Filed with the Chamber of Commerce Midden-Nederland under file number 126.96.36.199 d.d. 24th February 2012.
In these general terms and conditions we define:
- contractor: the contracting entity
- service provider: Qhuba
1. Applicability of General Terms and Conditions
These General Terms and Conditions are applicable to all offers, activities, bids and agreements between contractor and service provider, or their successors. Deviation from these General Terms and Conditions is only possible by written agreement.
The tenders from the service provider are based on the information that was provided by the contractor. The contractor guarantees that he has provided to the best of his knowledge all the essential information needed for the start and implementation of the service. The service provider will perform the services to the best of his understanding and abilities, and in accordance with the requirements of good workmanship. This obligation has the character of an obligation of best intent, because there is no guaranty of achievement of the targeted results. All tenders and pricing from or in name of Qhuba are without commitment, except when stated differently in writing by Qhuba, and have a period of validity of 30 days from the date.
Upon agreement between contractor and service provider on the offer or tender, the service provider will send the contractor a contract proposal. The agreement is valid when the service provider has received a signed copy of the contract, or when the service provider, after authorization from the contractor, starts with the implementation of activities as stipulated in the agreement.
4. Making available of information, employees and workplace by the contractor
To perform the service as good as possible within the given time frame, the contractor provides in a timely manner all the necessary information needed by the service provider. This includes the availability of employees from the contractor’s organization, in case these are involved in the activities. In case the assignment consists of executing interim assignments the contractor, upon request from the service provider, will provide a suitable work place with the necessary telecommunication connections at no cost.
5. Implementation of service
The service provider determines how and who, which person(s), will implement the service, however tries to accommodate as much as possible the wishes of the contractor.
5.2 Change of executor(s)
If the contractor wishes to change the staff member during the service agreement, he can demand that Qhuba will look for a substitute to the best of their ability. Until the substitute has been found, the contractor has the obligation to pay for the corresponding time and services performed by the first staff member for the contractor, even if the first staff member, at the discretion of the contractor, doesn’t perform any(more) activities. Qhuba can propose, in consultation with the contractor, another staff member if they think that this is necessary or better for the implementation of the service. The change should not diminish the quality of the service activities, nor should it have a negative influence on the continuity of the activities. If the staff member is prevented to participate in the implementation of activities of the service due to disability, then Qhuba has the right to use another staff member to perform the service activities.
5.3 Change of service
If during the implementation of the services facts or circumstances appear that are detrimental to the original agreement, there will be timely consultation between the contractor and the service provider to adapt the agreement to the changed situation. If necessary the agreement will be changed in writing.
5.4 Additional work
Only when the contractor has provided written authorization, will the service provider perform activities that were not stipulated in the agreement, and will invoice the contractor for these. The requirement for authorization does not apply if the activities are part of the service provider’s obligations.
5.5 Third party involvement
The involvement of third parties by the contractor or service provider for the implementation of service shall only occur after mutual consultation and agreement that needs to be confirmed in writing.
5.6 Transfer of personnel
None of the parties involved shall during the implementation of service or within one year after completion of service hire or negotiate entry of service with staff members from the other party that have been involved in the implementation of the service, or who are introduced to contractor, unless done in approval of the other party.
In case of breach of the provision in article 5.6, infringing party forfeit a penalty to the other party of €50,000.00 per violation and €5,000.00 for each day concerning party failures to fulfil obligations, regardless the right of the other party to claim entire losses.
6. Rates and costs of service
6.1 Fees and rate adjustments
It’s stipulated in the agreement if the rates and the related cost projections include secretarial services, travel and lodging expenses and other service related costs. Costs not included in the fees, will be invoiced separately. In case of interim changes of rates and/or fees, the service provider has the right to internalize rate adjustments or adjustments of other aforementioned costs reimbursements.
The fees of the service provider, if needed increased with down payments and claims from third parties, will be invoiced in accordance with the terms and conditions of the agreement. Value Added Tax (VAT) will be applied to all amounts payable from the contractor to the service provider.
Invoices should be paid within 14 days from the invoice date. If the contractor fails to pay within the set period, he will owe without formal notice, interest of 1.5% for every month or part thereof that he fails to fulfil payment of the invoice. Objections against the invoice amount don’t imply postponement of commitment.
7.1 Suspension of service
If payment has not been received within 30 days, the service provider has the right to suspend service appealing to the uncertainty exception. In this case there will be redress of costs and/or damage payable by the contractor based on the current rate for the concerning services.
Costs incurred by the service provider in order to comply with the obligations towards the contractor, will be the responsibility of the contractor. The extrajudicial costs are fixed at 15% of the principal amount, with a minimum of
€12,000.00 at call for the service provider. If the service was authorized by more than one contractor, all the contractors will be personally liable for the compliance of obligations stipulated in this article, without regard to the name on the claim.
Protests regarding provided services and/or invoices should be submitted within 14 days after ship date of the relevant documents pertaining to the claim, or within 14 days after discovery of the failure, if the contractor indicates to the service provider that the failure could not have been detected earlier. In case of a valid protest the service provider has the option to adjust the invoiced fees, repair or redo the rejected services or completely or partly cease the completion of service, proportionally reimbursing the contractor for the already paid fees.
8. Delivery period
Periods within which the order must have been completed are only binding on the contractor if a certain date has explicitly been agreed in the contract. Forecasts and promises will not be binding on the contractor.
8.2 Binding date
If a binding date as referred to in paragraph 1 of this article has been agreed on, the period will be extended each time a delay occurs for which the contractor cannot be blamed due to a situation of force majeure, as defined elsewhere in these conditions.
8.3 Term of delivery
The duration of the service can be influenced, besides by efforts of the service provider, by various factors, like quality of information that the contractor (has) provided and the provided cooperation. For this reason the terms for completion of the activities should be considered as final dates if this was explicitly agreed upon. The agreement cannot be dissolved by the contractor, unless implementation is permanently impossible, based on failure to observe the term of delivery, unless the service provider doesn’t complete the agreement within a reasonable term given in writing after the agreed term of delivery. Cancellation is then permitted under article 265 Code 6 of the Dutch Civil Code.
8.4 Suspension & setoffs
Suspension and setoff of payments by the client is not possible.
The contractor and service provider can terminate the agreement at all times. Termination needs to be informed by registered letter to the other party.
9.1 Termination by the contractor
In case of early cancellation by the contractor, the contractor is liable for compensating the service provider for costs and consequential losses (including loss of profits), which the service provider encounters by early termination of the agreement.
9.2 Termination by the service provider
The service provider can only decide on early termination of the agreement when she can’t complete the service in a reasonable manner due to facts and circumstances beyond her influence. The service provider keeps the right to payment of claims for the provided activities and services, and will make the results of the completed service under subject available to the contractor. Possible extra costs incurred will be invoiced.
10. Suspension and termination
10.1 Compliance with obligations
If the client fails to comply with any obligation arising from the contract entered into with the contactor or fails to do so in a prompt or proper manner, or it is open to serious doubt whether the client is able to comply with his contractual obligation towards the contractor, the contractor is entitled – without any notice of default or court intervention – to suspend performance of all contracts entered into with the client or to terminate them wholly or in part, without being liable to pay any compensation and without prejudice to his other rights and remedies.
10.2 Termination and debts becoming due and payable
If the client fails to comply with one of his obligations towards the contractor, applies for a suspension of payments or is in a state of bankruptcy, the contractor is entitled, without further notice of default or court intervention being required, to terminate, at the discretion of the contractor, all or only certain contracts entered into with the client, without prejudice to his other rights and remedies. All payments owed to the party entitled to terminate the contract(s) will become due and payable. The rights regarding the failure to comply with obligations remain therefore fully reserved.
11. Force majeure
11.1 Suspension and termination
If it becomes clear after conclusion of a contract that the execution hereof by the contractor is troublesome or impossible as a result of situation of force majeure, the contractor is entitled, at its own discretion and without legal intervention, to cancel the orders or suspend their execution insofar as they still need to be executed, in which cases the client, having regard to the circumstances of the case, will be informed as soon as possible.
11.2 Unforeseen circumstances
‘Force majeure’ is understood as any unforeseen circumstance or circumstance beyond the control of the parties as a result of which performance of the contract cannot reasonably be required by the client from the contractor. This concerns any situation in which the contractor cannot comply with his obligations or a part thereof owing to circumstances outside his sphere of influence and for which circumstances he cannot be blamed under the law or according to public opinion.
11.3 Other circumstances
Force majeure in any case includes, but is not limited to the following circumstances: unworkable weather; fire; government measures; strike; natural disaster; epidemic disease; wars; international or national armed conflicts and preparations thereto; measures of national or foreign authorities; strikes at suppliers or subcontractors; failure of the mains services, such as electricity, gas and water.
12. Intellectual property
Intellectual property for models, techniques and instruments, including all ideas of the service provider, remain the property of the service provider. Disclosure, outside the organization of the contractor, needs to be authorized in writing by the service provider. In case of violation the contractor will be fined in the amount of
€250,000.00 payable on demand for each violation and for every day the violation exists.
The service provider is obliged to maintain secrecy for all the information and data of the contractor against third parties, unless conditions exist for judicial or professional obligations for disclosure. For the services the service provider will take all the necessary precautions to protect the interests of the contractor. The contractor will not disclose any information about the service provider concerning her modus operandi etc., or provide reports to third parties without permission from the service provider.
The service provider is only responsible for shortcomings in the implementation of the service, in as far as this is the result of carefulness, expertise and skills of the service provider that are reliable and used as advice during the services in question. The liability for damage will be limited to the amount of the fees the service provider has received for his work under this agreement, and will be further limited to the benefit of the insurer where appropriate. The damage, which is considered for compensation can for that matter only be “direct damage”, an appeal to consequential losses is herewith explicitly out of the question. For intermediate services with a term beyond six months an additional restriction applies to the above-mentioned liability up to a maximum amount equal to the claims over the past six months. Possible claims from the contractor in this sense need to be filed within one month after the discovery of the damage, for failures that are rightfully the contractors.
15. Settlement of complaints
Complaints about the implementation of service need to be reported in writing to the service provider. Within one working day after receipt of a written complaint, the contractor will be informed by the service provider about the settlement of the complaint. Both parties will take care of appropriate follow-up action in close consultation and agreement.
16. Applicable law
Only Dutch laws are valid for all transactions between contractor and service provider.
All disputes that arise from the implementation of this agreement or other agreements that can be a consequence hereof, will be presented to the District Court of Utrecht unless the service provider wishes to present the dispute before another court.
Chamber of Commerce Registration
Qhuba Consulting B.V. is registered with the Chamber of Commerce Midden-Nederland under number 188.8.131.52; having its registered seat at Orteliuslaan 23, 3528 BA, Utrecht, the Netherlands.