General
1.1 The following general conditions apply to each and all relevant offers, assignments or agreements for services or consultancy services to be rendered by KAPAR CONSULTING B.V. (KAPAR CONSULTING) as far as nothing else deviating has been mutually agreed in written between KAPAR CONSULTING and principal.
1.2 The following conditions also apply to each and all agreements with KAPAR CONSULTING regarding the execution in the event KAPAR CONSULTING has to involve third parties.
Agreement
2.1 The assignment exclusively comprises the activities described in the written offer / agreement, including all changes agreed upon in written afterwards.
2.2 The offer has a validity period of 60 days unless something different has been mentioned in the offer.
2.3 The assignment is effected at the moment the offer submitted by KAPAR CONSULTING is accepted in written by the principal or in the event KAPAR CONSULTING accepts a verbal assignment of the principal in written and the principal consents tacitly by not replying in written within 14 days upon receipt of the notification.
2.4 Any communication by means of electronic way such as Internet and e-mail is put at the same level in these general conditions as verbal communication. Wherever written communication is mentioned in these general conditions, this is also understood to mean communication per fax, telex and telegraphic means.
Interim changes
3.1 Any Changes, supplementations and/or extensions to the assignment are only binding when agreed upon in written between the parties.
3.2 In the event the change is caused by circumstances KAPAR CONSULTING knew or should have known at the realization of the assignment, the extra costs resulting from it are for the account of KAPAR CONSULTING. However, should these extra costs cause the agreed price to increase by more than ten percent, KAPAR CONSULTING has the right to return the assignment and only in the event - and as far as - the execution has not yet been started, without charging any fee.
3.3 In case the principal submits further assignments during the execution of the assignment or wishes to change the existing assignment, such shall only be possible if KAPAR CONSULTING agrees and the principal reimburses the costs, which have become due for such purpose subject to what has been determined previously.
3.4 Upon consultation with the principal, KAPAR CONSULTING is authorized to deploy another consultant for the assignment or to change the composition of the consulting team that is deployed for the assignment.
Duration of the agreement and interim termination
4.1 Each and all agreements are made for an initial duration of two years unless otherwise mentioned in this agreement. After this period, the agreement is tacitly renewed again and again for a period of 1 year, subject to a termination notification by principal not later than 3 months before the expiration of the concerned period.
4.2 Both parties have the right, within the scope of article.
4.3 up to included article 4.5, to terminate the agreement prematurely. Such a termination has to be made in written and by means of registered mail.
4.3 KAPAR CONSULTING shall only use such competence in the event the completion of the assignment cannot be asked of KAPAR CONSULTING in all fairness as a result of facts or circumstances beyond the influence of KAPAR CONSTULTING.
4.4 A unilateral termination by the principal is only possible in case the agreement provides such. In the event the principal terminates the agreement, KAPAR CONSULTING is entitled to (further) payment of a dissolution compensation equal to twice the average invoice amount of the invoices made to the principal in the past 9 months.
4.5 A unilateral termination by the principal is also possible – even when not provided in the agreement – in the event of an accountable failure on behalf of KAPAR CONSULTING. In such case, there exists no right to further payment of the dissolution compensation within the meaning of the previous paragraph.
Execution of the assignment
5.1 The assignment shall be executed within the (estimated) deadline mentioned in the agreement in consideration with the principal unless it is impossible to meet such deadline in all fairness.
5.2 The principal is bound to provide KAPAR CONSULTING with all data and information needed for the assignment in written within 3 working days upon the realization of the assignment unless KAPAR CONSULTING explicitly requests to put the information at disposal in another way and/or at another time.
Rights to results
6.1 The principal has the complete and free disposal of the results of the assignment as delivered by KAPAR CONSULTING to the principal and as far as it concerns the use within the own company of the principal. The principal is not allowed to put the results of the assignment at the disposal of third parties otherwise, other than and as far as necessary for the execution of the assignment.
6.2 KAPAR CONSULTING preserves the rights granted to it by reason of the copyright law. The principal shall indemnify KAPAR CONSULTING from any and all consequences, which might exist in case the principal puts the results of KAPAR CONSULTING at the disposal of a third party. 6.3 In the event KAPAR CONSULTING executes the assignment on the basis of a remuneration contingent upon the result, the principal shall be bound to render full assistance to the execution of the assignment to the best of his abilities. Should the principal not render the needed cooperation (for instance without being restricted to the following cases, prior to filing the application or submission of the disposition to withdraw the assignment prematurely and/or to stop the current subsidy application prematurely and/or to suspend projects or refuses to provide KAPAR CONSULTING or the subsidy supplier with information necessary for filing the application completely c.q. to complete or to deal with), a compensation to be paid by the principal to KAPAR CONSULTING shall become due, equal to the total of working hours performed by KAPAR CONSULTING multiplied by the hourly rate of the concerned staff member(s).
Confidentiality
7.1 Any and all conclusions and findings of an assignment are tailored to each individual case. In this connection, KAPAR CONSULTING shall treat the information confidentially with respect to the principal and shall not allow third parties access to reports and notes given to the principal unless the nature of the reporting / assignment demands so.
7.2 The responsibility resulting from this article also extends to those whose services KAPAR CONSULTING has used for the execution of the assignment unless deviating agreements have been made in the specific case for such purpose and the principal is informed about it.
Liability
8.1 Although each assignment is executed to the best intention and ability and in accordance with all requirements for a good practice, KAPAR CONSULTING cannot give any guarantees with respect to the advices given and the services rendered by KAPAR CONSULTING. This also applies when particular results should be included in the specification of the assignment.
8.2 KAPAR CONSULTING is liable towards the principal for any failure in the execution of the assignment as far as such failure consists of any non-compliance with the carefulness and professionalism, which may be expected from the execution of the assignment. However, KAPAR CONSULTING is not liable for: - any damage towards the principal or third parties resulting from supplying improper or incomplete information by or on behalf of the principal to KAPAR CONSULTING; - any damage to the principal or third parties resulting from actions or defaults by assistants called in by KAPAR CONSULTING (employees of KAPAR CONSULTING not included); - any loss of profits, any indirect damage or any consequential loss for the principal or any third party.
8.3 At all times, KAPAR CONSULTING has the right to rectify the damage suffered by the principal as far as possible.
8.4 In the event the principal considers making KAPAR CONSULTING liable for compensation of the damage, he is obliged to enter into consultation with KAPAR CONSULTING about it before making KAPAR CONSULTING liable.
8.5 The liability of KAPAR CONSULTING for a failure in the execution of the assignment as well as for any wrongful act is purely restricted to material loss and also to the amount the principal has paid and/or still owes as fee (exclusive turnover tax) to KAPAR CONSULTING in accordance with the standard as determined in article 9 for the related activities the cause of loss relates to or is connected with. In any case, the liability of KAPAR CONSULTING is always restricted to the amount of the insurance benefit when the occasion arises.
8.6 The liability of KAPAR CONSULTING for damage because of death or physical injuries is restricted to the benefit amount being paid on basis of the insurance contract taken out by KAPAR CONSULTING in the matter.
8.7 Any compensation claim has to be submitted with KAPAR CONSULTING, at the latest within twelve months upon detection of the damage by the principal and in the absence thereof, the right to compensation for damages expires.
8.8 The principal is bound to indemnify KAPAR CONSULTING from any and all claims or demands from third parties – also including shareholders, directors, commissioners and staff members of the principal as well as associated legal entities and corporate bodies and others involved in the organization of the principal – resulting from or connected to the activities of KAPAR CONSULTING for the principal.
8.9 The exclusions or restrictions of the liability of KAPAR CONSULTING resulting from this article as well as the indemnification obligation of the principal resulting from previous paragraph do not apply as far as the damage is the result of evil intent or intentional recklessness on the part of KAPAR CONSULTING.
8.10 KAPAR CONSULTING is not liable for damage to or perishing of documents during transportation or postal mailing regardless whether the transportation or mailing is made by or on behalf of the principal, KAPAR CONSULTING or any third persons.
8.11 Natural persons attached to KAPAR CONSULTING bear no liability whatsoever connected to the assignments given to KAPAR CONSULTING or the execution thereof. The principal is obliged to take care that neither claims nor entitlements whatsoever connected to assignments given to KAPAR CONSULTING or the execution thereof are filed or brought before court as those which the principal himself might have towards KAPAR CONSULTING. Nevertheless, should such a claim be filed against KAPAR CONSULTING by someone other than the principal himself, the principal indemnifies as well KAPAR CONSULTING as the employees of KAPAR CONSULTING from any and all consequences resulting thereof.
Price and payment
9.1 The offer of services can be made on the basis of a fixed price, remuneration of worked hours, adjustment or payment of an amount equal to a percentage of the subsidy amounts, credits, contributions, tax rebates or (other) tax privileges or a combination of all these possibilities to be promised by third parties to the principal. In case the offer contains a fixed price, such price shall be deemed to be the agreed price. In case the agreement does not contain a fixed price, the amount to be paid shall be determined on basis of the rates as agreed upon in the assignment and which KAPAR CONSULTING uses periodically. In such case, the rates most recently determined by KAPAR CONSULTING apply. In case the offer contains a ‘recommended price’, such price is deemed to be a noncommittal estimation of the cost.
9.2 In the event the agreement does not mention any other regulations with respect to the payment conditions, the following rules apply for assignments on the basis of: - a fixed price: 50% at the beginning of the assignment and 50% upon completion of the assignment. - an adjustment: monthly subsequent payment or 100% upon completion (in case of a short-term assignment). - a payment of an amount equal to a percentage of the subsidy amounts, credits, contributions, tax rebates or (other) tax privileges (or a combination thereof) to be promised by third parties to the principal: the agreed amount becomes due by the principal to KAPAR CONSULTING upon receipt of the relating promise or disposition containing the promise for the subsidy, credit, contribution, tax rebate or any other tax privilege.
9.3 All amounts mentioned by KAPAR CONSULTING in the offer are exclusive turnover tax, travel and accommodation expenses and other levies imposed by the authorities unless something else has been mentioned.
9.4 The principal is obliged to pay in Euro currency within 14 days upon invoice date unless something else has been agreed in advance (previously).
9.5 The principal has to make the payments without any discount or any set-off whatsoever. The existence of claims and/or complaints does not exempt the principal from his payment obligation(s). In the event the payment terms are not kept, an interest on the unpaid invoice amount shall become due by the principal to KAPAR CONSULTING at the statutory interest for commercial transactions in effect at that moment referred to in article 6:119a BW (and is the same as the refinancing interest determined by the European Central Bank for its most recent basic refinancing transaction, which took place before the first calendar day of the involved half year increased with seven percent unless otherwise agreed) and is calculated as of the day(s) the payment(s) should have been made up to included the day of payment without the necessity to send any reminder or serving notification.
9.6 Also collecting expenses – as well legal as non-legal – which are estimated at at least € 125.00 and the costs associated with a petition in bankruptcy are for the account of the principal.
9.7 The principal is always obliged to provide a security upon the first request of KAPAR CONSULTING for the amounts already due by the principal to KAPAR CONSULTING as well as the amounts becoming due by the principal to KAPAR CONSULTING.
Various
10.1 In the event one of the parties does not comply with any essential obligation of the agreement other than determined in previous article, the other party shall offer the party that remains in default, by means of registered mail, the opportunity to meet his obligation(s) within a reasonable period of time. Nevertheless, should the party that remains in default continue to fail to meet its obligations within the stipulated period, its rights resulting from this agreement shall be expired and the other party shall not be bound anymore to comply with the imposed obligation.
10.2 Any and all claims of the principal towards KAPAR CONSULTING connected to the agreement expire completely in the event such claims have not been made known to KAPAR CONSULTING in written within 1 year upon invoice date unless the principal proves that it was impossible for him to comply with his notification requirement within the stipulated period.
10.3 The principal always gives the assignment to KAPAR CONSULTING. The stipulations in article 7:404 BW and in the second paragraph of 7:407 BW are explicitly excluded.
Disputes
11.1 All disputes connected to assignments given to KAPAR CONSULTING or their execution shall be taken to the judge who has jurisdiction in accordance with the law.
11.2 This agreement shall be governed by Dutch Law.
11.3 The Dutch version of these general conditions is binding in case of any difference of content or meaning.
