General Terms & Conditions
§ 1 Applicability
- The following General Terms and Conditions, as amended from time to time, apply to any and all business relations between the client (“Client”) and EFL Expertise B.V. with its seat in Amsterdam and registered with the Dutch trade register of the chamber of commerce under number 34320675 (“Contractor”).
- Any terms and conditions of Client shall not apply, even if Contractor does not object to them explicitly; unless Contractor explicitly agrees thereto in writing.
§ 2 Scope of services
- The scope and content of the consulting services shall be set out in individual contract(s) (the “Consulting Agreement”). Unless explicitly agreed otherwise, Contractor’s obligation shall be limited to the performance of the services agreed upon in the Consulting Agreement. Legal services or tax advice are excluded in any case. In no event shall Contractor be held responsible for the correct implementation of his services, in particular of recommendations and analyses, by Client. Contractor neither owes nor guarantees the achievement of a specific business result.
- Contractor shall carry out any consulting services with the greatest possible skill and care and according to the accepted rules of science and engineering, taking into account the individual situation and demands of Client. Contractor always performs its consulting services objectively, neutrally, without instructions and independently. Contractor is not bound to a specific working time or place. The Consulting Agreement shall not operate or be construed as an employment agreement, agency agreement, joint venture agreement or partnership.
- Contractor is entitled to have carried out all or part of the consulting services by a third party (subcontractor). Contractor is responsible for the choice of the subcontractors as well as any employees entrusted with the performance of the consulting activity. The payment of any such persons involved will exclusively be effected by Contractor; no contractual relationship shall be established between Client and any such involved person. Contractor reserves the right to replace individual employees or an entire team during the course of a project, taking into consideration the justified concerns of the Client.
- Client may request from Contractor at any time information on the status of the consulting activity, including information on the involved subcontractors. The drawing up of comprehensive written reports, particularly also for presentation to third parties, shall be agreed upon on a case-by-case basis.
- Client may not assign or transfer his rights or obligations arising from the contractual relationship to a third party without the prior written approval of Contractor.
- Contractor’s rights, benefits and/or obligations under the contractual relationship may be assigned to any affiliate of Contractor and/or subcontractor.
§ 3 Changes of contract
Any modification or update concerning the Consulting Agreement, particularly as to scope and content of the consulting activity, duly agreed upon by Client and Contractor, will become part of the contractual relationship as an additional agreement. Contractor shall make reasonable efforts to take into account the relevant changes requested by Client. If any requested change has material effect on the costs, the time frame or any other substantial contractual characteristics, the respective contractual terms and conditions, particularly with respect to compensation and service deadlines, shall be adjusted.
§ 4 Client’s obligations
- Client will create the basic conditions necessary for the proper implementation of the Consulting Agreement and undertakes to provide Contractor in a timely and complete manner with all relevant data and documents as well as any necessary information.
- Client is responsible for the completeness and correctness of the documents provided and the information given by him. Contractor will exclusively check the data provided by Client for plausibility.
- Client is responsible for an adequate and safe environment for Contractor (and its employees and/or subcontractors) to perform the consulting services.
- Client is knowledgeable and will remain in full compliance with all applicable laws, regulations and policies to which it is or becomes subject and Client will make all necessary filings and registrations with appropriate governmental bodies and authorizations required, if any, in respect of the consulting services acquired under the Consulting Agreement.
§ 5 Compensation and terms of payment
- The compensation plus any out-of-pocket expenses for the consulting services of Contractor shall be determined in the Consulting Agreement. All prices included in the Consulting Agreement are exclusive of Value Added Tax (if applicable). Any other taxes arising out of the Consulting Agreement will be Client’s responsibility.
- If compensation is agreed to be contingent on time spent, it is to be calculated on the basis of the daily rate of the respective consultant applicable at the time of conclusion of the Consulting Agreement. If consulting activity of Contractor is delayed due to reasons Client is responsible for, Contractor reserves the right to invoice on the basis of a meanwhile increased daily rate.
- All claims to compensation shall become due upon invoicing and shall be paid within a payment term of 30 days from the date of invoice without the right of deduction, postponement and/or settlement.
- Client does not have any right of set-off against or suspension or other deduction or withholding from Contractor’s claim(s) payable under the Consulting Agreement, unless with an uncontested or validly determined claim.
§ 6 Confidentiality
- Each party undertakes to keep confidential any and all information, particularly the other party’s business, research, development, products, services and trading secrets, that have become known during the performance of the consulting activity and that are obviously confidential or that were expressly identified as confidential when they were communicated or handed over. The confidentiality obligation shall survive the termination of the Consulting Agreement.
- Contractor will bind any subcontractor or any other person involved pursuant to paragraph 2.3 to the same level and extent of secrecy as itself is bound vis-à-vis the Client.
- Contractor shall be authorized to collect, store, process, and use, by itself or via third parties, any personal data necessary for the performance of the consulting activity in accordance with the contractual purpose and in compliance with applicable law.
- The Client will bind any affiliate, director, officer, agent and/or employee to the same level and extent of secrecy as itself is bound vis-à-vis the Contractor.
- The confidentiality obligation arising from this paragraph 6 in respect of each party will not apply to the disclosure of confidential information if and to the extent (i) required by law or in order to enforce any rights pursuant to the Consulting Agreement in legal proceedings; (ii) required by any competent authority; or (iii) that such information was obtained from a third party that lawfully possesses such information and not in violation of any confidentiality restrictions, or is in the public domain other than through a breach of this paragraph 6.
§ 7 Mutual duty of good faith
- The parties undertake to be loyal to one another and to act in good faith. Either party shall inform the other immediately of any and all events that arise during the term of the Consulting Agreement and that may affect its implementation.
- Neither party shall, directly or indirectly, hire or otherwise employ any employee or former employee of the respective other party or subcontractor, who are or have been involved with the performance of the consulting activity of Contractor.
- The parties undertake not to actively entice away the respective other party’s employees involved in the implementation of the Consulting Agreement. Should Client learn that any employee of the Contractor involved in the implementation of the Consulting Agreement intends to terminate his employment relationship, Client shall inform Contractor of this immediately.
§ 8 Warranty and Indemnity
- As soon as reasonably possible, Client shall report in writing to Contractor any deficiencies in the performance of the consulting service which are attributable to and for which the Contractor is liable under the Consulting Agreement. Where Client considers reporting obvious deficiencies, it shall within a period of 14 days after receipt of the performance, and hidden deficiencies within a period of 14 days after discovery of the deficiency, notify Contractor in writing, giving all known details of such deficiency. If and to the extent that remedy is reasonably possible and can be conducted at reasonable expense, Contractor has the right to remedy any deficiencies it is responsible for within the scope of the Consulting Agreement.
- In the event such remedy is refused, impossible or unreasonably delayed, Client may – to the extent it is entitled to statutory warranty claims – at its choice declare a reduction of compensation or withdraw from the Consulting Agreement.
- This limitation of liability does not apply to any deficiency fraudulently concealed or which is the consequence of willful misconduct or gross negligence by Client.
- Client fully indemnifies and holds harmless Contractor (and its affiliates, employees, officers, directors and subcontractors) against any claims, costs, expenses and liabilities from third parties in respect of damage caused by (i) Client’s negligence or that of its personnel and (ii) Client breaching the Consulting Agreement and these General Terms and Conditions.
§ 9 Liability
- To the extent permitted by law in no event will Contractor be liable for any damages, lost revenues, lost profits or goodwill or reputation, business interruption, lost business, incidental, indirect or consequential damages.
- Contractor shall be liable without limitation for any damages arising from gross negligence or willful misconduct by itself, its legal representatives, its executive employees, its subcontractors, or its agents.
- Apart from that, Contractor shall only be liable for direct damages resulting from a breach of material obligations, being such duties, which are required for proper implementation of the Consulting Agreement and which the Client may rely on. Liability for violation of material obligations shall be limited to the extent the damage was foreseeable and typical for the Consulting Agreement. Moreover, the liability for each individual case of damage shall be limited to the lower of the amount of 50% of the total net remuneration volume of the Consulting Agreement or the amount of EUR 100,000.
- Any claim of Client against Contractor shall become time-barred within a period of one year following completion of the respective consulting services upon which moment the liability of Contractor in respect of such damage claim shall lapse.
- Nothing in these General Terms and Conditions excludes or limits either party’s liability to the other which cannot lawfully be excluded or limited including liability for injury of life, body or health caused by negligence, willful misconduct or gross negligence.
- Client shall be liable for any and all damages resulting from a breach of the Consulting Agreement and/or these General Terms and Conditions and any damages and injury to Contractor’s employees or subcontractors resulting from and caused by Client and any employees, directors, officers, or whatever person Client is responsible for.
§ 10 Rights to results of work
- Client may use the results of Contractor’s services only for the contractually agreed purpose. Any publication requires the explicit prior written consent of Contractor and shall always mention Contractor’s name. Any changes to the Contractor’s original documents as well as any transmittal of the results of the consulting services to third parties require the explicit prior written consent of Contractor.
- To the extent that the results of Contractor’s services are subject to copyrights, Contractor shall be entitled to the copyright, whereas Client shall receive, within the scope of paragraph 10.1, the irrevocable, exclusive, and non-transferable right to use these results without time limit. Rights in all intellectual and industrial property of Contractor existing prior to the commencement of the Consulting Agreement and which are used in respect of the consulting services, developed separately by or licensed to Contractor by a third party, are the sole property of Contractor.
- All intellectual and industrial property rights and materials provided to Contractor by Client under the Consulting Agreement are and shall remain the sole property of Client or its third party licensors and Client shall obtain all relevant consents and licenses necessary for Contractor to use such intellectual and industrial property rights to perform the consulting services, if necessary.
- Client shall defend, hold harmless and indemnify Contractor (and its affiliates, officers, directors, employees and subcontractors) from any claim, costs, expenses, lawsuits, fines and liabilities on the basis of an alleged infringement, misappropriation or other violation of third party’s intellectual and industrial property rights which are provided by Client and used by Contractor for the performance of the consulting services under the Consulting Agreement.
§ 11 Force majeure
In cases of force majeure or other unforeseeable events for which the Contractor is not responsible and which cause the Contractor substantial difficulties in performing, or which make it temporarily impossible to perform, the contractual services (including, but not limited to strikes, lockouts or administrative orders), Contractor shall be entitled to postpone the fulfillment of its services for the duration of the hindrance plus an appropriate start-up period. The parties shall immediately inform each other of the occurrence of such hindrances to performance. If the hindrance lasts longer than two months, either party may via written notice terminate the agreement with regard to the scope of services affected. Contractor shall not be liable for any claims for damages, losses, costs and expenses incurred by Client in this respect.
§ 12 Term and Termination
- Either party may terminate the Consulting Agreement without prior notice if the other party:
- is dissolved (other than pursuant to a merger or a split-off);
- becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;
- makes a general assignment, arrangement or composition with or for the benefit of its creditors; or
- ceases, or threatens to cease to conduct its business or is subject to any winding up or liquidation or bankruptcy or any other relief under bankruptcy or insolvency law or other similar law affecting creditors’ rights has been filed.
- The term of the Consulting Agreement as well as the schedule for the services to be performed by Contractor are set out in the respective individual contract.
- Upon termination (or expiration) of the Consulting Agreement, the respective provisions of these General Terms and Conditions which pursuant to their extent and nature are intended to survive the termination shall remain in full force and effect after such termination (or expiration).
- Within 10 days of termination of the Consulting Agreement, Contractor will return any Client property in Contractor’s possession to Client (subject to retaining copies of any information required for Contractor’s internal recordkeeping requirements).
- In the event of termination of the Consulting Agreement, Client will pay Contractor for all consulting services rendered and expenses incurred prior to the date of termination.
§ 13 Applicable Law
- The contractual relationship between Contractor and Client shall exclusively be governed by the laws of the Netherlands.
- Unless otherwise agreed between the parties, any disputes in connection with the Consulting Agreement and these General Terms and Conditions and any other contractual or non-contractual obligations arising out of, or in connection with it, are to be exclusively resolved by the competent court in Amsterdam, the Netherlands. The right of Contractor to bring an action against Client in his general place of jurisdiction remains unaffected.
§ 14 Final Provisions
- The parties shall at all times comply with their respective obligations under the Dutch Data Protection Act (Wet bescherming persoonsgegevens) and any other applicable data protection and privacy laws and regulations, in force from time to time, in connection with the Consulting Agreement and these General Terms and Conditions.
- No delay or failure by either party to exercise any of its powers, rights or remedies under the Consulting Agreement and these General Terms and Conditions shall operate as a waiver thereof.
- Any changes or amendments to the Consulting Agreement and/or these General Terms and Conditions, including this requirement of written form, shall be made in writing.
- Should any provision of the Consulting Agreement and/or these General Terms and Conditions be or become invalid or should the Consulting Agreement and/or these General Terms and Conditions contain any gaps, the validity of the remaining provisions shall remain unaffected. Any invalid provision shall be replaced by a valid provision that corresponds to the meaning and intent of the invalid provision, especially with respect to the economic effects. Any gap shall be covered by a provision that, taking into account the meaning and intent of the Consulting Agreement and/or these General Terms and Conditions, corresponds to what had reasonably been agreed, had the issue been considered from the beginning.