Article 1 - Definitions
In these general terms and conditions of DC Energy Trading, the following words have the following meaning:
- DC Energy Trading: This is the company DC Energy Trading, located at Stationsplein 21, 4461 HP Goes, Netherlands, with KvK-number 86227289, that applies these terms and conditions.
- Counterparty: This is the person or company with whom DC Energy Trading has concluded an agreement or plans to conclude an agreement.
- Parties: These are DC Energy Trading and the Counterparty.
- In writing: This means that something is put on paper, by post, e-mail or via another electronic method.
- Third party(ies): These are other persons or companies that are not part of DC Energy Trading or the Counterparty.
Article 2 - Identity of DC Energy Trading
- DC Energy Trading
- Stationsplein 21
- 4461 HP Goes
- Netherlands
- KvK-number: 86227289
- Website: www.dcenergytrading.com
Article 3 - General Provisions
- These general terms and conditions apply to all offers, agreements and actions of DC Energy Trading with the Counterparty.
- If the agreement is concluded electronically, DC Energy Trading may provide the text of these general terms and conditions electronically to the Counterparty. If this is not possible, DC Energy Trading will indicate where the general terms and conditions can be viewed electronically and will be sent free of charge upon request.
- If a provision in the general terms and conditions or an agreement is not valid or is nullified, the remaining provisions remain in force. Parties will then consult to agree on a new provision that takes into account the purpose and scope of the null provision as much as possible.
- Unless otherwise agreed in writing, other general terms and conditions do not apply.
- Deviations or additions to these general terms and conditions are only valid if they are expressly agreed upon in writing.
- These general terms and conditions also apply to future assignments that are additional to or arise from previous agreements.
Article 4 - The Offer
- If an offer has a limited validity period or is subject to conditions, this is clearly stated in the offer.
- The offer contains a complete and clear description of the offered services. The description is detailed enough so that the Counterparty can properly assess the offer.
- The rates stated in the offer are inclusive of travel and accommodation costs, unless otherwise indicated. DC Energy Trading has the right to charge additional costs to the Counterparty for unforeseen expenses that could not reasonably have been anticipated at the time of the offer. If this is the case, DC Energy Trading will inform the Counterparty as soon as possible.
- Clear mistakes or errors regarding, for example, stated amounts do not bind DC Energy Trading.
- DC Energy Trading may charge costs for making a proposal. If that is the case, the Counterparty will be informed in advance.
- If the Counterparty has made a request for an offer from more than one (potential) contractor, the Counterparty is obliged to inform DC Energy Trading about the number of requests. If the Counterparty does not fulfill this obligation and DC Energy Trading's offer is not accepted, the Counterparty is responsible for all costs that DC Energy Trading has incurred for making the offer.
Article 5 - The Agreement
- The agreement is concluded as soon as the Counterparty accepts the offer and meets the stated conditions.
- If the Counterparty has accepted the offer electronically, DC Energy Trading immediately confirms electronically the receipt of the acceptance of the offer.
- DC Energy Trading reserves the right not to execute a concluded agreement if there is reasonable doubt or information that the Counterparty will not be able to fulfill his (financial) obligations. If DC Energy Trading refuses, it will notify the Counterparty in writing of the refusal within a reasonable period after concluding the agreement.
- Agreed or stated delivery terms and schedules are always indicative. The delivery terms are not binding. If a term is exceeded, the Counterparty has no right to compensation.
- If the planning for the execution of the agreement is changed at the request of the Counterparty, DC Energy Trading may charge costs and/or damage to the Counterparty as a result of the change.
- The Counterparty must ensure that all information and materials necessary for the proper execution of the agreement are provided to DC Energy Trading on time. The information must also be complete and correct. If DC Energy Trading finds that the Counterparty does not or does not sufficiently comply with this, they may stop the execution of the agreement. They then have the right to charge additional costs to the Counterparty.
- DC Energy Trading cannot promise that their activities will always produce the desired result, such as specific trading profits or market positions. The assignment they accept is based on effort and not on guaranteed results.
- DC Energy Trading may engage other companies to execute the agreement. If they do so, they ensure that these companies work according to DC Energy Trading's normal working method and according to the agreements made between both parties.
- The rules in article 7:404 of the Civil Code and article 7:407 paragraph 2 of the Civil Code do not apply.
Article 6 - Termination
- DC Energy Trading has the right to suspend the execution of the agreement, to terminate and/or dissolve the agreement wholly or partially in writing without prior warning, while retaining all rights to compensation for costs, damage and interest, if:a. The Counterparty does not, not on time or not properly fulfill one or more of his obligations.b. The Counterparty is declared bankrupt.c. The Counterparty applies for (provisional) suspension of payments.d. The Counterparty liquidates his business.e. The assets of the Counterparty are wholly or partially seized.
- If the agreement is dissolved, the claims of DC Energy Trading on the Counterparty become immediately due and payable, insofar as this was not already the case. If DC Energy Trading suspends the execution of the obligations, it retains its rights under the law and the agreement.
- DC Energy Trading is not responsible for any damage that the Counterparty suffers as a result of premature dissolution of the agreement by DC Energy Trading or as a result of suspension of the execution of the agreement by DC Energy Trading.
- DC Energy Trading always has the right to charge damage that it suffers because the Counterparty does not, not on time or not properly fulfill his obligations towards DC Energy Trading, to the Counterparty. Damage includes loss of turnover.
Article 7 - Liability
- DC Energy Trading is not liable for direct and/or indirect damage. DC Energy Trading remains liable for damage that is the result of intentional action or conscious recklessness by DC Energy Trading.
- The Counterparty is responsible for the decisions he makes, whether or not based on advice, reports or research by DC Energy Trading.
- If DC Energy Trading is nevertheless liable for direct damage, the total liability is limited to the amount of the agreed fee for that agreement (excluding VAT).
- Direct damage is understood to mean:a. If the Counterparty has to make reasonable costs to ensure that DC Energy Trading's performance complies with the agreement, these replacement costs will not be reimbursed if the agreement is dissolved at the request of the Counterparty.b. The reasonable costs that the Counterparty has incurred to keep his old systems operational longer because DC Energy Trading did not deliver on the agreed final delivery date will be reimbursed, reduced by any savings as a result of the delayed delivery.c. The reasonable costs incurred to determine the cause and extent of the damage will be reimbursed insofar as these costs relate to damage as referred to in these conditions.d. The reasonable costs incurred to prevent or limit damage will be reimbursed if the Counterparty can demonstrate that these costs have led to limitation of damage as referred to in these conditions.
- The Counterparty protects DC Energy Trading against any claims from third parties who suffer damage in connection with the execution of the agreement.
- To be entitled to compensation, the Counterparty must report the damage to DC Energy Trading in writing as soon as possible after it occurs. Any claim for compensation against DC Energy Trading automatically expires after a period of 12 months after the claim arose.
- DC Energy Trading is not liable for damage caused by persons who assist it as referred to in article 6:76 BW.
- DC Energy Trading is not liable for damage of any kind that has arisen because DC Energy Trading has assumed incorrect and/or incomplete data provided by the Counterparty.
Article 8 - Force Majeure
- In addition to what is determined in article 6:75 BW, DC Energy Trading cannot be held responsible for not fulfilling obligations towards the Counterparty if there are circumstances beyond DC Energy Trading's control. These circumstances may prevent the complete or partial fulfillment of obligations towards the Counterparty or where it cannot reasonably be expected from the Counterparty that these obligations are fulfilled. This also includes failures by suppliers or other third parties, power outages or other technical failures, theft, fire, sick leave and/or disability of DC Energy Trading employees, and consequences of pandemics/epidemics, including but not limited to the pandemic caused by the SARS-CoV-2 virus (coronavirus), and disruptions in energy markets or trading platforms.
- If a situation arises as described in paragraph 1 of this article, whereby DC Energy Trading cannot fulfill its obligations towards the Counterparty, these obligations are suspended as long as DC Energy Trading is unable to fulfill its obligations. If the situation as described above has lasted 30 calendar days, both parties have the right to dissolve the agreement wholly or partially in writing. In that case, DC Energy Trading is not obliged to pay any compensation, even if DC Energy Trading has any advantage as a result of the force majeure situation.
- If the agreement is terminated due to force majeure, DC Energy Trading is entitled to payment for the hours worked or investments made until the moment of termination of the agreement.
Article 9 - Fee and Prices
- All amounts are in euros and exclusive of VAT and other government levies, unless otherwise agreed.
- The agreed amounts are based on cost-determining factors at the time of the offer. DC Energy Trading reserves the right to pass on changes in cost-determining factors that are reasonably beyond DC Energy Trading's control, such as excise increases, social charges, insurance premiums or VAT, up to a maximum of 20% of the original amount to the Counterparty within three months after concluding the agreement.
- A price quote for a combination of services does not oblige DC Energy Trading to execute part of the assignment for a proportional part of the stated amount.
- Discounts and offer prices do not automatically apply to future assignments.
Article 10 - Payment and Invoicing
- If the amount for an assignment has been agreed as a fixed sum, the Counterparty owes 25% (twenty-five percent) of this as a down payment immediately after concluding the agreement, unless otherwise agreed between both parties.
- Unless otherwise determined in the agreement or additional conditions, the amounts owed by the Counterparty must be paid within 14 (fourteen) days after the invoice date.
- The Counterparty has the obligation to immediately report inaccuracies in the provided payment details to DC Energy Trading.
- If the Counterparty does not fulfill his payment obligation(s) on time, DC Energy Trading will make him aware of the late payment and the Counterparty gets a period of 7 (seven) days to still fulfill his payment obligations. If payment is not received within this period of seven days, the Counterparty is in default and the statutory interest is calculated on the amount still owed. In addition, DC Energy Trading has the right to charge extrajudicial collection costs.
- If there is (reasonable prospect of) bankruptcy, liquidation, suspension of payments or debt restructuring under the WSNP, DC Energy Trading's claims on the Counterparty become immediately due and payable.
- Payments made by the Counterparty are always first used to satisfy owed interest and costs, and then for outstanding invoices that have been outstanding the longest, even if the Counterparty indicates that the payment relates to a later invoice.
- The Counterparty has no right to suspension or set-off.
Article 11 - Complaints
- If the Counterparty notices a defect in the performance, he can no longer invoke this if he has not protested to DC Energy Trading within 2 (two) months after he discovered the defect or should reasonably have discovered it.
- The Counterparty must give DC Energy Trading at least 4 (four) weeks to resolve the complaint in mutual consultation.
- If a complaint is not reported to DC Energy Trading within the mentioned periods, it is assumed that the service complies with the agreement and functions properly.
- Complaints do not suspend the Counterparty's payment obligation.
Article 12 - Transfer of Rights
- The rights of the Counterparty arising from the agreement or these general terms and conditions cannot be transferred to others without prior written consent from DC Energy Trading. This rule is a provision concerning property rights as referred to in article 3:83 paragraph 2 of the Civil Code.
Article 13 - Intellectual Property
- All intellectual property rights related to and/or arising from the services provided by DC Energy Trading are owned by DC Energy Trading. The Counterparty only acquires the non-exclusive usage rights that are expressly granted in these conditions and according to the law. Other or further rights of the Counterparty are excluded.
- The documents provided by DC Energy Trading to the Counterparty are exclusively intended for use by the Counterparty. It is not permitted for the Counterparty to make obtained information public and/or to copy it in any form. This includes editing, selling, making available, distributing and integrating into networks, unless written permission is given by DC Energy Trading and/or if this follows from the nature of the agreement with DC Energy Trading.
- DC Energy Trading retains the right to use the knowledge gained during the execution of the work for other purposes, as long as no confidential information from the Counterparty is provided to others.
- Unless otherwise agreed, the Counterparty is not authorized to grant sublicenses to others.
- DC Energy Trading has the right to use the name and logo of the Counterparty as a reference or for promotional purposes.
- The Counterparty indemnifies DC Energy Trading against claims from third parties regarding intellectual property rights.
- If the Counterparty acts contrary to this article, he owes an immediately payable fine of three times the amount agreed for that agreement, without prejudice to DC Energy Trading's right to compensation.
Article 14 - Confidentiality and Privacy
- It is mandatory for both parties to keep confidential information secret that they have received from each other in the context of the agreement. Information is confidential if a party has communicated this or if this reasonably follows from the nature of the information.
- The Counterparty must respect and protect the privacy interests of market participants and trading counterparties that DC Energy Trading works with. Trading data and market information may only be used by the Counterparty for portfolio management or risk management purposes, as long as these results cannot be traced back to individual market participants.
- If the Counterparty violates a provision of this article, the Counterparty, regardless of whether the violation can be attributed to the Counterparty, owes an immediately payable fine of 25,000 euros to DC Energy Trading for each violation, without prior notice of default or legal procedure. This applies without prejudice to DC Energy Trading's other rights, including the right to claim compensation in addition to the fine.
- If DC Energy Trading is obliged on the basis of a legal provision or a court ruling to provide confidential information to third parties, designated by law or the competent court, and DC Energy Trading cannot invoke a legally recognized or permitted right of non-disclosure, then DC Energy Trading is not obliged to pay compensation and the Counterparty does not have the right to dissolve the agreement.
Article 15 - Employee Clause
- During the term of the agreement and for 1 (one) year after termination thereof, the Counterparty may only employ DC Energy Trading employees who have been involved in the execution of the agreement, directly or indirectly, with prior written consent from DC Energy Trading.
- DC Energy Trading will not refuse consent if the Counterparty, in DC Energy Trading's opinion, has offered an appropriate reasonable compensation. Such compensation is in principle set at 12 (twelve) monthly salaries. DC Energy Trading reserves the right to also claim compensation in addition.
- If the Counterparty violates the rule in paragraph 1 of this provision, the Counterparty, regardless of whether the violation can be attributed to the Counterparty, must pay an immediately payable fine of 50,000 (fifty thousand) euros to DC Energy Trading for each violation. This fine is owed without there being any damage, and this leaves DC Energy Trading's other rights unaffected. DC Energy Trading reserves the right to also claim compensation in addition to the fine.
Article 16 - Exclusivity
- During the term of the agreement, the Counterparty gives DC Energy Trading the exclusive right to execute the assigned task.
Article 17 - Applicable Law
- Only Dutch law applies to agreements between DC Energy Trading and the Counterparty to which these general terms and conditions apply.
- If, based on reasonableness and fairness or the unreasonably burdensome nature, a provision of these general terms and conditions cannot be invoked, that provision will in any case be given a meaning that corresponds as much as possible, so that it can be invoked.
- If these general terms and conditions and the agreement contain conflicting conditions, the conditions included in the agreement apply.
- All disputes arising from agreements between the Counterparty and DC Energy Trading, to which these conditions apply and which do not fall under the jurisdiction of the magistrate, will be decided by the competent court in the district where DC Energy Trading is located.
Article 18 - Continuation
- The provisions in the general terms and conditions and the agreement that are intended to remain in force after termination of the agreement, including but not limited to article 7 (Liability), article 13 (Intellectual Property), article 14 (Confidentiality and Privacy), article 17 (Applicable Law) and this article (Continuation), remain fully valid after termination of the agreement.
Article 19 - Amendment or Addition
- DC Energy Trading has the right to unilaterally change or supplement these general terms and conditions. In that case, DC Energy Trading will inform the Counterparty in a timely manner of the changes or additions.
- There will be a period of 30 (thirty) days between this notification and the entry into force of the amended or supplemented conditions.