1. General

1.1 In these general conditions the following definitions apply: client, the other party of contractor pursuant to an agreement or assignment as referred to in article 1.3, and being the party giving the assignment.
1.2 Contractor: SMRTR Consulting B.V.
1.3 Agreement and assignment: the agreement or assignment pursuant to which contractor undertakes to perform activities on behalf of client.

2. Applicability

2.1 These general conditions apply to all services contractor performs on behalf of client, except for a departure from the content of these general conditions in the assignment confirmation.
2.2 If any clause forming part of these general conditions or of the agreement were to be null and void or is declared void, in all other respects and as much as possible the agreement will be preserved and after consultation between client and contractor the related clause will be replaced forthwith by a clause that approaches the meaning of the original clause as much as possible.
2.3 Contractor explicitly dismisses the applicability of the general conditions of client.

3. Conclusion of the agreement

3.1 The agreement comprises these general conditions together with the assignment confirmation and will be concluded at the moment that the contractor has received the assignment confirmation as signed by contractor and client. The assignment confirmation is based on the information client has provided to contractor at the time thereof. The assignment confirmation will be deemed to reflect the agreement correctly and in full.
3.2 The parties are at liberty to prove that the agreement has been concluded in another manner.
3.3 If the assignment is given orally, or if the –signed- assignment confirmation has not (yet) been returned, the assignment will be deemed to have been realised pursuant to these general conditions at the moment the contractor has started the performance of the assignment at the request of client.
3.4 The agreement replaces all earlier propositions, correspondence, agreements or other communication, either done in writing or orally.
3.5 The agreement will be entered into for an indefinite period of time, unless on grounds of the content, nature or meaning of the given assignment it has been entered into for a definite period of time. The agreement can also be entered into for a particular, defined activity.

4. Cooperation by the client

4.1 Client must ensure that all data and documents the contractor deems necessary to help perform the given assignment correctly and on time, are made available to the contractor in the form and the desired manner indicated by the contractor.
4.2 Contractor is only obliged to (further) perform the assignment if client has provided all data and information the contractor requires, in the form and the desired manner indicated by the contractor.
4.3 Client must ensure that contractor is informed forthwith about facts and circumstances that may be significant to the correct performance of the assignment.
4.4 Except where different as a result of the nature of the assignment, client is responsible for the correctness, completeness and reliability of the data and documents made available to contractor, also if these originate from third parties.
4.5 Client must ensure that contractor is – if applicable – provided with office space and other facilities the contractor deems necessary or useful to help perform the agreement, which comply with all the applicable (statutory) requirements. This comprises, amongst others, the use of computers -which includes the Internet and e-mail facilities-, telephone and fax facilities. In respect of any computer (facilities) made available, client has the obligation to ensure continuity, amongst others by means of sufficient procedures for back-up, security and virus scans.
4.6 Except where different as a result of the nature of the assignment, client will call in the staff, or have this done, that contractor deems necessary to enable contractor to perform the activities. If specific staff is required, this will be agreed upon and laid down in the assignment confirmation. Client must ensure that its staff has the appropriate qualifications and experience to be able to perform the activities.
4.7 Any extra costs arising from a delay in the performance of the assignment and extra fees arising from the failure to make available the requested data, documents, facilities and/or staff, or the failure to make them available punctually or in the proper manner, are for the account of client.

5. Execution of the assignment

5.1 All activities the contractor performs are executed to the best of its knowledge and abilities, in accordance with high professional standards.
5.2 Contractor will determine the way in which and the employee by whom the assignment given will be executed, while taking into consideration, as far as possible, the requirements expressed by client. If in the assignment confirmation an employee is mentioned by name, contractor will undertake to make an effort to have the related employee perform the activities during the entire term of the assignment. Notwithstanding the foregoing, contractor has the right to replace such employee after consultation with client.
5.3 Contractor can only perform additional activities beyond the scope of this assignment and charge these to client, if the client has given its prior approval. If, however, on account of its (statutory) duty of due care, contractor has the obligation to perform additional work, contractor is entitled to charge this to client, even if client has not given its explicit prior approval for the performance of additional work.
5.4 If client wishes to call in the assistance of third parties during the performance of the assignment, client will only do so after having reached agreement about this with contractor, as directly or indirectly involving a third party with the performance of the assignment can significantly influence the possibilities of contractor to execute the assignment correctly.
5.5 In respect of the assignment contractor will maintain a work file containing the copies of relevant documents, which file will be owned by contractor.

6. Secrecy

6.1 Contractor/the employee called in by contractor is obliged to observe secrecy towards third parties in respect of confidential information that has been obtained from client, unless any statutory provision (among others the “Wet ter voorkoming van witwassen en financiering van terrorisme (Wwft)” – [Compulsory Act to avoid Launder and Finance of Terrorism]), regulation or other (professional) rule obliges contractor/the employee to do so. Client can grant an exemption in this respect.
6.2 Save with written approval from client, contractor is not entitled to use the confidential information made available to him by client for any other purpose than for which it has been obtained. However, an exception applies to this in the situation where contractor acts on its own behalf in disciplinary, civil or criminal proceedings in which said information may be of importance.
6.3 Save when it concerns any statutory provision, regulation or other (professional) rule that obliges client to publish or when contractor has given prior approval to do so, client will refrain from publishing the contents from reports, pieces of advice or other communications of contractor, whether or not in writing, to third parties.
6.4 Contractor and client will impose their obligations under this article on third parties they call in.
6.5 If not deemed contrary to what has been laid down in article 6.1 and 6.2, contractor is entitled to stating the outlines of the activities performed to (potential) customers of contractor, only to indicate contractor’s experience.

7. Intellectual property

7.1 Contractor reserves all rights in respect of intellectual property relating to intellectual products he uses or has used and/or develops and/or has developed for the purposes of performing the assignment, and in respect of which he holds the rights or other rights of intellectual property or can exercise these.
7.2 The client is expressly prohibited from reproducing, publishing or commercially exploiting these products, including computer programs, system designs, working methods, pieces of advice, (sample) contracts and other intellectual products that are the property of contractor, all this in the broadest sense of the words used, whether or not with the assistance of third parties. Reproduction and/or publication and/or commercial exploitation is only allowed after written approval by contractor. Client has the right the reproduce documents for use within its own organisation, in so far as this is in keeping with the object of the assignment. If the assignment is terminated early, the foregoing shall be applicable mutatis mutandis.

8. Fee

8.1 If, after the conclusion of the agreement but before the assignment has been completed, fee-setting factors such as wages and/or prices have become subject to changes, contractor will be entitled to adjust the fee accordingly.
8.2 The contractor’s fee is exclusive of costs for contractor and exclusive of claims of third parties called in by contractor.
8.3 All fees are exclusive of VAT and other (possible) government levies.
8.4 The contractor’s fee, if necessary increased by costs and claims of third parties called in, is charged to client per month/per quarter/per year, or after the activities have been completed, unless client and contractor have agreed otherwise.

9. Payment

9.1 Payment by client will be made, without deductions, discount or set-off, within the agreed periods, but in no event later than thirty days after the invoice date. Payment will be made in euros, by means of a bank transfer into a bank account to be specified by contractor. Objections against the amount of the invoices sent do not suspend the client’s obligation to pay.
9.2 If the term stated under 9.1 is exceeded, client will be in default by operation of law, after having at least once been demanded to pay within a reasonable period by contractor. In that case client must pay the statutory interest due, as from the payment due date until the date of payment. Moreover, all costs of collection after client is in default, both judicial and extrajudicial, are charged to client. The extrajudicial costs are set at a minimum of 15% of the principal and interest, without prejudice to the right of contractor to claim the actual extrajudicial costs exceeding this amount.
9.3 If, in the opinion of contractor, the financial position and/or the payment record of client gives cause to do so, contractor will be entitled to require that client immediately provide (supplementary) security in a form to be determined by contractor, and/or that client pay an advance. If client fails to provide the required security, contractor will be entitled, without prejudice to its other rights, to suspend further performance of the assignment with immediate effect, and everything client owes to contractor for whatever reason will be forthwith due and payable.
9.4 In the event of a jointly conferred assignment, clients will, in so far as the activities have been performed on behalf of the joint clients, be jointly and severally liable for payment of the full invoice amount.

10. Complaints

10.1 Complaints in respect of the performed activities and/or the invoice amount will be notified to contractor in writing, within 30 days of the date on which the documents or information about which client complains were sent, or within 30 days of the discovery of the defect, if client demonstrates that he could not reasonably have discovered the defect earlier.
10.2 Complaints as referred to in the first paragraph, will not suspend client’s payment obligation. In no case whatsoever will client, based on a complaint in respect of a certain service, be entitled to suspend or refuse payment in respect of other services by contractor to which the complaint does not relate.
10.3 If a complaint is justified, client will have the choice between the adjustment of the fee charged, correction free of charge, or new performance of the rejected activities, or fully or partially not having the assignment completed (any longer) against a proportional refund of fees already paid by client.

11. Term of delivery

11.1 If client owes an advance payment or if he is required to make available information and/or materials required for the performance of the assignment, the period within which the activities have to be completed will not commence until after the payment has been received in full by contractor, or the information and/or materials have been made available to him in full.
11.2 As the duration of the assignment can be influenced by all types of factors, such as the quality of the information that client provides and the cooperation given, the periods within which the activities have to be completed can only be considered to be firm deadlines if these have been agreed upon in writing.
11.3 The agreement can –unless it is certain that performance is permanently impossible– not be dissolved by client on account of the term of delivery being exceeded, unless contractor also fails to perform the agreement in full or at all within a reasonable period, communicated to contractor in writing, after the agreed term of delivery has elapsed. Dissolution will then be permitted in accordance with article 265 Book 6 of the Netherlands Civil Code.

12. Cancellation

12.1 Client and contractor can cancel the agreement at all times (prematurely) by registered letter, taking into account a reasonable term of notice, unless reasonableness and fairness oppose cancellation or cancellation within such a period.
12.2 Each of the parties can (prematurely) cancel the agreement by registered letter without taking into account a term of notice in the event one of the parties is not capable of fulfilling its debts, or if a receiver, administrator or liquidator has been appointed, one of the parties arranges a debt restructuring, or ceases its activities for any other reasons, or if one of the parties considers the occurrence of one of the above-mentioned circumstances at the other party reasonably plausible, or if a situation has arisen that justifies immediate cancellation in the interest of the cancelling party.
12.3 If client proceeds to (premature) cancellation, contractor is entitled to a reimbursement of the loss incurred due to staff called in, which loss must made plausible, and of additional costs it had to reasonably make as a result of the premature cancellation of the agreement (including costs for subcontracting), unless the cancellation is based on facts and circumstances that can be attributed to contractor. In all cases of (premature) cancellation, contractor retains title to payment of the claims for activities it has performed so far, with which the client makes available the preliminary results of the activities performed so far, with caveats. To the extent the transfer of the activities involves extra costs for contractor, these will be charged to client.
12.4 Upon cancellation of the agreement each of the parties will immediately transfer to the other party all goods, properties and documents owned by that other party.

13. Liability

13.1 Contractor will perform its activities to the best of its abilities, and in so doing will observe all due care that may be expected from contractor. If a mistake is made by contractor because client has provided it with incorrect or incomplete information, contractor will not be liable for the damage resulting therefrom. If client demonstrates that it has suffered damage due to an error by contractor that would not have occurred with observance of due care, contractor will only be liable for said damage up to the maximum of one of the amounts as laid down under a of this article, unless contractor has acted with intent or gross negligence considered equivalent to intent.
a In the event of an assignment with a processing time not exceeding six months, contractor will be liable up to a maximum of the fee contractor has received as part of the related assignment. Upon an assignment with a processing time exceeding six months a restriction applies of said responsibility up to a maximum of the fee contractor has received for its activities over the last six months of the assignment.
13.2 Client will indemnify contractor from and against claims of third parties for damage caused by client providing contractor with incorrect or incomplete information, unless client demonstrates that the damage is not related to any imputable acts or omissions on its part, or was caused by intent by contractor, or gross negligence considered equivalent to that.
13.3 The liability restrictions laid down in paragraph 1 sub a of this article are likewise stipulated for the third parties called on by contractor for the performance of the assignment, which thus can appeal directly to this liability restriction.
13.4 At all times every liability of contractor is limited to the amount a professional indemnity insurer will pay in a particular case.

14. Contract takeover/indemnification

14.1 Client is prohibited from transferring (any obligation from) the agreement to third parties, unless contractor explicitly agrees to this. Contractor is entitled to attach conditions to this approval. In any case, client then undertakes to impose on the third party all relevant (payment) obligations from the agreement and these general conditions. At all times client remains liable for the obligations from the agreement and the general conditions next to this third party, unless parties explicitly agree otherwise.
14.2 Client indemnifies contractor from all claims of third parties that may arise as a result of not or incorrectly fulfilling any obligation by client from the agreement and these general conditions.

15. Independence

Contractor is to abide by the relevant independence regulations of national and international regulators. To enable contractor to abide by the related independence regulations, client has the obligation to inform contractor on time, correctly and in full about the legal structure and the control structure of (the group to which) client (belongs), all financial and other interests and participations of client, as well as of all other (financial) joint ventures pertaining to its business or organisation, all this in the broadest sense of the word.

16. Internet use

During the performance of the assignment client and contractor will be able communicate with each other by means of electronic mail, at the request of either one of the two. Both contractor and client acknowledge that the use of electronic mail holds risks such as –but not limited to– distortion, delay and virus. Client and contractor hereby determine not to be liable towards each other for damage incurred by one or both of them due to the use of electronic mail.
Both client and contractor will do all that may reasonably be expected of them to prevent the occurrence of said risks. In the event of doubts about the correctness of the mail received by client or contractor, the content of the mail sent by the sender will prevail.

17. Term of forfeiture

Save as provided otherwise in the agreement, client’s rights of action and other powers vis-à-vis contractor arising from any cause whatsoever will in any event be forfeited one year after the moment on which a fact arises on account of which client can use these rights and/or powers towards contractor.

18. Waiver of rights

Not directly enforcing any right or power of contractor will not influence or restrict the rights and powers of contractor under this agreement. A waiver of right of any stipulation or condition in the agreement will exclusively be effective if this has been done in writing.

19. Conversion

If and to the extent that based on the reasonableness and fairness or the unreasonably onerous character any of the stipulations of the agreement cannot be appealed to, a similar meaning will be attached to the content and sense of related stipulation to such extent that an appeal can as yet be made.

20. Remaining in effect

The stipulations of this agreement, which are expressly or tacitly meant to be effective after termination of this agreement, will subsequently continue to be effective and continue to bind parties.

21. Conflicting clauses

In the event these general conditions and the assignment confirmation contain mutually conflicting clauses, the conditions as laid down in the assignment confirmation will apply.

22. Recruitment clause

During the performance of the assignment and within a year following termination of the assignment, neither of the parties is allowed to recruit employees who are or have been involved on behalf of the other party in the performance of the assignment, or negotiate with these employees about entering their employment, except in consultation with the other party. The party that still hires employees of the other party despite of this recruitment clause will undertake to at least pay the recruitment costs that other party will have to make to recruit replacement employees.

23. Applicable law and choice of forum

23.1 All agreements between client and contractor are governed by Netherlands law.
23.2 Unless parties explicitly agree otherwise in writing, all disputes relating to agreements between client and contractor will be settled by the competent judge at the district court in Rotterdam.