TERMS & CONDITIONS

Phoenix Insights & Strategy B.V. - General Terms and Conditions

These general Terms and Conditions have been filed with the Dutch Chamber of Commerce on March 17, 2022, under number 83915370.

1. Definitions

Unless explicitly stated otherwise in these terms and conditions, the following terms shall have the following definitions:

1.1.1. Client: the party that assigns the Contractor to perform certain services.
1.1.2 Confidential Information: the Engagement between the Client and the Contractor and the information provided by one Party to the other Party in the context of this Engagement, including, but not limited to, figures, reports, recommendations or other expressions of either Party. Notwithstanding the foregoing, Confidential Information shall not include information that (a) is already in or has become part of the public domain other than as a result of a breach of the confidentiality obligations under the Engagement and/or (b) has been independently developed by a Party without reference to or use of Confidential Information of the other Party.
1.1.3 Contractor: Phoenix Insights & Strategy B.V.
1.1.4. Engagement: the oral or written agreement in which the Contractor agrees to provide services for the Client as well as any other agreement between the Client and the Contractor, including but not limited to agreements for the sale of goods.
1.1.5. Party or Parties: the Client or the Contractor, respectively the Client and the Contractor.
1.1.6. Quote: a written or oral offer of the Contractor to the Client, containing a more or less specified description of the services to be provided by the Contractor and an estimate of the costs involved with the performance of these services.
1.1.7. Terms and Conditions: these general terms and conditions.

2. Scope of Application

2.1. The Terms and Conditions shall apply to all Quotes made by the Contractor to the Client and to all Engagements between the Client and the Contractor, unless both Parties have expressly and in writing declared the Terms and Conditions to be, in full or in part, non-applicable, or applicable only to the extent that they do not conflict with other written arrangements between the Client and the Contractor.
2.2. The applicability of any other set of general terms and conditions, including but not limited to the general terms and conditions of the Client, is expressly rejected by the Contractor.
2.3. The Contractor shall reserve the right to amend or supplement the Terms and Conditions at any time and with immediate effect. The Contractor shall endeavour to inform the Client of any material amendments or supplements made to the Terms and Conditions after the conclusion of the Engagement.

3. Quotes

3.1. All Quotes are made free of obligation and are non-binding, unless explicitly stated otherwise by the Contractor in writing. The Contractor reserves the right to rescind their Quote at any time, and may amend their Quote at any time before acceptance by the Client upon becoming aware of any circumstances that would justify amendment.
3.2 Every Quote is based on performance of the Engagement by the Contractor under normal conditions and during normal working hours.
3.3. Unless explicitly agreed otherwise, Quotes provided by the Contractor to the Client shall not automatically apply to future similar Engagements with the same Client.

4. Conclusion of Engagement

4.1. An Engagements between the Client and the Contractor shall be deemed to come into effect upon the earlier of a) the written confirmation by the Contractor of the acceptance of the Quote by the Client or b) the commencement of the execution of the Engagement by the Contractor upon acceptance of the Quote by the Client.
4.2. If, at the request of the Client, the Contractor commences execution before an Engagement is concluded, the Contractor shall be entitled to compensation for the activities performed in accordance with the applicable rates of the Contractor, unless Parties have explicitly agreed otherwise in writing.
4.3. Insofar as the acceptance by the Client of the Quote should deviate from, or supplement, the Quote of the Contractor, such deviating and/or supplementary provisions shall only be binding on the Contractor to the extent that the Contractor has explicitly accepted these provisions in writing.

5. Execution of the Engagment

5.1. All Engagements shall be performed by the Contractor to best of the knowledge and ability of the Contractor, and in accordance with the applicable professional standards. The Contractor shall be bound by a best-efforts obligation in relation to the Engagement.
5.2. The Contractor shall determine the manner in which the Engagement shall be executed and by whom. In situations in which it is the express intention of the Parties that the Engagement shall be performed by a specific natural person, the applicability of Sections 404 and 407(2) of Book 7 of the Dutch Civil Code is explicitly excluded.
5.3. In the interest of ensuring a proper and timely execution of the Engagement, the Client shall provide the Contractor with all information and documents that the Client may reasonably require for a proper and timely execution of the Engagement. The Client shall do so in a timely manner, and, should the Contractor have asked the Client to provide certain information and/or documents before a given date, shall adhere to the deadline set by the Contractor.
5.4. The Client and Contractor agree that the execution of the Engagement shall be dependent to a significant extent on the information and documents provided to the Contractor by the Client. The Contractor may trust that the information and documents provided by the Contractor are correct and complete.

6. Amendments of the Engagement

6.1. Amendments to the Engagement shall only be effective insofar as they have been agreed to by both Parties in writing.
6.2. If amendments to the Engagement should result in a price increase or price decrease, the Contractor shall duly inform the Client of this.

7. Performance by Third Parties

7.1. The Contractor is authorised to engage third parties for the execution of the Engagement with written permission from the Client.

8. Duration of Engagement

8.1. Insofar as the Client and Contractor have not, in writing, expressly agreed otherwise, the Engagement between the Client and the Contractor shall be deemed to be an agreement of indefinite duration.
8.2. If the Contractor has indicated, verbally or in writing, an expected completion date or time frame for the Engagement or a part of the Engagement, such indications shall be considered to be indicative only and are non-binding and free of obligations, unless the Contractor has expressly and in writing indicated otherwise.

9. Confidentiality and Return of Material

9.1. The Client and the Contractor agree that they shall not disclose Confidential Information to any employees and/or third parties, other than third parties who have a legitimate need to know in connection with this Engagement. Parties shall ensure that these employees and/or third parties are bound by confidentiality obligations in regard to the Confidential Information no less stringent than those set forth herein. All employees of the Contractor, as well as any third parties engaged by the Contractor, are bound by a Non-Disclosure Agreement which covers all existing and potential future Clients.
9.2. The Client and the Contractor shall make no use of the Confidential Information, other than for the purpose of the execution of the Engagement.
9.3. The confidentiality and non-use obligations set forth herein shall continue after the end of the Engagement.
9.4. Notwithstanding the confidentiality obligations set forth in this clause, Parties agree and acknowledge that, in the interest of being able to engage new clients and promoting their business model, the Contractor shall be able to list the Client as their client without being in violation of their confidentiality obligations. Further, the Contractor shall be able to make use of, and publish, case studies based on their Engagement(s) with the Clients, containing, inter alia, a brief description of the challenge(s) faced by the Client, the opportunity and the insight and recommendations of the Contractor, without being in violation of their confidentiality and non-use obligations set forth in the Terms and Conditions.
9.5. Insofar as any Party has, during the Engagement, furnished any tangible material to the other Party, the other Party shall promptly return or destroy, at the option of the furnishing Party, this material upon the end of the Engagement.

10. Intellectual Property

10.1. All the documentation provided or made by the Contractor, including but not limited to any texts, reports, advice, agreements, drafts, designs, drawings, software etc., are only intended to be used by the Client and may not made public or forwarded to third parties by the Client without first obtaining the written permission of the Contractor, unless otherwise follows from the nature of the supplied documentation. All rights to or derived from this documentation, including all existing and future intellectual property rights related to the documentation, are the sole and exclusive property of the Contractor unless otherwise has been agreed in writing by both Parties or unless otherwise should follow from the nature of the documentation or the Engagement. This includes, but is not limited to, the rights and authority the Contractor holds pursuant to the Copyright Act.

10. Prices & Payment

11.1. All prices are expressed in Euro and are excluding VAT and any office, telephone, travel, transport and postage costs, unless otherwise has been explicitly agreed in writing.
11.2. If any pricing factors, including but not limited to salaries and/or rates, should be subject to change between the commencement of the execution of the Engagement and the completion of the Engagement, the Contractor shall inform the Client in advance. The new estimate shall be considered binding fourteen (14) days after the Contractor has informed the Client, unless the Client has communicated in writing their explicit disapproval of the new estimate before the expiry of this term.
11.3. Unless Parties have explicitly agreed otherwise, the first 50% of the price specified in the Quote shall be due by the Client prior to the commencement of the Engagement. The remainder shall be invoiced upon completion of the Engagement.
11.4. The Contractor is authorized to invoice the amount due by the Client pursuant to clause 11.3, in several separate installments, or to invoice the total amount due in one installment, as they see fit.
11.5. Unless explicitly agreed otherwise, payment by the Client shall be due, without any deduction, discount or debt settlement, within fifteen (15) days from the invoice date. All payments must be made into a bank account specified by the Contractor.
11.6. Complaints about, or objections to, the amount invoiced by the Client shall not suspend the Client’s obligation to pay the invoice as specified in clause 11.4 of the Terms and Conditions and shall not alter the amount due.
11.7. Any failure whatsoever to fully meet any payment term will place the Client in default (Dutch: ‘verzuim’) by operation of law, without notice of default being required. In the event the Client shall fail to meet their payment obligations, in part or in full, the Contractor shall immediately be owed, and the Client shall immediately forfeit, a penalty fee equal to 1% of the outstanding amount, as well as, from that date, interest over the outstanding amount at a rate equal to the statutory rate of interest applying in the Netherlands at that time. At the end of each year, the amount that is subject to interest will be increased by the interest owed for the past year.
11.8. All costs incurred by the Contractor as a result of the Client’s failure to meet their payment obligations, in full in part, shall be for account of the Client. This shall expressly include all extra-judicial costs as well as judicial costs, such as attorneys’ fees. The Parties agree that the provisions of the Dutch Extrajudicial Collection Costs Regulation Decree (Dutch: Besluit vergoeding voor buitengerechtelijke incassokosten), shall not apply.
11.9. If the Contractor has reason to believe that the financial position and/or payment performance would justify such action, the Contractor shall have the right to demand that the Client make an advance payment and/or provide security or additional security, such as a bank guarantee, to the Contractor. The Contractor may make such a demand at any time prior to or after the commencement of the execution of the Engagement.
11.10. In the event of a jointly commissioned Engagement, each Client shall be jointly and severally liable for payment of the full fee charged insofar as the services were provided for the clients jointly.

12. Liability

12.1. The Contractor shall at all times endeavour to execute the Engagement to the best of their ability and shall exercise the due care that may be expected from the Contractor.
12.2. Except in case of wilful misconduct or gross negligence (Dutch: opzet of bewuste roekeloosheid), any liability of the Contractor arising out of or in connection with the Engagement is expressly excluded. This shall include any consequential, indirect or punitive damages and/or loss of profit.
12.3. The liability of the Contractor arising out of or in connection with the Engagement shall in no event exceed the total amount paid by the Client to the Contractor under the terms of the Engagement.
12.4. The Client shall indemnify the Contractor for any claims by any third parties arising out of or in connection to the Engagement.
12.5. Insofar as the Engagement is carried out with the assistance of any third parties on the side of the Contractor, the limitations of liability set forth herein shall apply to these third parties too.

13. Complaints

13.1. The Client shall notify the Contractor in writing of any complaint regarding the performance of the services rendered under the Engagement and must do so within fourteen (14) days after the performance of the specific service giving rise to the complaint, unless otherwise has been explicitly agreed by both Parties in writing. Upon the expiration of this term, any rights of the Client in regard to this complaint shall lapse.
13.2. The Contractor shall respond to the complaint in a timely and adequate manner, and in any event within fourteen (14) days of receipt of the complaint. Should the complaint be legitimate as well as made in a timely manner, both Parties shall endeavour to remedy this complaint in a mutually satisfactory manner, with the Client having the option of having the service redone free of charge, receiving a proportionate discount on the price of the services or terminating the Engagement with due observance of clause 14.1 and 14.2 of the Terms and Conditions.

14. Early Termination of the Engagement

14.1. Either Party shall have the right to terminate this Engagement prior to its completion, by giving notice to the other Party per e-mail and with due observance of a reasonable notice period, which shall be at least one (1) month.
14.2. In the event the Engagement is terminated by the Client, the Contractor shall be entitled to compensation for services already provided. The Contractor shall also be entitled to any costs that the Contractor will reasonably have to incur as a result of the early termination of the Engagement (including costs relating to the involvement of third parties in the execution of the Engagement), unless the termination is due to circumstances that can reasonably be attributed to the Contractor.
14.3. In the event the Engagement is terminated by the Contractor, the Contractor shall provide all assistance that may reasonably be expected from the Contractor to facilitate a transition of the Engagement to a third party appointed by the Client to execute a similar Engagement, unless the termination is due to circumstances that can reasonably be attributed to the Client.
14.4. Either Party shall be able to terminate the Engagement prior to its completion, either in part or in full, in writing and without observance of a reasonable notice period if the other Party has been granted a provisional or final suspension of payment, or has been declared insolvent or bankrupt, or if its business is or shall be wound up or discontinued.

15. Termination, dissolution or suspension of the Engagement by the Contractor

15.1. The Contractor shall be able to terminate or dissolve this Engagement without observance of a due notice period, or temporarily suspend the execution of the Engagement, in the event the Client fails to comply with any of their obligations under the Engagement or the Terms and Conditions, including but not limited their payment obligations as set forth herein or the obligation to provide the Contractor with the information reasonably required for the execution of the Engagement.
15.2. Any damages sustained as a result of the termination and/or suspension of the execution of the Engagement, in whole or in part, by the Contractor shall be solely borne by the Client.

16. Force Majeure

16.1. The Contractor shall not be obligated to fulfil any obligation arising out of the Engagement, if fulfilment is temporarily or permanently impossible due to events beyond the control of the Contractor. Such events shall include, without limitation: strikes, lock-out, fires, limiting governmental measures in any capacity whatsoever, road blocks, riots, epidemics, devaluation, flooding and storms and long-term and unforeseeable unavailability of one or more employees or third parties essential to the fulfilment of the obligations, long term being understood to mean a period of seven (7) days or longer.
16.2. The Contractor is not liable towards the Client or any third parties for direct and/or indirect damage suffered as a result of the events beyond the control of the Contractor.

17. Recruitment Ban

17.1. During the execution of the Engagement and within one (1) year of termination of the Engagement, neither Party shall employ persons who are or were involved in executing the Engagement on behalf of the other Party or conduct negotiations with such persons about employment, other than in consultation with, and with the approval of, the other Party.
17.2. If, despite the aforementioned recruitment ban, a Party decides to employ one or more persons who were involved in executing the Engagement on behalf of the other Party, the first Party undertakes to pay to the other Party at least the recruitment costs that the latter incurs in recruiting one or more replacement workers.

18. Waiver of Rights

18.1. The rights and powers of the Contractor under the Engagement shall in no way be affected or limited by their failure to directly enforce any of these rights or powers. Notice to waive any right or power laid down in or ensuing from any provision or condition of the Engagement must be explicitly confirmed in writing.

19. Partial Invalidity

19.1. In the event that any article of the Terms and Conditions should appear invalid, illegal, not binding, or unenforceable (either in whole or in part), the remainder of the Terms and Conditions shall continue to be effective to the extent that, in view of the substance and purpose of the Terms and Conditions, such remainder is not inextricably related to and therefore inseverable from the invalid, illegal, not binding or unenforceable provision.
19.2. The Parties shall make every effort to reach an agreement on a new respective article which differs as little as possible from the invalid, illegal, not binding or unenforceable article, taking into account the substance and purpose of the Terms and Conditions.

20. No Assignment

20.1. Neither Party shall be able to transfer the Engagement, nor any of the rights and obligations set forth therein, without the written consent of the other Party. Such consent shall not be withheld on unreasonable grounds.

21. Applicable Law

21.1. All Quotes and Engagements between the Client and the Contractor shall be governed by the laws of the Netherlands. The Vienna Sales Convention expressly does not apply.
21.2. The competent court in Amsterdam, the Netherlands, shall have exclusive jurisdiction over any disputes between the Parties arising out of or in connection to any Quotes and Engagements.