General Terms and Conditions of Peak Advisory B.V.
Article 1
General
In these General Terms and Conditions:
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2.
The Client refers to the party issuing the assignment, and
Peak refers to the company with limited liability Peak Advisory B.V. statutory
established in Rotterdam, the Netherlands, registered at the Dutch Chamber of
Commerce, number 24294493. All assignments will be accepted and carried out
exclusively by Peak as such which for this purpose waives the application of the
articles 7:404 and 7:407 paragraph 2, of the Netherlands Civil Code.
Article 2
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These General Terms and Conditions apply to all legal relationships between the Client
and Peak. In so far as parties have not explicitly agreed otherwise in writing, all
provisions of these General Terms and Conditions will fully and unconditionally prevail
between Client and Peak.
Any reference made by the Client to his own General Terms and Conditions whatever
they are called and in whichever stage of the establishment of the agreement with
Peak they are made, shall be explicitly rejected. The Client is expected to accept the
applicability of these General Terms and Conditions also with regard to later offers
made to him by Peak, assignments issued by him to Peak and agreements concluded
on his behalf with Peak.
Peak is entitled to amend these General Terms and Conditions. An amendment to
these General Terms and Conditions shall come into force at the indicated date of
commencement and in the absence of such a date, at the moment when the Client
has been informed of the amendment or the amendment has become known to him.
The amended General Terms and Conditions shall be sent to the Client in a timely
manner.
The assignment shall be performed by Peak with due consideration of the applicable
legislation and regulations including the rules of conduct and professional practice
applying to Peak and to the persons performing the assignment. Peak shall never be
bound to perform any acts or omissions that are contrary to or incompatible with the
legislation and regulations referred to above. The Client declares at all times to fully
respect the obligations on Peak.
Article 3
1.
Applicability
Concluding an agreement
An agreement is concluded at the moment when Peak has received a confirmation of
the assignment, signed by Peak and the Client. The confirmation is based on the
information provided by the Client to Peak at that time. The confirmation is deemed to
fully and accurately reflect the agreement.
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4.
The Client is obliged to inform Peak in a timely manner and in writing, of any changes
concerning the execution of an assignment issued to Peak by him. The assignment the
amendment applies to is considered to be a new assignment that shall lead to an
agreement only if and in so far as Peak accepts the assignment in writing. If Peak does
not accept the new assignment, the original assignment shall be cancelled and
reciprocal obligations to undo shall come into force for any part of the original
assignment already carried out. If the (part) of the work already carried out cannot in all
reasonableness be made undone, the obligation arises to compensate the value of this
execution, which is equivalent to the invoice value thereof. Peak is authorised to
charge the Client for the additional costs connected to the change in the execution of
an assignment.
Both parties are free to prove that the agreement was concluded in a different manner.
The agreement is entered into for an indefinite period of time, unless it can be inferred
from the terms of reference, nature, or scope of the issued assignment that the
agreement was entered into for a specific period of time.
Article 4
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The Client is obliged to provide in a timely manner, in the desired format and in the
desired way, all data and documents Peak deems necessary for correctly carrying
out the issued assignment.
The Client guarantees the accuracy, completeness, and reliability of the data and
documents provided to Peak, even when they originate from third parties, in so
far as the nature of the assignment does not provide otherwise.
The Client declares explicitly that he will not withhold information which is necessary
for the correct realization of the assignment.
If and in so far as the Client so requests, the provided documents shall be returned to
the Client.
Where this is necessary for the substantiation of the soundness of the work performed,
original documents that have a formal status, such as notarial deeds, decrees and
government permits provided to Peak by the Client, shall be copied and included in
the work files. The original documents shall be returned to the Client.
Extra costs and remuneration, arising from a delay in the execution of the assignment,
because the data and documents required have not been provided or have been
provided late or inadequately, shall be borne by the Client.
Article 5
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3.
Information provision by the Client
Executing the assignment
Peak determines the person that shall carry out the issued assignment, and the
manner in which the assignment is carried out.
Peak may carry out more work than included in the issued assignment and charge
this to the Client, provided the Client has given prior permission.
If the Client wishes to involve third parties in the execution of the assignment, he shall
only do so after agreement has been reached with Peak. That which is stipulated in
the previous sentence applies to Peak by analogy.
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6.
If execution of the assignment by Peak is (partially) impossible due to non- or
inadequate compliance by the Client to the obligations in article 4.1, 4.2 and 4.3
executing the assignment shall be (partially) suspended from the moment that the
Client is in default until the Client has (properly) fulfilled his obligations according to
article 4.1, 4.2 and 4.3, or Peak is authorized to (partially) dissolve the agreement
without judicial intervention being required. The Client is obliged to pay for the work
already performed on the base of the fee which is agreed or the applied fee in
accordance with article 11.1 of these general terms and conditions, increased with the
costs made by Peak and the tax VAT. If Peak and the Client have agreed a resultdependent fee, the dissolvement will be considered as a notice in accordance with
article 13 of these general terms and conditions, which means article 13.6 will be
applicable.
That which is stipulated in article 5.4 applies by analogy if the execution of the
assignment by Peak is (partially) impossible because of force majeure, on the
understanding that executing the assignment shall be (partially) suspended until the
situation of force majeure no longer exists. The foregoing applies irrespective of
whether the conditions leading to force majeure occur before or after the moment
when the assignment should have been completed. In the case of force majeure,
Peak is not obliged to compensate damages.
Compliance by Peak, notwithstanding a situation of force majeure, does not affect
Peak’s right to use his power to suspend or to dissolve in other cases.
Article 6
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Delivery Period
The delivery period commences as soon as Peak has received all data and
documents required to carry out the activities, as mentioned under article 4.1, 4.2
and 4.3.
If the Client is to pay an advance, the delivery period commences no sooner than the
payment has been received in full.
Periods within which the activities should be completed may only be considered a final
date if this has been agreed explicitly in writing. The Client is entitled to compensation
only if a delivery period that has been explicitly agreed and explicitly been qualified as
final is exceeded by Peak. This compensation can never be higher than the payment
that was agreed for the delayed performance.
Peak shall make all efforts that can in reasonableness be expected in order to
complete the assignment within the stated or agreed period of time. Except in the
case of intent or gross negligence, a possible exceeding of the agreed date does not
give the Client the right to claim compensation, to refuse the service rendered by
Peak, to non-compliance with or suspension of any obligation resulting from the
agreement entered into with Peak, or to (partially) dissolve the agreement.
Each delivery period shall be extended by the period of time by which the execution of
the assignment is delayed because of force majeure, irrespective of whether the
condition leading to force majeure begins before or after the moment when the
commitment should have been fulfilled. Extension of the delivery period shall also
take place if, and for as long as, the Client provides any payment or performs any
other obligation later than agreed, or later than in fairness might be expected from
Peak, irrespective of whether the Client is in default.
Article 7
Force Majeure
In these General Terms and Conditions force majeure is understood to mean: each
circumstance or event beyond Peak’s control, which prevents wholly or partially, whether
or not temporarily, compliance with the obligations towards the Client or because of
which compliance with the obligations cannot in reasonableness be expected from Peak,
irrespective of whether the circumstance or event was to be expected when the
agreement was concluded, such as among other things government measures, fire,
accidents, labour unrest and non-compliance, for whatever reason, by third parties
engaged by Peak.
Article 8
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Unless a legal or professional duty entails disclosure, Peak is obliged to maintain
confidentiality towards third parties.
Peak is not entitled to use the information provided by the Client for any other
purpose than for which it was obtained, except when Peak represents himself in
disciplinary, civil or criminal proceedings where these documents could be of
importance.
Unless Peak has granted prior written permission, the Client shall not disclose the
contents of reports, advice or any other opinions of Peak, in writing or otherwise, that
were not drawn up or produced with the intent to supply third parties with the
information contained therein. The Client shall also ensure that third parties shall
not learn of the contents referred to in the previous sentence.
On the basis of the provisions in or under the terms of the law, in particular, though
not exclusively, the Act to prevent Money Laundering and Financing Terrorism (Wet
ter voorkoming Witwassen en Financieren van terrorisme, Wwft), Peak is obliged in
certain cases to report an unusual transaction carried out or intended during the
performance of the assignment issued to it to the Financial Intelligence Unit –
Nederland in Zoetermeer (FIU Nederland) within 14 days. Peak is obliged to observe
secrecy concerning this reporting.
Peak shall impose the obligations resulting from this article on third parties engaged
by him.
Article 9
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Confidentiality
Intellectual property
Peak reserves all rights in relation to intellectual products that he uses or has used in
the framework of the execution of the Client’s assignment, in so far as these are
provided for by law.
The Client is explicitly prohibited from reproducing, disclosing, or exploiting such
products, including Peak’s computer programmes, system designs, working
methods, advice, (model) contracts, and other intellectual products, all in the
widest sense of the word, with or without engaging third parties.
The Client is not permitted to provide third parties with aids of those products,
other than to obtain an expert opinion on Peak’s activities.
Article 10 Exclusivity
The agreement between the Client and Peak will be executed on the base of fully exclusivity
and the Client will not be authorized to provide an assignment to any third party.
Article 11
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Fee, result-dependent fee and transaction value
If Peak and the Client have not agreed (in writing) otherwise, the fee will be
calculated as follows: the time which Peak spended on the assignment multiplied with
fee’s which are usual for similar cases, increased with the costs made by Peak and
the tax VAT.
It is allowed to agree, instead of or besides, a result-dependent fee. The resultdependent fee will be determined on the basis of the transaction value of the by the
Client to Peak provided assignment.
“Transaction value” is defined as the total (cash) value of all payments (in cash, on
term or in any other way), including all postponed payments and (interest-)
reimbursements which are indebted by the with the assignment involved purchaser
or company, increased with the nett-sum of the by the purchaser (in cash, on term or
in any other way) taken over/ refinanced (intercompany) debts of the company and
the at the company provided shareholders-loans (with interest and interest-free).
Part of the transaction value are dividend-payments and/or payments to the account
of the reserves of the company which are (to a large extent) subject of the
transaction, as far as the payments have taken place after the balance date of the
last established annual account of the meant company, which annual account is
provided to Peak. At the establishment of the value of the (non-cash) payments, the
“fair market value” will be applied, unless other criteria will be available, under which
the value of the shares. If the property which will be taken over will be acquired by
separate share- transactions, under which pursuing of option rights whether in any
other way, applies the above mentioned formula of the total transaction value, being
the total of transaction values of all share-transactions.
If after concluding the agreement - but before the assignment has fully been carried
out - wages and/or prices are subjected to change, Peak is entitled to adjust the
agreed rate accordingly, unless the Client and Peak reached other agreements in this
respect. If the adjustment implies an increase of more than 10%, or if an increase
takes place within three months after the conclusion of the agreement between Peak
and the Client, the Client is entitled to dissolve the agreement. The right to dissolve
shall expire on the 15th day of the invoice date of the first invoice which is sent to the
Client after the increase of the agreed fee.
Peak’s remuneration - where appropriate including advances and invoices from
third parties engaged - shall be charged to the Client monthly, quarterly, annually,
or on completion of the activities, unless the Client and Peak reached other
agreements on this issue. In the case of a result-dependent fee as meant in this
article, this fee will be indebted after the activities has been accomplished. Value
added tax due on the sums payable by the Client to Peak shall be charged
separately.
Article 12 Invoicing and Payment
1.
The Client shall make a payment within the agreed time, but in any case no later
than fourteen days from the invoice date, without deduction, discount, or debt set off.
Payment shall be in Legal Dutch Tender by means of a transfer to a bank account
indicated by Peak.
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At all times Peak is entitled to require advance payment and/or to the provision of
adequate (prior) security by the Client with regard to the payment(s) due and to
discontinue the execution of an assignment if the advance payment and/or security
required are not provided.
If the Client has not made a payment within the term referred to under 11.1, and after
Peak has sent the Client at least one demand for payment, Peak may without further
notice of default and without prejudice to Peak’s other rights charge statutory interest
from the due date until the date the sum is fully settled.
All judicial and extra-judicial (debt-collection) costs reasonably incurred by Peak as a
result of the Client’s non-compliance with payment obligations shall be borne by the
Client.
If Peak believes the Client’s financial position or payment record provides cause for
(additional) security, Peak may require such from the Client immediately in a form
determined by Peak. If the Client fails to provide the required security, Peak is entitled
to suspend further execution of the agreement without prejudice to his other rights
and all that payable by the Client to Peak for whichever reason shall become due and
payable immediately.
In the case of a jointly issued assignment – in so far as the activities have been
performed on behalf of joint Clients – the Clients are severally responsible for payment
of the invoice sum.
The Client shall never be entitled to any deduction of, or, to settlement against, any
claim that he believes he has against Peak. If the Client believes that he can assert
his rights with regard to the agreement with Peak, this shall not discharge him from
his own obligation to pay according to the agreed manner and he is not entitled to
suspend his own obligation to pay.
Payments made by the Client shall always first serve to settle any interest and costs
due and subsequently to settle the longest due and outstanding payable invoices, even
if the Client states that the payment made relates to a later invoice.
Peak is authorised to suspend compliance with all his obligations, including among
others the delivery of documents or other matters to the Client or third parties, until the
moment when all due and payable debts have been fully paid by the Client.
Article 13
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Financial consequences by interim termination and by realising the
result after termination of the assignment
The Client and Peak are allowed to give notice on the agreement at any time,
taking into consideration a notice period of 1 month. Notices should be given in
writing to the other party.
Parties may provide in the agreement the financial consequences in the case of a
changed assignment, an assignment which will not be realised or if the assignment
will be terminated in the interim. If this is not arranged in the agreement, the following
will be applicable:
If the agreement will be noticed (in the interim) by the Client and Peak have not
given an urgent reason for that, Peak is entitled to charge all the work already
performed (up to and including a notice period of one month) on the basis of the
usual hourly fee’s used by Peak.
If in the agreement (in writing) is inserted, instead of or besides a fee, a resultdependent fee, that which is stipulated in article 13.3 applies by analogy. If the
intended result will still be realized within twenty four months, the Client will still be
indebted to Peak the result-dependent fee, reduced with the amounts which are
already paid out of this article.
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If the agreement will be noticed (in the interim) by Peak because of causes which
Peak has no influence on and which are reasonable lead to termination of the
assignment, Peak is entitled to charge all the work already performed (up to and
including a notice period of one month) on the basis of the usual hourly fee’s used by
Peak.
Besides force majeure, the above mentioned causes which Peak has no
influence on are:
a. policy- and demarcation disputes between the board of directors at the Client;
b. incorrect or insufficient provision of information or insufficient cooperation by or
because of the Client and/or other involved parties, interim alteration of perception
regarding the assignment et cetera
If the Client and Peak have agreed a result-dependent fee, the Client is this resultdependent fee also indebted if the intended result of the agreement will be realized
after termination of the agreement, if the Client has noticed the agreement (in the
interim) with the exception of the in article 13.4 and 13.5 mentioned causes, by which
the realization of the intended result is connected with the by Peak provided services
during the agreement. Except for evidence to the contrary this connection is
supposed to be present if the result will be realized within twenty four months after
the termination of the agreement.
Article 14 Complaints
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3.
Complaints in relation to the quality of the activities carried out and/or the invoice sum
should be made known to Peak in writing within 60 days of the dispatch date of the
documents or information to which the Client’s complaint pertains, or within 60 days of
discovering the defect if the Client shows that he could not in reasonableness have
discovered this earlier.
Complaints as referred to in the first paragraph do not suspend the Client’s payment
obligations.
In the case of a rightfully issued complaint, Peak has the choice of adjusting the
remuneration charged, improving or redoing the disapproved activities free of charge,
or not completing (part of) the assignment against a restitution in proportion to the
remuneration already paid by the Client.
Article 15 Liability
1.
Peak shall carry out his activities to the best of his ability and shall take the required
due care and attention as may be expected from Peak. If a mistake is made, because
the Client provided incorrect or incomplete information, Peak is not liable for any
damage caused. If the Client proves that he suffered damage due to a mistake by
Peak that could have been avoided with due care and attention, Peak is liable for
damages, unless it concerns a matter of an intentional act or comparable gross
negligence on the part of the Client. Peak’s liability is limited to a maximum of three
times the remuneration for the relevant assignment that the Client has paid or still
has to pay for this assignment that concerns the mistake. In case of assignments
with longer turnaround time than six months, the liability referred to here will be
limited to a maximum sum invoices for the last six months that the Client has paid or
still has to pay for the assignment that concerns the mistake.
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If and as far there is just agreed a result-dependent fee, Peak is liable for the damages
at the maximum to a sum equal to one/fourth part of the agreed result- dependent fee,
as far as the Client is able to prove that he had damage caused by a fault of Peak that
could have been avoided with due care and attention. If the result-dependent fee can
not be calculated, Peak is obliged to calculate the time which would have been
charged by a correct realization of the assignment multiplied with the usual hourly
fee’s used by Peak. Peak is liable for these damages at the maximum three times the
average over the fee which is indebted over a month. This average will be calculated
as follows: the total fee over the term of the assignment will be divided by the amount
of months concerning the assignment lasted, by which a part of a month will be
counting as a full month.
In all cases Peak’s liability is limited to a maximum of the amount that is paid in the
case concerned under the (professional) liability insurance, including the amount of
the excess.
The Client indemnifies Peak against claims by third parties for damage caused
by incorrect or incomplete provision of information by the Client to Peak, unless
the Client proves the damage is caused by intention or comparable gross
negligence by Peak. In so far as non- compliance by the Client with his
contractual and/or statutory obligations causes liability of Peak against third
parties, the Client indemnifies Peak against all consequences of this liability. The
Client is liable for all damages that Peak or third parties may suffer as a result of
a shortcoming or a wrongful act on the part of the Client.
The limitation of liability as stipulated by point 1 and 2 of this article also applies
to third parties engaged by Peak for the execution of the assignment, which
third parties have direct recourse to this restriction of liability.
Peak shall not be liable for the damage the Client suffers as a result of the
application of the provisions concerned, irrespective of whether any reporting by
Peak, in retrospect, with regard to the facts and circumstances, in reasonableness
should not have taken place. The Client indemnifies Peak against claims by third
parties resulting from the application of the provisions concerned, irrespective of
whether a report by Peak, in retrospect, with regard to all facts and circumstances,
in reasonableness should not have taken place.
Peak shall not be liable for the damage the Client suffers as a result of the use of
(electronics) means of communication (for example the damage caused by delay,
failure to deliver, disclosure, interception or manipulation of electronic messages
by third parties, the damage caused by used hardware or software or the damage
caused by viruses and the like).
Article 16 Time limit
In so far as not stated differently in these General Terms and Conditions, the right to claim
and other powers the Client may have towards Peak in relation to the activities carried out by
Peak lapse in any case one year after the moment at which the Client was aware of or could
in reasonableness, have been aware of the existence of these rights and powers.
Article 17 Applicable law and choice of forum
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4.
All agreements between the Client and Peak shall only be governed by Dutch law.
Any disputes resulting from an agreement concluded with Peak shall exclusively be
decided upon by the competent Court in Rotterdam.
Contrary to the provisions in paragraph 2, the Client and Peak are authorised to
submit disputes to an arbitration board.
In the event of disputes concerning the interpretation of these General Terms and
Conditions, the Dutch text shall be binding.
May 2015