General terms and conditions (version April 2017)
Article 1 GENERAL
In these general terms and conditions, the following definitions apply:
– Decision: a written commitment to grant a Contribution following a subsidy application submitted for the benefit of the Client.
– Contribution: a subsidy, credit, tax exemption or other (financial) contribution granted to the Client which is the result of Subsidy management by M&K.
– M&K: Maas & Kleiberg Subsidieadvies Holding B.V. as well as its subsidiaries and affiliates, who refer to these general conditions..
– Client: any natural or legal person who enters into an Agreement with M & K and / or with whom it negotiates on this, including its legal successors.
– Agreement: every contract of assignment between M & K and Client with regard to the performance of Work by M&K.
– Subsidy management: all activities related to the preparation, processing, submission and / or management of a (WBSO) subsidy application, with the aim of obtaining a Contribution based on a subsidy program or scheme.
– Work: the activities described in the offer consisting of Subsidy management and other activities that M & K will perform under the Agreement as well as additional work which the Client has instructed M&K to do.
Article 2 SCOPE
- These general terms and conditions apply to all legal relationships between the Client and M & K, subject to changes in these terms and conditions expressly agreed in writing by both parties.
- The conditions also apply to all Agreements with M&K for the execution of which services from third parties must be involved.
- If one or more provisions of these terms and conditions are void or about to become void, the other provisions of these general terms and conditions will remain fully applicable. The Client and M & K will then enter into consultation in order to agree on new provisions to replace these null and void or nullified provisions, whereby the purpose and scope of the original provision (s) will be taken into account as much as possible.
Article 3 OFFERS AND QUOTATIONS
- The offers made by the Client are without obligation. M & K can always revoke its offers, even if a term for acceptance is stated.
- The prices in the aforementioned offers and quotations are exclusive of VAT and any other government levies, unless stated otherwise.
- If one or more cost factors undergo a change after the quotation date, M & K is entitled to adjust its rates accordingly.
- A composite quotation does not oblige M & K to perform a part of the Agreement against a corresponding part of the stated price.
Article 4 CREATING THE AGREEMENT
- The Agreement is concluded at the time that the offer signed by the Client is returned by M & K.
- If the acceptance deviates from the offer included in the quotation, M & K is not bound by it. The Agreement will then not be concluded in accordance with this deviating acceptance, unless M & K indicates otherwise.
Article 5 PROVISION OF INFORMATION
- The Client is obliged to keep all information, data and documents which M & K deems necessary for the correct execution of the Agreement or of which the Client should reasonably understand that these are necessary for the execution of the Agreement, in time and in the desired form and to test in the desired manner.
- The Client guarantees the correctness, safety and reliability of the information, data and documents made available to M & K, even if these come from third parties
- If and insofar as the Client requests this, the documents made available will be returned to them
- If the information and / or data required for the execution of the Agreement have not been made available to M & K in a timely manner or not properly, M & K has the right to suspend the execution of the Agreement and / or the additional costs resulting from the delay, according to the usual rates to the Client
Article 6 IMPLEMENTATION OF THE AGREEMENT
- M&K will carry out the work and activities to be performed to the best of their knowledge and ability and in accordance with the requirements of good workmanship and / or professional practitioner.
- M&K determines the way in which and by whom the assignment is executed.
- If and insofar as required for the proper execution of the Agreement, M&K has the right to have the activities performed in whole or in part by third parties.
- If it has been agreed that the Agreement will be executed in phases, M&K may suspend the execution of those parts that belong to a following phase, until the Client has approved the results of the preceding phase in writing.
- The Client shall immediately send a copy of all of their correspondence received from third parties relating to the work activities to M&K.
Article 7 SUBSIDY MANAGEMENT
- If the Activities relate to Subsidy Management, unless otherwise expressly agreed in writing, M&K will perform the Work on the basis of exclusivity. This means that M&K is the only party that has instructed the Client to perform the Work that (partly) relates to Subsidy Management
- 2. The Client shall grant M&K power of attorney for all (legal) actions relating to the Subsidy Management, including the submission of applications and everything else related to that on behalf of the Client for the duration of the Agreement. This means that the Client will refrain from independently performing (legal) acts that fall under the scope of the power of attorney, including in particular the independent submission of the application.
- If the Client decides not to submit a subsidy application prepared by M&K, to withdraw it and / or to cease the Work, it must compensate the hours worked by M&K at the usual hourly rates of M&K.
- Only in the case of WBSO subsidy applications, when the Client realizes that he/she is getting a lower Contribution than that which was promised in the Agreement, M & K can grant a discount on their fee at the Client’s request with retroactive effect. For this purpose, the Client can submit a sufficiently substantiated request by e-mail (email@example.com), within 90 days of the end of the calendar year, whose request will be handled by M & K. The client is hereby obliged to provide all information required by M & K. If M & K deems a retroactive rebate on the fee is justified, they will send the Client a credit invoice of up to 50% of the invoiced fee and pay the related payment within 30 days.
Article 8 PERIOD OF PERFORMANCE
- If a term has been agreed within the term of the Agreement for the completion of certain Work, this is never a strict deadline. In the event that the execution period is exceeded, the Client must declare M & K in default in writing.
- If the Client owes an advance payment or has to provide the information required for the execution, then the term within which the Work must be completed does not start until the payment has been received in full, or the information has been made available in full.
Article 9 AMENDMENT OF THE AGREEMENT
- If it becomes apparent during the execution of the Agreement that it is necessary for a proper execution to modify or supplement the Work to be performed, the parties shall adjust the Agreement accordingly in due time and in mutual consultation.
- If the change or supplement to the Agreement will have financial and / or qualitative consequences, M & K will inform the Client of this in advance.
- If a fixed fee has been agreed on, M & K will indicate to what extent the change or supplement to the Agreement will result in an exceeding of this fee.
Article 10 CONTRACT TIME; END OF AGREEMENT
- The Agreement between M & K and the Client is entered into for a period of one year, unless M & K and the Client agree otherwise, as included in the offer. After the expiration of the agreed period, the Agreement will be renewed for a consecutive same period, unless one of the parties has given notice in writing with due observance of a notice period of three months before the end of the current contract period.
- M & K is authorized to suspend the fulfillment of its obligations and / or terminate or dissolve the Agreement unilaterally, if:
- a) the Client does not or does not fully comply with the obligations under the Agreement (including these general terms and conditions);
- b) after the conclusion of the Agreement M & K becomes aware of circumstances giving good grounds to fear that the Client will not fulfill its obligations.
- c) The Client is requested at any time to pay an advance or a fixed fee for the fulfillment of its obligations under the Agreement and payment thereof is not forthcoming or is insufficient.
- In the event M & K terminates or terminates the Agreement pursuant to this article, all that M & K for whatever reason can claim from the Client shall become immediately due and payable.
- If after the termination of this Agreement the Client realizes a Contribution which is (partly) the result of the Work previously performed by M & K and / or M & K made available to the Client, M & K is entitled to a fee of 75% of the amount previously paid, fees charged by M & K for the relevant application until no further texts written by M & K are used.
Article 11 RATES
- At the conclusion of the Agreement, the parties can agree on a fee(fixed fee) or No Cure No Pay. If No Cure No Pay (also known as success fee) has been agreed on, 100% of the commission will be invoiced for a written commitment (see article 1: definition of the decision).
- If no fixed fee or No Cure No Pay is agreed, the fee(fixed fee) will be determined on the basis of the actual hours spent. The fee is calculated according to M&K’s usual hourly rates, applicable for the period in which the Activities is performed, unless a deviating hourly rate has been agreed upon. The fee and any cost estimates are always excluding VAT.
- M & K activities which relate to the provision of support for a subsidy check at the Client shall be for a fixed fee of EUR 1,000, unless the parties agree otherwise in writing.
- If the offer contains an estimate of the number of working hours, this is not binding for M & K.
- M & K is entitled to index the rate annually. The indexation will be based on the increase in the CPI for all households between the starting date of the Agreement and the date of indexation of the rate. In addition, the Contractor reserves the right to increase the rates if the development of wages, costs, costs and / or market developments give rise to this. Before a rate change is implemented, the Client will be informed of this in writing.
Article 12 PAYMENT
- M & K’s fee, if necessary can be increased by disbursements and invoices from engaged third parties, will be charged to the Client per month, per quarter, per year or after completion of the Work, unless the Client and M & K have made other agreements about this. The sales tax will be charged separately on all amounts owed by the Client to M & K.
- Payment by the Client, without deduction, discount or debt settlement, must take place within the agreed deadlines, but in no case later than fourteen days after the invoice date. Payment must be made by transfer in favor of a bank account to be designated by M & K.
- If the Client has not paid within the period referred to in paragraph 2 of article 12, M & K is entitled to charge the Client statutory interest until the date of full payment, without further notice of default and without prejudice to the other rights of M & K from the due date.
- All judicial and extrajudicial (collection) costs reasonably incurred by M & K as a result of the Client’s failure to fulfill his/her payment obligations shall be borne by the Client. The extrajudicial costs amount to at least 15% of the principal and interest with a minimum of EUR 250 plus VAT.
- M & K is entitled to demand an advance payment or a fixed fee from the Client before the Work activities begin or are continued. M & K is entitled to retain an advance payment during the Agreement. After termination of the Agreement, M & K will settle this payment with its final invoice.
- In the case of a joint assignment, the Clients are jointly and severally liable for the payment of the invoice amount, irrespective of the name of the invoice, to the extent that the Work is performed for the benefit of the joint Clients.
Article 13 COMPLAINTS
- Complaints with regard to the Work performed and / or the invoice amount must be submitted in writing within 60 days after the date of dispatch of the documents or information about which the Client complains, or within 60 days after the discovery of the defect. If the Client demonstrates that the defect is reasonable and not previously discovered, it should be made known to M & K. Failing to do so, the Client will no longer be entitled to rights in this respect.
- Complaints as referred to in the first paragraph do not suspend the payment obligation of the Client. The Client is under no circumstances entitled to postpone or refuse payment on the basis of a complaint relating to a particular service of other services provided by M & K to which the complaint does not relate.
- If M & K considers a defect in the performed Work demonstrated, they will have the choice between adjusting the fee charged, the free improvement or re-performance of the rejected Work or the complete or partial non-performance or otherwise performance of the Agreement against a refund in proportion to the fee already paid by the Client.
Article 14 CONFIDENTIALITY AND NON-COMPETITION
- M & K is, unless it has a statutory or professional duty to disclose, obliged to keep all information and data of the Client confidential to third parties.
- M & K is not entitled to use the information made available to it by the Client for a purpose other than that for which it was obtained. An exception is made to this in the event that M & K acts for itself in a disciplinary, civil or criminal procedure in which these documents may be of interest.
- Unless prior written permission has been granted by M & K, the Client will not make public the content of reports, advice or other written or otherwise express statements by M & K that have not been drawn up or made with the intention of providing third parties with the information contained therein. The Client will also ensure that third parties can not become familiar with the content referred to in the previous sentence.
- The Client shall not employ M&K employees or contractors, who are directly or indirectly responsible for the execution of the Work, or have them work directly or indirectly, or cause them to do so, both during the term of the Agreement and during a period of two years after that
Article 15 INTELLECTUAL PROPERTY
- All intellectual property rights to all items developed under the M & K Agreement or made available by M & K (including software, websites, texts, data files, equipment or other materials such as analyzes, designs, documentation, reports, applications, as well as preparatory material thereof) ) are exclusively held by M & K and in no case will they transfer to the Client unless explicitly agreed otherwise in writing.
- All items made available by M & K to the Client are exclusively intended to be used by the Client only and may not be reproduced, made public or brought to the notice of third parties without prior permission from the Contractor.
Article 16 LIABILITY
1 . M & K will perform its Work activities to the best of its knowledge and ability, while respecting the diligence that can be expected from an adviser. If an error is made because the Client has provided incorrect or incomplete information, M & K is not liable for the resulting damage. Furthermore, M & K is not liable for damage as a result of unforeseen changes in legislation or regulations related to subsidy provision at the time of entering into the Agreement.
- If the Client proves that he suffered damage as a result of an error by M & K that could have been avoided in the event of careful action, M & K is only liable for this damage up to a maximum of the amount of the fee for the relevant assignment or if the Agreement has a term from more than six months to a maximum of the declaration amount over the last six months.
- If and insofar as M & K might have taken out an insurance policy to this effect, M & K’s liability towards the Client will be governed by and limited to the conditions and amounts stated in the relevant policy, subject to the conditions set out in this article, subject to the condition precedent, that insurer (s) provide cover to M & K.
- The Client indemnifies M & K against third-party claims for damage caused by the Client providing incorrect or incomplete information to M & K. Unless the Client demonstrates that the damage is not related to culpable acts or omissions on their part or caused by intent or gross negligence of M & K.
- Any claims by the Client must be submitted within a period of one year after discovering the damage, failing to do so results in the Client losing their rights.
- M & K is never liable for indirect damage, including consequential damage, lost profit, missed savings and damage due to business stagnation.
- The liability limitations of M & K are only applicable when the damage is caused by intent, serious negligence or conscious recklessness of M & K or its management.
- M&K´s hourly and cost administration as well as the extracts to be issued therefrom serve as full proof of the scope of the Work performed and costs incurred for the benefit of the Client pursuant to the Agreement. The Client has the authority to provide documentary evidence against this administration and the extracts made there from.
- If M & K receives an assignment together with one or more other contractors from the Client, each of the contractors shall be liable for a shortcoming in the (partial) Work performed by it.
- A legal claim against M & K for the delivery of the documents that M & K has received in relation to the Agreement shall lapse 1 year after the termination of the Agreement.
Article 17 FORCE MAJEURE
- The parties are not obliged to comply with any obligation if they are prevented from doing so as a result of a circumstance that is not due to fault, and neither under the law, a legal act or generally accepted for their account.
- In these general terms and conditions, force majeure is understood in addition to what is understood in the law and jurisprudence, all external causes, foreseen or unforeseen, on which M & K can not exert influence, but as a result of which M & K is unable to meet the obligations. . Work strikes in the company of M & K are included.
- M & K also has the right to invoke force majeure if the circumstance that prevents (further) fulfillment occurs after M & K should have fulfilled its obligations.
- Parties may suspend the obligations under the Agreement during the period in which the force majeure continues. If this period lasts longer than two months, each of the parties is entitled to dissolve the Agreement, without any obligation to compensate damage to the other party.
- To the extent that M & K has at present fulfilled or will be able to fulfill its obligations under the Agreement at the time of force majeure, and that the part to be fulfilled or to be fulfilled belongs to independent value, M & K is entitled to the part already fulfilled or to be fulfilled. declare separately. The Client is obliged to pay this invoice as if it were a separate Agreement.
Article 18 CONTRACT TRANSFER
- The Client is not permitted (any obligation or right) to transfer the Agreement to third parties, unless M & K has agreed to this in writing beforehand. M & K is entitled to attach conditions to its permission. The Client undertakes in any case to then impose on the third party all relevant (payment) obligations from the Agreement in these general terms and conditions. The Client remains at all times, in addition to this third party, liable for the obligations under the Agreement and the General Terms and Conditions, unless parties explicitly agree otherwise.
- In case of contract takeover, Client indemnifies M & K in respect of all third-party claims that may arise as a result of non-fulfillment or incorrect fulfillment of any obligation by the Client from the Agreement and / or these general terms and conditions, unless any mandatory (internal) national law or regulation does not allow such a provision.
Article 19 WITHDRAWAL PERIOD
Unless otherwise provided in these general Terms and Conditions, rights of claim and other powers of the Client will lapse on behalf of M & K; after one year after the Client became known or could reasonably have been known with the existence of these rights and powers.
Article 20 CONVERSION
If and to the extent that on the basis of reasonableness and fairness or unreasonably onerous character any provision of the Agreement cannot be invoked, the relevant payment in respect of the content and scope will in any case be given as much meaning as possible, so that an appeal can be made.
Article 21 AFTER-TREATMENT
The provisions of this Agreement, which are expressly or tacitly intended to remain in force even after termination of this Agreement, will remain in force thereafter and continue to bind parties.
Article 22 CONTRARY CLAUSES
In the event that these general terms and conditions and the quotation contain contradictory conditions, the conditions included in the offer apply.
Article 23 APPLICABLE LAW; DISPUTES
- Dutch law applies to all Agreements between the Client and M & K to which these general terms and conditions apply.
- All disputes relating to Agreements between the Client and M & K, to which these conditions apply, will be settled by the competent court in Rotterdam.