Article 1 Area of application
1.1 These General Terms and Conditions are applicable to commissions to and to all offers and agreements whereby Flux Partners B.V. (hereinafter: “Flux Partners”) is a party, unless agreed explicitly differently in writing.
1.2 These General Terms and Conditions are applicable to all agreements of the Principal as if they were included therein verbatim. Possible terms and conditions of purchase or other terms and conditions of Client are not applicable, unless these have been accepted by Flux Partners explicitly in writing.
1.3 If the General Terms and Conditions of Flux Partners and of Client differ to such an extent, then at all times a meeting takes place between both parties to come closer together. If this meeting for whichever reason does not take place, then the General Terms and Conditions of Flux Partners shall apply.
Article 2 Conclusion agreement
2.1 Agreements and further agreements, which have not been concluded in writing, are firstly binding for Flux Partners after confirmation in writing from the side of Flux Partners.
2.2 The obligations of Flux Partners never go further than what has been confirmed by Flux Partners in writing.
2.3 At the conclusion of an agreement the Client is aware of the General Terms and Conditions.
Article 3 Offer and conclusion agreement
3.1 All written offers of Flux Partners are non-binding and valid during 14 days after the date of issue, unless in the offer it is stated explicitly differently in writing. If Client has not accepted the offer within the aforementioned term, the offer becomes void unless extension of the offer has been agreed in writing. After expiry of the offer Flux Partners is authorised to change the offer.
3.2 The offer is based on the information provided by Client, whereby Flux Partners may rely on the correctness and completeness thereof.
3.3 An agreement is only concluded if Client and Flux Partners have both signed the acceptation of the offer in writing: the “ the Confirmation of Commission”.
Article 4 Cooperation by Client
4.1 Client shall provide Flux Partners each time timely with all data or information useful and necessary for a proper execution of the agreement and grant all cooperation.
4.2 Client warrants the correctness, completeness and reliability of the information provided to Flux Partners, also if this originated from third parties. The nature of the activities to be executed means that on the information made available by Client no check will be executed by Flux Partners, no assessment commission will be executed, or an additional examination in whichever form. The one and the other implies that from the activities to be executed in the framework of this commission no certainty can be derived with regard the veracity of this information, other than with regard to the aspects as examined and about which by Client as such in fact is reported.
4.3 If the execution of the agreement is delayed because Client does not comply with his obligation mentioned in article 4.1 or the information provided by Client does not comply with the stipulations in article 4.2, then the extra costs deriving there from will be for the account of Client and Flux Partners is authorised to bring the extra-work become necessary because of it into account.
Article 5 Execution
5.1 Flux Partners assumes at the execution of the agreement an obligation to make an effort and shall execute this agreement to the best of its insights and abilities, in accordance with the requirements of good expertise.
5.2 Flux Partners shall at the execution of the agreement, as much as possible take into account reasonable wishes of Client, provided that this in the opinion of Flux Partners is beneficial to a proper execution of the agreement.
5.3 If and insofar a proper execution of the agreement so requires, Flux Partners has the right to let certain activities be executed by third parties.
Article 6 Changes and extra-work
6.1 Parties can agree in between that the approach and scope of the agreement and/or the activities deriving there from will be extended or changed. Extra-work shall in principle only then be executed by Flux Partners, if by parties a written further agreement to that extent has been signed.
6.2 These extra activities shall be paid by Client according to the usual rates of Flux Partners.
6.3 Client accepts that by changes of the activities as referred to in article 6.1 the agreed or expected time of completion of the agreement can be influenced.
6.4 If in the opinion of Flux Partners a change in the execution of the agreement is necessary to comply with the obligations towards Client, then Flux Partners is authorised to introduce that change, according to reasonableness and fairness.
Article 7 Fees
7.1 Parties can agree at the conclusion of the agreement upon a rate per hour or a fixed Fee.
7.2 Both rates inclusive of board and office costs, but exclusive of travel costs.
Article 8 Price and payment
8.1 Payment by Client must take place within 30 days after the date of the invoice, without discount or set-off by means of bank transfer into a bank account to be designated by Flux Partners.
8.2 If Client does not pay the due amounts within the agreed term, then he is in default without notification of default. Flux Partners is authorised to hand over the claim for collection in which case the Client next to the then due total amount also shall be liable to compensation of out-of-court collection costs, of which the height is set at 15% of the total due amount, and of possible in-court costs.
8.3 If Client has an objection against an invoice of Flux Partners, then Client will make this known within 14 days after the date of the invoice. Client has up to 14 days after the date of the invoice the time to motivate his objection in writing. If Client has not complied with the above, then Client is deemed to have accepted the invoice.
8.4 All prices are exclusive of VAT and other levies imposed by the government.
Article 9 Terms
9.1 Exceeding of an agreed delivery term does not give the Client the right to cancel the agreement, or to refuse the take-off of or payment for services, unless he has given Flux Partners in writing after all a reasonable term for the delivery and Flux Partners also within this term has not complied with its obligations.
Article 10 Force Majeure
10.1 In case of Force Majeure the delivery and other obligations of Flux Partners are suspended. In that case is Flux Partners obliged to deliver as soon as this is reasonably possible. Equal to Force Majeure will be regarded unforeseen circumstances with regard to persons and/or material of which Flux Partners makes use or is accustomed to make use at the execution of the agreement, which are of such a nature that the execution of the agreement becomes impossible, or burdensome and/or disproportionally costly because of it that a prompt compliance with the agreement in reasonableness cannot be expected of Flux Partners.
As such circumstances will among others be eligible: government measures, enterprise, traffic and/or transport disruptions, disruptions in the delivery of a ready product, raw materials and/or aids, illness of deployed personnel, work strikes, exclusions, impediments by third parties, technical complications not foreseen by both parties etc. If Flux Partners upon the emergence of the Force Majeure already partially has complied with its obligations, then Flux Partners is authorised to invoice the already delivered separately and the Client is required to pay this invoice as if it concerned a separate transaction.
Article 11 Liability
11.1 The total liability of Flux Partners because of imputable shortcoming in the compliance with the agreement is limited to compensation of the direct damage to a maximum of 15% of the amount of the sum for the commission declared till the moment in which the liability claim was made.
11.2 The liability of Flux Partners because of imputable shortcoming in the compliance with the agreement emerges only if Client declares Flux Partners without delay and properly in default in writing, thereby giving a reasonable term for the amendment of the shortcoming, and Flux Partners also after that term imputably continues to come short in the compliance with the obligations.
11.3 Flux Partners is not liable for damage that is caused because Client came short in the timely provision of correct information which Flux Partners in its opinion, requires for a correct execution of the agreement.
11.4 Principal shall preserve Flux Partners for liability as a consequence of claims of third parties as well as for damage, that is caused by acts or omissions of third parties involved in the execution of the agreement.
11.5 Outside the liability mentioned in article 11.1 on Flux Partners no liability for compensation of damages whatsoever towards Client and/or third parties, irrespective of the grounds on which an action would be based.
Article 12 Cancellation
12.1 Flux Partners reserves the right to cancel agreements in whole or in part upon such a change of laws, regulations, jurisprudence or (semi) government policy that compliance in reasonableness cannot be required anymore of Flux Partners. In such instances Flux Partners must notify the Client of the cancellation in writing. The Client is in such instances not authorised to claim a compensation of damages.
Article 13 Termination
13.1 In-between termination of an agreement is only possible if parties have agreed such explicitly in writing or under payment of the due amount to the original end of the agreement, unless parties have agreed in writing another payment.
Article 14 Relation clause
14.1 Neither of the parties shall, during the tenor of the agreement as well as a year after termination thereof, take into employment employees of the other party that have been involved in the execution of the agreement, or let them work otherwise, directly or indirectly, for them, unless he has thereto written permission of the other party.
14.2 Principal shall during the tenor of the agreement as well as a year after expiry thereof omit to offer or let offer to the advisers deployed by Flux Partners directly or indirectly an employment agreement or otherwise let those advisers execute services or activities for him other than via Flux Partners. In case of violation of the stipulations in this section shall Principal be liable to pay to the Flux Partners a contractual fine in the height of the annual wages of the concerned adviser of Flux Partners, notwithstanding the right of Flux Partners to full compensation of damages. Principal shall in all instances direct enter into contact in writing with Flux Partners if he is planning to let advisers of Flux Partners work for him at any moment.
Article 15 Applicable law
15.1 All agreements with clients are governed by the Laws of the Netherlands.
Article 16 Disputes
16.1 All disputes which might arise between Flux Partners and Client further to an agreement or further to agreements that are the consequence thereof, shall be decided by the competent court in Utrecht, the Netherlands, unless Flux Partners chooses to submit the dispute to another court.
16.2 All-in-court and out-of-court costs made in reasonableness that are the consequence of non-compliance by Client with obligations deriving from the agreement will be for the account of Client.
Article 17 Final stipulation
17.1 Flux Partners is authorised to change these General Terms and Conditions. Applicable is always the latest filed version of the General Terms and Conditions.
17.2 In case one or more stipulations of these General Terms and Conditions prove to be invalid or are invalidated, then these General Terms and Conditions remain in force for the remainder. For the invalid or invalidated stipulation(s) will then enter (a) valid stipulation(s) enter in place, that approach(es) the invalid or invalidated stipulation(s) as far as concerning the content, tenor and consequence as close as possible.
17.3 Client is not authorised to assign his rights and obligations on the basis of the agreement without prior written permission of Flux Partners.