General Terms and Conditions

for Assignments by LAFASE Partners B.V.

Definitions. In these General Terms and Conditions the following definitions apply:

Affiliated Person: any managing director, employee, shareholder (direct or indirect), other staff member, advisor or subcontractor of Lafase
Agreement: the Engagement Letter and these General Terms and Conditions
Assignment: the assignment to be performed by Lafase for a Client pursuant to the Engagement Letter
Client: the other party than Lafase to the Engagement Letter
Engagement Letter: a Lafase document that sets out the Assignment and states the General Terms and Conditions to be applicable
General Terms and Conditions: these general terms and conditions
Lafase: LAFASE Partners B.V.
NDA: the Non-Disclosure Agreement entered into separate between Lafase and the Client in respect of confidentiality and non-disclosure of data in relation to the Assignment.

Interpretation. All Assignments are entered into exclusively by Lafase, even when it is implicit or expressly intended that an Assignment shall be executed by an Affiliated Person. Article 7:404 (which deals with aforementioned item) and article 7:407 section 2 (which deals with joint and several liability when an assignment is granted to two or more persons) of the Dutch Civil Code are not applicable.

Applicability. These General Terms and Conditions apply to all Assignments to be performed by Lafase. The applicability of any of the Client’s purchasing conditions or other general conditions is expressly excluded. Not only Lafase, but also each Affiliated Person may invoke these General Terms and Conditions. The same applies to former Affiliated Persons and successors under universal title of succession of (former) Affiliated Persons.

Effectiveness. The Agreement will become effective as of the moment when the Client confirms the Engagement Letter (in writing or electronically). The Agreement is concluded for a fixed term, unless stipulated otherwise in the Agreement.

Scope. The Agreement, and when concluded separately a NDA, constitute(s) the sole basis for all arrangements between Lafase and the Client with respect to the Assignment, and shall supersede all prior understandings or agreements. Any amendments or changes to the Agreement must be 
agreed in writing. In the event of a conflict between the Engagement Letter and the General Terms and Conditions, the Engagement Letter shall prevail. When a NDA has been entered into with the Client by Lafase, the NDA shall prevail over these General Terms and Conditions in respect of confidentiality and non-disclosure of data, with exception of disclosure of a general nature of its Assignment for the Client for marketing and reference purposes by Lafase, as referred to under Marketing hereof.

Standards and execution. Lafase will execute the Assignment to the best of its abilities in accordance with the highest generally accepted international business standards and best practices. Lafase will determine how and by which person or persons the Assignment will be performed. If the Engagement Letter provides that specifically named persons will perform the Assignment, Lafase will make reasonable efforts to ensure that these persons perform the Assignment. Lafase has the right to replace the persons named in the Engagement Letter by persons of equal or comparable expertise. Lafase may hire subcontractors for the execution of an Assignment; such subcontractor will work under the responsibility of Lafase.

Phases. If a phased performance of the Assignment has been agreed, Lafase may postpone commencing the Assignment relating to a subsequent phase until the Client has accepted the results of the preceding phase in writing and has paid all sums due. Time-limits within which the Assignment must be completed will not be considered as strict deadlines, unless this has been expressly agreed otherwise. Lafase will never be liable for damages on account of any failure to meet a time limit.

No guarantee. Any advice, opinion, statement of expectation, forecasts and recommendations given by Lafase as part of the Assignment will under no condition or circumstance whatsoever be construed as a guarantee with respect to future events or circumstances.

Your obligations. The Client will give its full and expedient cooperation and make available all relevant documents which Lafase may reasonably deem necessary for the proper performance of the Assignment. If Lafase works at the Client’s premises or makes use of the Client’s computer systems and telephone networks, the Client will (at its own expense) provide the necessary access, security procedures, virus controls, facilities, licenses and permissions. The Client will ensure that Lafase is informed without delay of facts and circumstances that may be relevant in connection with the proper performance of the Assignment. The Client warrants the accuracy, completeness, reliability and legitimacy of the data and documents made available to Lafase, except where the nature of the Assignment dictates otherwise. When acceptance by the Client of (a phase of) the Assignment is explicitly agreed with Lafase in the Engagement Letter, the Client shall not unreasonably withhold acceptance of a work product of Lafase. When the Client thus withholds acceptance of (a phase of) the Assignment, it shall promptly notify Lafase of its observations. When within the scope of the Assignment and, to the sole judgment of Lafase reasonably possible, Lafase shall endeavor to amend its work product accordingly. Lafase will not be liable for any loss and/or damages incurred by the Client as a result of the fact that the Client or any third party (i) did not inform in good time of, or withheld, facts and circumstances which may be relevant in connection with the proper performance of the Assignment and/or (ii) misrepresented the facts.

Confidentiality
. Lafase will not disclose to any third party any confidential information furnished by or on behalf of the Client concerning the Client’s business or business matters. This obligation does not apply to information that Lafase is required to disclose by law, by any rule of a regulatory governmental body, or pursuant to a professional duty resting on Lafase or on persons employed by or working for Lafase, or pursuant to a binding decision of a court or a public authority. However, Lafase has the right to submit such confidential information to its insurers and/or advisers in connection with Lafase’s professional liability (insurance). Without prior written consent of Lafase, the Client will not disclose the content of the Engagement Letter, reports, advice or other work results of the Assignment made by Lafase, to third parties.

Marketing. Lafase has the right to use the Client’s name and to mention the kind of work it performed for the Client for marketing and reference purposes, and to mention all particulars which are already publicly known in the media.

Intellectual property. Drafts made by, and work products of Lafase will remain to belong to Lafase; the Client is licensed to use such work products. The Client shall not without prior written consent of Lafase, reproduce, disclose to third parties, or process, any drafts, advice, contracts and other work products of Lafase.

Fee and payment.  The fees to be charged by Lafase in connection with an Assignment shall be agreed upon by Lafase and the Client. Costs and expenses paid for by Lafase in relation to an Assignment shall be charged separately to the Client. Where required, fees and costs and expenses shall be grossed up with taxes, and shall be invoiced to the Client on a monthly basis, or upon completion of each agreed phase of the Assignment, unless Lafase and the Client agree otherwise. Invoices shall be paid by the Client, without any deduction, discount or set off, within 10 days of the invoice date. If the Client fails to pay an invoice within this payment period, Lafase shall be entitled, without notice of default and without prejudice to other rights pursuant to law, to charge the Client legal interest (as referred to in article 6:119a of the Dutch Civil Code) from the due date until the date of payment in full. All judicial and extrajudicial collection and other costs reasonably incurred by Lafase as a result of the Client’s failure 
to discharge its payment obligations shall be borne by the Client. The fee of Lafase does not depend on the result(s) of the (work products under the) Assignment.

Personal data protection. 
Lafase may process personal data in carrying out the Assignment or related to Lafase’s business, and shall comply with the Act on personal data protection (in Dutch: Wet bescherming persoonsgegevens).

Email and use of Internet. The Client and Lafase may communicate with each other by means of electronic mail (email). The use of email and the Internet entails risks, however, for example (but not limited to), distortion, delay, interception, manipulation and viruses. It is the Client’s responsibility to put in place protective measures for its computer or IT systems against such viruses and defects and Lafase does not accepts any liability for any loss or damages arising from the use of email and/or the internet. Documents sent to the Client by email (whether or not containing confidential information) will not be encrypted unless the Client requests Lafase so in writing and both are able to agree on mutually acceptable encryption standards and protocols.

Safekeeping file. 
Lafase will keep a file on the Client’s engagement. Lafase will take appropriate measures to safeguard the confidentiality and safekeeping of the file and to retain the files for a period which is in accordance with the statutory regulations on retention periods. The files are the property of Lafase. Papers and property that the Client has provide Lafase with, shall on the Client’s request, be promptly returned.

Hold harmless. The Client will indemnify and hold Lafase harmless against any and all claims, actions for compensation for damages or prosecution, of third parties arising from or connected to the Assignment performed or to be performed for the Client, unless such claims result from gross negligence and willful misconduct on the part of Lafase.

Limitation of liability. In the event that when carrying out an Assignment, an event should occur which may lead to liability, such liability shall be limited to the lower of (i.) one time the fee payable to Lafase pursuant to the Assignment, and (ii.) amount or amounts paid out, if any, under Lafase’s professional liability insurance in the matter concerned. Such amount(s) shall include Lafase’s deductible as stated under this insurance. This event shall also include a failure to act. In the event that, by or in connection with the performance of an Assignment or otherwise, damage, for which Lafase is held liable, is caused to persons or property, such liability shall be limited to the amount or amounts covered by third-party indemnity insurance. Such amount(s) shall include Lafase’s deductible as stated under this insurance. Lafase shall never be liable in any way whatsoever for consequential loss (including but not limited to lost profit, lost savings, loss due to business interruption).

Any claim for damages of whatever nature by the Client pursuant or related to the Assignment shall exclusively be brought against Lafase, and not against any Affiliated Person (Lafase’s employees, advisors, managing directors, other staff members, and or its subcontractor); the Client covenants to Lafase not to file, cause to file, have prosecuted, have any claim against, nor sue, such persons.

Expiration of claims. Each claim for damages will lapse one year after the start of the day, following the day on which the Client has become known with the damages or could reasonably have become known therewith, and with Lafase as liable party.

In the event that Lafase engages a non-Affiliated Person in connection with the performance of an Assignment, Lafase shall not be liable to the Client for any errors of such person. By giving an assignment to Lafase, the Client authorises Lafase to accept on the Client’s behalf any limitation of liability requested by such non-Affiliated Person.

Termination of the Agreement. Both Lafase and the Client may terminate (in Dutch: opzeggen) the Agreement by twenty one (21) days’ written advance notice of termination. In the event of the Client so terminating the Agreement, the Client is obliged to pay the fees until the date of such termination, as well as the costs and expenses incurred by Lafase. The Client’s obligation to pay invoices for the Assignment already performed will become immediately due and payable as soon as the Agreement is terminated.

Know your customer. As a result of applicable regulations such as The Act on the prevention of money laundering and financing of terrorism (in Dutch: Wet ter voorkoming van witwassen en financieren van terrorisme), Lafase is obliged to establish the identity of its Clients and, under certain circumstances, to report unusual transactions to the authorities. By entering into an Assignment to Lafase, the client confirms to be aware thereof and, to the extent necessary, to consent thereto.

No assignment. Neither the Client nor Lafase may transfer any right and/or obligation arising from or related to the Agreement to a third party without the other party’s written consent.

Jurisdiction
. The Agreement is governed by Dutch law. Any dispute between Lafase and a Client shall be exclusively decided upon the competent court in Amsterdam, the Netherlands, without prejudice to the right of appeal.

 

LAFASE Partners B.V. is registered in Amsterdam, the Netherlands, with the Commercial Registry of the Chamber of Commerce in the Netherlands under number 53494741. These General Terms And Conditions are deposited with the Commercial Registry of the Amsterdam Chamber of Commerce, the Netherlands, on 18 October 2011 under file number 53494741.