GENERAL TERMS AND CONDITIONS
In so far as Bfrank B.V. (“Bfrank”) and its client have not mutually agreed in writing to deviate there from, the general conditions set out hereunder shall be applicable to every offer, order or agreement in connection with advice or services to be provided by Bfrank.
2. Offers and establishment of agreements
2.1 Offers submitted by Bfrank are free of obligations unless expressly stated otherwise in the offer.
2.2 Unless otherwise stated in the offer, the offer will remain open for a period of 30 days.
2.3 An offer or quotation submitted by Bfrank shall be regarded as an invitation to potential clients to issue an order.
2.4 Offers submitted by Bfrank may not be distributed or communicated to third parties in any way without the written consent of Bfrank.
2.5 An agreement comes into existence following written acceptance by Bfrank of an order from the client or by execution of the agreement by Bfrank.
2.6 The object of the agreement shall be determined by the description of the works contained in the written offer, including all mutually agreed changes subsequently introduced. Verbal promises or agreements made by or with its personnel will not be binding upon Bfrank until and in so far as it has confirmed this in writing in its offer. The provision of services by Bfrank does not refer to the carrying out or observation of temporarily management tasks within the organisation of the client.
3. Premature changes
3.1 Changes in, additions to and/or expansions in the scope of work of the agreement will not be binding unless they are agreed between parties in writing. The impact on the fee incurred of the foregoing condition will be agreed between parties in writing.
3.2 If however the additional costs would increase the agreed price by more than 10% then Bfrank shall be entitled to terminate the agreement without any liability towards the client for compensation in respect thereof. In such a case, if it has already commenced the works, Bfrank is also entitled to charge a fee.
3.3 If, during the execution of the agreement, the client issues further orders or wishes to change the scope of work of the existing agreement, he / she may only do so, subject to the foregoing conditions, if Bfrank accepts such additional orders or changes and the client reimburses the due costs in connection therewith.
3.4 Bfrank is empowered, after consultation with the client, to change the composition of the advisory team deployed for execution of the agreement.
4. Premature termination
4.1 Within the provision of articles 4.2 to 4.5, both parties shall have the right to terminate the agreement unilaterally at any time. Such premature termination must be notified in writing.
4.2 Bfrank will only exercise this right if, as a result of facts and circumstances, which are out of its own control, it can no longer be reasonably expected to complete the agreement.
4.3 If the client does not fulfil one or more of its obligations, or does not fulfil them within the agreed time, or does not adequately fulfil one or more of his obligations, or is declared bankrupt, or requests (preliminary) suspension of payments, or his company goes into liquidation, or if his capital is wholly or partially impounded, shall have the right to suspend the execution of the agreement, or to terminate the agreement in whole or in part by way of
written notice without first notifying the client of his default, at its sole discretion, and shall retain the future right to reimbursement of costs, damages and interests. In such cases each and every claim from Bfrank against the client is immediately due in full.
4.4 Unilateral termination by the client is only possible if specifically provided for the agreement. If the agreements are terminated by the client, Bfrank shall have the right to continued payment of the price stated in the agreement together with all additional costs which have arisen in the meantime and an uplift in respect of loss of profit.
4.5 Unilateral termination by the client is possible, also when this is not provide for in the agreement, if Bfrank fails to fulfil any of its essential obligations in accordance with the agreement, but only after the client has sent a written and registered notification in which Bfrank is given the opportunity to still fulfil its obligations within a reasonable period.
5. Execution of the agreement
5.1 The agreement shall be executed within the (estimated) period agreed in the agreement, unless such period proves in all reasonableness not to be reasonably feasible. The client shall be notified as soon as there is a danger that the agreed period will be exceeded.
5.2 The client is obliged to provide the data and information required for the agreement in an adequate manner.
6. Rights to results
6.1 Any result of the agreement released to the client in any form or medium, shall be supplied on that the bases that the result is only destined for the client and his benefit– unless required by law or competent (regulatory) authority, in which case the client will inform Bfrank in advance – it shall not be (wholly or partially) copied, published or referred to without prior written consent of Bfrank (unless this takes place for internal purposes of the client). The execution of the agreement shall be delivered under the condition that the client shall not quote the name of Bfrank and reproduce the logo of Bfrank in any form or medium without advance written consent of Bfrank. The client is allowed to disclose the result of the agreement to their legal adviser if the client seeks advice in relation to matters connected with the agreement, provided that the client informs the legal advisor(s) that:
• Notification by him/her (other than for internal purposes) is not allowed without prior written consent of Bfrank and that
• Bfrank does not accept any responsibility or liability towards him/her with regard to the work carried out.
6.2 Bfrank maintains the rights to which it is entitled under the copyright laws. The copyrights on reports, advice, etc. which are provided at the request of the client is vested in Bfrank.
6.3 Bfrank maintains all its intellectual property rights, copyrights and suchlike with regard to the products, models, (calculation) methodologies or however otherwise named, which it supplies or provides, unless and in so far as specifically agreed otherwise in writing.
6.4 Items and products supplied by Bfrank to its client shall remain the property of Bfrank until such time as all amounts due to Bfrank, including those in respect of work executed, have been paid by the client.
6.5 Use and/or the making available by the client of what the supplied products as named in paragraph 3 of this article by/to third parties is not permitted without prior permission of Bfrank, under penalty of €25,000 per
occurrence, payable on demand. 6.6 In the performance of our work we may use computer software. A consequence of our use of such software is that data supplied by you within the framework of execution of the agreement may be transferred to computer servers operated with appropriate controls on access only on authority of Bfrank – or its parent company (companies) – outside the area where Bfrank is based.
6.7 Upon completion of the agreement we may supply written advice or confirm verbal advice in writing issue a written final report or make an oral presentation. Prior to completion of our service we supply verbal, draft or interim advice, reports and presentations. In such circumstances the written advice or finalwritten report shall take precedence. The client shall not place reliance on any draft or interim advice, report or presentation. If the client wishes to rely on verbal advice or on a oral presentation provided at the completion of our services, the client shall inform Bfrank of this, after which Bfrank will supply documentary confirmation of the advice concerned.
6.8 Bfrank shall not be under any obligation to update any advice, reports or product delivered, verbal or written, with regard to events occurring after the advice, report of product concerned have been issued in final form.
6.9 In case of discontinuation of use of the products or reports supplied but of which ownership has not been transferred, the client shall, within two weeks of a request effecting this respect, return these or have these returned to Bfrank.
7.1 The conclusions and findings drawn up by Bfrank within the framework of the agreement are geared to the individual case. In connection with this Bfrank shall:
• Keep confidential information with regard to the client a secret;
• Not allow third parties access – unless required by law or competent (regulatory) authority – to reports and memoranda issued to the client.
7.2 For the purpose of marketing, publicising and/or selling of services, Bfrank may wish to disclose that it provided services to the client. In this event Bfrank may identify the client by name and indicate the nature or category of such work and any details that have already been made public.
7.3 The responsibilities, which arise from this article, also extend to those whose services are employed by Bfrank during the execution of the agreement, except in the specific case that other agreements have been made in that respect of which the client is aware.
8. Liability and limitation thereon
8.1 The results of application and use of the advice and services provided by Bfrank are dependent upon many factors, which fall outside its influence. Even though the agreement is executed with the best intentions and ability, and in accordance with the requirements of good workmanship, Bfrank can not therefore give any guarantees with regard to the results of the advice and services which it provides.
8.2 Should Bfrank, or a third party employed by Bfrank, make an error during the execution of the agreement, then Bfrank shall be liable towards the client for the damage suffered in so far as the damage is the immediate and direct result of the error made by Bfrank or the third party employed by Bfrank. For the purpose of this article, error is defined as: negligence, mistakes, oversight, carelessness or other such errors committed during the execution of the agreement, which errors could have been avoided under normal circumstances, with normal professional knowledge and experience and observance of normal care and attention and professional practise.
8.3 No liability whatsoever may be placed upon any natural person connected with Bfrank, in connection with the agreement or the execution thereof.
8.4 The client is obliged to ensure that no claims of whatever nature are submitted or exercised against the legal entity Bfrank, in connection with the agreement or the execution thereof, other than by the client himself. In so far as natural persons connected to Bfrank, or third parties called in by Bfrank for the execution of the agreement are nevertheless held liable by the client, they shall be permitted to make use of all means of defence provided by the agreement and these general conditions against the client as if they were themselves party to the agreement.
8.5 The client shall indemnify Bfrank, natural persons connected to it and third parties called in for the implementation of the agreement, against any claim of third parties in connection with the implementation of the agreement by Bfrank, in so far as such claims are more or different than those the client is entitled to towards Bfrank.
8.6 Except in cases of malicious intent on the part of Bfrank or its management, Bfrank may not at any time be held liable for loss of profits, consequential losses, or indirect damages.
8.7 Bfrank may not be held liable for damages in whatever forms if: a) The client does not strictly adhere to his contractual obligations b) The client decide against given advice and given risks; c) Damage is caused to the supplied draft reports, final reports or financial models due to error, negligence or improper use on the part of the client or user.
8.8 In all cases where Bfrank is nevertheless obliged to pay damages, the amount shall be limited to the amount or on such alternative basis as specified in the agreement, or if no amount or alternative basis are specified, to an amount of 2 times the price payable to Bfrank, as described in the agreement. Bfrank is exclusively liable for the amount covered by the insurance.
8.9 Every claim against Bfrank except for those, which are recognised by Bfrank, shall lapse after a period of one months from the date of the events giving rise to the claim and in every case after a period of one month from the date of the final invoice issued by Bfrank.
9. Price and payment
9.1 The offer may be made either on the basis of a “fixed price” or on the basis of “retrospective calculation”. When the offer is made on the basis of a “fixed price” then this price shall constitute the agreed upon price. If no “fixed price” has been included in the offer then the amount to be paid shall be determined on the basis of “retrospective calculation” in accordance with Bfrank normal rates and procedures. If the offer includes an “approximate price” then the stated price shall be regarded as more than an estimate of the costs without any obligation.
9.2 In case of “retrospective calculation” or “approximate price” Bfrank will invoice the work on a basis of fees, costs and possible taxes due on it. Details of the fees and costs and possible special terms of payment are mentioned further in the agreement. The fees are (also) based on the degree of responsibility of the employees of Bfrank involved in carrying out the work, the time they spent on the work and on the nature and complexity thereof. By costs are meant the direct costs. The fees and costs may deviate from earlier estimates or offers, e.g. if extra fees and costs must be charged in connection with a delay as a result of not supplying information in time which was required by Bfrank for carrying out the work.
9.3 Unless otherwise stated, all prices stated by Bfrank in the offer, engagement letters and/or agreements are exclusive of value added tax and other levies imposed by the authorities.
9.4 In case of termination or suspension of the agreement Bfrank shall be entitled to payment for outlays incurred to that time as well as to payment of the fees for the work carried out, plus the relating taxes thereon. The fees for the work carried out in this event shall be calculated by reference to the hourly rates applicable at the time of the execution of the work.
9.5 In case the engagement letter was addressed to two or more addressees, all addressees shall be liable separately to pay Bfrank’s charges as clients and Bfrank shall be entitled to call upon any of the addressees for payment in full, unless provision is made in the engagement letter that the fees and costs are to be paid by one of the addressees or by third parties.
9.6 The client is obliged to pay in euros within 14 days of the date of the invoice, unless otherwise agreed in writing in advance.
9.7 The client shall pay the amounts due without any deduction. The existence of alleged claims, and/or objections against Bfrank shall not relieve the client of his payment obligation(s). If the client does not pay the amounts due within the agreed payment period the client is liable to pay interest to Bfrank without any prior demand or notice of default over the amount of the unpaid invoice(s), of which the interest shall be equal to the official ECB Euro deposit interest rate increased by 3.75%, calculated from the date(s) upon which the payment(s) should have been made up to and including the actual date of payment.
9.8 Both legal and non-legal collection charges will amount to 15% of the unpaid invoice with a minimum payable of €250, payable by the client upon failure of timely and/or complete payment.
9.9 In case of an agreement with a duration in excess of one year, or if there is a question of uninterrupted continuation of agreements which together have a duration in excess of one year, Bfrank’s hourly rate or the agreed price shall be adjusted annually as from 1 January by at least the amount of the wage index applicable to financial institutions and provision of commercial services.
9.10 Bfrank is empowered to amend its prices and costs as of 1 January each year. Unless otherwise agreed, amended rates and costs shall come into effect from the moment they are introduced.
10. Force Majeure
10.1 Bfrank shall not be liable if and in so far as it is not able to comply with the orders ensuing from the agreements due to Force Majeure. Force Majeure shall be deemed to mean every unusual cause and circumstance which can not reasonably be held to be for the risk of Bfrank, including decisions of board being otherwise than the given advice and after pointing risks, delays or shortcomings on the part of its suppliers, transport problems and strikes.
10.2 If Bfrank is unable to timely execute the agreement due to Force Majeure, it shall have the right to execute the agreement at a later time or, in case of continued impediment, to declare the agreement dissolved without any judicial intervention and without any liability to the client for compensation.
11.1 Guarantee obligations shall apply in so far as they have been agreed explicitly, in writing and for a particular period.
11.2 The guarantee comprises the obligation on the part of Bfrank to rectify faults and deficiencies of the product, the software or the execution of the service anew and/or finally achieving the stated objective
11.3 The guarantee obligation set out in the foregoing paragraphs of this article does not extend to customers of the client.
11.4 The guarantee obligation shall be invalidated if:
a) The client does not comply strictly with his contract obligations;
b) The client has made changes to the supplied draft reports, final reports and / or financial models, which have not been authorised by Bfrank.
12. Competent judge and applicable law
12.1 All disputes arising from the agreement or agreements related hereto, shall, to the exclusion of all other forums, be decided by the competent judge in Rotterdam, unless a dispute is subject to the jurisdiction of Dutch cantonal judge or unless Bfrank gives preference to an otherwise competent judge.
12.2 All relationships between Bfrank and the client shall be subject to Dutch law.
13.1 If one of the parties fails to fulfil any of its essential obligations in accordance with the agreement, other than as provided for in the foregoing, the other party shall serve notice to that effect in writing by registered mail and give the defaulting party the opportunity to still fulfil its obligations within the stated period. Should the defaulting party still not fulfil its obligations within the stated period, it shall forfeit its rights under the agreement, and the other party shall be relieved of its obligation.
13.2 Bfrank reserves the right to amend or supplement these terms and conditions from time to time without the consent of clients and / or third parties.
Schoonhoven, 8 May 2017