General Terms and Conditions of
CONDOR CONSULTANCY at Zieuwent
Zieuwent, March 2005
Article 1. Definitions
In these General Terms and Conditions, the following terms shall have the following meanings:
Client: the natural or legal person who has commissioned Condor Consultancy to perform work.
Work: all work for which an assignment has been given, or which is or should be carried out by Condor Consultancy on any other account, such as: analysing, advising on, guiding or acting as interim management for organisational processes and organisations; all this in the broadest sense of the word.
Documents: all data carriers made available to Condor Consultancy by the client as well as all data carriers produced by Condor Consultancy within the framework of the execution of the contract.
Assignment: a request to perform work as described below, either continuously or incidentally. An occasional assignment may include the performance of work during a certain period which is determined in advance, or a whole series of work in order to achieve the intended result.
Article 2. Applicability
2.1. These General Terms and Conditions are applicable to all contracts entered into by Condor Consultancy for the execution of work, with the exception of changes explicitly confirmed in writing by Condor Consultancy.
2.2. The client's General Terms and Conditions will only be binding for contracts entered into with Condor Consultancy if they are not in conflict with these conditions. If there is any doubt as to whether there is such a conflict, the General Terms and Conditions of Condor Consultancy will prevail.
Article 3. Offers
3.1. An offer from Condor Consultancy in which no time period for acceptance of the offer is explicitly mentioned in writing will be valid for a maximum of 90 days.
Article 4. Commencement and duration of the agreement
4.1. The agreement comes into being and commences at the moment the agreement is signed by both parties.
4.2. The parties are free to prove the conclusion of the agreement by other means.
4.3. The agreement is entered into for an indefinite period of time, unless it follows from the nature or tenor of the assignment given that it has been entered into for a definite period of time. In case of doubt, the agreement shall be deemed to have been entered into for an indefinite period of time.
Article 5. Client details
5.1. The client will furnish Condor Consultancy with all information and documents which Condor Consultancy believes it reasonably requires for the proper execution of the contract awarded, and will do so on time, in the desired form and in the desired manner.
5.2. Condor Consultancy is entitled to suspend the execution of the contract until the client has met the obligation mentioned in the previous paragraph.
5.3. If and insofar as the client so requests, the documents made available shall be returned to the client, subject to the provisions of Article 16.
Article 6. Execution of assignment
6.1. Condor Consultancy will determine the manner in which the contract will be carried out. Condor Consultancy will execute the contract to the best of its knowledge and ability, in accordance with the requirements of good professional practice and on the basis of the known state of the art. The work agreed upon will be performed by Condor Consultancy at its own discretion.
6.2. Condor Consultancy is entitled to have certain work carried out by third parties, without notifying the client, or to make use of other experts in the execution of the work.
If activities are performed for the client during the course of the assignment that do not fall under activities as agreed upon, the assumption will be made, based on the relevant notes in the administration of Condor Consultancy, that these activities were carried out on an incidental basis on behalf of the client. These records must refer to interim consultations between the client and Condor Consultancy.
The client guarantees the commitment and quality of the employees of the client's organisation involved in the assignment.
Article 7. Risk of loss of data
7.1. Condor Consultancy will exercise reasonable care with respect to the documents in which the information provided by the client is recorded.
7.2. Barring evidence to the contrary, Condor Consultancy will be deemed to have fulfilled the obligation of care described in the first paragraph.
7.3. Condor Consultancy will not be liable for damages caused by or in connection with the damage or loss of the documents and the data recorded on them.
Condor Consultancy will furthermore not be held liable if the client has not ensured that copies, security copies and other such duplicates of the documents provided to Condor Consultancy are made, if the client could reasonably have been expected to make such duplicates.
Article 8. Secrecy and exclusivity
8.1. Condor Consultancy is obligated to maintain confidentiality vis-à-vis third parties who are not involved in the execution of the contract, except for obligations imposed by law to disclose certain information. This confidentiality relates to all information of a confidential nature made available by the client and the results obtained from the processing thereof.
8.2. Condor Consultancy is entitled to use the numerical results obtained after processing for statistical or comparative purposes, provided that they cannot be traced back to individual clients.
8.3. With the exception of the provisions of the preceding paragraph, Condor Consultancy is not entitled to use the information provided by the client for any purpose other than that for which it was obtained.
Article 9. Intellectual property rights
9.1. Condor Consultancy reserves all rights with respect to products of the mind, which Condor Consultancy uses or has used in the execution of the agreement with the client.
9.2. The client is expressly forbidden to duplicate, publish or exploit products, including computer programmes, system designs, working methods, advice and other intellectual products, with or without the involvement of third parties.
Article 10. Force majeure
10.1. If Condor Consultancy is unable to meet its obligations under the contract or to meet them in time or properly due to a cause beyond its control, including but not limited to stagnation in the normal course of business within the enterprise, these obligations will be suspended until such time as Condor Consultancy is able to meet them in the agreed upon manner.
10.2. If the situation referred to in the first paragraph has arisen for thirty consecutive days, Principal shall be entitled to terminate the agreement in whole or in part in writing with immediate effect.
Article 11. Fee
11.1. Condor Consultancy is entitled to suspend the execution of work before the start of the work and in the interim until the client has paid Condor Consultancy a reasonable and fair advance for the work to be performed, or has given security for this.
11.2. Condor Consultancy's fee is not dependent on the outcome of the contract awarded, is calculated in accordance with Condor Consultancy's usual rates and is payable pro rata to the work performed by Condor Consultancy for the client.
11.3. Condor Consultancy's fee, if necessary increased by out-of-pocket expenses and invoices from third parties called in, including the turnover tax due, will be charged to the client per period of two weeks or four weeks, or after completion of the work.
Article 12. Payment
12.1. Payment of the invoice amount by the client must be effected within fourteen days after the invoice date, in the currency prevailing in the Netherlands, at the office of Condor Consultancy or by means of a deposit in a bank or giro account designated by Condor Consultancy, and in so far as the payment relates to work, without any right to discount or setoff.
If the client has not paid within the aforementioned period, or has not paid within the period further agreed upon, he will be in default by operation of law and Condor Consultancy will be entitled, without any further summons or notice of default being required, to charge legal interest from the due date until the date of full payment. The client will furthermore be required to reimburse Condor Consultancy for all costs and damages, including those incurred in the judicial or extrajudicial collection of the claim. The extrajudicial costs are fixed at fifteen percent of the amount to be claimed with a minimum of Euro 250,-.
In the event of liquidation, bankruptcy or suspension of payments of the client or attachment of his property, the claims of Condor Consultancy and the obligations of the client towards Condor Consultancy will become immediately due and payable.
Payments made by the Client shall always serve first to settle all interest and costs due, and secondly to settle due and payable invoices that have been outstanding the longest, even if the Client states that the payment relates to a later invoice.
Payment must be made without discount or settlement. If the client has or will have counterclaims against Condor Consultancy, for whatever reason, the client waives the right to set off the claims against the obligation(s) of the client towards Condor Consultancy.
Article 13. Advertising
13.1. A complaint regarding the work performed or the invoice amount must be made known to Condor Consultancy in writing within fourteen days of the date of dispatch of the documents or information about which the client is complaining, or within fourteen days of the discovery of the defect if the client is able to demonstrate that it could not reasonably have discovered the defect earlier.
13.2. A complaint as referred to in the first paragraph will not suspend the client's payment obligation.
Article 14. Liability
14.1. Condor Consultancy's liability for all direct and indirect damages suffered by the client, which are in any way connected with, or caused by, the failure to execute the instruction, or the untimely or improper execution of the instruction, shall at all times be limited to the amount invoiced, on the understanding that, in the case of assignments with a duration of more than six months, liability will be limited to the amount invoiced for the last six months prior to the termination of the assignment.
14.2. Condor Consultancy will never be liable for any indirect damages, including stagnation in the normal course of business of the client's company, in any way connected with or caused by an error in the execution of the work by Condor Consultancy, except if such damages were caused intentionally or by gross negligence.
14.3. Condor Consultancy is entitled at all times, if and insofar as possible, at its own discretion, to undo the loss incurred by the client.
14.4. The client is at all times required to give Condor Consultancy the opportunity to undo or limit any damage. Condor Consultancy is not liable for damage to or loss of documents during transportation or dispatch by post, regardless of whether the transportation or dispatch takes place by or on behalf of the client, Condor Consultancy or third parties.
Any personal, extra-contractual liability for mistakes by Condor Consultancy staff or by third parties engaged by Condor Consultancy is expressly excluded.
14.7. The client will indemnify Condor Consultancy against all claims of third parties which are directly or indirectly related to the execution of the contract.
Article 15. Termination
15.1. Each of the parties may, with due observance of the provisions of this article, terminate the commission granted at any time by giving written notice. Judicial intervention is not required for this.
15.2. In the event of cancellation of an assignment for an indefinite period, each of the parties must observe a notice period of at least three months, unless the agreement has not yet lasted six months, in which case no notice period need be observed.
15.3. All orders other than those given for an indefinite period of time may not be cancelled by the parties.
Contrary to the provisions of paragraphs 2 and 3 above, a client may terminate a contract in writing with a notice period shorter than three months or without a notice period if the client cannot reasonably be expected to continue with the contract due to circumstances attributable to Condor Consultancy.
15.5. If the client is in default, or if the client is declared bankrupt, applies for a moratorium or discontinues its business, Condor Consultancy has the right to terminate the non-cancellable contract immediately, as well as the contract for which a period of notice applies. The client is liable for all damages incurred by Condor Consultancy as a result of this termination of the contract.
If a party cancels a commission, whereby a notice period must be observed, the cancellation must take place in writing. The party who cancels without being authorised to do so, or without observing the prescribed or further agreed term of notice, is liable for the damage suffered by the other party as a result.
Article 16. Right of suspension
Condor Consultancy is authorized to suspend the performance of all its obligations, including the handing over of documents or other items to the client or third parties, until such time as all due and payable claims by the client have been paid in full.
Article 17. Applicable law and choice of forum
Dutch law is applicable to all agreements between the client and Condor Consultancy to which these General Terms and Conditions apply.
All disputes related to contracts between the client and Condor Consultancy, to which these conditions apply and which do not fall within the jurisdiction of the cantonal judge, will be settled by the competent judge in the district in which Condor Consultancy's office is located.
Condor Consultancy is free to present a dispute to the competent court in the district where the client is domiciled.
Article 18. Depot
18.1. These General Terms and Conditions have been filed with the District Court of Utrecht. The version applicable at the time of the conclusion of the present transaction shall always be applicable.
Zieuwent, March 2005