General Conditions

Article 1 - General

1.1 TMC Group B.V. and the companies belonging to the group of TMC Group B.V. (as referred to in Article 2:24b of the Dutch Civil Code) are parties to these General Terms and Conditions and will hereinafter be referred to as “TMC”.

1.2 “Services” means : all projects to be carried out by TMC for the benefit of Client that are performed by TMC, or at least by TMC’s Consultant(s) on behalf of TMC, pursuant to an Agreement.

1.3 “Client” means: any natural or legal person to whom TMC directs its offers, and the party that places an order with TMC or the party with whom TMC has any legal relationship regarding the performance of Services.

1.4 “Agreement” means: any assignment agreement concluded between TMC and Client within the meaning of Article 7:400 of the Dutch Civil Code, pursuant to which TMC performs Services for the benefit of Client, including so-called “framework agreements” and the separate “sub-agreements” provided for therein. If any provision of the sub-agreement conflicts with any provision of these General Terms and Conditions, the provision of the sub-agreement shall prevail.

1.5 “Consultant” means: any technical professional who has an employment contract with TMC and who, on behalf of TMC, applies his or her professional expertise to the execution of a project at Client’s premises pursuant to an Agreement, whereby the actual authority and control over the work performed by the Consultant rest exclusively with TMC.

1.6 The headings placed above each article in these General Terms and Conditions serve solely for classification purposes. No legal significance may be attached to these headings.

1.7 The Agreements to which these General Terms and Conditions apply concern exclusively assignment agreements within the meaning ofArticle 7:400 of the Dutch Civil Codeand are expressly not temporary employment contracts as referred to in Article 7:690 of the Dutch Civil Code. The deployment of (a) Consultant(s) under an Agreement takes place exclusively under the direction and supervision of TMC; the actual authority and control over the work performed by the Consultant(s) thus rest exclusively with TMC.

Article 2 – Applicability

2.1 These General Terms and Conditions apply to and form an integral part of all offers and quotations (including any attachments) from TMC regarding Services and of all Agreements (including any attachments).

2.2 TMC expressly rejects the applicability of any terms and conditions used by Client to the Agreement and to any further agreements to be concluded between TMC and the Client.

2.3 Deviations from and additions to these General Terms and Conditions are only binding on TMC if agreed upon in writing.

2.4 TMC is entitled to unilaterally amend these General Terms and Conditions at any time. Such amendments shall take effect on current Agreements after TMC has notified the Client of such amendments and provided the Client with the amended General Terms and Conditions, or at such later date as specified by TMC in the aforementioned notification. Amendments to these General Terms and Conditions shall also apply to all offers and quotations from TMC for the provision of Services and to all Agreements issued or entered into after the effective date of the amendments.

Article 3 – Conclusion of Agreements

3.1 All offers and quotations from TMC regarding Services to be provided are non-binding.

3.2 If Client’s acceptance of the offer or quotation deviates from the original terms, this shall be deemed a new offer by Client and a rejection of TMC’s offer or quotation. This new offer must be expressly accepted by TMC in writing before TMC is bound by it in any way.

3.3 TMC is only bound to Client (and therefore an Agreement is only in effect) if an offer or quotation issued by TMC has been expressly accepted in writing by Client within the period specified for that purpose by TMC, or if any offer from Client has been expressly accepted in writing by TMC, or if TMC has commenced performance thereof.

3.4 TMC employees, including the Consultant(s), who do not have express written procuration[HK1] , are not authorized to enter into or conclude an agreement on behalf of TMC. Verbal commitments or agreements made by or with TMC’s employees, or the TMC Consultant(s), are binding on TMC only if they have been confirmed in writing to Client by an authorized representative of TMC.

Article 4 - The Consultant(s)

4.1 The selection of the Consultant(s) to be engaged is made by TMC, following prior consultation with Client regarding the required expertise and the project profile. Vacation days are primarily coordinated between TMC and the Consultant(s), taking into account the continuity of Services. TMC will inform Client in a timely manner of the planned absence of the Consultant(s) to the extent that this affects project progress.

4.2 The Consultant(s) shall carry out the project in accordance with their own professional judgment, without substantive collaboration with Client’s employees. Only TMC is authorized to give the Consultant(s) instructions regarding the manner of performing the Services. TMC manages the Consultant(s) and, in doing so, follows only reasonable, timely, and substantiated instructions from Client as referred to in Article 7:402 of the Dutch Civil Code, to the extent appropriate within the scope of the assignment. Client shall not provide substantive direction and shall not exercise management or supervision over the Consultant(s). Client is authorized solely to provide information regarding project results to be achieved, project objectives, and organizational preconditions, and not regarding the manner in which the Consultant(s) performs/perform Services. Client shall ensure that its employees do not issue individual work instructions to the Consultant(s). Instructions relating to safety and working conditions at the workplace provided by Client are exempt from the foregoing and are governed by the provisions of paragraphs 4.5 and 4.6 of this article.

4.3 Client is prohibited from making the Consultant(s) available to third parties and/or allowing them to work for third parties.

4.4 Any breach of the provisions of paragraph 3 of this article shall, without prejudice to TMC’s other rights (including, without limitation, the right to claim compensation for the full amount of damages suffered by TMC), to a penalty owed by Client to TMC, immediately and fully due and payable, in the amount of €50,000 per violation, plus an immediately due and payable penalty of €1,000 for each day, including any part of a day, that the violation continues.

4.5 Client shall ensure a safe working environment in all respects for the performance of Services and shall take such measures for the performance of Services as are necessary to prevent the Consultant(s) from suffering any damage in the performance of Services. Client is obligated to TMC and its Consultant(s) to comply with all national and international laws and regulations regarding working conditions and safety, to ensure compliance therewith, and to strictly and fully comply with any instructions from the Labor Inspectorate or other regulations based thereon.

4.6 Client shall indemnify TMC against all damages incurred and costs incurred by TMC as a result of any claim by the Consultant(s) for compensation for damages suffered by the Consultant(s) in the performance of Services that is related to Client’s failure to fulfill its obligations under paragraph 5 of this article or is otherwise attributable to a breach by Client of its obligations under the Agreement (including, without limitation, all damages to be reimbursed by TMC to the relevant Consultant(s) in this regard and damages incurred by TMC as a result of reduced availability of the relevant Consultant(s)).

4.7 Client shall provide TMC with all reports relating to working conditions or safety within one (1) week of a request to that effect from TMC.

Article 5 – Performance and Delivery

5.1 The delivery period (or the start thereof) for Services to be provided by TMC is specified in the Agreement. However, the delivery period shall not commence until TMC has received all data, documents, equipment, computer time, and (office) space required for the purpose of properly fulfilling the obligations arising from the Agreement, and after any agreed advance payment has been received by TMC or, upon TMC’s prior request, Client has provided security for payment to TMC.

5.2 The execution and delivery deadlines specified in the Agreement or provided by TMC are non-binding and approximate. Specified deadlines and/or delivery dates shall never be considered strict deadlines, unless otherwise agreed in writing. In the event of late delivery, TMC must be given written notice of default, specifying a reasonable period for performance.

5.3 Execution and delivery deadlines shall be extended by the period during which the performance of the Agreement is delayed due to force majeure on the part of TMC, as referred to in Article 9 of these General Terms and Conditions, and/or by the period during which Client fails to fulfill its obligations under the Agreement.

5.4 TMC has the right to deliver Services in parts. For the purposes of these General Terms and Conditions, each partial delivery shall be deemed an independent delivery.

5.5 TMC shall not be liable for any damages resulting from TMC’s failure to meet performance or delivery deadlines. TMC’s failure to meet performance or delivery deadlines, for whatever reason, shall never entitle Client to compensation and/or suspension of any obligation incumbent upon it arising from this Agreement or from any other agreement related to this Agreement, unless there has been intent or deliberate recklessness on the part of TMC, or unless otherwise agreed in writing between the parties.

5.6 An extension of the performance period at Client’s request may only be granted with TMC’s express written approval. Any costs and losses incurred by TMC as a result of such an extension shall be borne by Client.

Article 6 – Fees and Payment

6.1 The Agreement sets forth the fees owed by Client for the Services to be performed by TMC. The fees are determined based on a pre-agreed project fee, milestone fee, or an estimate based on an indicative assessment of the required effort, as further described in the sub-agreement. If, for indicative purposes, an estimate in hours or a rate per unit of time is used, this serves solely as an estimate for budget monitoring and does not affect the fact that the agreed-upon project fee serves as the basis for invoicing. Different rates apply to work outside the scope of the project described in the sub-agreement. Reasonable expenses incurred by the Consultant(s) will be reimbursed in accordance with the agreements set forth in the Agreement.

6.2 TMC is entitled to amend the rate specified in the Agreement during the term of the Agreement, if changed circumstances reasonably justify such an amendment. Client will be informed of this in writing in advance.

6.3 Unless otherwise agreed, TMC will issue invoices once a month. The invoices will include a status update on the project. They will also list any additional work performed by TMC and the expenses incurred by TMC in connection therewith. Where applicable, TMC will also provide Client with a project progress statement. This statement serves as an explanation of the project invoicing; objections must be submitted to TMC in writing, stating the reasons, within 10 days of receipt. A timely objection does not suspend Client’s payment obligation. If TMC deems the objection to be (potentially) valid, TMC and Client shall enter into reasonable consultation to reach a solution.

6.4 If and as soon as TMC has reasonable grounds to suspect that the total project costs will substantially exceed the estimate included in the Agreement, TMC shall notify Client in writing, stating the expected overrun and the cause thereof. Client shall then have the right to terminate the Agreement by sending a registered letter to TMC within 10 days of the aforementioned notification, subject to a notice period of one (1) month.

6.5 Unless expressly agreed otherwise in writing, payment shall be made without any discount and/or settlement and/or deduction and/or set off. The Client is not permitted to invoke a suspension of its payment obligations, unless such suspension is permitted under the provisions of Article 6.9 of these General Terms and Conditions.

6.6 Payment must be made within 30 days of the invoice date. TMC reserves the right at all times to demand full or partial advance payment and/or to require security for payment. The provisions of Articles 13.2 and 13.3 apply.

6.7 The 30-day payment term set forth in paragraph 6 of this article shall be deemed a strict deadline. In the event of non-payment within this term, Client shall be in default by operation of law, and all amounts owed to TMC by Client shall become immediately and directly due and payable, without any demand for payment or notice of default being required. Furthermore, Client shall owe TMC contractual default interest on the total amount then due, equal to the statutory commercial interest rate applicable at the time the payment term expires, as referred to in Article 6:119a of the Dutch Civil Code, plus 1.5 percentage points per month (with a partial month counted as a full month), until full payment has been made.

6.8 Payment must be made in euros, unless payment in another currency has been agreed upon in writing.

6.9 Client is not entitled to refuse or suspend fulfillment of its payment obligation on the grounds of alleged defects in the Services provided by TMC (provided they are reported in accordance with Article 8.1), unless the defect is acknowledged as such by TMC. Only in the latter case is Client entitled to suspend payment of the amount due until the defect has been remedied.

6.10 Payments made by Client shall always first be applied to settle all costs and interest due and then to the longest-outstanding invoices, even if Client states that the payment relates to a later invoice.

6.11 If full payment is not received within the period specified in paragraph 6 of this article, TMC is entitled, without further notice of default, to charge Client for all costs, both extrajudicial and judicial.

6.12 Any complaints regarding a specific Service provided shall not affect other Services and/or parts thereof covered by the same Agreement. Furthermore, any complaints shall not affect Client’s payment obligation, except as provided in Section 6.9.

6.13 In performing Services, TMC primarily uses its own resources, tools, and equipment. If the use of Client’s facilities or materials is necessary for the execution of the project, TMC and Client shall consult regarding the terms and conditions and a reasonable fee for such use prior to the commencement of such use.

Article 7 – Research and Development Promotion Act (Wet Bevordering Speur- en Ontwikkelingswerk, WBSO)

7.1 The Parties shall jointly endeavor to obtain benefits under the WBSO for TMC’s Consultant(s) working on projects that may be eligible for such benefits. TMC bears ultimate responsibility for the WBSO application and the entire application and reporting process. Client shall provide TMC with the cooperation described in this article.

7.2 TMC reserves the right to describe the work of its Consultant(s) within the framework of the Research and Development Promotion Act and, if deemed appropriate, to include this work in an application.

7.3 In the event of an audit by the grant-awarding authority, Client shall provide full cooperation to TMC and to the relevant authority, including but not limited to access to Client’s project records to the extent they relate to the activities for which the application was submitted.

7.4 TMC is responsible for maintaining accurate and valid time records for the purposes of WBSO accountability. Client shall provide TMC with the project information reasonably necessary for the preparation and substantiation of these time records.

Article 8 – Liability

8.1 Client is expected to review the results of the Services performed by TMC on a weekly basis. Complaints regarding the Services performed by TMC (or regarding the fulfillment of any obligation incumbent upon TMC under the Agreement) must be submitted to TMC in writing within 7 days of the discovery of the defect in question or of the cause on which the complaint is based. After the expiration of this period, no further rights may be derived from the complaint against TMC, and TMC shall not be liable for any form of compensation.

8.2 All liability of TMC for the Services it has performed shall in any event lapse upon the expiration of 6 months after the final delivery of the assignment or after the Services have ended, except to the extent that a claim has been filed by Client within this period and in accordance with Article 8.1.

8.3 TMC shall in no event be liable for any damage suffered by Client that is caused by third-party products used and/or supplied by TMC in connection with the performance of the Agreement. Upon Client’s express written request, TMC shall disclose the identity of the supplier.

8.4 TMC shall in no event be liable for business interruption and/or consequential damages, including but not limited to lost profits and loss of contracts.

8.5 In the event of TMC’s liability, such liability is limited to a maximum of half of the total amount of fees (excluding expenses) specified in the Agreement, unless TMC’s insurance does not cover that amount. Under such circumstances, TMC’s liability is limited to a maximum of the amount paid out by TMC’s insurance in the case in question.

8.6 TMC shall not be liable, and Client shall indemnify TMC against any damage suffered by Client and/or third parties that results from or is related to the Services performed, in any form whatsoever, unless such damage is attributable to TMC pursuant to mandatory provisions of law , or if all of the following conditions are met:

i) the damage was demonstrably caused by TMC and/or the Consultant(s) and resulted from their intent or willful recklessness;

ii) the damage arose in the performance of the Agreement;

and, if the damage was caused by the acts or omissions of the Consultant(s);

iii) Client and/or the third party can demonstrate that it could not reasonably have prevented or limited the damage in question.

8.7 The costs of legal and other assistance that TMC incurs in connection with claims for which it is not liable pursuant to the provisions of these General Terms and Conditions—including, but not limited to, costs related to defense and negotiation—shall be reimbursed by Client to TMC upon TMC’s first request, without prejudice to TMC’s right to charge Client for any additional costs incurred by TMC after providing a detailed breakdown.

8.8 TMC shall not be liable for damage caused by a defect in the Services provided, which is partly attributable to the conduct of Client or its subordinates or other third parties engaged by Client, including the performance by TMC of Services in accordance with the project information, project objectives, or organizational conditions provided by Client.

Article 9 – Force Majeure

9.1 TMC shall never be liable for any damage suffered by Client if TMC is unable to fulfill its obligations under the Agreement, or is unable to do so in a timely or proper manner, as a result of force majeure.

9.2 Force majeure shall in any event be understood to mean a failure for which TMC cannot be held responsible because it is not attributable to its fault, nor is it for TMC’s account under the law, a legal act, or generally accepted commercial practices, as well as in the event of a circumstance that TMC could not or need not take into account at the time the Agreement was entered into and as a result of which the normal performance of the Agreement cannot reasonably be expected by Client, such as, for example, but not limited to, war or threat of war, civil war and riots, vandalism, sabotage, power outages, flooding, earthquakes, fire, plant occupation, strikes, lockouts, changes in government regulations, transportation difficulties, and other disruptions in TMC’s operations. Furthermore, force majeure is understood to mean the circumstance in which (supplier) companies on which TMC may depend for the performance of the Agreement fail to fulfill their contractual obligations toward TMC, unless this is attributable to TMC.

9.3 If, due to force majeure, the performance of Services by TMC (or TMC’s fulfillment of any other obligation) has become impossible or unreasonably onerous, TMC is entitled to terminate the Agreement with immediate effect without judicial intervention and without being liable for any form of compensation. Such termination by TMC shall be effected by registered letter to Client.

9.4 If the force majeure situation demonstrably continues for more than 3 consecutive months, Client shall have the right to terminate the Agreement with immediate effect by means of a registered letter to TMC.

9.5 If, following the conclusion of a force majeure situation, the subsequent performance and/or delivery of Services results in increased costs for TMC, TMC shall notify Client of this before actually incurring the costs. These costs shall be borne by Client, unless Client notifies TMC by registered letter within one (1) week of TMC’s notification that it is terminating the Agreement.

Article 10 – Intellectual and Industrial Property Rights

10.1 All intellectual and industrial property rights and/or database rights relating to the results of Services arising during or in connection with the performance of the Agreement are the property of Client. TMC hereby transfers all aforementioned intellectual and industrial property rights and/or database rights to Client in advance. To the extent required, TMC shall, at Client’s request, provide all necessary cooperation for the transfer, establishment, and/or registration of the aforementioned rights on behalf of Client.

10.2 Client shall indemnify and hold TMC harmless from and against all claims by third parties relating to alleged infringements of the intellectual and industrial property rights and/or database rights referred to in Article 10.1, or other claims relating to infringements of such rights.

Article 11 – Confidentiality Obligation

11.1 Client and TMC are obligated to maintain the confidentiality of all information provided by one (1) of them (“Disclosing Party”) to the other (“Receiving Party”) in connection with the performance of an Agreement, which was expressly designated as confidential by the Disclosing Party prior to its disclosure or which, by its nature, should reasonably be regarded as confidential (“Confidential Information”). Confidential Information includes, without limitation, the terms of the Agreement, as well as information relating to research, development, business operations, finances, products, services, customers, suppliers, employees, or technical knowledge of a party.

11.2 The Disclosing Party’s Confidential Information may be used by the Receiving Party solely for the purpose of performing the Agreement. The Receiving Party shall protect the confidentiality of the Disclosing Party’s Confidential Information in the same manner as it protects the confidentiality of its own Confidential Information; however, under no circumstances shall a Receiving Party exercise less than reasonable care in protecting such Confidential Information.

11.3 The Receiving Party shall not disclose Confidential Information of the Disclosing Party to third parties, except to the Receiving Party’s affiliates and to its and their professional advisors, management, and personnel, and authorized agents in the performance of the Agreement, to the extent that such persons must necessarily have access to such Confidential Information for the performance of the Agreement and provided that such persons are subject to confidentiality obligations with respect to such Confidential Information that are as stringent as the Receiving Party’s confidentiality obligations under these General Terms and Conditions.

11.4 The confidentiality provisions in this Article 11 do not prohibit or restrict the disclosure by the Receiving Party of Confidential Information of the Disclosing Party to the extent that this is necessary to defend itself in court or to comply with mandatory legal obligations or a valid order issued by judicial or governmental authorities, and furthermore do not apply to information:

a. that was demonstrably already known to the Receiving Party prior to its disclosure by the Disclosing Party, without any confidentiality obligations applying in this regard;

b. that was demonstrably developed by or for the benefit of the Receiving Party without using or having access to the Disclosing Party’s Confidential Information;

c. that has been obtained by the Receiving Party from a third party without any confidentiality obligations applying in this regard; or

d. that is or becomes publicly known other than through a breach of the confidentiality provisions set forth in these General Terms and Conditions.

11.5 TMC shall ensure that the Consultant(s) sign(s) a supplementary confidentiality agreement upon the Client’s first request.

Article 12 – Personal Data

12.1 Client and TMC shall treat all personal data provided in connection with the performance of the Services as confidential and process such data in accordance with the provisions of the General Data Protection Regulation (GDPR) and other relevant privacy laws and regulations. Client is prohibited from disclosing personal data obtained from TMC to third parties, unless TMC has given prior written consent.

12.2 Client acknowledges that TMC processes personal data in accordance with its Privacy Statement, which can be viewed at https://www.themembercompany.nl.

12.3 Client indemnifies TMC against all claims by the Consultant(s), Client’s employees, or other third parties against TMC arising from a violation by Client of the GDPR and other privacy laws and regulations, and reimburses TMC for any related costs incurred.

Article 13 – Termination of the Agreement

13.1 In the event that:

a. Client is in default of any obligation incumbent upon it under the Agreement;

b. Client’s business is subject to bankruptcy, suspension of payments, cessation of operations, or liquidation, Client proposes a private debt restructuring agreement, a liquidator or administrator (or similar person) is appointed within Client’s organization, a substantial portion of Client’s assets is seized, or a similar event occurs with respect to Client;

c. Client is dissolved or ceases its activities or a substantial portion thereof, or a decision to that effect is made;

d. Client’s activities are, at a certain moment, wholly or partially relocated abroad;

e. Client merges, is wholly or partially acquired, is reorganized, or is split into separate legal entities, or (a significant portion of) control over Client is transferred to a third party in any other manner, or a decision to that effect is made;

f. there is a change in the (legal) persons authorized to determine the management and/or policy of Client due to the (full or partial transfer or encumbrance of) ownership of voting shares or comparable securities, by agreement, statutory provisions, or otherwise;

g. Client has provided incorrect information, has failed to provide information, or has misled TMC in any way, and TMC would not have entered into the Agreement, or would not have done so under the same terms, had it had access to accurate, complete, and non-misleading information;

TMC shall have the right, without any notice of default (except, to the extent necessary, in the situation described in a. above) and without judicial intervention, to terminate the Agreement in whole or in part, with immediate effect, by means of a registered letter to Client, without TMC being liable for any compensation, but without prejudice to any further rights to which TMC is entitled. In such cases, all claims that TMC has against Client shall become due and payable immediately.

13.2 Without prejudice to the provisions of Article 6.6 of these General Terms and Conditions, TMC is entitled to suspend the performance of its obligations under the Agreement until Client, upon request by TMC and to TMC’s satisfaction, has provided security for the performance of all its obligations under the Agreement.

13.3 If Client refuses to provide the required security, TMC shall be entitled to terminate the Agreement immediately and without judicial intervention, without TMC being liable for any form of compensation.

13.4 Client undertakes to provide, upon TMC’s first written request, full disclosure regarding its creditworthiness based on documents approved by a certified public accountant or another person acceptable to TMC, failing which TMC shall be entitled to terminate the Agreement immediately and without judicial intervention, without TMC being liable for any form of compensation.

 [HK1]Ik heb deze even nader bekeken, en ik denk dat de term klopt. Maar ik kan me ook voorstellen dat een andere term de juridische nuance beter dekt. Checken jullie even?

Article 14 – Assignment of Contract

14.1 TMC is at all times entitled to assign its rights and/or obligations arising from the Agreement to a third party. Client hereby expressly and in advance grants its irrevocable cooperation and/or approval to any assignment by TMC of its rights and/or obligations. In this context, “third party” means: a party other than the contracting party, whether or not part of the group of TMC Group B.V.

14.2 Without the prior written consent of TMC, Client is not entitled to transfer its rights and/or obligations arising from the Agreement to a third party.

Article 15 – Invalidity

If any provision of these General Terms and Conditions proves to be void, voidable, or otherwise invalid or unenforceable, this shall not affect the validity of the (remaining) provisions of the Agreement and of these General Terms and Conditions. In such a case, the parties shall endeavor to replace the provision in question as soon as possible with a legally valid and enforceable provision that most closely approximates the legal and economic intent of the provision that is void, voidable, or otherwise legally invalid or unenforceable.

Article 16 – Governing Law and Dispute Resolution

16.1 These General Terms and Conditions and all legal relationships between TMC and Client, including but not limited to the Agreements, are governed by Dutch law.

16.2 Any disputes that may arise in connection with these General Terms and Conditions or an Agreement, or any other legal relationship existing between TMC and Client, shall be settled by the competent court in the district of Oost-Brabant.