CLAUSE 1 – APPLICABILITY
1.1 These terms and conditions apply to all (proposals for) engagements between a client (“Client”) and Supreme Valuation and M&A B.V. (“Supreme”), as well as to all work which may arise out of such engagement. These terms and conditions also apply to any additional, changed and/or subsequent engagements.
1.2 Any variations to these terms and conditions shall only be binding if agreed by both parties.
1.3 The applicability of Client’s general purchase or other terms and conditions is explicitly excluded.
1.4 In the event of a conflict between (a proposal for) an engagement and these terms and conditions, (the proposal for) the engagement shall prevail.
1.5 If any provision of these terms and conditions is held to be (partly) invalid, then such provision shall be replaced by the parties by a valid provision, which provision shall come closest to the intention(s) of the original provision to the extent valid and without affecting the validity of any of the remaining provisions of these terms and conditions in any way.
CLAUSE 2 – PERFORMANCE OF THE ENGAGEMENT
2.1 Supreme shall perform all its work to the best of its ability, in good faith and with due professional care, and in accordance with the applicable laws and regulations and professional rules. Supreme shall be bound by a best-efforts obligation (in Dutch: inspanningsverplichting) in relation to its work.
2.2 Supreme shall determine the manner in which the engagement will be performed and by whom. All engagements shall be accepted and performed by Supreme exclusively, even if it is the Client’s explicit or tacit intention that an engagement shall be performed by one or more specific persons associated with Supreme.
2.3 Supreme is not obliged to update the results of its work in response to events, including but not limited to amendments to laws and regulations and case law, occurring after performance of its engagement.
2.4 Supreme may provide a draft or interim advice, report, and/or presentation before completion of its engagement. These are provisional and if the Client bases itself or relies on a draft or interim advice, report and/or presentation, it does so at its own risk and expense. Only Supreme’s final advice, report and/or presentation contains the final results and conclusions of the engagement performed by Supreme.
2.5 Unless agreed otherwise in writing, the completion dates for the performance of the engagement and all the work which may arise from such engagement are indicative dates and not strict deadlines.
CLAUSE 3 – CLIENT’S RESPONSIBILITIES
3.1 The Client is obliged to provide Supreme, timely and in the form and way requested by Supreme, with all information and documents that Supreme, in its opinion, needs to perform the engagement. The Client is also obliged to timely inform Supreme of facts and circumstances that is or may be of importance for the performance of the engagement. The Client warrants the accuracy, completeness, reliability and lawfulness of the information and documents made available by the Client to Supreme, including information and documents originating from third parties. The Client indemnifies Supreme against any damages resulting from incorrectness, incompleteness, unreliability and/or unlawfulness of such information and documents.
3.2 The Client is obliged to assist in the performance of the engagement, including but not limited to making the required facilities, access rights and employees available to Supreme.
3.3 Any additional costs and/or fees, as well as other damages that Supreme incurs as a result of a failure to (timely and/or properly) comply with the obligations included in the previous paragraphs of this clause, shall be borne by the Client. In such event, Supreme may suspend its performance of the engagement until the Client fully complies with those obligations.
3.4 The Client shall bear the sole responsibility for determining the scope of the engagement and for its decisions (partially) based on or resulting from Supreme’s work.
CLAUSE 4 – FEES AND PAYMENT
4.1 Unless agreed otherwise in writing, Supreme shall invoice the Client for the hours worked at the applicable hourly rates, increased by turnover tax, out-of-pocket expenses related to the performance of the engagement, and fees charged by third parties engaged by Supreme. The hourly rates shall be updated from time to time, based on seniority, expertise and experience of the persons involved.
4.2 Unless agreed otherwise in writing, Supreme shall send monthly invoices. The Client shall pay Supreme’s invoices within fourteen (14) days after the invoice date, without right to any deduction, discount or compensation. If the invoice is not paid on time, the Client is in default by operation of law and Supreme may charge the statutory (commercial) interest. In that event, the Client is also liable for all incurred extrajudicial and judicial (collection) costs.
4.3 In the event of a jointly commissioned engagement, the Clients will be jointly and severally liable for payment of the invoiced amount as well as the interest and costs due.
4.4 The Client is obliged to make (partial) advance payments and/or to furnish security at Supreme’s first request. If the Client fails to comply with this obligation, Supreme may suspend its performance of its obligations, without prejudice to any of its other rights.
CLAUSE 5 – TERM AND TERMINATION OF THE ENGAGEMENT
5.1 The engagement comes into effect on the moment that the Client (orally, in writing, electronically or tacitly) confirms the document in which (the proposal for) the engagement is laid down or on the moment the work is performed at the Client’s request. The engagement supersedes and replaces any prior written and oral agreements, notifications, and other communication regarding the subject of the engagement.
5.2 Each party may (prematurely) terminate (in Dutch: opzeggen) the engagement with immediate effect by notifying the other party in writing, provided that the following shall have occurred: a. the other party fails to (timely and/or properly) comply with any obligation under the engagement, and still has not remedied such breach within thirty (30) days after receiving written notice of default; b. the other party (i) has requested or is granted access to the Statutory Debt Rescheduling Arrangement for Natural Persons, (ii) has requested or has been granted a suspension of payments, (iii) has filed for bankruptcy or has been declared bankrupt, (iv) has offered its creditors a composition in or outside a bankruptcy, (v) is placed under legal curatorship or otherwise loses the power of disposal of its capital or part thereof, (vi) dies, or (vii) has ceased to exist or has been dissolved; without such terminating party being obliged to pay any compensation and without prejudice to any of its other rights and obligations.
5.3 Additionally, Supreme may (prematurely) (partially) terminate (in Dutch: opzeggen) the engagement with immediate effect by notifying the other party in writing, without being obliged to pay any compensation, in the event of (changed) circumstances that would make the engagement and/or the service provision unlawful or as a result of which the engagement and/or service provision would be contrary to applicable professional regulations, including but not limited to the independence or professional rules.
5.4 In the event of a premature termination of the engagement, Supreme shall be entitled to be compensated for the work performed, as well as for the costs reasonably incurred or to be incurred by Supreme as a result of the premature termination.
CLAUSE 6 – PROTECTIVE COVENANTS
6.1 Both the Client and Supreme undertake to keep all information they have about (the subject and performance of) the engagement and each other confidential and to refrain from disclosing such information to third parties. The aforementioned obligations do not apply in the event such information (i) is publicly known, (ii) becomes known to a third party other than by breach of any confidentiality obligation under this clause, (iii) needs to be disclosed by one of the parties to third parties engaged by that party and/or to its insurer(s) and/or to its group companies for the benefit of (proceedings regarding) (the performance of) the engagement, or must be used by one of the parties for the benefit of (proceedings regarding) (the performance of) the engagement, or (iv) is required by applicable laws or regulations if one of the parties is subject. In the event of a situation as described under (iii), such party shall impose the same confidentiality obligations on its engaged third party. A violation by such third party shall be considered as a violation by the party that engaged that third party.
6.2 No party shall bring the engagement to public attention, without the prior written consent of the other party. However, Supreme shall be permitted to reference the Client by name, trading name and/or logo as well as disclose the general scope of work performed to indicate its experience to (potential) clients.
6.3 All provisions of these terms and conditions are also stipulated for the benefit of those who are engaged by Supreme with regard to the performance of the engagement, including but not limited to Supreme’s staff (both partners and employees), third parties engaged by Supreme and any other person for whose acts or omissions Supreme is or may be liable. These terms and conditions may be invoked against the Client by such persons and parties.
CLAUSE 7 – INTELLECTUAL PROPERTY RIGHTS
7.1 All possible (intellectual) (property) rights related to and/or resulting from Supreme’s work belong to Supreme.
7.2 The Client is not permitted to multiply, disclose, exploit or otherwise make available to third parties any products that are subject to Supreme’s (intellectual) (property) rights, including but not limited to models, standards, software, working methods, advice and reports. More specifically, without the prior written consent of Supreme, the Client shall not (partially) disclose or otherwise make available to third parties, (the content of) (a proposal for) an engagement, a report, an advice and any other (written) communication from Supreme, if these were not specifically drawn up or communicated for the purpose of providing third parties with the information contained therein. The foregoing is without prejudice to the provisions of clause 6.1.
CLAUSE 8 – LIMITATION OF LIABILITY
8.1 Except in the event of intent or willful recklessness (in Dutch: opzet of bewuste roekeloosheid) on the part of Supreme’s executive staff, Supreme’s liability is limited to the fees invoiced to the Client during the twelve (12) months prior to the date of the claim(s) for the work performed from which the claim(s) resulted.
8.2 Supreme is not liable for indirect, consequential and/or punitive damages and/or loss of profit.
8.3 Except in the event of intent or willful recklessness (in Dutch: opzet of bewuste roekeloosheid) on the part of Supreme’s executive staff, the Client indemnifies Supreme and all persons connected to Supreme against third-party claims related to the engagement. A ‘third party’ includes all of the Client’s group companies, its managers, its supervisory directors, all persons working at or for the Client, and all of the Client’s family members. This provision is an irrevocable third party clause for the benefit of all persons connected, including anyone who is employed by Supreme (both partners and employees).
8.4 A claim that the Client may have relating to the engagement and the corresponding work shall lapse after one (1) year from the date on which the Client became aware of such claim or could have reasonably been aware of the existence of such claim.
8.5 The Client indemnifies Supreme and its employees against claims from third parties who claim to have suffered damage through or in connection with work performed by Supreme for the Client and against the costs incurred by Supreme in conducting a defence against such claims.
CLAUSE 9 – ELECTRONIC COMMUNICATION
9.1 The Client and Supreme may communicate with each other by electronic means and/or use electronic transmission of documents. The Client and Supreme recognise that certain risks are associated with the use of electronic means, such as but not limited to non-delivery, delays, distortion, interception, manipulation and viruses. Therefore, the Client and Supreme will not be liable for any damages that may result from the use of electronic means. The Client and Supreme shall do or omit all that can reasonably be expected of them to avoid such risks.
CLAUSE 10 – APPLICABLE LAW AND DISPUTES
10.1 All legal relationships between the Client and Supreme are governed by Dutch law.
10.2 Any disputes shall in the first instance be exclusively referred to the competent Dutch court.
10.3 Clause 10.2 does not limit the Client’s possibilities under the complaints- and disciplinary system of the professional organisations.