General terms and conditions (version october 2019)
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 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 the 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 activities: 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
1. These general terms and conditions apply to all legal relationships between the Client and M&K, unless changes made in these terms and conditions are expressly agreed to in writing by both parties.
2. The conditions also apply to all Agreements with M&K for the execution of which services from third parties must be involved.
3. 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.
- If there is an Agreement with more than one Client, all of these Clients will be jointly and severally liable for the fulfillment of all obligations imposed on a Client by virtue of the Agreement.
- By way of derogation from the provisions of Articles 7:404, 7:407, paragraphs 2 and 7:409 of the Dutch Civil Code, all Work, regardless of whether the assignment has been given with a view to a specific person, is exclusively accepted and performed by M&K.
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 rates & fees in the aforementioned offers and quotations and any other government levies are VAT exclusive, 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.
Article 4 CREATING THE AGREEMENT
- The Agreement is concluded when the quotation signed by the Client is received by M&K.
- If the acceptance deviates from the offer included in the quotation, M&K is not bound by this. The Agreement will then not be concluded in accordance with this deviating acceptance, unless M&K indicates otherwise.
- The Agreement is entered into for an indefinite period of time, unless it is apparent from the content or scope of the assignment that it has been entered into for a definite period.
Article 5 PROVISION OF INFORMATION
1.The Client is obliged to provide all information, data and documents which M&K, in its opinion, requires for the correct execution of the Agreement or for which the Client should reasonably understand that these are necessary for the execution of the Agreement, in time in the desired form and available 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 properly available to M&K in a timely manner, 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 charged 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, but cannot guarantee that a certain result will be achieved.
- M&K can have the Work activities carried out by assistants. In the legal relationship with the Client, these general terms and conditions apply mutatis mutandis to the services carried out by order of M&K by these assistants.
- If it has been agreed that the Agreement is to 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.
- During the term of the Agreement, the Client will refrain from activities that could hamper or interfere with the performance of the Agreement by M&K
Article 7 SUBSIDY MANAGEMENT
- If the Agreement relates to Subsidy Management, unless otherwise expressly agreed to in writing, M&K will perform its Work activities on the basis of exclusivity. This means that the Client is not permitted during the Agreement to enter into any other similar agreements with third parties.
- The Client will grant a power of attorney to M&K for the duration of the Agreement for all (legal) acts related to the Subsidy Management, including the submission of subsidy applications and correspondence on behalf of the Client. The Client will refrain from independently performing (legal) acts that fall within 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 process already started, it must compensate the hours worked by M&K at the usual hourly rates set by M&K.
Article 8 PERIOD OF PERFORMANCE
- If within the duration of the Agreement a period has been agreed to for the completion of certain Work activities, then this is never a strict deadline.
- 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 CONTRACT AGREEMENT: END OF AGREEMENT
- If the Agreement is entered into for a fixed term, it will always be extended for a consecutive same period after the agreed period has expired, unless canceled in writing with due observance of a notice period of three months before the end of the current contract period. Agreements entered into for a specific duration cannot be canceled prematurely. Agreements entered into for an indefinite period can be canceled in writing with a notice period of 6 months.
- M&K is authorized to suspend the fulfillment of its obligations and/ or to terminate the Agreement with immediate effect, without being liable to pay damages to the Client, if continuation of the Work is no longer to be expected. Whether this is the case is solely at the discretion of M&K.
- In the event of cancellation (as referred to in Article 9.1) and (premature) termination (Article 9.2), M&K retains the right to the payment of the agreed fee and reimbursement of the costs in connection with the Work activities performed up to then and the provisional results of the Work performed until then will be made available to the Client. If after the termination of the Agreement M&K still has to perform work and/ or has to cooperate in the transfer of work to third parties, these extra work and/ or related costs will be charged to the Client.
- If, after the termination of this Agreement, the Client makes a Contribution that is (wholly or partly) the result of Work performed by M&K and/ or goods made available by M&K to the Client, M&K is entitled to a fee of 75% of the fee of the relevant application previously charged by M&K for this.
Article 10 RATES
- Parties can agree on a fee upon the conclusion of the Agreement based on an hourly rate, a fixed fee, a subscription, No Cure No Pay or a mixture of the aforementioned fees.
- If No Cure No Pay has been agreed upon, the Client will owe the fee to M&K at the time of granting the Contribution under the Decision. The amount of the fee is calculated on the basis of the Maximum Contribution to be awarded under the Decision.
- If an hourly rate has been agreed upon, the fee will be determined on the basis of the hours actually spent.
- If a subscription is agreed upon, the subscription fee included in the offer is always a fee per year (and not for the entire duration of the Agreement).
- M&K activities which relate to the provision of support for a subsidy check are carried out at a fixed fee of EUR 1,000, unless the parties agree otherwise in writing.
- If the Client wishes additions or changes to the Agreement and M&K is of the opinion that the Work will be aggravated or extended as a result, even if a fixed fee has previously been agreed to between the parties, this will influence the fee. If M&K believes that additional work is involved, it will inform the Client of this as soon as possible and inform it of the consequences thereof relating to the fee. The client is deemed to agree with the execution of the additional work and the associated consequences regarding the fee, unless it objects in writing immediately after the said notification by M&K.
- If the quotation contains an estimate of the number of working hours, it is not binding on M&K.
- M&K is at all times entitled to demand an advance payment from the Client before the assigned Activities are commenced or continued. M&K will retain this advance payment during the Agreement and settle it with its final invoice after termination of the Agreement.
- M&K is entitled to index its rates annually. The indexing will be based on the CPI increase of all households between the commencement date of the Agreement and the rate indexing date. In addition, the Contractor reserves the right to increase the rates if wages, charges, costs and/ or market developments give cause for this. Before a rate change is implemented, the Client will be notified in writing.
Article 11 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 must be made, without deduction, discount or set-off, within the agreed periods, but in no case later than fourteen (14) days after the invoice date. Payment must be made by transfer to a bank account designated by M&K.
- If the Client has not paid within the period referred to in paragraph 2 of Article 11, M&K is entitled to charge the statutory interest to the date of full payment without further notice and without prejudice to M&K’s other rights from the due date.
- All reasonably incurred judicial and extrajudicial (collection) costs incurred by M&K as a result of the Client’s non-compliance with its payment obligations will be borne by the Client. The extrajudicial costs amount to at least 15% of the principal sum and interest with a minimum of EUR 250 plus VAT.
- In the case of a joint assignment, the Clients, insofar as the Work has been carried out for the benefit of the joint Clients, are jointly and severally liable for payment of the invoice amount regardless of the name of the invoice.
Article 12 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. Failure 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 13 LIABILITY
- Any claims coming from the Client after discovering the damage must be submitted within a period of one year. Failing to do so, suspends the rights of the Client.
- M&K is never liable for indirect damage, including consequential damage, lost profit, lost savings and damage due to business interruption.
- MK is, in the event of work that has proven to be unsound, not obliged to pay any further (compensatory) obligations than stipulated in Article 12 of these general terms and conditions.
- In the event that it is established at any time in the law that M&K is liable for any further damage resulting from the implementation by M&K of the Agreement, the obligation to compensate M&K is in all cases limited to the amount paid by M&K’s insurance company .
- If – for whatever reason – no payment is made by the insurance company, the obligation to compensate M&K is limited to the maximum amount of the fee for the Work in question, or if the Agreement has a duration of more than six (6) months up to a maximum of the invoice amount over the last six months.
- The Client indemnifies M&K against claims from third parties for damage caused by the Client who provided 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 is caused by intent or gross negligence on the part of M&K.
- If M&K has involved third parties in the implementation of the Agreement, M&K is not liable for any errors by those third parties, except to the extent that the Client proves that M&K could not reasonably have made a choice for that third party.
- The liability limitations laid down in this article are also stipulated for the benefit of third parties engaged by M&K for the implementation of the Agreement, who therefore have a direct appeal to these liability limitations. It is therefore a third-party clause as referred to in Article 6:253 of the Dutch Civil Code, which cannot be revoked by the Client.
- The liability limitations of M&K only apply if the damage was caused by intent, serious negligence or deliberate recklessness of M&K or its director(s) and to provide written evidence of the extracts made therefrom.
- If M&K, together with one or more other contractors, has received an assignment from the Client, each of the contractors is liable for a shortcoming in the (partial) Work performed by it.
- M&K is furthermore not liable for damage as a result of unforeseen changes in legislation or regulations that are related to the granting of subsidies at the time of entering into the Agreement.
Article 14 FORCE MAJEURE
1.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 for 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 15 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 cannot 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 16 INTELLECTUAL PROPERTY
- All intellectual property rights on matters made available by M&K (including advice, analysis, designs, documentation, reports, (subsidy)applications, as well as preparatory material thereof) are exclusively vested in M&K and are in no way transferred to the Client, unless expressly agreed otherwise in writing.
- All items made available by M&K to the Client are exclusively intended for use by the Client alone and may not be reproduced, published or disclosed to third parties without M&K’s prior consent.
Article 17 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 for such a provision.
Article 18 EXPIRY PERIOD
Unless otherwise stated in these general Terms and Conditions, the rights of claim and other powers of the Client will expire 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 19 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 20 CONTRARY CLAUSES
In the event that these general terms and conditions and the quotation contain contradictory conditions, the conditions included in the quotation apply.
Article 21 APPLICABLE LAW; DISPUTES
1.Dutch law applies to all Agreements between the Client and M&K to which these general terms and conditions apply.
2.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.