General conditions for the partnership 4ESG Consulting, based in Utrecht, the Netherlands.
General and definitions
In the general terms and conditions, the following definitions shall apply:
- client: the party giving the assignment.
- contractor: 4ESG Consulting.
- assignment or agreement: the agreement for services whereby the contractor undertakes to perform work for the client.
- order confirmation: the confirmation, whether verbal, written or by e-mail, between the contractor and the client in which the work and fees for the work have been agreed.
- An assignment to provide services to a staff member working at the office of the Contractor in Utrecht (which also includes the partners and associates of the Contractor) shall, upon acceptance thereof and setting aside the provisions of Sections 7:404 and 7:407 (2) of the Dutch Civil Code, only create obligations between the Client/Principal and acceptance is evidenced by an order confirmation issued to the client/client.
- The Contractor's obligation arising from an assignment to provide services consists of an effort to the best of the Contractor's ability, based on information provided by the Client/Principal and the nature of the assignment, unless the assignment explicitly provides for (only) an action or result. If the client/principal wishes restrictions in the execution of the assignment, it is up to him/her to indicate such restrictions in writing.
- Unless expressly agreed otherwise, the contractor is free to determine which employee will carry out the assignment.
Cooperation by the Principal
- The Principal shall ensure that all information and documents which the Contractor believes it needs for the correct and timely execution of the granted assignment shall be made available to the Contractor in a timely manner and in the form and manner desired by the Contractor.
- The Principal shall ensure that the Contractor is informed without delay of facts and circumstances that may be relevant in connection with the correct execution of the assignment.
- Unless the nature of the assignment dictates otherwise, the client is responsible for the accuracy, completeness and reliability of the information and documents made available to the contractor, even if they originate through or from third parties.
- The additional costs and fees resulting from the delay in the performance of the assignment, arising from the failure to make the requested data, documents, facilities and/or personnel available or to do so fully, on time or properly, shall be borne by the client.
Execution of assignment
- All work performed by the Contractor shall be carried out to the best of its knowledge and ability in accordance with the requirements of good workmanship. With regard to the intended work, there is a best-efforts obligation on the part of the contractor, unless explicitly stipulated otherwise.
- The contractor shall determine the manner in which and by which employee(s) the granted order will be carried out, but in doing so shall observe the requirements made known by the client as much as possible. If the order confirmation mentions the employee(s) by name, the contracted party will make every effort to ensure that the employee(s) in question remains available to perform the work for the entire duration of the order. Notwithstanding the foregoing, the Contractor shall be entitled to replace such employees after consultation with the Client.
- The contractor may only perform and charge the client for more work than that for which the order was issued if the client has given his prior consent. If, however, the Contractor is obliged by virtue of its (statutory) duty of care to perform additional work, it shall be entitled to charge the Client for such additional work, even if the Client has not given its express prior consent to the performance of the additional work.
- If the client wishes to involve third parties in the execution of the order, he shall only do so after reaching agreement thereon with the contractor, since the direct or indirect involvement of a third party in the execution of the order may have a significant influence on the contractor's ability to execute the order correctly. The provisions of the previous sentence shall apply mutatis mutandis to the contractor.
- If the client is required to make information and/or materials available for the execution of the order, the period within which the work must be completed shall not commence until the information and/or materials have/have been made fully available to the contractor.
- Because the duration of the assignment may be affected by all kinds of factors, such as the quality of the information provided by the client and the cooperation provided, the periods within which the work must be completed are to be regarded as deadlines only if this has been agreed in writing.
- Unless any provision of law, regulation or other (professional) rule obliges it to do so, the Contractor and the employee(s) deployed by the Contractor are obliged to maintain confidentiality vis-à-vis third parties with regard to confidential information obtained from the Client. The Client may grant dispensation in this regard.
- Subject to the Client's written consent, the Contractor is not entitled to use the confidential information made available to it by the Client for any purpose other than that for which it was obtained. However, an exception shall be made to this in the event the contractor acts for itself in disciplinary, civil or criminal proceedings in which it may be of importance.
- Unless there is any legal provision, regulation or other (professional) rule obliging the client to disclose or the contractor has given prior written permission to do so, the client shall not disclose the contents of reports, advice or other expressions of the contractor, written or otherwise, to third parties. The client will also ensure that third parties cannot take cognizance of the contents referred to in the previous sentence.
- The contractor and the client will impose their obligations under this article on third parties to be engaged by them.
- If deemed not in conflict with the provisions of Articles 6.1 and 6.2, the Contractor shall be entitled to give an outline of the work performed to (potential) clients of the Contractor and only as an indication of the experience of the Contractor.
- The contractor reserves all intellectual property rights with respect to products of the mind which he/she uses or has used and/or develops and/or has developed as part of the execution of the order and in respect of which he/she holds or can enforce copyrights or other intellectual property rights.
- The client is expressly forbidden to reproduce, disclose or exploit such products, including computer programs, system designs, working methods, advice, (model) contracts and other intellectual products of the contractor, all in the broadest sense of the word, with or without the involvement of third parties. Reproduction and/or publication and/or exploitation shall be permitted only after obtaining the written consent of the Contractor. The Client shall be entitled to reproduce the written documents for use within its own organization, to the extent appropriate to the purpose of the assignment.
- In respect of services and work performed by the contractor, the client/client shall owe a fee which, unless a special rate or fee has been agreed upon for the provision of services, shall be calculated on the basis of the time spent on the provision of services at the hourly rates applicable to the employee concerned at the time of provision of services. An hourly rate agreed upon with the Contractor or established by the Contractor may be unilaterally adjusted by the Contractor on a reasonable annual basis.
- If the client is a person other than the client, the client and the client are jointly and severally liable for what is owed to the contractor in respect of the services or work performed for the client, unless the one or the other is expressly released from such joint and several liability.
- In addition, where applicable, turnover tax will be payable on the fee and costs payable by the client/client.
- The Contractor shall at all times be entitled to charge the Client/Principal several advances on the fee to be charged to the Client/Principal and/or the costs to be incurred or disbursements to be paid. As long as an advance payment charged to the client has not been paid, the Commissionee shall be entitled to suspend its interventions until full payment has been made.
- Payment of an invoice from the Contractor must be made, without suspension or set-off, within 14 days of the invoice date and an advance invoice must be paid immediately. After the expiry of that period, the client/client will owe the then current statutory interest rate in the Netherlands without a reminder.
- In case of questions regarding the invoice, the client may ask the contractor for a further explanation or specification. As a result, the invoice may not exceed the original amount.
- The principal shall have the right to dispute the correctness of an invoice received by him/her in writing, giving reasons, within four weeks of the sending of an invoice. A bill that has not been disputed by the client within the aforementioned four-week period will be deemed to be correct between the contractor and the client and to be owed by the client.
- A dispute of the invoice will not affect the client's obligation to pay.
- In the event of a justified complaint, the client will have the choice between adjustment of the fee charged, rectification or re-performance of the rejected work free of charge, or full or partial discontinuation of the assignment against a proportional refund of the fee already paid by the client.
- Both the contractor and the client are free to terminate an assignment unilaterally without giving reasons with due observance of a reasonable notice period. In that case, the work performed up to the time of termination must be settled.
- After termination of the assignment, provided that the amount due by the client in respect of the assignment has been paid, all documents originating from the client and, at the client's request, will be made available to the customer/client. The contractor's obligation to retain his/her file or the documents still forming part thereof may no longer be invoked if five years have elapsed since the termination of the assignment or the last invoice sent therein.
- The Contractor shall perform its work to the best of its ability, exercising the care that may be expected of the Contractor. If an error is made because the client provided the contractor with inaccurate or incomplete information, the contractor shall not be liable for any resulting loss. If the client demonstrates that it has suffered damage as a result of an error on the part of the contractor which would have been avoided if the contractor had acted with due care, the contractor shall be liable for such damage up to the amount or amounts paid by the client to the contractor in connection with the order up to the time the damage was demonstrated.
- The personal liability of employees and partners working at the office of the Commissionee - except in the case of intent or gross negligence of that (legal) person - is expressly excluded by this irrevocable third-party clause. The contractor shall be solely liable for any errors made in the execution of the order.
- The contractor's liability - barring intent or gross negligence - shall be limited to the amount paid out in the case in question under the professional liability insurance taken out by the contractor.
- During the execution of the order, the client and the contractor will be able to communicate with each other by electronic mail and applications at the request of either of them. Both the Contractor and the Client acknowledge that the use of electronic mail and applications involves risks such as, but not limited to, distortion, delay and virus. The Client and the Contractor hereby agree not to be liable to each other for any damage that may result to one or each of them as a result of the use of electronic mail and applications. Both the client and the accountant will do or refrain from doing everything that can reasonably be expected of each of them to prevent the occurrence of the aforementioned risks. In case of doubt as to the correctness of the e-mail received by the Client or the Commissionee, the content of the e-mail sent by the sender shall be decisive.
- The Client shall not be permitted to assign (any obligation under) the Agreement to third parties unless the Contractor expressly consents thereto. The Contractor shall be entitled to attach conditions to such consent. The Client undertakes in any case to impose all relevant (payment) obligations under the Agreement on the third party in these general terms and conditions. The Client shall at all times remain liable alongside this third party for the obligations under the Agreement and these General Terms and Conditions, unless the parties explicitly agree otherwise.
- The Client shall indemnify the Contractor against all claims from third parties that may arise as a result of the Client's failure to fulfill, or improper fulfillment of, any obligation under the Agreement and/or these General Terms and Conditions.
- The contractor shall be permitted to include the name, logo, and a brief description of the client in its communications provided that the client gives written notice that it finds this objectionable.
- Dutch law shall apply exclusively to all agreements and in respect of all acts. Disputes shall, except where it has been agreed between the contractor and the client/principal that disputes shall be submitted exclusively to the judgment of the court having jurisdiction in the district of Midden-Nederland. However, if the handling of the dispute falls within the absolute jurisdiction of the subdistrict sector, the Dutch court designated by law shall have exclusive relative jurisdiction.
- The Contractor uses an internal complaints procedure. This stipulates how complaints can be submitted and how complaints are handled and settled by the contractor. The internal complaints procedure can be consulted on the website of the contractor.
These terms and conditions apply to all assignments established after December 1, 2020 and to all current assignments to which these terms and conditions are declared applicable after December 1, 2020.