These terms and conditions apply to any legal relationship between Marktlink Fusies & Overnames B.V. (hereinafter referred to as ‘Marktlink’), and the client named in the proposal. Exceptions to these terms and conditions can only be agreed in writing signed by an authorised member of Marktlink’s staff.
Services are provided by Marktlink to the client on the terms and conditions set out in this appendix and the proposal (which together constitute the “contract”). These terms and conditions apply to the contract to the exclusion of any other terms that the client seeks to impose or incorporate, or which are implied by law, trade, customer, practice or course of dealing.
Articles in these general terms and conditions are also made for the benefit of other entities within the Marktlink group, the (indirect) directors of all the companies within the Marktlink group and all those working for Marktlink, whether or not employed by Marktlink, as well as (former) (legal) persons working for Marktlink. This is an irrevocable third-party clause made free of charge within the meaning of article 6:253 of the Dutch Civil Code.
Article 2: Tenders/Proposals
Any proposal submitted by Marktlink is not binding on Marktlink and a binding contract shall only come into effect after a positive outcome of the client due diligence based on the Dutch Act on Money Laundering and Terrorist Financing to the satisfaction of Marktlink. The client shall deliver all requested information to Marktlink and shall cooperate in order to complete the client due diligence as soon as practicably possible.
Notwithstanding the above, Marktlink is entitled to revoke the offer made in its proposal within five working days after receiving notice of the acceptance by the client.
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 and to provide its services with reasonable care and skill. It will therefore make every reasonable effort to achieve the required output of the assignment but it does not provide any guarantee that such output will be achieved.
Article 4: Implementation
The periods and time planning stated in Marktlink’s tenders and contracts are indicative only and relate to the work to be carried out by Marktlink. They are not firm deadlines. Time is not of the essence for the performance of Marktlink’s obligations under this contract.
If the client is in default or fails to meet one or more of its obligations set out in article 10 in particular and in the contract more generally, Marktlink will not be liable for any failure to perform any of its obligations as a result.
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.
Marktlink will use appropriately skilled staff to perform the services under the contract but does not make any representation or covenant that they will be performed by any individual in particular.
Article 5: Changes in the contract
The client represents and warrants that it has provided full and complete information about the assignment and acknowledges that Marktlink has based its quote on this information. If this information is incorrect or changes, then Marktlink is entitled to an alternative 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 will obstruct the proper execution of the assignment, the client and Marktlink will as soon as is reasonably practicable consult with each other in good faith to agree appropriate amendments to the original contract.
Article 6: Early termination of the contract
Without affecting any other right or remedy available to it, either party may terminate the contract with immediate effect by giving written notice to the other if:
the other party commits a material breach of any term of the contract and (if such breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the contract has been placed in jeopardy.
In any event, parties consider non-compliance of the client with article 10 (information) a material breach in the meaning of article 6, paragraph 1 under a of these general terms and conditions, without limitation of other circumstances which are material breaches.
Without affecting any other right or remedy available to it, Marktlink may terminate the contract with immediate effect by giving written notice to the client if the client fails to pay any amount due under the contract on the due date for payment.
In case of an interim termination of the contract regardless who terminates the contract and on which grounds, Marktlink is entitled to charge (less any amounts already paid) for all hours worked by it at the hourly rate applicable to Marktlink’s lawyers, without prejudice to Marktlink’s right to claim full damages or compensation.
The client agrees to pay the full fee, including success fee, as set out in the proposal which would have been due to Marktlink had the contract not been terminated in the following circumstances: i) the result envisaged in the contract is achieved following termination of the contract between Marktlink and the client and the client’s actions prevented Marktlink from fulfilling its assignment; ii) the client contravened the provisions relating to exclusivity in the contract; iii) if the achievement of the result was substantially due to the services provided by Marktlink during the contract period. This will be deemed to be the case if the result is achieved within 24 months after the end of the contract between Marktlink and the client.
Without affecting any other right or remedy available to it, Marktlink may suspend the supply of services under the Contract or any other contract between the client and Marktlink if:
the client fails to pay any amount due under the contract on the due date for payment;
the client fails to provide information based on article 10 under this contract; and
the client becomes subject to any of the events listed in item 1 of this Article 6 above or Marktlink reasonably believes that the client is about to become subject to any of them.
Article 7: Liability
References to liability in this Article 7 include every kind of liability arising under or in connection with the contract including liability in contract, tort (including but not limited to negligence) misrepresentation, restitution or otherwise. Any claim for damages against employees, partners or directors is excluded.
Nothing in these conditions shall limit the client’s payment obligations under the contract.
Nothing in the contract limits any liability which cannot legally be limited, including but not limited to liability for:
death or personal injury caused by negligence;
fraud or fraudulent misrepresentation; and
any other liability which may not lawfully be limited.
Subject to the above, Marktlink’s total liability to the client shall not exceed the greater of: i) the amount which Marktlink actually receives in respect of that liability under its professional liability insurance plus an amount equal to the excess payable (eigen risico) by Marktlink in the particular circumstances; and, ii) the fees paid by the client under this agreement with a maximum of EUR 50,000.
The client’s right to claim compensation from Marktlink will expire after a period of one year after the day following the day on which the client became aware of the damage. Any right of the client to claim damages lapses if Marktlink is not summoned before court within six months from notification of the claim of damages by client.
Article 8: Third parties
When using third parties, Marktlink will consult with the client in advance where possible and shall act carefully when selecting the third party. In principle Marktlink will negotiate a contract between the client and the third party. Marktlink is not liable for any damage caused by the shortcomings of third parties.
The client exempts Marktlink from all claims brought by third parties, including the reasonable legal costs incurred by the client, except in the case of intent or gross negligence by Marktlink.
Article 9: Exclusivity
The contract awarded by the client to Marktlink is based on complete exclusivity to carry out the assignment granted by the client to Marktlink. The client shall not grant similar assignments to any third party/parties or to complete the assignment on its own, unless it has the prior written consent of Marktlink to do so.
Article 10: Information
The client shall provide Marktlink with all data and information as it reasonably requests for the handling of the assignment.
The client must inform Marktlink immediately of any facts or circumstances that are important for the implementation of the assignment. The client will also ensure the correctness, completeness and reliability of the data and information provided to Marktlink in connection with the assignment.
Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by item 4 of this Article 10 or as mutually agreed to allow that party to carry out its duties.
Each party may disclose the other party’s confidential information:
to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this Article 10; and
as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the contract.
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 client acknowledges that Marktlink cannot guarantee that the information or advice provided by Marktlink to the client is correct complete or up-to-date.
Article 11: Copyrights
Marktlink remains the owner of the copyright and other rights in documents, drawings, models, designs, calculations, etc. prepared by it for use in the assignment.
Marktlink grants to the client a revocable, royalty free, non-transferable licence during the period of the assignment, to copy and use the written documents for the purpose of completing the assignment and/ or the purpose of the contract. Such licence shall terminate automatically on termination or expiry of the contract. The client shall return or destroy all copies of such materials to Marktlink upon termination or expiry of the contract.
Subject to item 2 of this Article 11 above, the client 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 client shall ensure that its advisers are also aware of this obligation and that they adhere to it.
Article 12: Internet use
During the term of the contract, Marktlink and the client will, if desired, communicate with each other using electronic means of communication. Both Marktlink and the client acknowledge that the use of electronic means of communication entails risks such as distortion, delays, data breaches and viruses. Marktlink and the client agree and acknowledge that transmission of information over the internet is not always secure and that they will not hold each other liable for damage or penalties in relation to the use of electronic means of communication. This only applies (for each party) to the extent the other has taken 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 client or Marktlink, the content of the message sent by the sender will be the determining factor.
Article 13: Personal data processing
Where Marktlink processes the personal data of individuals at the client it does so as data controller in accordance with its privacy notice https://www.marktlink.com/privacy/. The client warrants and represents that it will provide any staff involved in the assignment with a copy of Marktlink’s privacy notice.
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 client within 14 days of the invoice date without deductions or discounts. The client may only query an invoice within the stated payment period. If the client fails to make payment by the due date, then without limiting Marktlink’s remedies, Marktlink is entitled to interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this item will accrue each day at 5% a year above the 3 month Euribor rate from time to time and at 5% a year from any period when that base rate is below zero.
Each signatory to this contract will be jointly and severally liable to Marktlink for the (payment) obligations arising from the contract. In the event that the client enters into an agreement with Marktlink on behalf of a third party, the client warrants and represents that it has the authority to bind such third party to the contract and agrees that it will be jointly and severally liable for the (payment) obligations due from that third party under such contract.
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 stated separately 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 client is in default in relation to one or more of its obligations, all reasonable costs related to resolving this will be charged to the client.
Article 15: Governing Law and Jurisdiction
The contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter and formation shall be governed by, and construed in accordance with, the law of the Netherlands.
Each party irrevocably agrees that the court of Amsterdam shall have exclusive jurisdiction to settle and dispute or claim (including non-contractual disputes claims) arising out of or in connection with the contract or its subject matter or formation.
Article 16: Conflicting Articles
If these general terms and conditions conflict with the conditions in the proposal or signed tender, the conditions in the proposal or signed tender will prevail.
Article 17: Survival
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 the contract between the parties, such terms will remain in force and binding on both Marktlink and the client.
Article 18: Force Majeure
Neither party shall be in breach of the contract nor liable for delay in performing, or failure to perform any of its obligations under the contract if such delay or failure results from events, circumstances or causes beyond its reasonable control.
Article 19: Third Party Rights
Unless it expressly states otherwise, the contract does not give rise to any rights to a third party to enforce any term of the contract.
Article 20: Severance
If any provision or a part of a provision of the contract is or becomes invalid, illegal or unenforceable it shall be deemed deleted but that shall not affect the validity and enforceability of the rest of the contract.
Article 21: Waiver
A waiver of any right or remedy under the contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the contract or by law shall not constitute a waiver of that or any other right or remedy not shall it prevent or restrict any further exercise of that or any other right or remedy. No single or particular exercise of any right or remedy provided under the contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
Article 22: Entire Agreement
The contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
Each party acknowledges that in entering into the contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the contract.
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