8. Liability and indemnification
8.1. The Contractor will in no event be liable for any indirect loss incurred by the Customer, including consequential loss, losses due to delays, loss of profit, frustrated expectations, lost opportunities, economic loss other than pure financial loss and loss caused by infringement of third-party rights.
8.2. If Services are found to be defective, the Contractor will not be under any liability (including liability to pay compensation) other than that provided for in Article 7 of these General Conditions. All liability for any other loss arising from the performance of the Agreement by the Contractor is excluded.
8.3. If it is at any time established in court that the Contractor is indeed liable for any further loss arising from the performance of the Agreement by the Contractor, the Contractor’s liability to pay compensation will in all cases be limited to the amount paid by the Contractor’s insurance company.
8.4. If, for any reason whatsoever, the insurer does not make payment, the Contractor’s liability to pay compensation will be limited to the amount invoiced for the Service. In that context one and the same Service or the outcome of one Service (such as a consultancy report) will be regarded as one harmful event, irrespective of the number of cases in which the Customer used that Service or that outcome.
8.5. If the Contractor has involved any third parties in the performance of the Agreement, the Contractor will not be liable for any errors or actions of those third parties, except insofar as the Customer proves that the Contractor should not reasonably have chosen that third party.
8.6. The Contractor may not invoke these limitations of liability in respect of loss caused by intent or recklessness of the Contractor or executive subordinates who form part of its Board of Directors or management.
8.7. If the Contractor makes a mistake in the performance of the Agreement that is obvious to the Customer, the Customer must immediately inform the Contractor accordingly. If it fails to report that mistake to the Contractor, the Contractor will not be liable for the loss resulting from the mistake, except insofar as the loss would also have occurred if the Customer had immediately reported the mistake.
8.8. The limitations of liability recorded in this Article are stipulated also for the benefit of the third parties engaged by the Contractor in the performance of the Agreement, who can therefore directly invoke these limitations of liability. It is therefore a third-party clause within the meaning of Article 6:253 of the Dutch Civil Code and is stipulated for no consideration in respect of all third parties. The Customer cannot revoke the clause.
8.9. Insofar as a third party incurs loss that exceeds the Contractor’s liability to pay compensation under this Article, the Customer will indemnify the Contractor in that context.
9. Term of the Agreement, termination, default and dissolution
9.1. The Agreement will be open-ended, unless otherwise agreed. The Customer and the Contractor may at any time terminate the Agreement in writing while observing a three-month notice period. This early termination option will also apply to a fixed-term Agreement.
9.2. An Agreement will in any event end when the Services have been completed (or the assignment has been completed).
9.3. If the Contractor has given notice of termination on the grounds of Article 9.1, or if the Agreement ends on the grounds of the provisions of Article 9.4, 9.5 or 9.6 of these General Conditions, the Contractor will be entitled to compensation by the Customer on the grounds of the loss resulting from surplus staff , which must be proven, , and will also be entitled to compensation of any additional costs reasonably incurred as a result of the early termination of the Agreement, such as costs related to subcontracting.
9.4. If the Customer fails to fulfil any obligation arising for it from the Agreement or to do so properly or in time, the Customer will be in default and the Contractor will be entitled, without any notice of default or judicial intervention:
to suspend the performance of the Agreement (irrespective of whether it is a fixed-term or open-ended Agreement) and any agreements directly related to the Agreement, until performance has been sufficiently guaranteed; and/or
to terminate the Agreement and any agreements directly related to the Agreement (irrespective of whether they are fixed-term or open-ended agreements) in full or in part (whether or not prematurely) by means of written notification to the Customer; all of this without prejudice to the Contractor’s other rights under any Agreement with the Customer whatsoever and without the Contractor being required to pay any damages.
9.5. In the event of bankruptcy or a suspension or provisional suspension of payments, or if the Customer’s business is closed down or liquidated, the Contractor will be authorised to terminate all Agreements (irrespective of whether they are fixed-term or open-ended Agreements) with immediate effect (whether or not prematurely) by means of written notification to the Customer, unless the Customer or its trustee or administrator undertakes towards the Contractor at its written request within a reasonable period that it is willing to live up to the Agreement(s) in question, in which case the Contractor will be entitled without any notice of default to suspend the performance of the Agreement(s) in question until payment has been sufficiently guaranteed.
9.6. The Contractor will furthermore have the right to prematurely terminate the Agreement (irrespective of whether it is a fixed-term or open-ended Agreement) if it cannot reasonably be required to complete the Services. The Contractor itself will assess whether or not that is the case.
9.7. If an event as referred to in (i) Article 9.4, (ii) Article 9.5 or (iii) Article 9.6 occurs, (i and iii) all the Contractor’s claims against the Customer under the Agreement(s) in question and (ii) all the Contractor’s claims against the Customer will fall due immediately and in full, respectively.
9.8. In the event of notice of termination (Article 9.3) and termination (whether or not premature) as referred to in Article 9.4, 9.5 and 9.6 of these General Conditions, the Contractor will remain entitled in all cases to payment of compensation and costs for the work performed until that date, whereby the Customer will be provided with the provisional outcome of the work performed until that date. Any extra costs involved will be charged to the Customer. Insofar as the Contractor must cooperate in the transfer of work to third parties and such transfer of work involves extra costs for the Contractor, those costs will be charged to the Customer.
9.9. The applicability of Article 6:278 of the Dutch Civil Code is expressly excluded.
9.10. When the Agreement ends, each of the parties must immediately return to the other party all goods, documents, etc. of that other party that are in its possession, on the understanding that the Contractor may keep a copy of each document on which the work is based, which copy will be intended for the Contractor’s accounting records.
9.11. If after termination of the Agreement any work arises from the Agreement that must be performed by the Contractor, the additional costs must be paid by the Customer and the Contractor will charge such costs to the Customer separately.
10. Transfer of rights
10.1. The Contractor will be permitted to transfer the rights arising from any Agreement with the Customer to third parties. The Customer may do so only with the Contractor’s prior written consent.
11. Intellectual property; goods made available by the Contractor
11.1. The Customer will not acquire any intellectual property rights in respect of the Services or their results.
11.2. The Customer will be expressly prohibited from multiplying, publishing or commercialising the Services or their results, including software, designs, procedures, advice, reports, model or other contracts, cash flow models, plans of approach and other products of the mind of the Contractor, all of this in the broadest sense of the words, whether or not by engaging third parties, unless those Services are expressly intended for multiplication, publication and/or commercialisation (and that has been recorded in writing). Publication may therefore take place only with the Contractor’s prior consent. The Customer will have the right to multiply the written documents for use within its own organisation, insofar as that is in keeping with the purpose of the Agreement. In the event of premature termination of the Agreement, the above will apply accordingly.
11.3. The Contractor declares that to the best of its knowledge the Services do not infringe any third-party intellectual property rights that apply in the Netherlands. In the event of claims from third parties regarding infringement of such rights, the Contractor may, if necessary, replace or modify the Services in question or dissolve the Agreement in full or in part. The Customer will have the right to terminate the Agreement only insofar as it cannot reasonably be required to continue the Agreement.
11.4. The Customer must immediately inform the Contractor of any third-party claim regarding infringement of intellectual property rights in respect of the Services. In the event of such a claim, only the Contractor will be authorised to file a defence, to take legal measures against that third party on behalf of the Customer, or to enter into a settlement with that third party. The Customer will refrain from all such measures insofar as it can reasonably be required to do so. The Customer must give the Contractor all cooperation in all cases.
11.5. The Customer must indemnify the Contractor in particular against any and all loss that the Contractor may incur as a result of alleged infringement by the Contractor of third-party intellectual property rights if the Contractor has allegedly infringed those rights by using data, documents or objects or other property made available to the Contractor by the Customer for the performance of the Agreement.
12. Taking over employees
The Customer will not be permitted during the performance of the Agreement and for a period of one year after its termination to hire any persons who are or were involved on the part of the Contractor in the performance of the Agreement, or to negotiate on employment with such persons, otherwise than in consultation with the Contractor.
13. Expiry period
13.1. Except insofar as otherwise provided in these General Conditions, rights of action and other powers of the Customer towards the Contractor in connection with the performance of the Agreement by the Contractor will expire in any event one year after the date on which the Customer became aware or could reasonably have become aware of the existence of those rights and powers. In all cases those rights and other powers will lapse two years after the Services were provided.
13.2. The Contractor will in no event be under any obligation to pay damages two years after the provision of the Services.
14. Language and order of priority
14.1. These General Conditions were drawn up in Dutch and translated into English. In the event of discrepancies between the two versions (or their interpretation), the Dutch text will prevail.
14.2. In the event of full or partial conflict between the provisions of the General Conditions and the provisions of the Agreement, the provisions of the Agreement will prevail. Otherwise the General Conditions will continue to apply.
15. Governing law and competent court
15.1. These General Conditions and the Agreement are governed by Dutch law.
15.2. Except insofar as otherwise provided by mandatory rules of law, any and all disputes that arise in connection with the Agreement or these General Conditions will be subject to the ruling of the competent court of Amsterdam, on the understanding that the Contractor will have the right to file claims against the Customer, whether or not at the same time, with other legal bodies that have jurisdiction to hear and decide on such claims.