Patentbureau De Nederlanden B.V. is a private limited company (BV), incorporated under Dutch law, registered with the Chamber of Commerce under number 87388014, which conducts the practice of patent attorney in the broadest sense. In these general terms and conditions, “PBNL” is understood to mean Patentbureau De Nederlanden B.V.
These general terms and conditions apply to all assignments given to PBNL by clients, so also to any additional assignments, changed assignments and follow-up assignments. These general terms and conditions also apply to the entire legal relationship between PBNL and the client arising from an assignment or related to an assignment. The applicability of the terms and conditions of the client is hereby expressly rejected.
These general terms and conditions, including the limitation of liability formulated in Article 18 and the indemnification formulated in Article 19 , as well as the waiver formulated in Article 20 , can also be invoked by all persons employed by PBNL, in whatever capacity, as well as by their legal successors. All the stipulations in these terms and conditions that are to the benefit of PBNL shall apply to them as an irrevocable clause stipulated without consideration in the sense of article 6:253 of the Dutch Civil Code. In these general terms and conditions, “persons employed by PBNL” means all natural and legal persons associated with PBNL, for example all persons who perform or have performed work in the context of the services provided by or on behalf of PBNL, and in any case the employees, shareholders and directors of PBNL and third parties engaged by PBNL.
All assignments are exclusively given to and accepted by PBNL, even if accepted by an employee or representative of PBNL. PBNL will always be regarded as the contractor. This also applies if it is intended that an assignment will be carried out by a specific person. Articles 7:404 of the Dutch Civil Code, which provides a regulation in the event that the assignment is intended to be performed by a specific person, and 7:407, paragraph 2 of the Dutch Civil Code, which establishes joint and several liability in the event that two or more persons are commissioned, do not apply. An assignment is deemed to have been accepted after PBNL has confirmed it in writing, or in any case after PBNL has started performing the requested work.
When performing the work to be performed in connection with an assignment, PBNL will observe the care of a good contractor as much as reasonably possible. PBNL is not responsible for achieving the intended result. Accordingly, all agreements between the client and PBNL only relate to best efforts obligations of PBNL.
With regard to the assignment to file a patent application, or to take over the representation or to perform other activities, such an assignment in any case also includes the assignment to report on the developments with regard to that assignment.
The client must provide documents and data related to the assignment, as well as written instructions, in a timely manner, which means that written instructions are received by PBNL within the term set by PBNL or, if PBNL has not set a term, no later than two weeks before the official deadline. The client must also inform PBNL in a timely manner and in writing of any changes to the address details, name and other important information regarding the client and any other parties involved in the execution of the assignment. If the client does not comply with the obligations referred to in this paragraph, this will be at the risk of the client.
If in a particular case the instructions of the client cannot be awaited, PBNL is authorized to take the measures it deems necessary to protect the rights of the client. PBNL is not obliged to perform work that has not been explicitly assigned. Failure to perform work that is not explicitly assigned cannot lead to any liability.
All electronic communication, including e-mail, is in writing. Errors cannot be completely ruled out in electronic communication; nor can it be completely ruled out that third parties become aware of the content of this communication. The client acknowledges that electronic communication can be intercepted, manipulated, infected, delayed or incorrectly forwarded, for example by viruses and spam filters. PBNL is not liable for any damage resulting from the performance of electronic communication that takes place at the request or with the – tacit or non-tacit – consent of the client.
PBNL is not liable for any inaccuracy and/or incompleteness of literature sources, official registers, classifications, indices, computer databases consulted by PBNL, and not liable for inaccuracies and/or incompleteness as a result of an agreed limitation of the assignment or as a result of inaccuracies and/or incompleteness in the information provided by the client or other parties involved.
By giving an assignment to PBNL, the client grants PBNL a power of attorney to engage third parties if PBNL deems this desirable for the execution of the assignment. PBNL is not liable for errors or shortcomings of these third parties, nor for damage resulting therefrom or in connection therewith. When engaging third parties, PBNL acts as the client’s authorized representative. The power of attorney also includes the acceptance of conditions from third parties on behalf of the client, which conditions PBNL will be able to object to the client insofar as it concerns the execution of the assignment by the third parties.
Unless otherwise agreed in writing, PBNL is entitled to a fee that is equal to the number of hours spent on the assignment multiplied by the hourly rate applicable at the time the work is performed, being at least 290 euros per hour excluding VAT. In addition, PBNL is entitled to compensation for services performed by PBNL in connection with the assignment, such as submitting documents to official bodies and reporting to the client about communications received from official bodies , and PBNL is entitled to compensation for disbursements and costs, such as travel and accommodation costs, telephone, fax, postage and copy costs, costs of third parties engaged or to be engaged by PBNL, plus the VAT due. PBNL will be allowed to increase the latter costs with its own fee that is reasonable, taking all circumstances into account. Travel time will be charged on the basis of the applicable hourly rate.
The payment term for invoices is 30 days from the date of the invoice. With several clients , each of them is jointly and severally liable for the payment of the invoice. When the client requests that the invoices be addressed to a (legal) person other than the client, this request shall be regarded as an acknowledgment of the correctness of the invoice and as an acknowledgment of the permanent indebtedness of the client and the client is jointly and severally liable for the payment of the invoices, interest and costs vis-à-vis PBNL.
PBNL is entitled to demand payment of advances and/or to send an invoice in the interim. PBNL is always permitted not to start or not continue the work if an advance has not yet been paid.
Cost estimates provided by PBNL to the client are purely indicative and without obligation, unless expressly stated otherwise in writing.
Any complaints about the invoice or the work to which an invoice relates must be communicated in writing to PBNL within 30 days of the date of the invoice concerned, failing which the client is deemed to acknowledge the correctness and indebtedness of the invoice. If the client fails to pay on time, PBNL is entitled, without any reminder or notice of default being required, to charge the statutory commercial interest as referred to in article 6:119a of the Dutch Civil Code and, at PBNL’s discretion, to suspend the work on the assignment or terminate the assignment, without thereby becoming liable for compensation to the client. Set-off against a counterclaim is not permitted. Disputes, of whatever nature, never give the client the right to refuse or suspend payment of invoices. PBNL is entitled to reimbursement of all costs, judicial and extrajudicial, which PBNL must incur if the client fails to fulfill any payment obligation towards PBNL. The extrajudicial costs in any case include – but are not limited to – the costs related to sending reminders, reminders, and/or notices of default and will in any case amount to fifteen percent (15%) of the amount to be paid, with a minimum of 500 euros excluding VAT.
Without prejudice to the other rights accruing to PBNL, PBNL is entitled in the event of force majeure to suspend the execution of an assignment, or to dissolve the assignment agreement without judicial intervention, without PBNL being obliged to pay any compensation. Force majeure is understood to mean any shortcoming in the performance that is not attributable to PBNL’s fault nor for its account. Force majeure on the part of PBNL will in any case exist if, after the agreement has been concluded, PBNL is prevented from fulfilling its obligations under this agreement as a result of illness or other impediment of an employee of PBNL. Force majeure is in any case also a case of force majeure if the client provides incorrect information or if the client does not provide sufficient cooperation.
The liability of PBNL will be limited to the amount paid out by the applicable professional liability insurance taken out by PBNL, plus, where applicable, the amount of deductible that is not covered by this insurance. In the event that the aforementioned liability insurance does not pay out, and PBNL is held liable for damage notwithstanding the limitation of liability agreed with the client, any liability is limited to damage for which the client has proved that it was caused by intent or gross negligence on the part of PBNL and is limited to the amount that the client has paid to PBNL for the relevant assignment, with a maximum amount of 25,000 euros per event, a related series of events to be regarded as one event. Claims for compensation will lapse if the client has not complained in writing to PBNL within ten (10) days after either the day on which the client discovers the damage or, if the day defined next is earlier, the day on which the client could reasonably have discovered the damage. The right to compensation, and any other right of the client in connection with the damage, lapses in any case after twelve (12) months after the event that caused the damage. The burden of proof with regard to any liability of PBNL rests on the client. Any liability for indirect damage, such as lost turnover, lost profit, missed opportunities, reduced goodwill and lost savings, is excluded.
The client indemnifies PBNL and all persons employed by PBNL against all claims from third parties, including costs to be incurred by PBNL in connection with these claims, arising from or related to the execution of an assignment for the client.
By giving an assignment to PBNL, the client waives the right to hold natural persons out of the group of persons employed by PBNL liable for whatever reason.
An assignment given is deemed to apply until the work for which the assignment has been given has been completed. The client has the right to terminate the assignment prematurely. The cancellation must be made in writing. PBNL also has the right to terminate the assignment prematurely. PBNL will in any case terminate the assignment in the event that PBNL deems that there is a breach of trust with the client and in the event that a material conflict of interest exists or threatens to arise during the execution of an assignment by PBNL. A material conflict of interest is not deemed to exist if the work for one client consists solely of or is related to the translation of a European patent granted for the Netherlands and/or Belgium. In the event of termination, by the client or by PBNL, PBNL is entitled to the fee referred to in article 12 for work performed up to the termination and to the compensation referred to in article 12 for any services already performed and disbursements and costs paid. This applies in full if a fixed price was agreed for the assignment.
The legal relationship between the client and PBNL, as well as any liability claim, is subject to Dutch law. All disputes arising from that legal relationship will be submitted exclusively to the competent court in Zwolle, The Netherlands. In the event of a dispute, the authentic Dutch text of these general terms and conditions is binding.