1.1 These Consultancy Services General Terms and Conditions and deviations thereof (“Conditions”) govern all confirmed purchase Orders, quotations, proposals, offers, scope of work and general agreements (“Documents”), from or on behalf of MaxGrip EMEA B.V. (“MG”), to a client (“Client”).
1.2 Client and MG (“Parties”) may decide to contract solely based on these Conditions or to enter into separate agreements to govern specific terms arising from Documents. These Conditions do not apply for the license of software solutions.
1.3 For all services provided by MG to Client based on these Conditions, Client will agree that:
a) MG does not accept Clients’ terms and conditions which are contrary to or deviate from these Conditions, unless MG has explicitly consented in writing;
b) Any deviation from these Conditions shall be valid only upon written confirmation signed by Parties.
1.4 If any provision or part of a provision of these Conditions is for any reason or to any extent, invalid or unenforceable, such invalidity or unenforceability shall not in any manner affect or render invalid or unenforceable the other provisions or parts of provisions of these Conditions. In the event of invalidity or unenforceability of any (part of a) provision of these Conditions, Parties shall, at the request of either of them, negotiate in good faith to agree on changes or amendments to these Conditions that may be required to carry out the intention and accomplish the purpose of these Conditions in light of such invalidity or unenforceability.
1.5 Any statement contained in brochures, advertisements, catalogues, standard sheets, price lists and other descriptive publications distributed by MG or published on MG’s websites may be varied by MG from time to time without notice and are not legally binding before MG’s explicit confirmation.
1.6 Documents issued by MG are based on estimated or projected quantities and values, and until the written confirmation of acceptance Documents:
a) are revocable and subject to change by notice;
b) will not bring any obligation to Parties.
1.7 The Documents shall describe and define all relevant aspects of the services, responsibilities, timelines, location, fees and payment conditions, case by case, as well as any deviation terms to these Conditions applicable for the Service.
2.1 Unless otherwise agreed, MG’s prices do not include Goods and Services tax (“GST”) or any other similar applicable taxes, duties, levies or charges in any jurisdiction, as well as travel, accommodation and subsistence costs, withholding taxes or any other taxes levied in connection with Documents imposed to Client. All local taxes, charges and/or levies sanctioned or burdened upon MG will be borne by Client.
2.2 MG is authorized to adjust any fee each year within reasonable limits. MG will notify Client not later than 2 (two) months prior to the first invoice on the new fee.
3. PAYMENT CONDITIONS
3.1 MaxGrip is entitled to invoice worked hours and other expenses (such as travel and subsistence costs) separately. All payment shall be made to MG within 14 (fourteen) days following the date of MG’s invoice. When making a payment, Client must quote relevant reference numbers and the invoice number.
3.2 All payments due to MG shall be made in full and Client is in no event entitled to make deductions or set-off any amount, including taxes and other counterclaims, except for set-offs with uncontested and/or enforceable counterclaims. Client is not entitled to suspend payments to MG. MG reserves the right to request full or partial advanced payment.
3.3 If Client fails to pay the amounts due or to pay the amounts due in a timely manner to MG, MG is entitled:
a) to charge interest on the outstanding amount at the rate usually charged under the applicable laws, including the collection of overdue payments.
b) to require Client to pay in advance for any of the services subject of the Document which have not yet been performed;
c) not to perform any further service until the full payment of the amount due by Client.
3.4 Any complaint with respect to the invoice issued by MG to Client must be notified to MG in writing within 7 (seven) days after the date of invoice. Thereafter, Client shall be deemed to have approved the invoice. The uncontested part of the invoice is immediately due and payable.
3.5 MG is entitled to suspend any obligations pursuant to the Document until Client has paid all outstanding amounts in full without prejudice to MG’s right to exercise any other rights (such as the right to claim damages).
3.6 If Client comprises more than one legal entity, each of these entities shall be joint and severally liable to MG in respect of payment of the amounts due to MG.
4. DELIVERY, PERFORMANCE AND ACCEPTANCE
4.1 Any times or dates for delivery and performance by MG are estimates. Unless stated otherwise by MG, MG is entitled to deliver and perform in parts and invoice Client separately or in parcels.
4.2 Parties shall nominate one representative each, who shall act as the point of contact between the Parties. Either Party may replace their existing representative with another person, on written notice to the other. Such representatives will have the power to make technical and project-level decisions within the scope of this Agreement that are binding on their respective entities.
4.3 Parties will try to accommodate the work schedule to the extent possible. However, Parties are entitled to request changes in the scope of the services, to ensure the best results. In such cases Parties will negotiate in good faith.
4.4 Changes in the scope of the services, may require revisions to the amounts payable for services. Any change request shall be notified in writing, including estimation of costs. MG will not be obligated to perform any services beyond those called for in the Documents. Changes in the services, shall become effective only when a corresponding writing change request is executed and signed by authorized representatives. If a consensus in respect to a change request is not achieved, MG will immediately stop executing the services as per receipt of written notice and the service will be accepted “as it is”. There will be no further obligation to pay any compensation thereof.
4.5 By completion of the services in accordance with the Documents, Client will provide MG with a written acceptance of the Services. If Parties have not expressly agreed in writing to carry out an acceptance test, Client shall accept the services in the condition that it is in at the time of completion (‘as is’). Acceptance by Client may not be withheld without prejudice to MG’s right to fix issues within a reasonable time, as agreed in written.
4.6 Upon acceptance by Client MG shall be discharged of its duties and obligations in relation to the accepted services. Problems arisen from the services after acceptance is formalized will be discussed case by case between the Parties. MG will only be obliged to fix any services after the acceptance is formalized at its own costs, if Client clearly evidences that the problem could not be detected during the acceptance test.
4.7 Cancelation of services will entitle Mg to invoice Client as follows:
a) 25% of the total service value: for cancelations notified 3 weeks prior to the starting date;
b) 50% of the total service value: for cancelations notified 2 weeks prior to the starting date;
c) 90% of the total service value: for cancelations notified 1 week prior to the starting date.
4.8 Client may postpone the starting date of the services. In those cases, all costs incurred by MG (such as preparation costs, travel expenses, personnel fee, etc.) from the date of confirmation and up to (including) the date of the receipt of the postponement notice will be fully paid by Client to MG within 14 (fourteen) business days.
4.9 If the services are cancelled after the starting date, the rules for termination (article 14) apply.
5. OBLIGATIONS OF CLIENT
5.1 Client will:
a) Co-operate with MG as MG reasonably requires in a timely manner in order to provide the services
b) Provide the information and documentation that MG reasonably requires in a timely manner in order to provide the Deliverables;
c) Make available to MG such onsite support facilities as MG requires in a timely manner in order to provide the Deliverables. If Client does not provide the facilities that MG reasonably requires, then any additional costs and expenses which are reasonably incurred by MG will be paid by Client; and
d) Ensure that Client’s staff and agents cooperate with and assist MG in a timely manner in order to provide the Deliverables. Such staff and agents will have the necessary knowledge, expertise and experience and facilities will comply with clauses 6.2, 6.3, 6.4, and 16 of these Conditions.
5.2 If Client fails to make available to MG all material and measures that are reasonably required for the performance of MG, or if Client fails to make these available in a timely manner or as agreed by Parties, MG is entitled to suspend the (further) execution of its obligations without any compensation due to Client.
5.3 Client shall ensure that any facilities reasonably requested by MG, such as a workspace containing computer, data and telecommunication facilities, are provided free of charge. The workspace and facilities shall meet all work, healthy, safety, environmental and welfare standards and regulations as prescribed by legislation.
5.4 If use is made of computer, data or telecommunication facilities, including the internet by MG, Client shall be responsible for selecting the correct resources required for this purpose and for ensuring that these are available in an adequate and in a timely manner, with the exception of those facilities that fall under the direct use and management of MG. MG shall under no circumstances be liable for losses or costs arising as a result of transmission errors, breakdowns or the non-availability of these facilities.
6. CONFORMITY TO SPECIFICATIONS
6.1 MG warrants that the services will be performed: (i) in connection with the scope as defined in the Documents; (ii) with the skill and care that would reasonably and ordinarily be expected from a professional engaged in providing similar activity. If the services do not conform with the foregoing warranty, MG will use all available measures to correct any such non-performance promptly or provide Client with an alternative to achieve the desired performance.
6.2 The aforesaid warranty will not be applicable, and MG will not be liable for claims from Client or third parties if:
a) the use or access to the Services by Client is contrary to the MG’s instructions;
b) is caused by systems, environments, or standards not provided, supplied, controlled or owned by MG;
c) is caused by any action implemented by any party other than MG or MG’s duly authorized representatives, such as delays and delivery failures;
d) is caused by problems of transfer of data over communications networks and facilities, including internet, outside of MG control.
6.3 A determination of whether an obligation regarding performance of the services conforms to the specifications shall be done by MG, after consulting Client, and by analyzing the samples or records retained by MG and in accordance with the methods of analysis used by MG.
6.4 Defects, failures or shortages in parts do not entitle Client to reject the entire services, unless Client cannot reasonably be expected to accept the remaining non- defective/faulty parts. Complaints, if any, shall be as soon as possible informed to MG and shall not affect Client’s obligation to pay MG for the performed services.
7. INTELLECTUAL PROPERTY
7.1 All rights of intellectual property (“IPR”) owned by Client and MG are and will remain the property of Client or MG. This means that each party (“Party”) shall continue to own its existing IPR and future IPR, which is obtained after the entry into force of these Conditions, without conferring any interests therein on the other Party.
7.2 If MG is willing to transfer or assign IPR, such transfer or assignment can only be agreed upon expressly and in writing in a separate agreement. The transfer of an IPR shall not affect MG’s right to carry other obligations which may be similar or derived from the obligations that is being executed or has been agreed on behalf of Client.
7.3 For the applicability of this clause 8, IPR includes property such as copyright, trade name, trademark, patent, processes know-how, domain name, inventions, software and computer programs, source code, symbols, images, designs, research and technical documents and materials, analysis and training material or other utility model, plans, models, drawings, prints, samples, specifications, reports, manuscripts, working notes, documentation, manuals, photographs, negatives, tapes, discs, databases, and other information, data, and items embodied in any tangible form.
8. LIMITED LIABILITY AND INDEMNITY
8.1 Except in the case of death or personal injury caused by MG’s negligence, the liability of MG under or in connection with these Conditions whether arising in contract, tort, breach of statutory duty or otherwise must not exceed the fees paid by Client to MG.
8.2 Neither Party is liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by the other Party of an indirect or consequential nature including any economic loss or other loss of turnover, profit, business or goodwill.
8.3 MG will be maximally liable for an amount of EUR 1,000,000 (one million euro). The aforesaid limitation applies in aggregate to all causes of action or claims in which MG is considered liable, including, without limitation, loss as result of death, physical injury, indemnity, negligence, strict liability, misrepresentations and other torts.
8.4 Client must indemnify and hold MG harmless from and against all claims and losses arising from loss, damage, liability, injury to MG, its employees and third parties, infringement or third party IPR, or third party losses by reason of or arising out of any information supplied to Client by MG, its employees or consultants, or supplied to MG by the Client within or without the scope of these Conditions.
8.5 The liability of MG due to the scrambling, destruction or loss of data or documents is excluded in its entirety.
8.6 MG will comply with all regulations and laws related to the services. MG will indemnify client from and against all actions, costs, claims and demands in respect to any breach thereof.
8.7 A condition for the existence of any right to compensation of damages or losses shall in all cases be that Client notifies MG in writing of the loss or damage as soon as possible after it occurs. Any claims for losses or damages against MG shall expire by the mere passage of twenty-four (24) months from the date on which the claim arose without notification received from Client.
9. FORCE MAJEURE
9.1 Neither Party shall be liable in any way for any damage, loss, cost or expense arising out of or in connection with any delay, restriction, interference or failure in performing any obligation towards the other Party caused by any circumstance beyond its reasonable control, including, without limitation, acts of God, laws and regulations, administrative measures, orders or decrees of any court, earthquake, flood, fire, explosion, war, terrorism, riot, sabotage, accident, epidemic, strike, lockout, slowdown, labor disturbances, difficulty in obtaining necessary labor or raw materials, lack of or failure of transportation, breakdown of plant or essential machinery, emergency repair or maintenance, breakdown or shortage of utilities, delay in delivery or defects in goods or services supplied by suppliers or subcontractors as well as electricity failure, faults affecting the internet, computer network or telecommunication facilities (“Force Majeure”).
9.2 Upon the occurrence of any event of Force Majeure, the Party suffering thereby shall promptly inform the other Party by written notice thereof specifying the cause of the event and how it will affect its performance of its obligations under these Conditions. Should a Force Majeure event continue or be expected to continue for a period extending to more than 60 (sixty) days after the agreed delivery date, Parties shall discuss upon the most efficient and fast solution to have the performance of the obligation duly executed under the terms and conditions mutual agreed as well as the terms of these Conditions.
10. INDEPENDENT CONTRACTORS
10.1 MG is an independent contractor. MG is not Client’s agent in any way. MG’s personnel will not under any circumstances be considered employees of Client for any purpose. During the validity of these Conditions and for the period of two (2) years after the termination of these Conditions, none of the Parties, will, directly or indirectly, individually or on behalf of any other person, firm, partnership, corporation or business entity of any type, solicit or in any way encourage any current or former employee to terminate his or her employment relationship or work with any Party without the other Party written consent. In case of discovery of violation of this provision, the Party whose employee shall pay to the other Party the sum of liquidated damages (calculated on the gross yearly salary of the solicited employee).
11. ANTI-CORRUPTION UNDERTAKINGS
11.1 Parties shall execute their obligations herein agreed in accordance with all applicable laws, rules, regulations and decrees of any governmental or regulatory body having jurisdiction in the territory where these Conditions are legally valid. Parties agree that all invoices, financial settlements, billings and reports rendered to the other Party shall reflect properly the facts about all activities and transactions handled and those documents may be relied upon as being complete and accurate. Parties shall not take any action on other Party’s behalf that would result in inadequate or inaccurate reporting of any assets, liabilities or transactions which would violate any applicable laws. Parties shall not make or give, either directly or indirectly, any improper payments of money or anything of value to a government official, political party or official thereof, or any candidate for political office, in connection with these Conditions. Parties expressly prohibit payment of bribes (including facilitation or “grease” payments) to any Party. Parties agree to notify the other Party promptly upon discovery of any instance where it fails to comply with any provisions of this clause.
12.1 These Conditions terminates when the services are terminated. Either Party may also terminate these Conditions by giving 90 (ninety) days’ notice of termination to the other Party.
12.2 MG is entitled to immediately terminate these Conditions if any of the following events occurs:
a) Any petition of bankruptcy is filed by or against Client;
b) Any action is taken by or against Client under any law the purpose or effect of which is or may be to relieve Client in any manner from any of its debts, or to extend the time of payment thereof;
c) Client makes an assignment for the benefit of creditors or makes any conveyance of any of its property which in the opinion of MG may be to the detriment of Client’s creditors;
d) A receiver or trustee is appointed with authority to take possession of Client’s property or any part thereof;
e) Any licenses, permits or authorizations to conduct any activity described or agreed in these Conditions or the Documents are cancelled or revoked and not reinstated within thirty (30) days;
f) Client ceases to do business entirely or in substantial part;
g) Client sells, transfers, or relinquishes any substantial interest in the ownership or active management of Client’s or attempts to assign or transfer in whole or in part these Conditions without MG’s acknowledgement;
h) Client defaults on any indebtedness.
12.3 MG shall under no circumstances be obliged to reimburse any amounts received or to pay any compensation in the event of a termination pursuant to clause 14.
12.4 Any amount that MG has invoiced Client before the termination of these Conditions shall remain due in full and shall become immediately payable.
13. CONFIDENTIAL INFORMATION, PRIVACY AND DATA PROTECTION
13.1 Client agrees that any commercial, strategic, technical data, knowledge and/or other information connected with these Conditions, including samples or other tangible materials (hereinafter all of the foregoing collectively “MG Confidential Information”) that is disclosed to or otherwise comes into the possession of Client, its customers, affiliates or offices, either orally, in writing or other form, is to be treated as confidential and proprietary. Client agrees that MG Confidential Information will be maintained in strict confidence, not disclosed to third parties and not used for any purpose other than these Conditions.
13.2 The requirement to maintain information in strict confidence, however, shall not apply to MG Confidential Information that: (A) is or becomes generally available to the public through no wrongful act of Client; (B) was in the possession of Client prior to the time it was acquired hereunder and was not acquired, directly or indirectly, from Client or its affiliates or from others under an obligation of confidentiality; (C) is independently made available as a matter of right to Client by a third party without obligations of confidentiality, provided that such third party did not acquire such information directly or indirectly from MG; or (D) is required by law to be divulged on a non-confidential basis, provided that Client must notify MG prior to any disclosure, and must assist MG in obtaining a protective order, including an injunction, or other confidential treatment and otherwise minimizing the extent of disclosure.
13.3 Client agrees to limit access to MG Confidential Information to its employees, agents, representatives, and subcontractors who reasonably require such access for the execution of its obligations. Client agrees to require its employees, agents, representatives, and subcontractors to maintain MG Confidential Information in strict confidence. Client must not make nor permit the making of any copies, abstracts, derivatives, or summaries of any MG Confidential Information, except for the execution of these Conditions.
13.4 Responsibility and liability for any data used or connected to these Conditions after the delivery or performance by MG, shall rest solely with Client. Client guarantees to MG that the content, the use and/or the processing of the data provided by Client is not unlawful and does not infringe the rights of third parties. In no event shall MG be responsible or liable for compliance with any legislation or other laws in respect of the protection of personal data of Client or Client’s users.
13.5 Client shall indemnify and hold MG harmless from, and shall compensate MG for any damages, losses, costs and expenses of whatever nature as a result of any claims from third parties whose personal data is recorded or processed within the context of a register of personal data maintained by Client or for which Client is responsible pursuant to the law or otherwise, including any claims of whatever nature by third parties in relation to this data.
13.6 If Parties agree that MG is obliged to provide some information security, Parties shall agree thereupon separately in writing.
13.7 If computer, data or telecommunications facilities are needed for the execution of these Conditions, MG is entitled to assign access or identification codes to Client. MG shall be entitled to change the access or identification codes assigned. Client shall treat the access and identification codes as confidential and with due care and shall only disclose these codes to authorized members of staff. MG shall under no circumstances be liable for any damage or costs arising from the use or misuse of access or identification codes by Client.
13.8 Client acknowledges that no personal data is needed for the purposes of performing the services under these Conditions. All personal data collected, processed or used by MG happens to establish a relation with Client and not for commercial purposes
14. WORK, HEALTH, SAFETY, SECURITY AND ENVIRONMENTAL REQUIREMENTS
14.1 MG places prime importance on work, health, safety, security, and environmental (“WHSSE”) issues and requires that Client subscribes to and actively pursue the highest standards of WHSSE performance during the execution of these Conditions.
14.2 Client shall observe and comply with the principles and requirements of WHSSE under legislation and all other laws. Failure of Client to meet these requirements in a way to bring to MG’s employees or MG’s interests any risk entitles MG to terminate these Conditions.
15. GOVERNING LAW
15.1 The Parties’ rights and obligations arising out of or in connection with these Conditions shall be governed, construed, interpreted and enforced according to the laws of the Netherlands. The United Nations Convention on Contracts for the International Sale of Goods dated 11 April 1980 (CISG) shall not apply.
15.2 The parties agree that any suits, actions or proceedings that may be instituted by any Party shall be initiated exclusively before the competent courts of Utrecht, the Netherlands
15.3 Parties agree that before initiating any suits, actions or court proceedings, either of the Parties shall use its best endeavors to solve the dispute through amicable negotiations.
16. SURVIVAL OF RIGHTS
16.1 The Parties’ rights and obligations shall be binding upon and inure to the benefit of the Parties and their respective successors, permitted assigns, directors, officers, employees, agents and legal representatives. Termination of one or more of the Parties’ rights and obligations, for whatever reason, shall not affect those provisions of these Conditions which are intended to remain in effect after such termination.
17.1 The original version of these Conditions is made in the English language. In the event of any inconsistency or contradiction between the English version and any translation thereof, the English version shall prevail.
18.1 No failure or delay by MG in exercising any right, power or privilege under these Conditions will impair the same or operate as a waiver of the same nor may any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.
19.1 Unless otherwise permitted in these Conditions, neither Party may assign, delegate, subcontract, mortgage, charge or otherwise transfer any or all its rights and obligations under these Conditions without the prior written consent of the other Party.
19.2 A Party may assign and transfer all its rights and obligations under these Conditions to any person to which it transfers all its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor under the Conditions.