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Terms and Conditions

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Article 1. DEFINITIONS

For the purposes of these general terms and conditions, the capitalized definitions below have the following meanings:

a.            Documents: all information or data made available to M&A by the Client; all data produced or collected by M&A in the context of the execution of the Order / Agreement; and all other information of any relevance to the execution or completion of the Order. The aforementioned information may or may not be stored on (in)physical data carriers and may or may not have been placed with third parties;

b.            Employee: a natural person working for or associated with the Engaged Firm, whether or not on the basis of an employment contract;

c.            Assignment / Agreement: the agreement under which the Engaged Firm undertakes vis-à-vis the Client to perform certain Work;

d.            Principal: the natural person or legal entity that has given the Contracted Party the Assignment to perform Work;

e.             Engaged Firm: the office that has accepted the Assignment. All Assignments are accepted and executed exclusively by the office, not by or on behalf of an individual Employee, even if the Principal has explicitly or tacitly granted the Assignment with a view to its execution by a specific Employee or specific Employees.

f.            Work: all work to be performed by the Engaged Firm on behalf of the Client and which has been accepted by the Engaged Firm, as well as all ensuing work and transactions for the Engaged Firm.

Article 2. APPLICABILITY

1.            These general terms and conditions apply to: all offers, quotations, Assignments, legal relationships and Agreements, by whatever name, in which the Contracted Party undertakes/will undertake to perform Work for the Client, as well as to all Work arising therefrom for the Contracted Party.

2.            Deviations from and additions to the Assignment and/or these general terms and conditions are only valid if they have been explicitly agreed upon in writing in, for example, a (written) Agreement or (further) confirmation of the Assignment.

3.            If any condition in these general terms and conditions deviates from a condition in the confirmation of the Assignment, the condition contained in the confirmation of the Assignment shall apply as far as the conflict is concerned.

4.            These general terms and conditions also apply to any additional or follow-up orders.

5.            The Engaged Firm hereby explicitly rejects the applicability of the Client’s general terms and conditions.

6.            These general terms and conditions may also be invoked by natural or legal persons who are directly or indirectly involved in any way whatsoever in the provision of services to the Client by or on behalf of the Engaged Firm, whether or not on the basis of an employment contract.

Article 3. DATA PROCESSOR

1.            The Principal is obliged to make all Documents which the Provider deems necessary for the proper performance of the Assignment in the desired form, in the desired manner and in a timely manner available to the Provider. The Engaged Firm determines what is to be understood by timely, the desired form and the desired manner.   

2.            The Client guarantees the correctness, completeness and reliability of the Documents provided by the Engaged Firm, even if they originate from third parties, insofar as the nature of the Engagement does not dictate otherwise.

3.            The Client indemnifies the Engaged Firm against any loss or damage resulting from incorrect or incomplete Documents.

4.            4. The Client will bear the additional costs and extra hours incurred by the Engaged Firm, as well as any other loss or damage suffered by the Engaged Firm as a result of the Client’s failure to provide the Documents required for the execution of the Work, or to do so on time or properly.

5.            In the event that information – including (but not limited to) tax returns, annual accounts, reports – of (and on the instructions of) the Client is sent electronically by the Contracted Party to third parties, the Client will be deemed to be the party that signs and sends the information in question.

6.            The Engaged Firm is entitled to suspend the execution of the Engagement until the Client has fulfilled the obligations referred to in the first paragraph.  

7.            At the Client’s first written request, the Engaged Firm will return the original Documents provided by the Client to the Client.

Article 4. IMPLEMENTATION FORCE

1.            Octrooibureau Novopatent shall execute the Order to the best of its ability and with due observance of the applicable laws and (professional) regulations.

2.            The Engaged Firm determines the manner in which the Engagement will be carried out and by which Employee(s).

3.            The Engaged Firm is entitled to have Work performed by a third party to be designated by the Engaged Firm.

Article 5. INTELLECTUAL PROPERTY

1.            The execution of the Order by the Engaged Firm does not include the transfer of intellectual property rights vested in the Client. All intellectual property rights that arise during the execution of the Engagement belong to the Client.

Article 6. FORCE MAJEURE

1.            If the parties are unable to fulfil the obligations arising from the Agreement, or are unable to fulfil them on time or properly, as a result of force majeure within the meaning of Article 6:75 of the Dutch Civil Code, those obligations shall be suspended until such time as the parties are still able to fulfil them in the agreed manner.

2.            If the situation as referred to in the first paragraph occurs, the parties shall be entitled to terminate the Agreement in full or in part and with immediate effect in writing, otherwise without any right to compensation.

3.            If the Contracted Party has already partially fulfilled the agreed obligations when the situation of force majeure arises, the Contracted Party will be entitled to invoice the Work performed separately and in the interim, and the Client must pay this invoice as if it were a separate transaction.

Article 7. HONORING AND COSTS

1.            The Work performed by the Contracted Party will be charged to the Client on the basis of time spent and costs incurred, unless the parties explicitly agree otherwise, such as the payment of a fixed price. Payment of the fee is not dependent on the result of the Work, unless otherwise agreed in writing. Travel time and accommodation expenses for the purposes of the Work will be charged separately.

2.            In addition to the fee, the Client will be charged the expenses incurred by the Engaged Firm and the expense claims of third parties engaged by the Engaged Firm.

3.            The Engaged Firm will be entitled to request payment of an advance from the Client. Failure to pay the advance (on time) may be a reason for the Engaged Firm to (temporarily) suspend the Work.

4.            If fees or prices change after the Agreement has been concluded, but before the Assignment has been fully executed, the Contracted Party will be entitled to adjust the agreed rate, unless explicitly agreed otherwise.

5.            If this is required by law, turnover tax will be charged separately on all amounts owed by the Client to the Engaged Firm.      

Article 8. PAYMENT

1.            Payment by the Client of the amounts owed to the Engaged Firm must be made, without the Client being entitled to any deduction, discount, suspension or setoff, before the assignment is carried out, unless agreed otherwise. The date of payment will be the date on which the amount due is credited to the Engaged Firm’s account.

2.            If the Client fails to pay within the period referred to in the first paragraph, the Client will be obliged to reimburse all judicial and extrajudicial (collection) costs actually incurred by the Engaged Firm. Reimbursement of the costs incurred will not be limited to any costs awarded by the court.

3.            In the event of a jointly given Engagement, Clients are jointly and severally liable for payment of the invoice amount, the interest(s) and costs owed.

Article 9. TERMS AND CONDITIONS

1.            If a period/date has been agreed between the Client and the Engaged Firm within which the Assignment must be carried out and the Client fails to do so: (a) make an advance payment – if agreed – or (b) make the necessary Documents available on time, in full, in the desired form and in the desired manner, then the Client and the Engaged Firm will enter into consultation about a new time/date within which the Assignment must be performed.

2.            Periods within which the Work must be completed may only be regarded as firm dates if this has been explicitly agreed in writing by the Client and the Engaged Firm in so many words.

Article 10. LIABILITY AND INDEMNITIES

1.            The Engaged Firm shall not be liable for any loss or damage suffered by the Client as a result of the Client’s failure to provide the Engaged Firm with Documents that are incorrect or incomplete, or as a result of the Client’s failure to provide the Engaged Firm with Documents on time. This includes the situation in which the Contracted Party is unable to file the annual Documents with the Chamber of Commerce within the statutory term as a result of an act or omission (on the part) of the Client.

2.            The Contracted Party will not be liable for indirect loss or damage, including: loss of profit, missed savings, loss or damage due to business stagnation and other consequential loss or indirect loss or damage resulting from the Contracted Party’s failure to perform, late performance or improper performance.

3.            Octrooibureau Novopatent’s liability is limited to the compensation of the direct loss that is the direct consequence of a (coherent series of) attributable failure(s) in the performance of the Assignment. This liability for direct loss or damage is limited to the amount paid out for the case in question according to the liability insurer of the Engaged Firm, increased by any excess to be borne by the Engaged Firm under the insurance policy. Direct loss or damage shall be understood to mean – among other things – the reasonable costs incurred to determine the cause and scope of the loss or damage; the reasonable costs incurred to ensure that the performance of M&A complies with the Agreement and the reasonable costs incurred to prevent or limit the loss or damage.

4.            If, for whatever reason, the liability insurer does not pay out – as referred to in paragraph 3 of this article – the liability of the Engaged Firm shall be limited to the amount of the fee charged for the performance of the Engagement. If the Engagement concerns a continuing performance agreement with a term of more than one (1) year, the amount referred to above will be set at once the amount of the fee charged to the Principal in the twelve months prior to the occurrence of the damage. Under no circumstances will the total compensation for damages pursuant to this paragraph amount to more than € 300,000 per attributable failure, unless the parties – in view of the scope of the Assignment or the risks associated with the Assignment – see reason to deviate from this maximum when entering into the Agreement. 

5.            A related series of culpable shortcomings is deemed to be one (1) culpable shortcoming.  

6.            The limitations of liability included in this article do not apply if and insofar as there is intent or wilful recklessness on the part of the Engaged Firm or its executive management.

7.            The Client is obliged to take damage limitation measures. The Engaged Firm will be entitled to undo or limit the damage by repairing or improving the Work performed.

8.            The Client will indemnify the Engaged Firm against claims from third parties for damage caused by the fact that the Client has not provided the Engaged Firm with Documents that are incorrect or incomplete.

9.            The Client indemnifies the Engaged Firm against claims from third parties (including Employees of the Engaged Firm and third parties engaged by the Engaged Firm) who suffer loss or damage in connection with the execution of the Engagement, which loss or damage is the result of the Client’s acts or omissions or of unsafe situations in its company or organisation.

10.          The provisions of paragraphs 1 to 9 of this article relate to both the contractual and non-contractual liability of the Engaged Firm vis-à-vis the Client.

Article 11. DISCLOSURE

1.            The Client and the Contracted Party may terminate the Agreement (prematurely) at any time without observing a notice period by means of a written notification to the other party. If the Agreement ends before the Assignment has been completed, the Client will owe the fee in accordance with the hours specified by the Engaged Firm for Work performed for the Client.

2.            If the Client terminates the Agreement (prematurely or otherwise), the Contracted Party will be entitled to compensation for the loss of occupancy that has arisen and can be demonstrated on its part, to compensation for additional costs already incurred by the Contracted Party, and to compensation for costs arising from the cancellation of any third parties engaged (such as – among other things – any costs relating to subcontracting).

3.            If the Contracted Party terminates the Agreement (prematurely or otherwise), the Client will be entitled to cooperation from the Contracted Party in transferring the Work to third parties, unless there is intent or wilful recklessness on the part of the Client as a result of which the Contracted Party is forced to terminate the Agreement. A condition for the right to cooperation as stipulated in this paragraph is that the Client has paid all underlying outstanding advances or all invoices.

Article 12. RIGHT OF SUSPENSION

1.            After carefully weighing up the interests involved, the Contracted Party will be entitled to suspend the fulfilment of all its obligations, including the issue of Documents or other items to the Client or third parties, until such time as all due and payable claims against the Client have been paid in full.

2.            The first paragraph does not apply to Documents of the Client that have not (yet) been processed by the Engaged Firm.

Article 13. REPLACEMENT

Insofar as these general terms and conditions do not provide otherwise, rights of action and other powers of the Client for whatever reason vis-à-vis the Contracted Party in connection with the performance of Work by the Contracted Party will lapse in any event one year after the moment at which the Client became aware or could reasonably have become aware of the existence of these rights and powers. This period does not include the possibility to submit a complaint to the body or bodies designated for the handling of complaints and/or the Disputes Council.

Article 14. ELECTRONIC COMMUNICATION AND ELECTRONIC FILING OF ANNUAL DOCUMENTS

1.            During the execution of the Order, the Client and the Engaged Firm may communicate with each other by electronic means and/or make use of electronic storage (such as cloud applications). Unless otherwise agreed in writing, the parties may assume that the sending of correctly addressed faxes, e-mails (including e-mails sent via the Internet) and voicemail messages, regardless of whether they contain confidential information or documents relating to the Engagement, will be mutually accepted. The same applies to other means of communication used or accepted by the other party.

2.            The Principal and the Engaged Firm shall not be liable to each other for any loss or damage that may arise to one or all of them as a result of the use of electronic means of communication, networks, applications, electronic storage, or other systems, including – but not limited to – loss or damage resulting from non-delivery or delay in the delivery of electronic communications, omissions, distortion, interception or manipulation of electronic communications by third parties or by software/equipment used for sending, receiving or processing electronic communications, transmission of viruses and failure or malfunctioning of the telecommunications network or other means necessary for electronic communications, except insofar as the damage is the result of intent or gross negligence. The foregoing also applies to the use the Contractor makes thereof in its contacts with third parties.

3.            In addition to the previous paragraph, the Contracted Party accepts no liability for any damage arising from or in connection with the electronic transmission of (electronic) annual documents and their digital filing with the Chamber of Commerce.

4.            Both the Client and the Engaged Firm will do or refrain from doing everything that can reasonably be expected of each of them to prevent the occurrence of the aforementioned risks.

5.            The data extracts from the sender’s computer systems provide compelling evidence of (the content of) the electronic communication sent by the sender until the recipient has provided proof to the contrary.

6.            The provisions of Article 11 shall apply mutatis mutandis.

Article 15. OTHER PROVISIONS

1.            If the Contracted Party performs Work at the Client’s location, the Client guarantees a suitable workplace that meets the statutory occupational health and safety standards and other applicable regulations relating to working conditions. In that case, the Client must ensure that the Engaged Firm is provided with office space and other facilities which, in the Engaged Firm’s opinion, are necessary or useful for the performance of the Agreement and which meet all (statutory) requirements. With regard to the (computer) facilities made available, the Client is obliged to ensure continuity by means of, among other things, adequate back-up, security and virus control procedures. The Engaged Firm will apply virus control procedures when the Engaged Firm makes use of the Client’s facilities.

2.            The Client will not hire or approach any Employees involved in the performance of the Work in order to enter into the Client’s employment, temporarily or otherwise, directly or indirectly, or to perform work directly or indirectly on the Client’s behalf, salaried or otherwise, during the term of the Agreement or any extension thereof and for a period of 12 months thereafter.

3.            These General Terms and Conditions have been drawn up in both Dutch and English. In the event of any discrepancy or inconsistency between the English and Dutch texts, the Dutch text will be binding.

4.            Provisions in the Engagement that expressly or by their nature are to remain in force after expiry or termination of the Engagement shall remain in force after expiry or termination, including articles 6, 8, 9, 11, 16 paragraph 2 and 17.

Article 16. APPLICABLE LAW AND CHOICE OF FORUM

1.            The Agreement shall be governed by Dutch law.

2.            All disputes will be settled by the competent court in the district in which the Engaged Firm has its registered office.

3.            The provisions of paragraphs 1 and 2 of this article do not affect the Client’s option to submit a dispute to the Disputes Committee and/or submit a complaint to the Engaged Firm itself, the Auditor’s Office (disciplinary law) or the Complaints Committee (complaint law).

Article 17. REPAIR CLAUSE NULLITY

1.            If any provision of these General Terms and Conditions or of the underlying Assignment/Agreement should be wholly or partially void and/or invalid and/or unenforceable as a result of any statutory regulation, court ruling or otherwise, this shall not affect the validity of all other provisions of these General Terms and Conditions or of the underlying Assignment/Agreement.

2.            If any provision of the Engagement or part of the Engagement cannot be invoked by operation of law, the remaining part of the Engagement shall remain in full force and effect, on the understanding that the provision of the part that cannot be invoked shall be deemed to have been amended in such a way as to make it possible to invoke that provision or part of the Engagement, with the intention of the parties with respect to the original provision or part of the Engagement being maintained as far as possible.