterparty and Amstel Engineering—whether following a specific request from the Counterparty to provide an employee—fails to result in the actual provision of an employee within the desired timeframe or for any other reason.
33.5. Amstel Engineering is not in breach and shall not be liable for any damages or costs if, for any reason, it can no longer provide (a replacement) seconded employee—or can no longer do so in the agreed manner or capacity.
33.6. Amstel Engineering shall not be liable for damages resulting from the deployment of a seconded employee who does not meet the Counterparty’s requirements, unless the Counterparty submits a written complaint within a reasonable time after the start of the assignment and proves that Amstel Engineering acted with intent or gross negligence in the selection process. If a trial period was agreed upon, that trial period shall be considered the reasonable timeframe mentioned here.
33.7. The Counterparty shall ensure sufficient insurance coverage for all direct and indirect damages as referred to in this article. Upon request, the Counterparty shall provide Amstel Engineering with proof of such insurance.
33.8. Amstel Engineering shall not be liable to the Counterparty for damages or losses incurred by the Counterparty, third parties, or the seconded employee, arising from acts or omissions of the seconded employee.
33.9. The Counterparty shall compensate the seconded employee for damages suffered because of the damage to or loss of a personal item used during the execution of the assignment.
33.10. Amstel Engineering shall not be liable for any obligations the seconded employee may have entered with or that have arisen in connection with the Counterparty or third parties—whether with or without permission from the Counterparty or such third parties.
33.11. The total compensation Amstel Engineering may be liable to pay shall never exceed the amount covered and paid out by its insurance policy.
33.12. The Counterparty shall indemnify Amstel Engineering against any liability (including legal costs and actual attorney fees) incurred by Amstel Engineering as the employer of the seconded employee—directly or indirectly—in relation to damages, losses, and obligations described in paragraphs 4 and 5 of this article.
33.13. The limitations of liability described in this article shall not apply in cases of willful misconduct or gross negligence on the part of Amstel Engineering.
33.14. Amstel Engineering always reserves the right to remedy, where possible, any damages suffered by the Counterparty. This includes the right to take measures to prevent or minimize damages.