General Terms and Conditions
These General Terms and Conditions shall apply to all agreements between
– Coöperatie Frank & the Backs U.A., hereinafter referred to as Frank & the Backs, and its Client(s) and
– Frank & the Backs and its Back(s) and
– Frank & the Backs, a Client and a Back.
1. Definitions
In these General Terms and Conditions, the following definitions are applicable:
-‘Client’ means the organization or company with whom Frank & the Backs entered into an Agreement to render services;
-‘Confidential Information’ means any information related to the Engagement disclosed by any of the Parties to the other Party or Parties, either directly or indirectly and which is explicitly labeled by the generator or provider of the Information to be confidential or secret.
Confidential Information may include, by way of example but without limitation, products, specifications, formulae, equipment, models, employee interviews, records, quality monitoring schemes/programs, training materials, business strategies, customer lists, know-how, drawings, pricing information, inventions, ideas, and other information, or its potential use, that is owned by or in possession of either of the parties;
-‘Back’ means a seasoned professional and/or C-level executive who is a member of Coöperatie Frank & the Backs U.A. and who entered into an Agreement with Frank & the Backs and is assigned, or will be assigned, by Frank & the Backs to a Client to render services;
-‘Agreement’ means the agreement between the client, Frank & the Backs and the Back which agreement defines the scope of the Engagement and the services to be rendered, as well as the agreed and specified consideration for such services. These General Terms and Conditions are an integral part of the Agreement, unless the parties have explicitly agreed otherwise in the Agreement;
-‘Engagement’ means any Agreement, in whatever form, reached between Frank & the Backs and the Client pursuant to which Frank & the Backs, through the assignment to a Back, agrees to render services to the Client in exchange for an agreed and specified consideration;
-‘Force Majeure’ means any cause beyond the reasonable control of the affected party, including, but not limited to, any act of God, war, riots, acts of the public enemy, fires, strikes, labor disputes, accidents, including disability or death of a Back assigned to a specific Client, or any material consequence from compliance with any order of any government or governmental or judicial authority as a consequence of which the agreement can not be executed in all material aspects as intended by the parties when they entered into the Agreement.
2. General
a. These General Terms and Conditions govern the legal relationship between Frank & the Backs, the Back and the Client and the services to be rendered by Frank & the Backs and the Back to the Client.
b. These General Terms and Conditions supersede any and all prior oral and written quotations, communications, agreements and understandings of the parties and shall apply in preference to and supersede any and all terms and conditions of any order placed by the Client or the Back and any other terms and conditions submitted by the Client or the Back. Failure of Frank & the Backs or the Back to object to terms and conditions set by the Client can in no event be construed as an acceptance of any terms and conditions of the Client. Neither Frank & the Backs’ and/or the Back’s commencement of performance nor the Back’s rendering of services can be construed to constitute an acceptance of any of the Client’s terms and conditions. By contracting on the basis of these General Terms and Conditions, the Client agrees to the applicability thereof in respect of future agreements between itself, Frank & the Backs and the Back, even if this is not expressly stated.
3. Performance of the Engagement
a. The Back, in consultation with the Client, shall determine the manner in which he will carry out the Engagement and will inform Frank & the Backs accordingly.
b. The Back shall complete the Engagement to the best of its ability, using professional management skill, care and diligence in accordance with the Agreement, but does not guarantee any result.
c. The Client hereby accepts that the time schedule allocated for the execution of an Engagement may be subject to change in case of amendment of the Engagement and/or the services to be provided thereunder after conclusion of the initial Agreement.
d. In case of any change of circumstances under which the Engagement is to be performed which cannot be attributed to the Back or to Frank & the Backs, Frank & the Backs and the Back may – in close consultation with the Client – make any such amendments to the Engagement as may be necessary to adhere to the agreed quality standard and specifications. Any additional costs arising from or related to this change of circumstances shall be borne by the Client.
e. Frank & the Backs may, at its discretion but only with the prior approval of the Client, replace the Back charged with performing the Engagement, if Frank & the Backs believes that such replacement would benefit the performance of the Engagement.
f. The Back shall provide the Client and Frank & the Backs with such reports of his work on the Engagement at such intervals and in such form as the Client and Frank & the Backs may from time to time require. The Client has the right to notify the Back and Frank & the Backs that it wishes to modify its requirements in relation to the Engagement. Such modifications shall not enter into effect until the parties have agreed on the consequences thereof such as the completion date of the Engagement and the agreed consideration.
4. Subcontractors
The Back shall be free to propose to Frank & the Backs and the Client to involve subcontractors, availing of specific expertise, in the execution of the Engagement. Such subcontractors will be engaged by the Client in close consultation with Frank & the Backs and the Back. The subcontractor will charge his fee directly to the Client and Frank & the Backs and the Back will not be entitled to any commission.
5. Client’s obligation
a. The Client shall at all times duly make available to the Back all information and documents that the Back deems necessary to be able to carry out the Engagement correctly, in the specified form and manner. Also, the Client shall provide all cooperation required for the proper and timely performance of the Engagement.
b. The Client guarantees that the Back can at all times work under safe conditions, in accordance with the relevant health and safety regulations and environmental rules, and shall indemnify and hold harmless Frank & the Backs and the Back against all loss, expense or damage arising from or relating to this guarantee by the Client.
c. The Client shall duly inform the Back of any facts and circumstances that may be relevant in connection with the execution of the Engagement.
d. Furthermore, the Client guarantees the correctness, completeness and reliability of any information provided to Frank & the Backs and/or the Back .
6. Consideration – fees and expenses
a. The Client shall pay, through Frank & the Backs, to the Back the consideration at the rate specified in the Agreement.
b. Unless otherwise stated in the Agreement, the Back shall, after prior approval by the Client, be entitled to be reimbursed by the Client for all traveling and lodging expenses and other out of pocket costs reasonably and properly incurred by him in the performance of his duties hereunder subject to production of such evidence thereof as the Client may reasonably require.
c. Unless otherwise stated in the Agreement, payment by the Client to Frank & the Backs will be made within five (5) business days of receipt of an invoice, submitted monthly, or per phase of the Engagement. Payment shall be made to the bank account mentioned on the invoice.
d. Value Added Tax (VAT) and VAT registration number, where applicable, shall be shown separately on all invoices.
e. Any extra costs arising from or related to any delays in the completion of the Engagement stemming from the failure of the Client to duly make available to the Back the requested information and documentation, shall be borne by the Client.
7. Intellectual property
All results generated by Frank & the Backs and/or the Back in performing the Engagement, including reports, other documents and materials, shall become the property of the Client. Frank & the Backs and/or the Back shall, at the Client’s request, provide all reasonable assistance such that the Client may apply for patents, copyrights and other intellectual property rights in respect of these results.
8. Confidentiality
a. Frank & the Backs and the Back shall keep secret and not disclose and shall procure that their employees keep secret and not disclose any Confidential Information obtained by them during the performance of the Engagement. The foregoing shall not apply to information which: (I) is or becomes part of the public domain without fault on the part of Frank & the Backs or the Back; (II) was already known by Frank & the Backs or the Back, other than under an obligation of confidentiality, at the time of disclosure by the Client; (III) is lawfully acquired by Frank & the Backs or the Back from a third party on a non-confidential basis; or (IV) Frank & the Backs or the Back is required to disclose pursuant to any law, or pursuant to a lawful governmental order or quasi-governmental order or judicial order.
b. Except with the prior written permission of Frank & the Backs and the Back, the Client shall not publish or otherwise make available the contents of proposals, reports, presentations, memos, or other communications by Frank & the Backs or the Back, unless these have been provided with the intention of providing third parties with the information set out therein.
Furthermore, the Client shall not disclose any of Frank & the Backs’s or the Back’s methods and work strategies without Frank & the Backs’s or the Back’s written permission.
c. The provisions of this Article 8 shall apply for the term of the Agreement and for a period of five (5) years thereafter.
9. Warranties, liability and indemnification
a. Frank & the Backs nor the Back shall be liable if the services provided or the results generated by them in the Engagement differ from the initially intended results (including agreed KPI’s) as set forth in the Agreement, nor does Frank & the Backs or the Back warrant, that the performance by them will not infringe upon intellectual property rights of any third party.
b. Frank & the Backs nor the Back shall be liable for any loss, destruction or damage of whatsoever nature (including injury or death) incurred by the Client, its employees or third parties, resulting from the use of the results of the Engagement by the Client, except to the extent that the same can be shown to be due to gross negligence or willful misconduct on the part of Frank & the Backs or the Back or their employees.
c. The Client shall not be liable for any loss, destruction or damage of whatsoever nature (including injury or death) incurred by Frank & the Backs or the Back or third parties, related to the performance by Frank & the Backs or the Back on the Engagement, except to the extent that the same can be shown to be due to gross negligence or willful misconduct on the part of the Client or its employees.
d. Should a party be held liable by the other party, by way of indemnity or by reason of breach of contract or otherwise, Frank & the Backs’ and the Back’s total liability for the Engagement shall in aggregate be capped at the consideration agreed, but shall never exceed the insured damage as effectively covered under Frank & the Backs’ and the Back’s liability insurance. In any event, neither party shall be liable to the other party for any consequential, indirect, special, incidental or exemplary damages of any nature whatsoever that may be suffered by the other party.
10. Term and termination
a. Any times or dates set forth in the Agreement for provision or completion by the Back of the services under the Engagement are estimates only and shall never be considered of the essence. Furthermore, the parties hereby acknowledge that the time schedule set out for the performance of the Engagement may change during the course of said performance. In no event shall Frank & the Backs or the Back be liable for any delay in providing these services.
b. Either party may terminate the Agreement by notice in writing forthwith in the event the other party: (I) is in default with respect to any material term or condition to be undertaken by it in accordance with the Engagement and/or the provisions of the Agreement, and such default continues unremedied for a period of thirty (30) days after written notice thereof by the aggrieved party to the defaulting party; or (II) is affected by a Force Majeure which cannot be removed, overcome or abated within three (3) months; or (III) shall make any assignment for the benefit of creditors or shall file any petition in connection thereto, shall file a voluntary petition in bankruptcy (‘faillissement’), be adjudicated bankrupt or insolvent, if any receiver is appointed for its business or property (‘faillissement’,‘surseance van betaling’).
c. In case of a termination on the basis of one or more of the events mentioned under article 10 sub b of these General Terms and Conditions that can be attributed to the Client, the Client shall be obliged to pay Frank & the Backs an amount equal to the agreed consideration corresponding with the services already rendered by Frank & the Backs and/or the Back, plus any additional costs incurred by Frank & the Backs and/or the Back as a result of said early termination. The Client is entitled to receive the (preliminary) results of the services already rendered after such payment.
d. In case the Back cannot be reasonably required to complete the works due to unforeseen circumstances, Frank & the Backs and the Back may unilaterally terminate the Agreement. The Client shall be obliged to pay to Frank & the Backs an amount equal to the agreed consideration corresponding with the services already rendered, while being, after payment, entitled to receive the (preliminary) results of the services already rendered.
e. In case of a termination as set forth under this article 10 sub c or sub d, the portion of the consideration of the success fee in equity and/or in cash will be calculated as if the agreed KPI’s have been realized in full and will be applied on a time proportionate basis (actual period of services rendered under the Engagement divided by the full term of the Engagement). The outcome of this calculation of the portion of the consideration in equity will be converted to an amount in cash that properly reflects the expected value of the equity and is payable, like the time proportionate success fee in cash if applicable, to Frank & the Backs.
11. Independancy
The Back shall render his services under the Agreement as an independent contractor and shall not be the servant or agent of the Client.
12. Force Majeure
Neither party shall be liable in any way for any damage, loss, cost or expense arising out of or in connection with a Force Majeure event. Upon the occurrence of any Force Majeure event, the party suffering thereby shall promptly inform the other party/parties by written notice thereof specifying the cause of the Force Majeure event and how it will affect its performance.
13. Notices
Any notice given under or pursuant to the Agreement shall be given in writing and shall be given by mail, registered mail or email to the other party. Any such notice shall be deemed to have been received on the second (2nd) business day following the date of its mailing if sent by (registered) mail within the Netherlands, on the seventh (7th) business day following the date of its mailing if sent by (registered) mail outside the Netherlands or on the next business day immediately following the date of transmission if sent by email.
14. Observance of legal requirements
a. Frank & the Backs and the Back shall carry out their obligations under the Agreement in a manner that complies with all relevant legal requirements.
b. Without prejudice to the generality of article 14 sub a, in carrying out his obligations under the Agreement Frank & the Backs and the Back shall comply with relevant requirements under current legislation relating to health, safety and welfare at work.
15. Governing law and jurisdiction
a. All disputes that cannot be settled amicably shall be referred to the applicable courts in The Hague, the Netherlands, and the parties consent to the jurisdiction of the courts there.
b. These General Terms and Conditions and the Agreement are governed by and interpreted in accordance with the laws of the Netherlands.