General Terms and Conditions of Delivery Capax Capital Partners 2013
Article 1: Applicability of the General Terms and Conditions
1.1 These General Terms and Conditions apply to all offers of and all agreements with Capax Capital Partners for the supply of goods and/or services by Capax Capital Partners, as well as agreements related to or arising from this agreement between Capax Capital Partners and another party (hereinafter referred to as the Client).
1.2 The general terms and conditions of the Client are not applicable, unless agreed explicitly and in writing between Capax Capital Partners and the Client.
Article 2: Agreement
2.1 The agreement of the Client with Capax Capital Partners may concern various services or goods to be supplied by Capax Capital Partners in the field of finance or administration or other subjects. The agreement will be put in writing by Capax Capital Partners and will be signed for agreement by the Client. Amendments to the agreement during the performance thereof will be put in writing by Capax Capital Partners and will be signed for agreement by the Client.
2.2 Besides the agreement with Capax Capital Partners the Client has not concluded and will not conclude any agreement(s) with the same or similar content with third parties during the term of the agreement between Capax Capital Partners and the Client.
2.3 The agreement of the Client with Capax Capital Partners at all times only implies an obligation to perform to the best of its abilities for Capax Capital Partners, unless Capax Capital Partners has explicitly and in writing guaranteed a result.
Article 3: Performance
3.1 Capax Capital Partners will observe due care in its performance of the agreement.
3.2 If in the performance of the agreement Capax Capital Partners uses data provided by or on behalf of the Client, Capax Capital Partners is under no obligation to establish the correctness or completeness of these data. Capax Capital Partners will not be liable for damage as a consequence of incorrectness or incompleteness of these data.
3.3 If in the performance of the agreement Capax Capital Partners uses data of third parties, these data have been obtained from public sources and other sources deemed reliable by Capax Capital Partners. Capax Capital Partners will not be liable for damage as a consequence of incorrectness or incompleteness of these data.
3.4 The Client will in each case provide Capax Capital Partners with all the information requested by Capax Capital Partners and will guarantees the correctness and completeness of this information. The Client will in each case without a request thereto provide Capax Capital Partners with the information whereof the Client knows or ought to know that it is or could be of interest to Capax Capital Partners for the performance of the agreement.
3.5 In the context of an agreement concluded by the Client with Capax Capital Partners, Capax Capital Partners can recommend third parties to be engaged by the Client and other parties to be contracted by the Client and can advise on the conditions and execution of the transaction envisaged by the Client. Capax Capital Partners is not liable for the consequences of any decision of the Client that is (partly) based on recommendations by Capax Capital Partners.
3.6 If Capax Capital Partners is engaged by the Client in the execution of a project, the project management rests with the Client or a third party appointed by the Client, unless explicitly agreed otherwise in writing.
3.7 If Capax Capital Partners has agreed a date on which the agreement or parts thereof will be completed, this date will only be indicative, unless Capax Capital Partners has explicitly and in writing guaranteed otherwise.
3.8 If Capax Capital Partners provides advice, designs, assistance or services with regard to software (which may include Microsoft Office Excel documents), or makes software available, this will not imply any liability for Capax Capital Partners with regard to faulty functioning of the said software in combination with the hardware or software used by the Client.
3.9 If the agreement between Capax Capital Partners and the Client is related to or arises from an agreement concluded between the Client and a third party, the Client is obliged to fully inform Capax Capital Partners in writing of this agreement and the applicable terms and conditions.
3.10 The Client will offer the staff supplied by Capax Capital Partners the same facilities as its own personnel. In all cases these facilities will comply with the statutory requirements and generally accepted standards, including adequate access to the (computer) system of the Client.
Article 4: Payment
4.1 At the time of the conclusion of the agreement between the Client and Capax Capital Partners the parties will agree upon the fees due to Capax Capital Partners and the expenses to be charged by Capax Capital Partners to the Client.
4.2 Capax Capital Partners may charge one or more of the fees below for the performance of the agreement concluded between the Client and Capax Capital Partners:
(I) a fixed amount;
(II) a fixed amount, depending on the realization of any agreed result;
(III) a fixed amount based on the time spent by Capax Capital Partners in the context of the performance of the agreement;
(IV) a variable amount, depending on the realization of any agreed result and/or based on the value thereof;
(V) any other form of fixed or variable fee money or goods;
(VI) an predetermined amount of shares or warrants.
In so far as applicable these fees are increased by VAT.
4.3 Capax Capital Partners and the Client may agree that out-of-pocket expenses, hotel and travelling expenses and expenses incurred by third parties engaged by Capax Capital Partners, are for account of the Client.
4.4 Unless agreed otherwise Capax Capital Partners will send periodical invoices for the goods or services supplied by Capax Capital Partners.
4.5 If the Client does not object to the composition or amount of an invoice within the payment term, the Client is deemed to agree with the invoice. The extent of the payment obligations of the Client are shown in the records of Capax Capital Partners, unless the contrary is proven.
4.6 The Client is obliged to pay the amounts due to Capax Capital Partners within 14 days from the invoice date, without any setoff, deduction or suspension. In case payment is not effected in full or on time Capax Capital Partners is entitled to interest for overdue payment equal to the statutory interest payable in the event of overdue payment of trade debt, as well as compensation for all reasonable judicial and extra-judicial costs.
Article 5: Term
5.1 The agreement between the Client and Capax Capital Partners will terminate:
(I) at the moment that the agreement has been performed by Capax Capital Partners;
(II) if the Client or Capax Capital Partners terminates the agreement with observance of a reasonable notice period.
5.2 If the Client terminates the agreement, entirely or in part, before Capax Capital Partners has fully performed the agreement the Client will owe Capax Capital Partners the costs incurred by Capax Capital Partners, consisting of the reasonable out-of-pocket expenses incurred, and the time spent by Capax Capital Partners to the performance of the agreement at a reasonable hourly rate to be determined by Capax Capital Partners.
5.3 If Capax Capital Partners terminates the agreement before it is fully performed, Capax Capital Partners is not entitled to charge a fee or expenses, except if and in so far as the Client profits from the part of the agreement already performed, in which case Capax Capital Partners is entitled to a proportionate share of the agreed fee and reimbursement of the expenses incurred. In the event of termination of the agreement before it is performed Capax Capital Partners will not owe the Client damages.
5.4 Without prejudice to the provisions of article 5.2 of this agreement the Client will owe damages to Capax Capital Partners if the Client terminates the agreement with Capax Capital Partners before Capax Capital Partners has fully performed the agreement and subsequently within twelve months of this termination gives the contract to a third party or performs itself the activities that the agreement with Capax Capital Partners related to. The damages then payable to Capax Capital Partners equal the gross fee that Capax Capital Partners would have charged the Client with if the Client had not terminated the agreement concluded with Capax Capital Partners.
Article 6: Intellectual property and confidentiality
6.1 All copyrights and other intellectual property rights to or related to agreements performed by Capax Capital Partners and related documents and software remain vested in Capax Capital Partners and will not pass to the Client, unless agreed explicitly and in writing between the Client and Capax Capital Partners.
6.2 Capax Capital Partners grants the Client the non-exclusive and non-transferable right to use the software and documentation made available, for an indefinite period of time, unless agreed otherwise. This right of use is restricted to own use and solely for the original purpose. The right of use will cease by operation of law at the moment the Client is declared bankrupt, has filed for suspension of payments or proposes a private debt rescheduling to its creditors.
6.3 During and after the performance of the agreement between the Client and Capax Capital Partners both parties will observe strict confidentiality with regard to the confidential information of the other party and will endeavour to have its employees and third parties involved observe that same confidentiality, in so far as they are not required by law or regulation to disclose information to third parties.
6.4 Capax Capital Partners has the right to use the name and logo of the Client and the nature of the agreement(s) concluded with the Client as reference in presentations to third parties, advertisements, brochures and press releases.
Article 7: Liability
7.1 Capax Capital Partners is only liable for direct losses resulting from a failure attributable to Capax Capital Partners, and never for consequential and indirect losses.
7.2 Capax Capital Partners is not liable for damage caused by its employees, in so far as this damage is caused during the carrying out of work performed under the supervision of the Client or in the framework of a Client related project.
7.3 In all cases where Capax Capital Partners in spite of the provisions of article 7.1 and 7.2 and in all cases where Capax Capital Partners pursuant to the provisions of article 7.1 is obliged to compensate the damage suffered by the Client, the liability is limited to twice the invoice value of services supplied by Capax Capital Partners to the Client over a period of six months prior to the date on which the damage first occurred or was noticed, with a maximum of € 20,000.-.
7.4 The Client indemnifies Capax Capital Partners against any claims of third parties related to or arising from the agreement between the Client and Capax Capital Partners and against any costs incurred or losses suffered by Capax Capital Partners as a result thereof, except in the case of an intentional act or deliberate profligacy on the part of the management board or the actual management of Capax Capital Partners.
Article 8: Employees
8.1 During the term of any agreement between the Client and Capax Capital Partners and for a period of six months following the termination of any agreement the Client undertakes not to enter into employment contracts with or award contracts to employees of Capax Capital Partners, whether directly or indirectly. This arrangement applies to employees of Capax Capital Partners that are or were involved in the performance of the agreement between Capax Capital Partners and the Client. The Client warrants that other legal entities that form part of the same group of companies will comply with the provisions of this article.
Article 9: Choice of law and forum
9.1 This contract will be governed by Dutch law. Any disputes arising from this agreement and related agreements will in the first instance be submitted to the competent court in Amsterdam.
9.2 If Capax Capital Partners acts as the claimant, notwithstanding the provisions of article
9.3 Capax Capital Partners has the right but not the obligation to submit the dispute to another court which has jurisdiction according to the law.