GENERAL TERMS AND CONDITIONS
regarding assignments and projects given to:
S&S Pension Consultancy
established in Nederhorst den Berg
A . IN GENERAL
The now mentioned terms are used in these general terms and conditions:
the natural person/legal entity which gave the Contractor instructions to execute the project or assignment
2. Contractor: S&S Pension Consultancy
the firm that concludes the Agreement and uses these general terms and conditions. All agreements are established with the Contractor and are exclusively fulfilled by the Contractor, to the exclusion of Sections 7:404 and 7:407 (2) of the Dutch Civil Code. This also applies if it is the Principal’s explicit or implicit intention that the Work is to be performed by a specific individual or specific individuals.
all the work for which the Contractor has received instructions or which the Contractor performs on another account. This applies in the broadest sense of the word and in any event includes the work as specified in the confirmation of the instructions.
all the goods, including those documents/data media, which the Principal made available to the Contractor, as well as all the goods, including those documents/data media, which were produced by the Contractor in the scope of fulfilling the instructions.
each agreement as closed between the Principal and the Contractor in order to perform Work by the Contractor for the Principal in conformance with stipulations as detailed in the confirmation of these instructions.
1. These general terms and conditions apply to all the quotations/offers/instructions/legal relationships/agreements under whatever name, in which the Contractor undertakes/will undertake to perform Work for the Principal, as well as to all Work resulting from the same for the Contractor.
2.Departures from and additions to these general terms and conditions are only valid if they were explicitly agreed upon and in writing, for example in an agreement/confirmation of the instructions.
3.In case these general terms and conditions and the confirmation of the instructions conflict, the conditions included in the confirmation of the instructions will apply.
4. The Contractor explicitly rejects any applicability what so ever of the Principal’s general terms and conditions.
5. The underlying Instructions/ Agreement -together with these general terms and conditions- fully represent the agreements between the Principal and the Contractor regarding the Work for which the Agreement is concluded. It totally replaces all the prior agreements made between the parties or proposals made in that respect.
C. COMMENCEMENT AND DURATION OF THE AGREEMENT
1. Every Agreement is only established and commences at the time the confirmation of the instructions signed by the Principal has been returned to and signed by the Contractor. The confirmation is based on the information which the Principal supplied to the Contractor at the time of the confirmation. The confirmation is deemed to fully and corectly represent the Agreement.
2. Each party is free to prove the establishment of the Agreement by other means.
3. Each Agreement is entered into for an indefinite period of time, unless the nature/contents/ purpose of the instructions given show that the Agreement was entered into for a fixed period of time.
D. INFORMATION REGARDING THE PRINCIPAL
1. The Principal is obliged to make all information/Documents which the Contractor believes are necessary to correctly fulfil the Agreement available to the Contractor in time, in the requested form and in the desired manner.
2. The Contractor has the right to suspend the fulfilment of the Agreement until the Principal has complied with the obligation as mentioned in the previous paragraph.
3. The Principal is required to instantly inform the Contractor regarding all facts/ circumstances which might be relevant for the fulfillment of the Agreement.
4. The Principal at all time guarantees that the information and documents which are made available to the Contractor by or on behalf of the Principal are correct, complete and reliable, even if the information and documents originate from third parties.
5. The additional costs due to delays in the fulfilment of the Agreement and the extra fee due to any failure to make the desired information available or to do so in time/properly will be the burden of the Principal.
6. To the extent that the Principal so requests, the documents made available will be returned to the Principal, subject to the stipulations under P.
E. EXCECUTION OF THE AGREEMENT
1. The Contractor decides the way in which and by what person(s) the Agreement will be executed. If possible, the Contractor will take any guidance from the Principal regarding the realisation of the Agreement into account, provided it is sound and given in time. .
2. The Contractor will execute the Work to his best ability and in a way to be expected of a careful acting professional. However, the Contractor can not guarantee that any result will be realised.
3. The Contractor has the right to have a person or third party to be assigned by the Contractor perform specific Work without any (explicit) notification to and consent from the Principal if the Contractor thinks this is advisable.
4. The Contractor will fulfill the Agreement in agreement with the rules of conduct and the professional rules that apply to him, which are part of the Agreement, and in agreement with the statutory requirements. If requested, a copy of these rules will be sent to the Principal. The Principal will at all time respect the Contractor’s obligations and the obligations for parties working at or for the Contractor, respectively, that arise from these rules and from the law.
5. In case Work is executed for the profession or business of the Principal during the duration of the Agreement which is not covered by the Work to which the Agreement relates, this Work will be deemed to have been performed based on separate Agreements.
6. Any term specified in the Agreement for executing the Work will be only estimated terms and not deadlines. Therefore if a term is exceeded this does not create a culpable failure on the part of the Contractor; therefore this is not a reason for dissolving the Agreement. Terms set for completing the Work can only be considered as deadlines if the Principal and the Contractor have explicitly agreed on this in writing.
7. Unless stated otherwise in writing, the execution of the Agreement is not aimed at detecting fraud. If the work results in indications of fraud, the Contractor will however report this to the Principal at once. In doing so, the Contractor is required to observe applicable law as well as the regulations and guidelines as issued by applicable professional organisations.
F. ELECTRONIC COMMUNICATIONS
1. During the fulfillment of the Assignment, the Contractor and Principal at the request of the Principal can communicate electronically.
2. The Principal and Contractor are not liable in respect of each other for any damage that might arise on the part of one or each of them because of the use of electronic means of communication, including (but not limited to) damage arising from non-delivery or delay in delivery of electronic communications, interception or manipulation of electronic communications by third parties or by software/equipment used for sending, receiving or processing electronic communications, the transmitting of viruses and the failure or improper function of the telecommunications network or other means required for electronic communications, except insofar as the damage is the consequence of intent or gross negligence.
3. The Principal and Contractor will do all they may reasonably be expected to do or omit to prevent the occurrence of the these risks. As for example each have a functional and up to date anti virus sytem.
4. Data extracts from the computer systems of the sender generates credible evidence that (the contents of) the electronic communications sent by the sender, until the recipient has provided evidence indicating otherwise.
G. CONFIDENTIALITY AND EXCLUSIVITY
1. The Contractor is obliged to provide confidentiality towards third parties who are not involved in the execution of the Agreement. This regards all confidential information which the Principal has made available to the Contractor and the results obtained by processing this information. This confidentiality is not valid to the extent that statutory/professional rules, including but not limited to the notification duty resulting from the Dutch Act on Measures to Prevent Money Laundering and the Financing of Terrorism and other (inter)national rules with a similar purpose, impose a duty of disclosure on the Contractor, or in as far as the Principal has released the Contractor from the confidentiality obligation. This stipulation does explicitely not prevent confidential consultations between colleagues within the Contractor’s company to the extent that the Contractor deems this necessary for careful execution of the Agreement or the due observance of statutory/professional rules.
2. The Contractor may use figures obtained after processing for statistical or comparative purposes, provided they can not be traced back to individual Principals.
3. The Contractor is forbidden to use the information which the Principal makes available to the Contractor for any purpose other than the purpose for which the information was obtained, except as stated in paragraph 2, and in the event that the Contractor is acting on his own behalf in disciplinary, civil, administrative or criminal proceedings in which these documents may be relevant. In the event that the Contractor is accused of (complicity in) an offence or felony, the Contractor is authorised to disclose Documents from the Principal to the Tax Inspector or to the judge, if disclosure is required in the scope of conducting a defence by the Contractor.
4. Except with the Contractor’s explicit prior written consent, the Principal is not authorised to disclose the contents of recommendations, opinions or other (written) statements from the Contractor or to make these contents available to third parties in any other way, except to the extent that this results directly from the Agreement, is done to obtain an expert opinion regarding the Contractor’s Work in question, the Principal is under a statutory or professional duty of disclosure, or the Principal acts on his own behalf in disciplinary, civil or criminal proceedings.
H. INTELLECTUAL PROPERTY
1. The Contractor reserves all rights regarding products of the mind which he uses/used during the execution of the Agreement with the Principal, to the extent that legal rights to those products might exist or are established.
2. The Principal is explicitly forbidden to provide those products, including but not limited to computer programs, system designs, work methods, advice, (model) contracts and other products of the mind, all this in the broadest sense of the word -whether or not by using third parties- to third parties, or to reproduce, publish or exploit those products.
3. The Principal is forbidden to provide (resources of) those products to third parties other than for the purpose of obtaining an expert opinion regarding the Contractor’s Work. In that event, the Principal will impose his obligations under this article upon the third parties he calls in.
I. FORCE MAJEURE
1. If the Contractor is unable to fulfill his obligations under the Agreement or is unable to fulfill these obligations in time or properly as a result of a cause that cannot be attributed to him, including but not limited to employee sickness, breakdowns in the computer network and other interruptions of the normal conduct of business within his enterprise, these obligations will (only) be suspended until the time the Contractor can still fulfill these obligations in the agreed manner.
2. In such an event, the Principal may cancel all or part of the Agreement in writing, without this giving rise to any right to damages.
1.The Contractor is authorised to suspend execution of his Work before the start of the Work and in the interim until the Principal pays an advance for the work to be executed, to be reasonably fixed by the Contractor or has provided security therefore. Initially, an advance paid by the Principal will be set off against the final invoice.
2. The Contractor’s fee does not depend on the outcome of the Work performed.
3. The Contractor’s fee may include a pre-determined amount per Agreement and/or may be calculated based on rates per time unit worked by the Contractor and is payable as and when the Contractor has executed Work for the Principal.
4. When an amount fixed per Agreement is agreed upon, the Contractor is authorised to charge a rate per time unit worked on top of this, if and to the extent that the scope of the Work exceeds the scope of the Work provided for in the Agreement, in which case the Principal also has to pay this additional amount.
5. When wages and/or prices change after the establishment of the Agreement but before the instructions have been fully carried out, the Contractor is authorised to adjust the rate agreed on accordingly, unless the Principal and the Contractor have made other agreements in this regard.
6. The Contractor’s fee, if necessary plus disbursements and invoices from third parties called in, including the value added tax due, if any, will be charged to the Principal on a monthly, quarterly or annual basis or after completion of the Work.
1.The Principal is obliged to pay the invoice amount within the terms agreed upon, but in no event later than 14 days after the invoice date, in Euros, at the office of the Contractor or by means of payments into a bank account to be designated by the Contractor and in as far as the payment regards work, the Principal has no right to a discount or setoff.
2. If the Principal does not pay within the term as mentioned in the previous paragraph or within the term as further agreed upon, the Principal will be legally in default and the Contractor is authorised to charge the statutory (commercial) interest from the due date until the day of payment in full, without any further summons or notices of default being required, all this without prejudice to the Contractor’s further rights.
3. All costs arising as a result of collection of the claim in or out of court will be solely borne by the Principal, including to the extent that these costs exceed the court order to pay the costs of the proceedings. The extrajudicial costs are at least 15% of the amount to be claimed, with a minimum of € 250,00.
4. If the Contractor believes that the Principal’s financial position or payment record gives rise to this, the Contractor is entitled to demand that the Principal furnish (additional) security in a form to be specified by the Contractor. If the Principal fails to furnish the requested security, the Contractor is entitled -without prejudice to any other rights he may have- to immediately suspend the further fulfillment of the Agreement and everything that the Principal owes the Contractor on any account whatsoever will be due and payable at once.
5. . If instructions are issued jointly, the Principals are jointly and severally liable for the payment of the invoice amount to the extent that the Work has been performed for the collective Principals.
1. Complaints about the work performed and/or the invoice amount have to be notified to the Contractor within 30 days in writing after the documents or information about which the Principal complains have been sent or within 30 days after the defect is discovered, if the Principal demonstrates that he reasonably was unable to discover the defect earlier.
2. Complaints as referred to in the previous paragraph do not suspend the Principal’s payment obligation, except to the extent that the Contractor indicates that he believes the complaint is valid.
3. In case of a valid complaint, the Contractor can either adjust the fee charged, rectify or redo the rejected Work at no cost or no longer (or not) perform all or part of the instructions in exchange for restitution in proportion to the fee which the Principal already paid.
4. If the complaint is filed too late, all rights of the Principal in connection with the complaint become null and void.
5. Contractor is registered as member of KIFID under number 300.016014.
M. LIABILITY AND INDEMNIFICATION
1. The Contractor is only liable to the Principal for damage which directly results from a (related series of) culpable failure(s) in executing the Agreement. This liability is limited to the amount paid for the event in question according to the Contractor’s liability insurer, plus the excess to be paid by the Contractor under the insurance policy, if any. If the liability insurer does not pay for any reason whatsoever, the Contractor’s liability is limited to the amount of the fee charged for fulfilling the Agreement. If the Agreement is a continuing performance contract with a term of more than one year, the amount mentioned above will be set at three times the amount of the fee charged to the Principal in the twelve months preceding the occurrence of the damage. Never will the total compensation of the damage by virtue of this article amount to more than € 225.000,00 per event, in which a series of related events is deemed to be a single event, unless -in view of the scope of the instructions or the risks related to the instructions- the parties at the time the Agreement is entered into feel that there is reason to deviate from this maximum.
2. The Contractor is not liable for:
A) damage occurring at the Principal or third parties which is the result of the provision of incorrect or incomplete information by the Principal to the Contractor or which is the result of some other act or omission on the part of the Principal;
B) damage occurring at the Principal or third parties which is the result of acts or omissions on the part of agents called in by the Contractor (not including employees of the Contractor), also if these work for an organisation which is affiliated with the Contractor;
C) consequential damage or loss of profits occurring at the Principal or third party, including but not limited to interruptions in the orderly conduct of events in the Principal’s business.
3. . The Contractor is always entitled to remedy or limit the Principal’s damage by rectifying or correcting the defective product if and to the extent possible.
4. The Contractor is not liable for any damage to or the loss of documents during transport or dispatch, regardless of whether the transport or dispatch takes place by or on behalf of the Principal, the Contractor or third parties. During the fulfilment of the Instructions, the Principal and the Contractor may communicate by electronic means at the Principal’s request. The Principal and the Contractor are not liable towards each other for damage possibly occurring for either of them as a result of the use of electronic means of communication, including -but not limited to- damage resulting from failures or delays in the delivery of electronic communication by third parties or by software/equipment used to send, receive or process electronic communications, the transmission of viruses and the failure of the telecommunication network or other means required for electronic communication to function (properly), except to the extent that the damage is the result of wilful misconduct or gross negligence.
Both the Principal and the Contractor will do everything they reasonably may be expected to do or refrain from doing to prevent the risks mentioned above from occurring. The data extracts from the sender’s computer systems serve as conclusive proof of (the contents of) the electronic communication sent by the sender until the recipient has furnished proof to the contrary.
5. The Principal indemnifies the Contractor against all claims from third parties, including shareholders, directors, supervisory directors and employees of the Principal, as well as affiliated legal entities and enterprises and others involved in the Principal’s organisation and (in)directly related to the execution of the Agreement. The Principal specifically indemnifies the Contractor against claims from third parties on account of damaged caused because the Principal provided incorrect or incomplete information to the Contractor, unless the Principal demonstrates that the damage is not related to any culpable act or omission on his part, or has been caused by wilful misconduct or gross negligence on the part of the Contractor.
6. The Principal indemnifies the Contractor against all possible claims from third parties in the event that the Contractor is forced by law and/or his professional rules to return the instructions and/or is forced to render his assistance to government agencies which are entitled to receive information -both when asked and at their own initiative- which the Contractor received from the Principal or third parties in the course of fulfilling the instructions.
7. A claim for compensation for loss must have been submitted to the Contractor within twelve months at the latest after the Principal has discovered the loss, or could reasonably have been aware of the loss; the right to compensation shall lapse in the absence of such a claim.
N. EXPIRY PERIOD
Unless otherwise expressed in this document, rights of action and other powers of the Principal on any account whatsoever towards the Contractor in connection with the performance of Work by the Contractor will in any case become null and void one year after the time at which the Principal learned or reasonably could have learned of the existence of these rights and powers. This term does not regard the possibility to file a complaint with the appropriate body (bodies) for complaint handling.
1. The Principal and the Contractor can end the Agreement at any time with immediate effect by giving notice. In the event that the Agreement ends before the instructions are completed, the stipulations of J.2 apply.
2. The other party has be informed of the cancellation by a registered letter.
3. . If and to the extent that the Contractor terminates the Agreement by giving notice, he has to inform the Principal of his reasons for the cancellation and do everything the circumstances demand in the interest of the Principal.
P. RIGHT OF SUSPENSION
The Contractor is authorised to suspend execution of all his obligations, including the surrender of documents or other matters to the Principal or third parties, until all payable claims against the Principal are paid in full. The Contractor may only refuse to surrender Documents after making a careful consideration of interests.
The Principal shall not hire any Employees involved in the execution of the Work, or hire any Employees to enter into the service of the Principal, either or not temporarily, (in)directly, for the benefit of the Principal, either or not on the basis of an employment contract, to carry out activities during the term of the Agreement or any extension thereof and during 24 months after that.
R. APPLICABLE LAW AND JURISDICTION CLAUSE
1. All Agreements between the Principal and the Contractor to which these general terms and conditions apply are governed by Dutch law.
2. All disputes in connection with Agreements between the Principal and the Contractor to which these general terms and conditions apply will be settled by the competent court in the district where the Contractor is domiciled.
3. Contrary to the stipulation in the previous paragraph, the Principal and the Contractor may opt for another dispute resolution manner.
S. REPAIR CLAUSE IN CASE OF NULLITY
1. In case any provision from these general terms and conditions or from the underlying Assignment/ Agreement should be partially/wholly null and void and/or invalid and/or unenforceable, due to any statutory regulation, court decision or otherwise, then this shall not have any consequences for the validity of all other provisions in these general terms and conditions or the underlying Assignment/Agreement.
2.. In case any provision from these general terms and conditions or from the underlying Assignment/ Agreement should be null and void for a reason mentioned in the previous paragraph, but would be valid if it had a more limited scope or purport, then this provision shall -first- automatically apply with the most far-reaching or widest limited scope that would render it valid.
3. Notwithstanding the contents of paragraph 2, parties may -if desired- enter into consultation in order to agree on new provisions to replace the null and void and/or nullified provisions. Such new provisions shall be based to a maximum degree on the purpose and content of the null and void and/or nullified provisions.
This translation is included for your information only. The Dutch language version is applicable and shall prevail in the event of any indistinctness, incompleteness or conflict in the translation.