GENERAL TERMS AND CONDITIONS OF DELIVERY AND PAYMENT
KvKnr: 30142811 / KvK03/2080479
Version March 2020
Article 1: General
- These terms and conditions apply to any legal relationship between Marktlink Fusies & Overnames B.V. (hereinafter referred to as ‘Marktlink’), and a principal. Exceptions to these terms and conditions can only be agreed in writing by an authorised member of Marktlink’s staff.
- These general terms are also applicable to companies affiliated with Marktlink, the (indirect) managing directors of such companies and all persons working for Marktlink, whether or not employed by Marktlink, as well as persons and legal entities who work for or have worked for Marktlink previously.
Article 2: Tenders
- Any tender or tenders submitted by Marktlink are not binding on Marktlink unless they include an acceptance period.
- Marktlink is entitled to revoke the offer made in its tender within two working days after receiving notice of the acceptance of its tender.
Article 3: Contracts – best-efforts obligation
- Once a contract is entered into, Marktlink agrees to perform its obligations under the assignment to the best of its abilities. It will therefore make every effort to achieve the required outputs of the assignment but it does not provide any guarantee that such outputs will be achieved.
Article 4: Implementation
- The periods and time planning stated in Marktlink’s tenders andcontracts relate to the work to be carried out by Marktlink and are not firm deadlines.
- If the principal is in default or fails to meet one or more of its obligations, the payment which has been agreed will become payable to Marktlink immediately and in full, and Marktlink has the right to terminate its contract with the principal without prejudice to Marktlink’s rights to claim damages or compensation.
- Every assignment is deemed to have been granted exclusively to Marktlink, even if the express or implied intention is that an assignment be executed by a specific person. The operation of art. 7:404 of the Dutch Civil Code, which provides a scheme for the latter case, and the operation of 7:407 clause 2 of the Dutch Civil Code, which assigns main liability in situations where two or more people are granted an assignment, is excluded.
Article 5: Changes in the contract
- If the data on which the contract and fee and result-dependent payment(s) are based is altered during the term of the contract, Marktlink and the principal will draw up another fee agreement which has a financial/payment basis which is as similar as possible to the original agreement.
- If, during the implementation of the assignment, it becomes apparent that actual circumstances threaten to obstruct the proper execution of the assignment, the principal and Marktlink will as soon as is reasonably practicable consult with each other to agree appropriate amendments to the original contract.
- If Marktlink and the principal agree, the contract may set out the financial consequences of the contract being amended, not executed or terminated early. If there are no such specific terms in the contract, the provisions of Article 6 will apply.
Article 6: Early termination of the contract
- If the contract is terminated early/before completion of the assignment, either by the principal other than due to Marktlink’s act or omission or default or by Marktlink as a result of circumstances which are outside of its control which may reasonably result in the termination of the assignment by Marktlink, Marktlink is entitled to charge for all of the hours that it has worked (to the end of and including a notice period of one month) based on its hourly rates.
- The principal agrees to pay the full fee and result-dependent payment owed to Marktlink if the result envisaged in the contract is achieved following termination of the contract between Marktlink and the principal but if activities undertaken by the principal prevented Marktlink from fulfilling its assignment or contravened the exclusivity of the contract, or if the achievement of the result was because of services provided by Marktlink during the contract period. This will be the case if the result is achieved within 24 months after the end of the contract between Marktlink and the principal.
Article 7: Liability
- If in connection with the performance of an assignment an event occurs which results in liability for Marktlink to the principal, this liability will be limited to the amount which Marktlink receives in respect of that liability under its professional liability insurance plus an amount equal to the excess payable by Marktlink in the particular circumstances.
- If for any reason whatsoever Marktlink’s losses in respect of any such liability are not covered by its insurance, Marktlink’s liability will be limited to the amount that Marktlink charged the principal in the respective case, up to a maximum of EUR 50,000.
- The principal’s right to claim compensation from Marktlink will expire after a period of one year after the day following the day on which the principal became aware of the damage.
Article 8: Third parties
- When using third parties, Marktlink will consult with the principal in advance where possible and shall act carefully when selecting the third party. Marktlink is not liable for any damage caused by the shortcomings of third parties. Marktlink assumes states as part of these conditions if necessary, that every assignment includes authority from the principal to accept potential limitations on liability for the third party which it uses without prior written consultation.
- The principal exempts Marktlink from all claims brought by third parties, including the reasonable legal costs incurred by the principal, except in the case of intent or gross negligence by Marktlink.
Article 9: Exclusivity
- The contract awarded by the principal to Marktlink is based on complete exclusivity [to carry out the assignment granted by the principal to Marktlink. The principal is therefore not entitled to simultaneously grant similar assignments to any third party/parties or to complete the assignment on its own, unless agreed otherwise with Marktlink.
Article 10: Information
- The principal must provide Marktlink with all data and information required for the handling of the assignment. If this condition is not met, Marktlink is entitled to suspend its work and, in the event that the provisions of item 2 of Article 4 apply, terminate the contract.
- The principal must inform Marktlink immediately of any facts or circumstances that are important for the implementation of the assignment. The principal will also ensure the correctness, completeness and reliability of the data and information provided to Marktlink.
- Unless prevented by legislation or regulations, Marktlink and the principal will require their staff and advisers to handle all information obtained in this context as confidential and to maintain the secrecy of such information to the extent that it is not in the general public domain.
- Marktlink is not obliged to disclose the sources of the information that it provides or to disclose its working methods, other than as required by law.
- Due to the large number of sources of information or third parties that are used by Marktlink without having them under its control, the principal acknowledges that Marktlink cannot guarantee the correctness, completeness or up-to-dateness of the information or advice that is provided.
Article 11: Copyrights
- Marktlink remains the owner of the copyright and other rights in drawings, models, designs, calculations, etc. use in the assignment.
- The principal is expressly forbidden to copy, publicise or use (in the broadest sense of the words) Marktlink products, including computer programmes, system designs, working methods, advice, (draft) contracts and other related Marktlink products. The principal is obliged to ensure that its advisers are also aware of this obligation and adhere to it. The principal is entitled to copy and use the written documents produced and/or used in the assignment within its own organisation in as far as this is appropriate for the purpose of the contract.
Article 12: Internet use
- During the term of the contract, Marktlink and the principal will, if desired, communicate with each other using electronic means of communication. Both Marktlink and the principal acknowledge that the use of electronic means of communication entails risks such as distortion, delays, data breaches and viruses. Marktlink and the principal agree that they will not hold each other liable for damage or penalties in relation to the use of electronic means of communication. Both Marktlink and the principal will take every action that may reasonably be expected of them to prevent the abovementioned risks.
- In the case of any doubt in relation to the correctness of the contents of any messages received by the principal or Marktlink, the content of the message sent by the sender will be the determining factor.
Article 13: Personal data processing
- During the term of the contract, Marktlink may process personal data within the meaning of Article 4 under 1 of the GDPR. Marktlink will process the personal data in a proper and careful manner.
- The personal data are only accessible by Marktlink and will not be disclosed to third parties, unless at the request of the Principal, with the permission of the Principal or in case Marktlink is obliged to do so pursuant to the law or a court decision.
- The Principal indemnifies Marktlink against any legal claim by third parties, for whatever reason, if such claim is related to the processing of personal data as well as against any fines attributable to the Principal that have been imposed by the Dutch Data Protection Authority or by other competent supervisory authorities.
Article 14: Payment conditions
- If not agreed otherwise, the payment of the agreed fee will take place in two instalments:
– 50% within a maximum of 14 days after the signing of the contract;
– 50% within a maximum of 14 days after completion or termination of the assignment.
- The invoices sent by Marktlink must be paid by the principal within 14 days after the invoice date without deductions or discounts. The principal may only query an invoice within the stated payment period. After the expiry of this period, the principal will be in default and will be immediately liable to pay interest on the amount payable as referred to in article 6:119a of the Dutch Civil Code.
- The payment and invoicing agreements that have been made do not prevent the inception of a claim on the part of Marktlink against the principal after completion of each partial performance (the amount of time spent on the assignment) that is identifiable and can be expressed in monetary terms.
- In the case of liquidation, insolvency, bankruptcy or suspension of payment on the part of the principal, the obligations on the part of the principal to Marktlink will be due immediately and in full.
- If multiple principals are involved in connection with the assignment, each principal will be jointly and severally liable to Marktlink for the (payment) obligations arising from the contract. In the event that the principal enters into an agreement with Marktlink on account of a third party, the principal will also be jointly and severally liable for the (payment) obligations arising from that agreement.
- All fees and costs exclude VAT unless otherwise stated. Marktlink applies the general VAT rate to its fees and costs. The VAT amount will be statedseparately on the invoice. If it is irrevocably established later that VAT has been improperly applied to Marktlink’s fees and costs, the fees and costs will be increased by the amount of VAT stated on the invoice. Marktlink will rectify the situation by issuing a revised invoice.
- If the principal is in default in relation to one or more of its obligations, all reasonable extrajudicial costs related to resolving this will be are charged to the principal.
Article 15: Disputes
- All disputes based on offers, contracts or the implementation of work between the parties will in the first instance be brought before the competent judge at the court in Overijssel, the Netherlands.
- Without prejudice to the stipulations in item 1 of this Article 14, Marktlink is authorised to bring disputes before the judge designated as competent on the basis of statutory regulations.
- Dutch law applies to every contract between Marktlink and the principal.
Article 16: Conflicting Articles
- If these general terms and conditions conflict with the conditions in the order confirmation or signed tender, the conditions in the order confirmation or signed tender will prevail.
Article 17: Subsequent operation
- Where it is the express or implied intention of the parties that any provisions of these general terms and conditions or any contract will remain in force after termination of any contract between the parties, such terms will remain in force and binding on both Marktlink and the principal.