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1.1 The terms set forth here under shall have the following meanings:
Client: the opposite party of Contractor with regard to a contract within the meaning of Article 2.1.
Contractor: the private limited liability company EXTERUS B.V., having its registered office at The Hague.
1.2 All assignments shall be accepted and performed exclusively by Contractor, subject to the exclusion of Sections 404, Book 7, of the Dutch Civil Code.
1.3 The clauses in these general terms and conditions have also been stipulated on behalf of the Contractor’s indirect or direct directors, and for all persons employed working for and/or engaged by the Contractor.
2.1 These general terms and conditions shall apply to all contracts of assignment under which Contractor is obliged to perform activities, all contracts arising there from and/or relating thereto between Client and Contractor or their respective legal successors and all offers and/or proposals made by Contractor.
2.2 The agreement between the Client and Contractor is concluded when (i) Contractor receives from the client the Letter of Engagement signed by as well Contractor and the Client; (ii) Contractor commences with the execution of the assignment; or (iii) it becomes evident in any other way that Contractor has accepted the assignment, whichever date is the earlier.
2.3 The Contractor expressly dismisses applicability of the general terms and conditions of the Client or others.
2.4 The Contractor reserves the right to change its general terms and conditions.
2.5 Clauses which depart from the terms and conditions shall apply only if and to the extent expressly confirmed in writing by Contractor to Client.
2.6 If any clause in these general terms and conditions or in the contract is or is held to be invalid, the general terms and conditions and the remainder of the contract shall remain in force to the extent possible and the invalid clause shall be replaced forthwith in consultation between the parties by a clause which reflects the object of the original clause as close as possible.
3.1 Contractor shall only be obliged to perform or continue to perform the assignment after Client has supplied Contractor with all requested data and information in the indicated form and manner. Any additional costs incurred and delays in the execution of the assignment due to the failure of Client to supply the requested data or information promptly and properly shall be borne by Client.
3.2 Client shall inform Contractor forthwith of any facts and circumstances which may be of importance with regard to the performance of the assignment.
3.3 Client warrants the accuracy, completeness and reliability of the data and information supplied by it or on its behalf to Contractor.
4.1 Contractor shall determine how and by which person(s) the assignment shall be performed, taking into account any wishes expressed by Client as much as possible.
4.2 Contractor shall carry out the work to the best of its ability and with due professional care. Contractor does not however guarantee the achievement of any intended results.
4.3 Dates by which work must be completed shall only be regarded as deadlines whose non-observance constitutes a default (fatale termijnen) if expressly agreed in writing.
4.4 Client shall not be entitled to rescind the contract if and when an agreed deadline is exceeded, unless (i) Contractor also fails to perform its contractual obligations within a reasonable period notified to it in writing after the original date of completion; (ii) it is evident that the performance of the contract will be permanently impossible.
5.1 Contractor shall be entitled to any and all intellectual property rights in anything developed or caused by the Contractor in whole or in part during the term of the agreement in the context of or as a result of the agreement, including advice, working methods, (model) contracts, systems, system designs and computer programs, copyrights, trademark rights, design rights, patent rights, database and neighboring rights, under Dutch as well as foreign law, save insofar as third parties are entitled to such intellectual property rights.
5.2 Without prior written permission by Contractor, Client shall not reproduce, disclose or exploit such intellectual property rights or a recording thereof on any data carrier, either alone or in conjunction with or through third parties, without prejudice to the provisions of Article 6.
6.1 Client and Contractor are obliged to observe secrecy with regard to details and information provided by or on behalf of the other party towards third parties that are not involved in the realization of the assignment. This obligation does not apply insofar as Client or Contractor has a legal or professional duty of disclosure, including the obligation to report arising from the Act against Money Laundering and Financing of Terrorism (Wet ter voorkoming van witwassen en financieren van terrorisme) and other Dutch or international legislation with a comparable purport, or insofar as Client and Contractor have released each other from the obligation of confidentiality. This provision does not prevent confidential consultation between colleagues within the organization of Contractor and confidential consultations with the third parties it has engaged, insofar as Contractor deems such consultation necessary for the meticulous realization of the assignment or to precisely satisfy legal or professional obligations.
6.2 Without prior written permission of the other party, a party shall not disclose or make available to third parties in any other way advice, opinions or other statements made by the other party, whether or not in writing, unless such action arises directly from the contract or is effected to obtain an expert opinion on the work performed by the other party, a party has a legal or professional obligation to disclose the data concerned or is acting on behalf of itself in disciplinary, civil or criminal proceedings.
7.1 Client shall pay to Contractor a fee and reimburse costs incurred in accordance with Contractor's usual rates, methods of calculation and working processes. Contractor has the right to unilaterally change the rates.
7.2 Any disbursements and fees of third parties paid for the benefit of the Client will be passed on. Disbursements and fees of third parties already paid but not yet invoiced will be charged upon receipt of the fee notes concerned.
7.3 Contractors fees increased by other expenses and notes of fees of third parties and turnover tax, where applicable, will be invoiced to the Client on a monthly basis unless where otherwise agreed.
8.1 Payment shall be made in Euros by deposit or transfer to the bank or giro account stated on the fee note, without any deduction, discount or set-off, within fourteen (14) days of the fee note date, failing which Client shall be in default.
8.2 If Client fails to pay one or several fee notes of Contractor in time and in full, Contractor shall have the right to immediately suspend further execution of the agreement. In that case Client shall owe statutory interest pursuant to Section 6:119a of the Dutch Civil Code and extrajudicial costs of collection, with a minimum of EUR 750, on the outstanding amount, effective from the day following the ultimate date of payment.
8.3 All costs incurred by Contractor in connection with legal proceedings against Client shall be borne by Client, including any and all costs exceeding the legal costs awarded, unless Contractor is ordered to pay the legal costs as losing party.
8.4 Contractor reserves the right to request Client to provide for full or partial payment in advance and/or to provide security -even during the performance of an assignment, if the financial position or the payment behavior of Client in the opinion of Contractor so warrants- failing which Contractor shall be entitled to suspend the performance of its obligations.
8.5 Contractor shall have the right at all times to demand advances on the work to be done or costs to be incurred.
9.1 If Client disagrees with the work done or a fee note, it shall inform Contractor of its objections in writing within thirty (30) days of the date of dispatch of the documents concerned or in case Client shall prove that it could not reasonably have discovered the shortcoming earlier, within thirty (30) days after discovery thereof, failing which Client shall forfeit any claims in that respect; Contractor shall the right, at its own discretion, either to modify the fee note, rectify the shortcoming free of charge, repeat the assignment concerned, or cancel the performance of the assignment partly or in full against a proportional refund of the fee note paid by Client.
9.2 Objections shall not suspend Client’s payment obligations, save to the extent that Contractor informs Client that it deems the objection valid.
10.1 If an agreement has been entered into for an indefinite period, either party may give written notice of termination, stating reasons, with due observance of a notice period of three months. Contractor shall never have the right to give notice of and/or otherwise terminate a fixed term agreement prematurely.
10.2 Either party shall have the right to terminate the agreement with immediate effect if the other party:
(a) is in breach of essential obligations under the agreement and after receiving a written and detailed demand to that effect still fails to comply with its obligations under the agreement within two weeks of the date of said notice of demand;
(b) applies for suspension of payments, enters into settlements with creditors, is declared bankrupt and the bankruptcy order is not lifted within two weeks;
(c) wishes to enter into a composition with its creditors or execution is levied on all its assets or otherwise loses control of its assets; or
(d) discontinues or substantially decreases its operations or a resolution has been passed to wind up or liquidate the other party’s business.
10.3 In the event of termination of the agreement the services provided at the time of termination by Contractor under the agreement and the related payment obligations cannot be revoked, unless Client proves that Contractor has defaulted on those services. Any fees invoiced by Contractor prior to termination in connection with services or goods duly supplied under the agreement shall remain due in full with due observance of the provision of the preceding sentence and shall become immediately payable upon termination.
11.1 Contractor shall execute the assignment in the manner set out in Article 4. Contractor shall not be liable for loss or damage due to any mistakes resulting from inaccurate or incomplete information supplied by Client to Contractor.
11.2 Contractor shall be liable only for shortcomings caused by third parties engaged by Contractor if and to the extent that the loss and damage resulting therefrom can be recovered from those third parties. Contractor shall have the right to accept also on behalf of Client any limitations of liability of third parties engaged by Contractor.
11.3 Contractor shall not accept any responsibility or liability for services for Client by third parties recommended by Client.
11.4 The liability exemptions set forth in this Article shall not apply to the extent the damage is caused by gross negligence or willful misconduct on the part of Contractor.
11.5 Any liability of Contractor for a shortcoming in the performance of the assignment or on any other account shall be limited to compensation of the direct loss and damage, up to the amount that in the matter concerned will be claimable under the professional liability insurance(s) of Contractor, to be increased by the amount of the excess that is for the account of the Contractor under the policy terms in the matter concerned. Any and all liability for indirect and consequential damages is hereby excluded.
11.6 If, without prejudice to the provisions of Article 11.5 Contractor is liable for loss and damage that is not (fully) paid by its insurer(s), the liability of Contractor shall be limited to the fee charged to Client for the (relevant part of the) assignment or in case of a continuing performance contract the total of the fees charged for the (relevant part of the) assignment (exclusive of VAT) due in the period of one year preceding the occurrence of the damage, in both cases up to a maximum of EUR 50,000.
11.7 Client shall hold harmless and indemnify Contractor against all claims from third parties - including but not limited to shareholders, directors, supervisory directors and employees of Client as well as affiliated legal entities and companies and third parties involved in the organization of Client- arising from or in connection with the work performed by Contractor for Client, unless such claims are due to gross negligence or willful misconduct on the part of Contractor.
12.1 Unless these general terms and conditions provide otherwise, any and all legal claims of Client against Contractor in connection with the performance of the assignment by it, regardless of their nature, shall expire at any rate by expiry of one year after completion of the assignment concerned.
13.1 All contracts between Client and Contractor and their execution as well as all non-contractual obligations arising from the agreement shall be governed exclusively by Dutch law.
13.2 All disputes related to, arising from and/or concerning the interpretation and execution of this agreement to the competent court in The Hague.
13.3 Notwithstanding the provisions of Article 13.2, Client and Contractor may decide in favor of dispute resolution by arbitration by one or three arbitrators, in accordance with the regulations of the Dutch Arbitration Institute. Arbitration shall be held in The Hague.
13.4 These general terms and conditions have been drawn up in the Dutch and English language, with the Dutch version prevailing in the event of differences in interpretation about the contents/purport of these terms.