The general terms and conditions apply to all offers, activities, tenders and agreements between the Management Consultancy (Consultancy) and clients (Client) or their legal successors.
2. Basis for tenders
Tenders from the Consultancy are based on the information furnished by the Client. The Client guarantees that to the best of his knowledge he has supplied all essential information for setting up and performing the assignment. The Consultancy will render the advisory services to the best of its knowledge and ability in accordance with the requirements of good professional practice. This undertaking is in the nature of a “commitment to give one's best efforts”; no guarantee of achieving the intended results can be given.
3. Client's provision of information, staff and working space
To enable assignments to be performed effectively and to schedule, the Client will provide all the documents and data that the Consultancy requires in good time. This also applies to making available staff from the Client's organisation who are or will be involved in the Consultancy's activities.
If the Consultancy so requests, the Client will make available an operating area and telephone on his premises and, if required, a fax and/or data connection free of charge.
4. Involvement of third parties in performing the assignment
Third parties may only be called in by the Client or by the Consultancy on the assignment by mutual consultation.
5.1 Changes to the advisory team
The Consultancy may alter the composition of the advisory team in consultation with the Client, if they consider this to be necessary for the performance of the assignment. The alteration must neither diminish the quality of the advisory services to be provided nor adversely affect the continuity of the assignment.
Changes to the advisory team may be made at the Client's request in consultation with the Consultancy.
5.2 Recruitment or appointment of each other's personnel
Neither party may recruit the other party's personnel during the performance of the assignment or within one year of its termination of negotiate with such personnel concerning employment, other than in consultation with the other party.
6. Fees and costs for the assignment
The tender will indicate whether the fees and the cost estimates based on these include secretariat's costs, travelling time, cost of travelling and accommodation expenses and other costs associated with the assignment. In so far as these costs are not included, they may be charged separately.
Any interim change to the level of wages and costs that requires the Consultancy to adjust its rates or other reimbursements listed above will be charged to the Client. The fees do not include ant interest charges, unless otherwise indicated in the tender.
7. Condition of Payment
The fees and costs as described in clause 6 are charged monthly (against a statement of advanced payment). Payments must be made within 30 days of the statement date. After the due date, the statutory interest rate will be charged, without notification of default being required. If payment fails to be made, the Consultancy is entitled to suspend the performance of the assignment on the grounds of uncertainty.
If the Client is in default or in some other way fails short in meeting one or more of his commitments, all reasonable costs incurred in obtaining satisfaction will be for his account, judicial as well as extrajudicial.
If the assignment has been awarded by more than one Client, all the Clients will be jointly and separately liable for compliance with the commitments as indicated in this clause (regardless of the party named in the statement).
8. Modifications to the assignment or additional work
The Client accepts that the planning of the tome to be spent on the assignment may be affected if the parties meanwhile agree to expand or alter the approach, methodology or scope of the assignment and/or the activities arising from it. If the interim modification affects the agreed fee of reimbursements of costs, the Consultancy will notify the Client to this effect as quickly as possible. If the interim modification to the assignment or the performance of the assignment arises through the agency of the Client, the Consultancy will make the necessary adjustments if the quality of the services so requires. If such a modification leads to additional work, this will be confirmed to the Client as an additional assignment.
9. Duration and completion of the assignment
A wide range of factors over and above the efforts of the advisory team may affect the duration of the assignment, for example the quality of the information obtained by the Consultancy and the cooperation that is given. It is therefore impossible for the Consultancy to indicate precisely in advance how long it will take to perform the assignment.
In financial terms, the assignment is complete as soon as the Client has approved the final invoice. The Client must therefore notify the Consultancy to this effect within 30 days of the date of the final invoice. If the Client fails to respond within this period, the final invoice will be deemed to have been approved.
If the Client wishes a certified, independent accountant (CPA) to check the Consultancy's invoice, the latter will cooperate. The Client will pay the costs of a check of this kind.
10. Interim termination of the assignment
A party may unilaterally terminate the agreement prematurely, if he is of the opinion that the assignment can no longer be performed in accordance with the confirmed tender and any subsequent additional assignment specifications. Support ing reasons must be given and notified in writing to the other party.
If the Client initiates premature termination, the Consultancy will be entitled to compensation for the accompanying and demonstrable loss of capacity utilisation, taking the average monthly statement up to that time as a basis. The Consultancy will only use its power to terminate if it cannot in all reasonableness be expected to complete the assignment as a result of facts and circumstances beyond its control or not attributable to the Consultancy.
The Consultancy will retain entitlement to payment of the invoices for work performed up to that date, with the provisional results of the work performed up to that date being made available conditionally to the Client. Any additional costs incurred will be charged.
In the event of either party going into liquidation, applying for suspension of payment or ceasing to operate the business, the other party will be entitled to terminate the assignment without observing a notice period, all rights reserved.
11. Ownership of recommendations, memoranda and other written documents and programs
Any models, techniques, instruments, including software, that are used in the performance of the assignment and are included in the research results, are and remain the Consultancy's property.
Publication is therefore only possible after obtaining the Consultancy's consent. The Client has the right to copy documents for use within his own organisation, in so far as this is appropriate within the objective of the assignment. In the event of interim termination of the assignment, the above applies likewise.
The Consultancy is obliged to keep secret vis à vis third parties all information regarding the Client. Within the context of the assignment, the Consultancy will take all possible precautions to protect the Client's interests. The Client will not communicate to third parties about the approach adopted by the Consultancy, its methodology or the like, or make its reports available without Consultancy's consent.
The Consultancy will be liable for any shortcomings in the performance of the assignment, in so far as these are the result of the Consultancy's failure to take due care or to apply the expertise or professional skills that may be expected in making recommendations within the context of the assignment. Liability for the damages caused by the shortcomings will be limited to the amount of the fees received by the Consultancy for its work on the assignment.
In the case of assignments that have lasted for more than 3 months, the said liability is further restricted to a maximum of the fee amount invoiced over the last three months. Any claims by the Client within the said sense must have been submitted within 6 months after submission of the final invoice, and failure to do so causes the Client's rights to lapse.
14 Governing law
Dutch law will apply exclusively to this agreement.
15 Settlement of disputes
All disputes arising from the implementation of the present agreement or any later agreement that might arise from it will be decided in accordance with the regulations of the Dutch Arbitration Institute in Rotterdam.
In the case a party invokes the Dutch legal system, the judge in Amsterdam will be the competent judge.
Scherpenzeel May 2000
Note: The original Dutch text is binding.