Article 1 - Definitions
In these general terms and conditions, the following definitions shall apply:
- SQ Consult: the company as defined in Article 2 of these general conditions;
- Other Party: the client with whom SQ Consult has entered into an Agreement, Or the party assisting SQ Consult with the performance of the Agreement based on these terms and conditions or taking care of part of the Agreement;
- Agreement: any agreement/order between SQ Consult and the Other Party for the provision of services by SQ Consult to the Other Party;
- Party(ies): the Other Party and SQ Consult together or each as an individual contracting party;
- Written/in Writing: notification by e-mail, by mail or by text messaging, in the latter case provided delivery and reading has been acknowledged;
- Third Party(ies): other natural or legal persons who are not part of this Agreement;
- Service(s): contributing to determining, researching, analyzing, solving issues in the field of management, policy, strategy, organisation, and business operations for a Counterparty, occurring in and/or with respect to an organization and/or between organizations by means of an advice or consultation.
Article 2 - Identity of SQ Consult B.V.
Company name: SQ Consult B.V.
Street name and number: Prins Bernhardstraat 27
Zip code and place of business: 3981 BL Bunnik
Chamber of Commerce number: 30270237
Article 3 - General provisions
- These general terms and conditions apply to all (legal) acts and every Agreement concluded between SQ Consult and the Other Party if SQ Consult and the Other Party explicitly agree so in Writing.
- Contrary to the previous paragraph, in some cases these general terms and conditions of SQ Consult do not apply, but those of a client or the Other Party. If this is the case, this will be clearly communicated/confirmed by SQ Consult to the Other Party. The applicability of the (general) terms and conditions of the client or the Other Party, may not be assumed automatically and must be confirmed by SQ Consult at all times.
- If the general terms and conditions of the client or Other Party mentioned in the preceding paragraph are silent on a subject with respect to which these general terms and conditions do regulate something, then these general terms and conditions of SQ Consult shall, unless otherwise agreed in writing, apply to that subject.
- If the Agreement is concluded electronically, then, notwithstanding the previous paragraph and before the Agreement is concluded, the text of these general terms and conditions may be made available to the Other Party electronically in such a way that it can be easily stored by the Other Party on a durable data carrier. If this is not reasonably possible, then before the Agreement is concluded it will be indicated where the general terms and conditions can be inspected electronically and that they can be sent electronically or otherwise free of charge at the Other Party's request.
- Unless expressly agreed otherwise and in Writing, the applicability of other general (conditions) is excluded.
- Deviations or additions to these general terms and conditions shall only be valid if expressly agreed in Writing.
- If SQ Consult does not always require strict compliance with these terms and conditions, this does not mean that the provisions thereof do not apply, or that SQ Consult would to any extent lose the right to require strict compliance with the provisions of these terms and conditions in other cases.
- If and to the extent that any provision of these general terms and conditions cannot be invoked on the grounds of reasonableness and fairness or its unreasonably onerous nature, the provision in question shall in any event be accorded a meaning corresponding as closely as possible to its content and purport, so that it can be invoked.
- SQ Consult cannot guarantee that the work performed by SQ Consult will always achieve the result desired by the Other Party. The accepted assignment leads to an obligation of effort and not to an obligation of result.
- Barring unexpected events, the work will be performed by the persons named in the quotation. However, the SQ Consult reserves the right, if necessary, to use other employees for the performance of the Agreement.
Article 5 - The Agreement
- The Agreement is established at the moment of acceptance by the Other Party of the offer and the fulfilment of the conditions (if any) thereby stipulated.
- If any provision of these general terms and conditions or an Agreement turns out to be invalid or is nullified, this shall not affect the validity of the entire general terms and conditions or Agreement. The parties will consult to agree on a new provision to replace the void or voided provision, considering as much as possible its purpose and intent of the void or voided provision.
- SQ Consult reserves the right not to execute a concluded Agreement, for instance if it has reasonable doubt or information that the Other Party will not (be able to) fulfill its (financial) obligations. If SQ Consult refuses, it will inform the Other Party in writing of this refusal within a reasonable period after the Agreement has been concluded.
- The Other Party's right of suspension and right of set-off are excluded if the Other Party acts in the exercise of a profession or business.
- These general terms and conditions also apply to future, additional and/or follow-up assignments.
- SQ Consult will always do the utmost effort to meet the agreed deadlines. If unforeseen circumstances occur, it is possible that this deadline will not be met. Exceeding a deadline does not entitle the Other Party to compensation.
Article 6 - Content of the agreement
- Each agreement of services to be conducted by SQ Consult should include a description of the requirements of the Other Party at the level of detail that is required for SQ Consult to properly perform the Agreement.
- Examples of the requirements to be formulated by the Other Party include, but are not limited to:
- The intended purpose of executing this Agreement;
- The part of the organization covered by the Agreement;
- The limitations of the performance of the task;
- The experts assigned to conduct the services as assigned to SQ Consult, as well as identification of the project leader, final responsible persons and contact persons;The procedure(s) for controlling the activities performed;
- The bodies, groups, or persons to whom information must be provided before, during and after the assignment;
- The period during which the tasks, activities or services will be performed, the project timeline and the project phases, and the course of action if the actual period differs from the indication;
- Determining the person or persons recipients of the services provided by SQ Consult and to whom and how reports on the process of the task will be sent and/or delivered;
- An estimate of costs and how to proceed if actual costs exceed the estimate;
- The basis for the fee, the terms of payment and the method of invoicing;
- The procedure for engaging third parties and the applicable billing conditions;
- The ownership and copyrights;
- The rights of communication regarding the assignment;
- The subsequent discussion and evaluation of the assignment;
- The desired or necessary aftercare.
Article 7 - Obligations of the Other Party in the performance of the Agreement.
- The Other Party is obliged to provide all necessary information available to SQ Consult in time, in the desired manner and form, which SQ Consult indicates is or may be necessary for the execution of the Agreement.
- If the data and information required for the performance of the Agreement are not provided to SQ Consult in a timely or properly manner, SQ Consult is entitled to suspend the performance of the Agreement or to charge the Other Party for the additional costs resulting from the delay in accordance with the agreed rates. If there is no pre-agreed rate, SQ Consult reserves the right to charge additional costs on a basis that can reasonably be expected from the costs included in the quotation.
- The Other Party is responsible for the accuracy, completeness and reliability of the data and information provided by or on its behalf to SQ Consult.
- The Other Party is obliged to inform SQ Consult without delay of facts and circumstances, which may be important in connection with the performance of the Agreement. SQ Consult in turn is obliged to inform the Other Party without delay of facts and circumstances that may be of importance in connection with the performance of the Agreement.
- If requested by SQ Consult, and provided such request is reasonable in view of the Agreement, the Other Party will make its employees available free of charge as to support SQ Consult to conduct the Agreement.
- If SQ Consult is required to perform (part of) the services on location, the Other Party will make the necessary workplace and (office) facilities available to SQ Consult free of charge.
Article 8 - Termination
- SQ Consult reserves the right to unilaterally terminate the Agreement, if SQ Consult considers that the performance of the Agreement can no longer take place in accordance with the requirements of the Other Party and the capabilities of SQ Consult that fit within the Agreement.
- If the Other Party fails to fulfill one or more of its obligations, does not fulfill them on time or properly, is declared bankrupt, applies for (temporary) suspension and/or deferment of payments, proceeds to wind up its business, as well as when its assets are seized in whole or in part, SQ Consult has the right to suspend performance of the Agreement or to terminate and/or rescind the Agreement by operation of law and without prior notice of default in whole or in part by means of a Written statement, all this at its discretion and always with retention of any right it has to compensation for costs, damages and interest.
- The Agreement may be terminated by either Party at any time upon fifteen (15) days written notice to either Party. In the event of termination of this Agreement, the contracting parties shall be released and discharged from all further obligations under this Agreement.
- If the Agreement terminates due to force majeure as is defined in article 11, SQ Consult shall be entitled to payment for the hours already worked or investments made at the time of termination of the Agreement.
Article 9 - Liability.
- Each party hereby agrees to indemnify and hold the other party and each of its officers, employees, trustees and agents harmless from and against any and all claims, demands, damages, judgments or liabilities (including liability for fines and reasonable attorneys' fees) of any kind or nature whatsoever arising out of or resulting from this Agreement, however, neither party shall be indemnified hereunder for any loss, liability, damages or costs resulting from its own negligence or willful misconduct.
- In the event that SQ Consult’s advice or recommendations resulting from consultancy services given by SQ Consult to the Other Party are used by the Other Party, the Other Party will always be solely and entirely responsible and liable for the final decision-making. SQ Consult cannot be blamed for any act and/or omission of the Other Party because of SQ Consult's Service.
- If SQ Consult can nevertheless be held liable in a specific case, regardless of what is stipulated in this article, SQ Consult's total liability will be limited to compensation of damages up to a maximum of the amount of the fee stipulated for that Agreement (excluding VAT).
- For assignments lasting more than six months, the liability mentioned in this article is further limited to a maximum of the reasonable amount corresponding to that of the contract value for the last six months.
- The amount of compensation will never exceed the amount paid out by SQ Consult's liability insurance.
- If SQ Consult can nevertheless be held liable for direct damage, then direct damage is exclusively understood to mean:
- reasonable costs that the Other Party would have to incur to have the performance of SQ Consult comply with the Agreement; however, such replacement damage will not be compensated if the Agreement is dissolved by or at the request of the Other Party;
- reasonable costs incurred to determine the cause and extent of the damage insofar as the determination relates to damage within the meaning of these General Terms and Conditions;
- reasonable costs incurred to prevent or limit the damage insofar as the Other Party demonstrates that these costs led to a limitation of the damage within the meaning of these general terms and conditions.
- The Other Party indemnifies SQ Consult against any claims of Third Parties, who suffer damage in connection with the performance of the Agreement.
- A condition for the occurrence of any right to compensation is always that the Other Party reports the damage in Writing to SQ Consult as soon as possible after its occurrence. Any claim for damages against SQ Consult will lapse by the mere lapse of 12 (twelve) months after the claim arose.
- SQ Consult is not liable for damage inflicted by auxiliary persons as referred to in Art. 6:76 of the Dutch Civil Code.
- SQ Consult is not liable for damages, of any nature whatsoever, because SQ Consult has relied on incorrect and/or incomplete data provided by the Other Party or if the Other Party has delivered this data too late.
Article 11 - Force majeure
- In addition to the provisions of article 6:75 of the Dutch Civil Code, a failure by SQ Consult to comply with any obligation towards the Other Party cannot be attributed to SQ Consult in case of a circumstance independent of the will of SQ Consult, as a result of which the fulfilment of its obligations towards the Other Party is wholly or partly impeded or as a result of which the fulfilment of its obligations cannot reasonably be demanded from SQ Consult. Such circumstances include defaults by suppliers or other third parties, (power) failures, computer viruses, extreme weather conditions, fire (danger), (imminent) danger of war, pandemics, epidemics, quarantines, absenteeism, incapacity for work, strikes, government measures, and transport problems such as delays and cancellations of flights or other transport possibilities. If a situation referred to in paragraph 1 of this article occurs because of which SQ Consult cannot fulfill its obligations to the Other Party, those obligations will be suspended for as long as SQ Consult cannot fulfill its obligations. If the force majeure situation has lasted for 2 (two) months, both Parties have the right to dissolve the Agreement in Writing in whole or in part. SQ Consult shall in that case not be obliged to compensate for any damage, even if SQ Consult enjoys any advantage because of the force majeure situation.
Article 12 - Warranty
- SQ Consult warrants that its Services comply with the Agreement, the specifications stated in the offer, with the reasonable requirements of soundness and/or usability and the existing statutory provisions and/or government regulations (if applicable) on the date of conclusion of the Agreement.
Article 13 - Complaints
- The Other Party cannot invoke a defect in the performance if it has not protested to SQ Consult within 30 (thirty) days after it has discovered or reasonably should have discovered the defect. Exceeding this period will cause all claims to lapse.
- The Other Party must in any case give SQ Consult 30 (thirty) days to draw up a plan with the aim of resolving the complaint in mutual consultation.
- For the implementation of the plan mentioned in paragraph 2 of this article, SQ Consult will be given a period of 4 (four) months.
- In the case of a justified complaint, which may arise due to changing circumstances in the performance of the Agreement, SQ Consult has the choice between adjusting the invoice amount, improving the work performed free of charge, redoing the work in question, or ceasing to perform the assignment in whole or in part.
- Complaints explicitly do not suspend the Other Party's payment obligation.
Article 14 - Fees/Prices.
- Unless otherwise agreed upon in advance and in writing, all amounts are in Euros and exclusive of sales tax and other government levies.
- A compound quotation does not oblige SQ Consult to perform part of the Agreement for a corresponding part of the quoted amount.
- Discounts and quoted amounts do not automatically apply to future Agreements.
Article 15 - Payment and billing.
- Insofar as not provided otherwise in the Agreement or additional terms and conditions, the amounts owed by the Other Party must be paid within 30 (thirty) days after the invoice date.
- The Other Party has the duty to immediately report inaccuracies in payment data provided or mentioned to SQ Consult.
- If the Other Party does not timely fulfill its payment obligation(s), it will be notified of the late payment by SQ Consult and the Other Party will be granted a period of 5 (five) business days to still fulfill its payment obligations. After failure to pay within this 5 (five) business-day period, the Other Party will be in default. As a result, the Other Party will also owe the statutory (commercial) interest on the amount still due. In addition, SQ Consult is entitled to charge the extrajudicial collection costs incurred by it, including the additional costs incurred by SQ Consult or its accountant, in accordance with the European Communities Late Payment Directive.
- In the event of (reasonable prospect of) bankruptcy, liquidation, or suspension of payments, SQ Consult's claims on the Other Party and the Other Party's obligations to SQ Consult shall be immediately due and payable.
- The payments made by the Other Party will always serve to settle in the first place all interest and costs due, in the second place the longest outstanding payable invoices, even if the Counterparty indicates that the payment relates to a later invoice.
- SQ Consult reserves the right in certain circumstances to require that part or all of the amount due be paid in advance. This will be discussed with the Other Party and recorded in writing in the Agreement.
Article 16 - Transfer
- Rights and obligations of the Other Party under this Agreement cannot be transferred without the prior Written consent of the other party. This provision is considered a clause with effect under property law as referred to in article 3:83 paragraph 2 of the Dutch Civil Code.
Article 17 - Additional work
- If SQ Consult has performed additional work at the request of the Other Party or at its own request, with the Other Party's prior Written consent, that falls outside the content or scope of the Agreement, such work or performance will be reimbursed by the Other Party in accordance with SQ Consult's agreed rates. The Other Party will never be obliged to comply with such a request and may require that a separate Agreement in writing be concluded for that purpose.
- The Other Party accepts that work or performance as referred to in paragraph 1 of this Article may affect the agreed objectives and expectations.
- Insofar as a fixed amount has been agreed for the provision of services, SQ Consult will always inform the Other Party in Writing in advance of the financial consequences of the additional work.
Article 18 - Intellectual property
- Models, techniques, instruments, including software, and other intellectual products used in the execution of the assignment or included in the advice or result of the research are and remain the property of SQ Consult, insofar as they are not already owned by third parties. Publication, further use, or further distribution can only take place after obtaining permission from SQ Consult, without prejudice to the provisions of Article 5.2. This also applies to providing information to employees and/or associates of SQ Consult who are not involved in the assignment.
- The Other Party has the right to reproduce documents for use within its own organization, insofar as this is consistent with the purpose of the assignment. In case of interim termination of the assignment, the above applies accordingly.
- All intellectual property rights pertaining to and/or resulting from the agreement executed by SQ Consult are vested in SQ Consult. The Other Party only acquires the non-exclusive and non-transferable rights of use expressly granted by these General Terms and Conditions and by law. Any other or further right of the Other Party is excluded.
- The documents provided by SQ Consult to the Other Party are exclusively intended to be used by the Other Party. Documents provided also include contractual agreements or the contents of the contract. The Other Party is not permitted to publish and/or reproduce information obtained in any form whatsoever unless written permission has been granted by SQ Consult and/or such publication and/or reproduction arises from the nature of the agreement with SQ Consult.
- SQ Consult has the right to use the Other Party's name and logo as a reference or promotion, subject to the Other Party's consent.
- The Other Party shall indemnify SQ Consult for claims from third parties regarding intellectual property rights.
- If the Other Party acts in violation of this article, the Other Party shall owe an immediately payable penalty in the amount of three times the amount stipulated for that agreement, without prejudice to SQ Consult's right to damages.
Article 19 - Confidentiality
- Both SQ Consult and the Other Party undertake to keep confidential all confidential information they have obtained from each other in the context of the agreement. Information is confidential if this has been notified by the other party or if this reasonably follows from the nature of the information. SQ Consult reserves the right to share information within the SQ Consult network, unless the Other Party explicitly requires that this is not permitted.
- If the Other Party violates paragraph 1 of this provision, the Other Party, regardless of whether the violation can be attributed to the Other Party and without prior notice of default or court proceedings, shall owe SQ Consult an immediately due and payable penalty of 20.000, - (twenty thousand) euros for each violation without the need for any form of damages without prejudice to SQ Consult's other rights, including its right to claim damages in addition to the penalty.
Article 20 - Employee clause
- During the term of the Agreement, as well as for 1 (one) year after its termination, the Other Party will only employ persons who are or have been involved in the performance of the Agreement on behalf of SQ Consult, or otherwise have them work for it, directly or indirectly, with SQ Consult's prior Written consent.
- Where appropriate, SQ Consult will not withhold the relevant consent if the Other Party has offered appropriate indemnification. Adequate compensation is defined as at least compensation of 10 (ten) monthly salaries.
- Instead of paragraph 2, a possible penalty may also be agreed upon.
Article 21 - Exclusivity
- For the duration of the Agreement, the Other Party grants SQ Consult the exclusive right to perform the assigned Agreement.
Article 22 - Applicable law
- Agreements between SQ Consult and the Other Party are exclusively governed by Dutch law.
- Disputes between Parties will be resolved as much as possible through proper consultation. All disputes between the Other Party and SQ Consult will exclusively be settled by the competent court in the district where SQ Consult has its registered office.
Article 23 - Survival
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