The following general terms and conditions (Terms and Conditions) are part of and apply to all agreements between NCN Capital BV (“NCN”) and the other party (“Client”) on the basis of which NCN carries out working capital optimization assignments for for the benefit of the Client (“Agreement”).
- These General Terms and Conditions apply to all activities, quotations and agreements relating to organizational and working capital optimization (the “Services”) by NCN to the Client or its legal successor, respectively. Deviations must be expressly agreed in writing with NCN.
- General terms and conditions of the Client are expressly rejected and do not apply to any Agreement with NCN, unless expressly agreed otherwise in writing.
- In the event that an Agreement is drawn up in more than one language, the Dutch version shall prevail in the event of any dispute regarding the interpretation of the Agreement.
- NCN honors the professional rules of conduct of the ROA (Raad van Organisatie Adviesbureaus).
2. Quotations and Agreements
- Offers from NCN are valid for a period of thirty (30) days, unless otherwise agreed in writing with the Client.
- NCN offers are based on information provided by the Client with regard to the Services to be provided. The Client is liable for providing all essential information to the best of its knowledge with regard to the design and performance of the Services.
- An Agreement between the Client and NCN only comes into existence when a) the Client has signed the Agreement without reservation and the copy thus signed has been sent to NCN return has been received or b) when NCN confirms an Agreement as such or c) when NCN commences the performance of the order, or in any other way as provided in these General Terms and Conditions.
- Any additional agreements or changes are only binding on NCN if they have been confirmed in writing by NCN.
- NCN will make every effort to perform the Services to the best of its knowledge and ability and in accordance with the requirements of good workmanship.
3. Provision of information, employees and workspace
- In order to ensure that the Services are performed properly and as far as possible according to the agreed time schedule, the Client will not only provide all documents and data that NCN needs for the performance of the Services, but also employees of the Client’s own organization in good time. , who are or will be involved in NCN’s activities.
4. Involving third parties
- NCN is authorized under its responsibility to have the Services performed by third parties.
- NCN may change the composition of the advisory team in consultation with the Client, if this is necessary for the performance of the Services. The change may not reduce the quality of the Services to be provided, nor may it adversely affect the continuity.
- A change of the advisory team can also take place at the request of the Client in consultation with and after approval from NCN.
- Neither party may, during the performance of the Services and/or within one year after termination of the Services, employ staff or any employee of the other party, negotiate employment, or otherwise allow it to work for it other than in consultation with the other party, all this on pain of an immediately due and payable fine of twenty-five hundred Euros for each day that this provision is violated and not subject to judicial mitigation.
6. Rates and costs
- With regard to the rates and the cost estimates based thereon, it is stated in the offer whether the secretariat costs, travel hours, travel and accommodation costs and other assignment-related costs are included. Insofar as these costs are not included, they can be calculated separately. An interim change in the level of wages and costs that necessitates NCN to adjust rates or to adjust other aforementioned cost allowances will be passed on.
- If a ‘fixed price’ is included in the Agreement, this price will apply as the agreed price. If a ‘target price’ is included in the Agreement, the stated amount indicates an estimate of the costs. In the latter case, the amount to be paid will be determined on the basis of the subsequent calculation in accordance with the method stated in the Agreement.
- Unless stated otherwise, all amounts stated by NCN are exclusive of turnover tax.
7. Payment Terms
- The rates and any other costs will be charged monthly to the Client. Payment must be made within 30 days of the invoice date, into the bank or giro account or other method as stated on the invoice.
- After the due date, NCN will charge the statutory interest, without any notice of default being required. If payment is still not made, NCN can suspend the execution of the assignment by invoking the uncertainty exception.
- If the Client is in default or otherwise fails to fulfill one or more of its obligations, all reasonable costs incurred in obtaining payment in or out of court will be for its account.
- If the assignment is given by more than one client, all clients are jointly and severally liable for the fulfillment of the obligations as indicated in this article (regardless of the name of the invoice).
8. Changes to the assignment or additional work
- The Client accepts that the time schedule of the Agreement may be influenced if the parties expand or change the agreed approach, working method or scope of the Agreement and/or the resulting activities in the interim.
- If the interim change is caused by the Client, NCN will make the necessary adjustments if the quality of the service so requires. If such an adjustment leads to additional work, this will be confirmed to the Client as an additional Agreement.
9. Duration and conclusion of the assignment
- The Agreement ends on the term stated in the Agreement. In addition to the efforts of the project team, the duration of the Agreement can be influenced by all kinds of factors, such as the quality of the information NCN obtains from and the cooperation provided by the Client. The term stated in the Agreement is therefore an estimated term. If the term threatens to be exceeded, this will be discussed with the Client as soon as possible. NCN’s liability for the consequences of exceeding the term does not extend beyond the provisions of Article 13.
- In a financial sense, the Agreement is concluded as soon as the final settlement has been approved by the Client. Approval must be granted within a period of 30 days after the date. If the Client does not respond within this period, the final settlement will be deemed to have been approved.
10. Premature Termination
- The parties may prematurely terminate the Agreement unilaterally if one of them is of the opinion that the execution can no longer take place in accordance with the confirmed offer and any subsequent additional order specifications. This must be communicated to the other party with reasons and in writing with a notice period of three (3) months.
- If the Client decides to terminate prematurely, NCN is entitled to compensation due to the loss of capacity that has arisen and can be demonstrated, based on the average monthly invoice amount up to that point.
- NCN may only make use of the power to terminate prematurely if, as a result of facts and circumstances beyond its control or which are not attributable to it, completion of the assignment cannot reasonably be required. NCN thereby retains the right to payment of the invoices for work performed up to that point, whereby the provisional results of the work performed up to that point will be made available to the Client subject to change. Insofar as this entails additional costs, these will be charged.
- In the event that one of the parties becomes bankrupt, applies for a suspension of payments or ceases business operations, the other party has the right to terminate the Agreement without observing a notice period, all this subject to rights.
11. Intellectual Property
- Models, techniques, instruments, including software, that are used for the execution of the Agreement and that are included in the advice or research result, are and remain the property of NCN. Disclosure can therefore only take place after obtaining written permission from NCN.
- The Client has the right to reproduce documents made available to it by NCN in the context of the Agreement for use in its own organization, insofar as this is appropriate within the purpose of the Agreement.
- NCN is obliged to maintain confidentiality of all information and data of the Client towards third parties. NCN will take all possible precautions in the context of the Agreement to protect the interests of the Client.
- The Client cannot inform third parties about NCN’s approach, its working methods and the like, or make its report available without permission from NCN.
- NCN performs the Services and activities to the best of its ability and knowledge.
- In the event of a shortcoming attributable to NCN in the fulfillment of the Agreement, NCN is liable for direct damage, provided that the Client has first given NCN notice of default in writing, whereby NCN is given a reasonable period to still fulfill its obligations.
- NCN’s liability due to an attributable failure to comply with this Agreement is limited per event causing damage to the fee paid by the Client to NCN excluding VAT, whereby a series of events counts as one event. In the event that the Agreement has a duration of more than six (6) months, liability is limited to the amounts paid to NCN during six (6) months prior to the event causing the damage.
- NCN is not liable for damage arising from a non-attributable shortcoming. A non-attributable shortcoming is a shortcoming that is caused by circumstances beyond NCN’s control, such as, but not limited to, fire, flood, war, embargo, strike, inability to obtain material and/or labor from employees or suppliers and government intervention. In the event of a non-attributable failure, the performance of Services will be suspended for a period of sixty (60) days. If the delay lasts longer, the Client has the right to cancel the agreement.
- In the event of a wrongful act of NCN, or of its employees or subordinates for which NCN can be held directly liable, NCN is only liable for compensation for damage resulting from death or physical injury. For other damage, insofar as caused by intent or gross negligence, the compensation will in no case amount to more than what is paid on the basis of the insurance contract concluded by NCN.
- NCN is never liable for indirect, trading or consequential damage.
- NCN is never liable for damage caused as a result of service provision or performance of work by (seconded) employees of NCN at the explicit request or at the direction of the Client.
- The Client indemnifies NCN against all damage that NCN may suffer as a result of claims from third parties, related to wrongful acts of employees of NCN who are seconded to the Client or who perform work on its instructions.
- An appeal by the Client to NCN’s liability must be submitted within one year after the discovery of the damage.
14. Applicable law, dispute resolution and competent court
- This agreement is exclusively governed by Dutch law.
- In the event of a dispute between the parties with regard to the Agreement or the implementation thereof, the parties will first of all try to reach a solution informally.
- If informal negotiations do not lead to a solution acceptable to both parties, the dispute will be submitted to the competent court in Amsterdam.
- The parties may agree to have the dispute settled by arbitration in accordance with the Rules of the Netherlands Arbitration Institute in Rotterdam.