General terms and conditions

Willem Smeets Business Valuation and Advice B.V.

CoC 72011572

General terms and conditions of Willem Smeets Business Valuation and Advice B.V.

Article 1. DEFINITIONS

The capitalised definitions written below have the following meaning in the context of these general terms and conditions:

Professional regulations: the professional and conduct rules to which the Contractor is subject;
Documents: all information or data made available by the Client to the Contractor; all data produced or collected by the Contractor in the context of the execution of the Engagement/Agreement; and all other information of any relevance to the execution or completion of the Engagement. The aforementioned information may or may not have been stored on (immaterial) data carriers and may or may not have been submitted to third parties;
Employee: a natural person working for or associated with the Contractor, whether or not based on an employment contract;
Engagement/Agreement: the Engagement agreement, whereby the Contractor commits to the Client to perform certain Work;
Client: the natural person or legal person who has assigned the Contractor to perform Work;
Contractor: the company that has accepted the Engagement. All Engagements are only accepted and carried out by the company, not by or on behalf of an individual Employee, even if the Client has expressly or tacitly granted the Engagement with a view to the execution thereof by a specific Employee or certain Employees. Articles 7: 404, 7: 407, paragraph 2 and 7: 409 Dutch Civel Code are expressly excluded;
Work: all work and Engagements to be performed by the Contractor on behalf of the Client that has been commissioned and accepted by the Contractor, as well as all work and work ensuing therefrom for the Contractor;

Article 2. APPLICABILITY

These general terms and conditions apply to: all offers, quotations, Engagements, legal relationships and Agreements, whatever the name, in which the Contractor commits to undertake Work for the Client, as well as all Work ensuing therefrom for the Contractor.
Deviations from and additions to the Engagement and/or these general terms and conditions are only valid if they have been explicitly agreed in writing in, for example, a (written) Agreement or (a further) Engagement letter.
If any condition in these general terms and conditions deviates from a condition in the Engagement letter, then the condition included in the Engagement letter applies to the contradiction.
These terms and conditions also apply to any additional or follow-up Engagements.
The applicability of the general terms and conditions of the Client is hereby expressly rejected by the Contractor.
These general terms and conditions can also be invoked by natural and legal persons who are directly or indirectly involved in any way whatsoever, whether or not on the basis of an employment contract, in the provision of services to the Client by or on behalf of the Contractor.

Article 3. CLIENT DETAILS

The Client is obliged to make all Documents that, in its opinion, the Contractor requires for the correct execution of the Engagement granted and to make it available to the Contractor in the desired form, in the desired manner and in a timely manner. The contractor determines what must be understood by timely, the desired form and the desired manner.
The Client guarantees the accuracy, completeness and reliability of the Documents provided, even if they originate from third parties, to the extent that the nature of the Engagement does not indicate otherwise.
The Client indemnifies the Contractor against damage that is the result of incorrect or incomplete Documents.
The Client takes on the risk and responsibility for the extra costs and extra hours incurred by the Contractor, as well as the other damage for the Contractor, due to the Client not providing, not timely or not properly providing the Documents necessary for the execution of the Work.
In the event of the electronic transmission of information – including (but not limited to) tax returns, annual accounts, reports – from (and by order of) the Client by the Contractor to third parties, the Client is regarded as the party signing and sending the relevant information.
The Contractor has the right to suspend the execution of the Engagement until the Client has fulfilled the obligations referred to in the first paragraph.
At the Client’s first written request, the Contractor will return the original Documents the Client provided to the Client.
The Contractor is at all times authorized to retain a copy of the Documents, insofar as this is necessary in order to be able to comply with the laws and regulations and/or obligations arising from the rules of conduct and/or professional rules applicable to the Contractor.

Article 4. CARRYING OUT ENGAGEMENT

The Contractor carries out the Engagement to the best of its ability and with due observance of the applicable laws and (Professional) regulations.
The Contractor determines the way in which the Engagement is carried out and by which Employee(s).
The Contractor reserves the right to have Work performed by a third party to be designated by the Contractor.
With the acceptance of the Engagement, the Contractor is under a best effort obligation and explicitly no obligation of result with regard to the performance of the obligations arising from the Agreement.

Article 5. (PROFESSIONAL) REGULATION

The Client fully cooperates with the obligations arising for the Contractor from the applicable (Professional) regulations.
The Contractor takes appropriate measures to protect the personal data and other confidential information originating from the Client. The Contractor will inform Employees and third parties to be involved about the confidential nature of the information. Processing of personal data by the Contractor takes place in accordance with the applicable (inter)national laws and (Professional) regulations regarding the protection of personal data.
The Client is aware that in some cases the Contractor will be obliged to disclose the Client’s confidential information on the basis of (inter)national legislation or (Professional) regulations. Insofar as necessary, the Client hereby gives its consent and cooperation in such disclosure, including (but not exclusively) in cases where the Contractor:
1. must report performed, executed or intended unusual transactions as described in legislation and (professional) regulations that have become known during the execution of his Work to the authorities established for this purpose by the government;
2. is obligated to report fraud in certain cases
3. is obliged to establish the identity of the Client and/or his client.
The Contractor excludes any liability for damage caused to the Client as a result of the Contractor’s obligation to comply with the applicable legislation and (professional) regulations.
Parties will impose their obligations under this article on third parties to be involved by them.

Article 6. CONFIDENTIALITY AND EXCLUSIVITY

Unless legal and/or ethical and professional rules impose an obligation to provide information on the Contractor, the Contractor is obliged to maintain confidentiality towards third parties who are not involved in the performance of the Work. This confidentiality concerns all Documents of a confidential nature made available to the Contractor by the Client and the results obtained by processing them.
The Contractor is entitled to use the numerical results obtained after processing, provided that those results cannot be traced back to individual Clients, for statistical or comparative purposes.
With the exception of the provisions of the preceding paragraph, the Contractor is not entitled to use Documents made available by the Client for a purpose other than that for which it was obtained, unless the Contractor acts on his own behalf in civil or criminal proceedings in which this information is of interest
The Client will not give a similar Work Engagement to third parties during the Agreement other than after written permission from the Contractor. The Contractor obliges towards the Client not to accept Engagements from another Client if the acceptance and/or execution thereof leads to conflicts of interest between the Client in question.
The Client will only maintain direct contact with the parties introduced by the Contractor after the Contractor’s permission. This also applies if the Client is approached by these parties.
The Contractor and the Client will impose their obligations under this article on third parties to be involved by them.
If it is deemed not to conflict with the provisions of these articles, the Contractor is entitled to state the Work performed to (potential) clients of the Contractor as an indication of the Contractor’s experience.

Article 7. INTELLECTUAL PROPERTY

The performance of the Engagement by the Contractor does not also include the transfer of intellectual property rights vested in the Contractor. All intellectual property rights that arise during, or arise from, the execution of the Engagement belong to the Contractor.
The Client is expressly prohibited from reproducing, disclosing or exploiting the products on which the intellectual property rights of the Contractor rest or products on which the intellectual property rights rest with regard to the use of which the Contractor has acquired rights of use. This includes (but is not limited to): computer programs, system designs, working methods, advice, (model) contracts, reports, templates, macros and other intellectual products.
The Client is not permitted to make the products referred to in the second paragraph available to third parties without the Contractor’s prior written consent. This does not apply if the Client wishes to obtain an expert opinion on the performance of the Work by the Contractor. In that case, the Client will impose its obligations under this article on the third parties it engages.

Article 8. FORCE MAJEURE

If the parties cannot, not timely or properly fulfill the obligations arising from the Agreement as a result of force majeure within the meaning of art. 6:75 DUTCH CIVIL CODE then those obligations are suspended until the time that the parties are still able to meet them in the agreed manner.
If the situation as referred to in the first paragraph occurs, the parties have the right to terminate the Agreement in whole or in part and with immediate effect without the right to any compensation.
If, upon commencement of the force majeure situation, the Contractor has already partially fulfilled the agreed obligations, the Contractor is entitled to invoice the Work performed separately and in the interim and the Client must pay this invoice as if it concerned a separate transaction.

Article 9. REMUNERATION AND COST

The Work performed by the Contractor will be charged to the Client based on time spent and costs incurred, unless the parties expressly agree otherwise, such as the payment of a fixed price. Payment of the fee does not depend on the result of the Work unless otherwise agreed in writing. Travel time and accommodation costs for the Work will be charged separately. The fee for Work, other than valuation work, can also be increased with a transaction fee (success fee).
In addition to the remuneration, the expenses incurred by the Contractor and the invoices of third parties engaged by the Contractor are charged to the Client.
The Contractor has the right to request an advance payment from the Client. Failure to pay the advance (on time) may be a reason for the Contractor to (temporarily) suspend the Work.
If after the conclusion of the Agreement, but before the Engagement has been fully implemented, fees or prices change, the Contractor has the right to adjust the agreed rate, unless explicitly agreed otherwise.
If this is required by law, the sales tax will be charged separately on all amounts owed by the Client to the Contractor.
If an amount determined per Agreement has been agreed, the Contractor is also entitled to charge a rate per unit of time worked, if and insofar as the Work exceeds the Work provided for in the Agreement, which the Client then owes.

Article 10. PAYMENT

Payment by the Client of the amounts due to the Contractor must be made, without the Client being entitled to any deduction, discount, suspension or set-off, within 14 days after the invoice date, unless agreed otherwise. The day of payment is the day on which the amount due is credited to the Contractor’s account.
Transaction fees (success fees) or a part thereof must be paid on the dates or times agreed in the Order Confirmation. At the request of the Contractor, these are involved in a notarial statement.
If the Client has not paid within the period specified in the first paragraph, the Client will be in default by law and the Contractor will be entitled to charge the statutory (commercial) interest from that moment.
If the Client has not paid within the period specified in the first paragraph, the Client is obliged to reimburse all judicial and extrajudicial (collection) costs actually incurred by the Contractor. The reimbursement of the costs incurred is not limited to any costs order determined by the court.
In the event of a jointly issued Engagement, Clients are jointly liable for payment of the invoice amount, the interest(s) owed and costs.
If the financial position or payment behaviour of the Client in the opinion of the Contractor gives reason to do so, or if the Client fails to pay an advance or an invoice within the specified payment term, the Contractor is entitled to demand that the Client immediately provides (additional) security in a form to be determined by the Contractor. If the Client fails to provide the required security, the Contractor is entitled, without prejudice to his other rights, to immediately suspend further performance of the Agreement and all that the Client owes the Contractor for whatever reason is immediately due and payable.
The Contractor is always entitled to demand one or more advance payments determined in reasonableness and fairness prior to or for the continuation of its Work. In the absence of timely payment, the Contractor is entitled to, until the moment of payment or sufficient security by the Client, suspend or discontinue or not commence its Work.

Article 11. TERMS

If a period/date has been agreed between the Client and the Contractor within which the Engagement must be carried out and the Client fails to: (a) pay an advance payment – if agreed – or (b) provide the necessary Documents in a timely, complete, desired form, the Client and the Contractor will enter into consultation about a new term/date within which the Engagement must be performed.
Terms within which the Work must be completed can only be regarded as a strict deadline if this has been agreed (in writing) between the Client and the Contractor explicitly.

Article 12. COMPLAINTS

Complaints with regard to the Work performed and/or the invoice amount must be submitted in writing within 30 days after the date of dispatch of the documents or information about which the Client complains, or within 30 days after the discovery of the defect if the Client proves that he could not reasonably have discovered the defect earlier could be made known to the Contractor.
Complaints as referred to in the first paragraph do not suspend the payment obligation of the Client. The Client is not entitled under any circumstances to postpone or refuse payment for other services provided by the Contractor to which the complaint does not relate based on a complaint relating to a service.
In the event of a complaint which the Contractor considers to be justified, the Contractor has the choice between adjusting the fee charged, correcting or re-performing the rejected Work for free or not fully or partially carrying out the Engagement against refund in proportion to the fee already paid by the Client.

Article 13. LIABILITY AND INDEMNITIES

The Contractor is not liable for damage caused by the Client arising because the Client has not provided the Contractor with any, incorrect or incomplete Documents, or because these have not been delivered on time.
The Client indemnifies the Contractor against claims from third parties for damage caused by the fact that the Client or third parties that are not engaged by the Contractor have provided the Contractor with incorrect or incomplete information.
The Contractor is not liable for damage suffered by the Client as a result of advice from third parties obtained in the Engagement of or with the express consent of the Client.
The Contractor is not liable for damage suffered by the Client as a result of the use of electronic means of communication, including, but not limited to, damage as a result of non-delivery or delay in the delivery of electronic communication, interception or manipulation of electronic communication by third parties. or by software/equipment used for sending, receiving or processing electronic communication, transferring viruses and malfunctioning of the telecommunications network or other means required for electronic communication, except insofar as the damage is the result of intent or deliberate recklessness of Contractor. Data extracts from the computer systems of the Contractor provide compelling evidence of the content of the electronic communication sent by the Contractor until proof has been provided by the Client.
Contractor is not liable for damage or loss of Documents during transport or during dispatch by post, regardless of whether the transport or dispatch is carried out by or on behalf of Client, Contractor or third parties.
The Contractor is not liable for indirect damage, including: lost profit, missed savings, damage due to business interruption and other consequential damage or indirect damage that is the result of the Contractor’s failure to perform, untimely performance or improper performance.
The liability of the Contractor is limited to the amount or amounts for which the professional liability has been insured by the Contractor for the relevant case is paid, plus the own risk borne by the Contractor in connection with that insurance. Direct damage means – among other things – the reasonable costs incurred to determine the cause and extent of the damage; the reasonable costs incurred to ensure that the Contractor’s performance complies with the Agreement and the reasonable costs incurred to prevent or limit the damage.
If, for whatever reason, the liability insurer does not pay out, as referred to in the preceding paragraph, the liability is limited to a maximum of one (1) time the fee for the Work performed up to the time of the attributable shortcoming(s) in the context of the relevant Engagement. If the execution of the Engagement covers a period that is longer than six (6) months, the aforementioned amount will be set at one (1) times the fee for the Engagement in the context of the Engagement in the last six (6) months work performed.
A coherent series of attributable shortcomings counts as one (1) attributable shortcoming.
The limitations of liability included in this article do not apply if and insofar as there is intent or deliberate recklessness on the part of the Contractor or its management.
Client is obliged to take measures to limit damage. The Contractor has the right to undo or limit the damage by repairing or improving the Work performed.
The Client indemnifies the Contractor against claims from third parties for damage caused by the fact that the Client has not provided the Contractor with any, incorrect or incomplete Documents.
The Client indemnifies the Contractor against claims from third parties (including Employees of the Contractor and third parties engaged by the Contractor) who suffer damage in connection with the performance of the Engagement, which damage is the result of the acts or omissions of the Client or of unsafe situations in his company or organisation.
All disputes related to Agreements between the Client and the Contractor must first be reported to the Contractor before this complaint can be reported to a (judicial) authority. The Contractor will, if possible, do everything reasonably within its power to resolve the complaint satisfactorily. The Contractor has the right at all times, if and to the extent possible, to reverse the damage suffered by the Client.
The provisions in the paragraphs of this article relate to both the contractual and the non-contractual liability of the Contractor towards the Client.

Article 14. LEGAL PROCEDURES

In the event that the Client or an affiliated party involves the Contractor in civil or disciplinary proceedings and this procedure results in a rejection of the claim or the complaint is declared unfounded or inadmissible, the costs incurred by the Contractor for the benefit of its defense, with the exception of its own hours, are entirely at the expense of the Client or its affiliated party, without prejudice to the possibility of appeal in these proceedings.

Article 15. TERMINATION

The Client and the Contractor may at any time (prematurely) terminate the Agreement without observing a notice period by means of a written notification to the other party. If the Agreement ends before the Engagement is completed, the Client will owe the fee in accordance with the hours specified by the Contractor for Work performed for the Client.
If the Client proceeds to (premature) termination, the Contractor is entitled to compensation for the occupancy loss incurred and to be made plausible, compensation for additional costs already incurred by the Contractor, and compensation for costs arising from any cancellation of third parties engaged (such as – among other things – any costs related to subcontracting).
If the Contractor proceeds to (premature) termination, the Client is entitled to the cooperation by the Contractor in the transfer of Work to third parties, unless there is intent or deliberate recklessness on the part of the Client, as a result of which the Contractor is forced to proceed with cancellation. A condition for the right to cooperation as provided for in this paragraph is that the Client has paid all underlying outstanding advances or all invoices.
The Client shall also owe the fee agreed with the Contractor if the result as expected in the Agreement is achieved after termination of the Agreement and the termination of the Agreement has been the result of activities and behaviours of the Client that hindered the Contractor or impaired the exclusivity entitled to the Contractor and the expected results can be attributed to the Work done by or on behalf of the Contractor. This relationship is presumed to be present, unless there is proof to the contrary, if the result is achieved within 12 months after the termination of the Agreement.

Article 16. RIGHT TO DEFER

After careful consideration of interests, the Contractor is entitled to suspend the fulfillment of all its obligations, including the issue of Documents or other items to the Client or third parties, until all due and payable claims against the Client have been paid in full.
The first paragraph does not apply to Client’s Documents that have not (yet) been processed by the Contractor.

Article 17. EXPIRY PERIOD

Insofar as not stipulated otherwise in these general terms and conditions, claim rights and other powers of the Client for whatever reason against the Contractor in connection with the performance of Work by the Contractorl, expire at least after one year after the moment at which the Client became known or reasonably known with the existence of these rights and powers. This period does not concern the possibility of submitting a complaint to the designated body or bodies for complaint handling and/or the Board for Disputes.

Article 18. OTHER PROVISIONS

If the Contractor performs Work at the Client’s location, the Client guarantees a suitable workplace that complies with the statutory Health and Safety standards and other applicable regulations with regard to working conditions. The Client must ensure that in that case the Contractor is provided with office space and other facilities that in the Contractor’s opinion are necessary or useful to execute the Agreement and that comply with all the (legal) requirements set for it. With regard to the (computer) facilities made available, the Client is obliged to ensure continuity through, for example, adequate back-up, security and virus control procedures. The Contractor will apply virus control procedures when the Contractor uses the Client’s facilities.
The Client will not hire or approach any of the Employees involved in the performance of the Work to be contracted by the Client, whether or not temporarily, directly or indirectly, or to perform work directly or indirectly for the Client, whether employed or not, for the duration of the Agreement or any extension thereof and during the 12 months thereafter.
These general terms and conditions have been drawn up in both Dutch and English. In the event of a difference or inconsistency between the English and Dutch text, the Dutch text is binding.
Provisions in the Engagement that, explicitly or by their nature, must also remain in force after expiry or termination of the Engagement, remain in force after expiry or termination

Article 19. APPLICABLE LAW AND CHOICE OF FORUM

The Agreement is governed by Dutch law.
All disputes will be settled by the competent court in the district in which the Contractor is established.
The provisions of paragraphs 1 and 2 of this article are without prejudice to the possibility for the Client to submit a dispute to the Disputes Board and/or to submit a complaint to the Contractor himself, the Audit Chamber (disciplinary law) or the Complaints Committee (complaint law).

Article 20. REPAIR CLAUSE INVALIDITY

If any provision from these general terms and conditions or from the underlying Engagement/Agreement is wholly or partially invalid and/or not valid and/or not enforcable, as a result of any legal provision, court decision or otherwise, then this will not have consequences for the validity of all other provisions of these general terms and conditions or the underlying Engagement/Agreement.
If any provision in the Engagement or a part of the Engagement cannot be legally invoked, the remaining part of the Engagement remains in full force, on the understanding that the provision on the part that cannot be invoked must be deemed to be adjusted in such a way that an appeal can be made, whereby the intention of the parties with regard to the original provision or the original part is maintained as much as possible.