GENERAL TERMS AND CONDITIONS
The general terms and conditions of GroupMapping B.V., (Chamber of Commerce number 63938006), in these terms and conditions referred to as “GroupMapping”, with its registered office in (1051 LG) Amsterdam at Haarlemmerweg 317E.
1. DEFINITIONS
GroupMapping: the party that has concluded an agreement with the client for the performance of a (management consultancy) assignment;
Client: the natural person or the legal entity on behalf of which GroupMapping is charged with the performance of an assignment provided, on the basis of these terms and conditions;
Assignment: a contract for services (Book 7, article 400 et seq. of the Dutch Civil Code), under which GroupMapping undertakes towards the client to carry out (consultancy) work for the client's organisation. The contract for services is concluded in writing between the parties and contains a description of the work or assignment to be carried out.
Advice: every instruction, advice and/or recommendation, all of these in the broadest sense, issued to a client by GroupMapping on the basis of an agreement. No rights can be derived from any advice.
2. APPLICABILITY OF THE GENERAL TERMS AND CONDITIONS
The terms and conditions set out below apply to all negotiations, assignments and agreements entered into by GroupMapping.
Deviations from these terms and conditions can only be agreed in writing.
The applicability of other terms and conditions is explicitly excluded by GroupMapping.
GroupMapping does not accept references by the client to the applicability of its own (general) terms and conditions, unless GroupMapping has explicitly indicated otherwise in writing. In that instance, the applicability of such other terms and conditions only concerns that particular agreement.
In the event of an inconsistency, any commitments specifically agreed on will prevail over these general terms and conditions.
If any provision of these general terms and conditions is void or is annulled, the other provisions of these general conditions will remain in full force.
Notwithstanding the provisions of Book 7, articles 404 and Book 7, article 407, paragraph 2 of the Dutch Civil Code, all assignments are exclusively accepted and executed by GroupMapping.
3. FORMATION OF THE AGREEMENT/ASSIGNMENT AND TERM
An assignment/agreement is formed only when an assignment/agreement or confirmation of the assignment is signed and returned and/or when an agreement is received by email and/or when the assignment is confirmed by GroupMapping by means of a confirmation of the assignment. The fact that GroupMapping effectively starts performing may also form an agreement between GroupMapping and the client.
The content of the assignment specifies everything agreed on between the client and GroupMapping and is, among other things, determined by the description in the confirmation of the assignment / the agreement.
Inaccuracies or inaccuracies alleged by the client in the confirmation of the assignment from GroupMapping must be communicated in writing within eight days of the date of this confirmation. After that period, the client is expected to agree with the way in which the concluded agreement has been documented in writing or with the confirmation of the assignment.
Any subsequent agreements or changes, as well as verbal agreements and/or promises made on behalf of GroupMapping, will only bind GroupMapping if confirmed in writing by GroupMapping.
For activities for which, by their nature and scope, no confirmation of the assignment is sent, the confirmation can be derived from the fact that the activities and/or deliveries have commenced.
The assignment between GroupMapping and a client is concluded for the term of the assignment.
Upon or after concluding the agreement, GroupMapping is entitled to demand a guarantee from the client that both the payment obligations and the other obligations will be fulfilled before delivering any (further) performance.
GroupMapping has the right not to accept an assignment and if this is the case, it will notify the client accordingly.
GroupMapping has the right to instruct third parties to carry out the work on behalf of a client.
4. OBLIGATIONS OF THE CLIENT
The client undertakes to timely provide GroupMapping with all the data and information deemed required by GroupMapping for the performance of the agreement and to do so in the manner prescribed by GroupMapping.
If the required data and information is not delivered to GroupMapping, or is not delivered in a timely or proper manner, GroupMapping is entitled to suspend the performance of the agreement or to charge the client for the additional costs arising from the delay in accordance with the applicable rates.
The client is obliged to immediately inform GroupMapping of facts and circumstances that may be important in connection with the performance of the assignment.
The client guarantees the correctness, completeness and reliability of the data and information made available by or on behalf of it to GroupMapping.
When GroupMapping so requests, the client will make some of its employees available without charge, and these employees will be involved in the activities of GroupMapping.
When GroupMapping so requests, the client will make work spaces and (office) facilities available without charge, which are needed to be able to perform an assignment on site.
The client guarantees the correctness, completeness and reliability of the data and documents made available to GroupMapping, also when provided by a third party, unless the nature of the assignment provides otherwise. The client guarantees that the data carriers, electronic files or software made available to GroupMapping are free from viruses and faults.
The client ensures that GroupMapping can commence its activities at the agreed moment. If the activities of GroupMapping commence later due to circumstances in the client's domain, the client will notify GroupMapping thereof as soon as possible. Damage suffered by GroupMapping as a result of a delay as mentioned in this paragraph will be at the expense of the client.
The client is not permitted to distribute the draft documents, draft advice and reviews issued by GroupMapping, all of these in the broadest sense, and/or to present them to third parties as being the final version. No rights can be derived from the draft documents referred to in this paragraph.
5. FEES
GroupMapping's fees do not depend on the outcome of the assignment provided, unless agreed otherwise in writing.
When concluding the agreement, the parties may agree a fixed fee.
If no fixed fee is agreed, the fee will be set on the basis of hours actually spent. The fee is calculated in accordance with the usual hourly rates of GroupMapping, valid for the period during which the work is carried out, unless a deviating hourly rate has been agreed in writing.
If a fixed fee has been agreed and if a budget or a fixed fee is exceeded through no fault of the client, but this is caused by the actions of GroupMapping (such as late delivery/incorrect provision of data, withholding information, etc.), these additional costs will be borne by GroupMapping on the basis of the time actually spent, based on the hourly rate.
If, after the formation of the agreement but before the assignment has been performed in full, wages and/or prices have changed, GroupMapping is entitled to adjust the agreed rate accordingly, unless the client and GroupMapping have made alternative arrangements in this respect.
GroupMapping’s fees, plus any advances and expense claims of third parties engaged, will be charged to the client on a monthly basis or after completion of the work, unless the client and GroupMapping have made alternative arrangements in this respect.
GroupMapping will be entitled to increase the fee if during the execution of the work it appears that the amount of work originally agreed or expected was estimated erroneously at the conclusion of the agreement, to such extent that GroupMapping cannot reasonably be expected to carry out the agreed work for the fee originally agreed. The provisions of this paragraph apply if the incorrect assessment cannot be attributed to GroupMapping.
In the event of contract extras and/or extra work, this will be announced to the client in time and the contract extras will be invoiced in accordance with the agreed rates.
6. PAYMENT AND COSTS
GroupMapping applies a payment term of 30 days for its invoices, unless explicitly agreed otherwise in writing.
GroupMapping may demand (partial) payment of an invoice by the client before commencing work for the client.
The parties may agree that payment will be made in instalments in proportion to the progress of the work. In that case, payment is always made no later than 30 days after receiving the invoice.
Any payment by the client is made without any discount or set-off, however named, unless explicitly agreed otherwise in writing.
If the client fails to pay the invoice to GroupMapping in time, the client will be in default by operation of law and without any notification, warning or notice of default from GroupMapping being required. In that case, the client will owe GroupMapping the statutory commercial interest (pursuant to Book 6, article 119a of the Dutch Civil Code) from the moment it is in default, with part of a month being considered a full month.
Payments made by the client always serve to pay any costs and interest due first and thereafter to pay the oldest invoices due, even if the client states that its payment relates to an invoice of a later date.
GroupMapping is entitled to compensation for all costs incurred in connection with the collection of its claim or claims against the client. GroupMapping is entitled to immediately outsource its claim in respect of any unpaid invoice to a third party for collection. All judicial and extrajudicial costs incurred to collect the claim are explicitly and fully at the expense of the client. The extrajudicial costs are based on the Extrajudicial Collection Costs (Standards) Act.
GroupMapping is entitled to suspend its activities under the agreement until the client has fulfilled its obligations towards GroupMapping.
GroupMapping may outsource its claim under the agreement to its credit insurer, in which case the credit insurer will be charged with collecting the outstanding claim or claims.
7. CANCELLATION
If a client wishes to cancel a scheduled event at GroupMapping, cancellation costs will be charged in accordance with the schedule below:
between 30 and 15 days before the event 50% of the costs
within 15 days before the event 100% of the costs
Any external costs ensuing from external obligations are passed on to the client on a one-on-one (100%) basis if they can no longer be cancelled by GroupMapping.
If the client wishes to cancel, the client has to submit its notice of cancellation in writing, stating the reason.
If the cancellation is accepted, GroupMapping will send the client an invoice for the cancellation costs and that invoice must be paid immediately, after which the event will be cancelled.
If the client fails to show up at the event without a valid reason, 150% will be charged.
8. PERFORMANCE OF THE ASSIGNMENT
1. The client will make efforts to perform the assignment from GroupMapping professionally and with due care. The client will perform the assignment to the best of its knowledge and ability, as well as in accordance with the standards of professionalism and good commissioning practice.
2. The assignment has the nature of an obligation to perform to the best of one’s ability, since the client cannot guarantee that the intended result will be achieved.
3. GroupMapping can only fulfil the obligation to perform to the best of its ability if the client has provided GroupMapping with all the relevant and correct information in time. If this information is provided incorrectly and/or late, GroupMapping will suspend the work to be carried out without being liable for any damage and costs.
4. GroupMapping may replace one or more sub-contractors following consultation with the client. The change should not reduce the quality of the work to be carried out within the framework of the assignment, nor should it negatively affect the continuity of the assignment. A change of sub-contractors can also be made on the request of the client and in consultation with GroupMapping.
5. GroupMapping is never liable for damage caused by third parties it has engaged. All of the liabilities set out in these terms and conditions apply in full to third parties engaged by GroupMapping for the performance of the work or services.
6. The client accepts the fact that the timetable and the costs of the assignment may change if the parties prematurely agree to expand or change the approach, method or scope of the assignment and/or the management consultancy activities arising therefrom.
7. If the interim change to the assignment or to the execution of the assignment is caused by actions of the client, GroupMapping will make the necessary adjustments if the quality of the service so requires. If such an adjustment results in contract extras, this must be confirmed by the client as an additional assignment. If after being urged in writing the client fails to confirm within fourteen days, GroupMapping will be entitled to terminate the agreement with immediate effect and without legal intervention, without being obliged to pay any compensation to the client.
GroupMapping is entitled to perform the assignment in parts, which can be invoiced separately.
If GroupMapping requires information from the client within the framework of performing the agreement, the execution term will not commence until after the client has made this information available to GroupMapping, correctly and in full.
The terms stated are by approximation only and never serve as final deadlines.
GroupMapping is not obliged to pay any compensation if this term is exceeded. After repeatedly exceeding the term, the client can declare GroupMapping in default in writing, giving it a final (reasonable) term within which to perform. After that, the client is entitled to dissolve the agreement in writing, unless the cause of exceeding the term cannot be attributed to GroupMapping.
The client is free to hire any third parties to perform the assignment.
9. SUSPENSION AND CANCELLATION/TERMINATION OF THE ASSIGNMENT
In principle, the client and GroupMapping cannot prematurely cancel or terminate the agreement if it concerns assignments of no more than one month.
In the case of an assignment for a period of one month or more, the assignment can be prematurely terminated with due observance of a notice period at least 14 days, except where precluded by the nature of the agreement or if the parties have explicitly agreed otherwise in writing.
In the event of a shortcoming in the performance of the assignment, the assignment can only be dissolved on account of an attributable failure to comply with the assignment if GroupMapping is immediately declared to be in default in writing and is given a reasonable term to comply, and GroupMapping still imputably fails to fulfil its obligations after the expiry of that term. A notice of default or a notice of liability for an error and/or shortcoming must contain a specified and sufficiently detailed description of the attributable error or shortcoming, in order to give GroupMapping the opportunity to respond adequately. Liability is limited in accordance with the provisions of Article 12.
GroupMapping is entitled to suspend the performance of the agreement until further notice or to dissolve the agreement, in full or in part, in the event of one of the situations set out below. The foregoing does not require a notice of default and legal intervention, nor will GroupMapping be obliged to furnish any compensation or warranty:
if the client fails to fulfil the obligations under the agreement or agreements concluded with GroupMapping correctly, in time and/or in full;
if there are obvious misgivings about the client being able to fulfil the obligations ensuing from the agreement or agreements with GroupMapping;
in the event of the client's bankruptcy, moratorium or debt rescheduling, or the closing down, liquidation or full or partial transfer of the client's business.
If the agreement is terminated prematurely, GroupMapping will be entitled to compensation on account of the loss resulting from lower capacity utilisation, which loss must be made plausible, unless the notice of termination is based on facts and circumstances attributable to GroupMapping. Furthermore, in such instance, the client will be obliged to pay the invoices for any work carried out to date. In that case, the provisional results of the work carried out to date will be made available to the client conditionally.
If the agreement is terminated prematurely by GroupMapping, GroupMapping, in consultation with the client, will arrange for the proper transfer of any pending work to third parties, unless the notice of termination is based on facts and circumstances attributable to the client. Any ensuing costs will, in that case, be charged to the client.
10. CONFIDENTIALITY
Unless they have a statutory or professional duty to disclose, the parties are obliged to maintain confidentiality in respect of third parties with regard to all confidential information obtained from the other party or from another source in the context of their agreement. Information is considered confidential if the other party has communicated its confidential nature or if such confidentiality ensues from the nature of the information.
GroupMapping is not permitted to use the information made available to it by the client for any purpose other than the purpose for which it was disclosed. An exception to this is made when GroupMapping appears on its own behalf in any legal or other proceedings for which this information may be of importance.
Unless GroupMapping has given its prior written consent, the client will refrain from disclosing the content of reports, recommendations or communications of GroupMapping, written or otherwise, which have not been drawn up or issued with the intention of providing the information contained therein to third parties. The client will also ensure that third parties cannot access the content referred to above.
11. NON-SOLICITATION CLAUSE
Without the prior written permission of GroupMapping, the client and its affiliated companies will not directly or indirectly approach employees of GroupMapping and/or its affiliated companies with the purpose of offering them a job at the client or its affiliated companies.
If the client violates any of the provisions of paragraph 1 of this article, the client is obliged to compensate GroupMapping for any damage suffered.
12. INTELLECTUAL PROPERTY
GroupMapping reserves all rights in respect of products of the mind it uses or has used in the performance of the client’s assignment, insofar as ensuing from the law, unless the client and GroupMapping have explicitly agreed to the contrary.
Without the consent of GroupMapping, the client is explicitly prohibited from multiplying, publishing, operating or otherwise encumbering the products referred to in paragraph 1 of this article, including computer programmes, system designs, working methods, advice and other intellectual products of GroupMapping, all of these in the broadest sense, by hiring third parties or otherwise.
The client is not permitted to make resources of the products referred to in this article available to third parties other than for the purpose of requesting an expert opinion from third parties in connection with the work for GroupMapping.
GroupMapping reserves the right to use any increased knowledge resulting from the execution of the work for other purposes, insofar as this does not cause any confidential information to be disclosed to third parties.
GroupMapping can use anonymised cases, including those of the client, for its publicity on social media and the Internet. The client hereby agrees thereto in advance and gives GroupMapping its consent.
13. LIABILITY
GroupMapping is not liable for damage suffered by the client or third parties for any reason whatsoever and related in any way whatsoever to the assignment provided to GroupMapping.
GroupMapping is never liable for indirect damage in the broadest sense, including, in any case, consequential damage, losses due to delays, damage in the form of lost profits and intangible loss, even in the event of GroupMapping's own intent or gross negligence.
If GroupMapping is liable for any damage, its liability will explicitly be limited to the amount paid out by the (professional) liability insurer plus the excess applicable for that insurance. If the professional liability insurer does not pay out or if the damage is not covered by the professional liability insurance, GroupMapping's liability, if any, will be limited to a maximum of €5,000.00. The client is expected to have taken out adequate insurance for the surplus.
GroupMapping is not liable to pay any compensation if the client fails to fulfil any obligation towards GroupMapping at the time of the loss event. The provisions of the previous sentence do not apply in the event of intent or wilful recklessness on the part of GroupMapping during the performance of the agreement.
The client's option to bring any legal claim against GroupMapping or to submit a dispute with regard to or as a result of any agreement lapses or expires one year after the client was or could have been aware of the relevant causes.
14. INDEMNITY
The client indemnifies GroupMapping against all third-party claims for damage suffered by these third parties as a result of the performance of the agreement with the client by GroupMapping or by any other party to whom the client has made that result available, unless it concerns intent or gross negligence on the part of GroupMapping.
The client indemnifies GroupMapping against third-party claims in connection with intellectual property rights, as well as against any third-party claims caused by the provision of incorrect and/or incomplete and/or late information by the client to GroupMapping.
The client indemnifies GroupMapping against any third-party claims ensuing from work carried out or documents, designs and/or calculations provided by GroupMapping.
15. CONVERSION
If any clause referred to in these terms and conditions and applicable to the client may conform to the same purport without contradicting the law, the validity of the other provisions of these terms and conditions will remain unchanged.
16. APPLICABLE LAW
All agreements that are subject to these terms and conditions and any ensuing legal relationships are exclusively governed by Dutch law.
All disputes ensuing from or in connection with an offer of, an assignment to or an agreement with GroupMapping will exclusively be settled by the competent court of Amsterdam.
17. FINAL PROVISIONS
GroupMapping is entitled to amend these general terms and conditions. These amendments will take effect from the date announced by GroupMapping. GroupMapping will provide the client with the changed terms and conditions as soon as possible.
The Dutch text of the general terms and conditions will at all times be decisive for the interpretation thereof.