Terms and conditions

Hermes Advisory B.V.
Postbus 192
1250 AD Laren

info@hermes-advisory.com
www.hermes-advisory.com KvK nummer 54071410

General Terms and Conditions Hermes Advisory B.V.

Introduction

Hermes Advisory B.V. is a private limited company incorporated under Dutch law, of which the object is:

• Providing advisory services to companies, governments, organizations and/or private individuals, including providing advice in the field of financial and/or operational issues (such as restructuring and (re)financing) as well as valuation issues (such as valuation of assets and goodwill, valuation of companies upon transfer and calculation of financial and business damages) and issues in the field of integrity (such as preventive and repressive fraud investigations);
• Performing or having performed interim assignments on behalf of companies, governments, organizations and/or individuals;
• Establishing, acquiring and disposing of companies and enterprises, acquiring and disposing of interests therein and managing or having them managed, as well as managing and supervising companies and enterprises and financing them or having them financed.

A list of the shareholders in Hermes Advisory B.V., or at least of the persons holding shares in Hermes Advisory B.V. through their respective holding companies – which persons are also referred to as “partners” in accordance with international usage – will be provided upon request.

The stipulations in these General Terms and Conditions are not only made for the benefit of Hermes Advisory B.V. but also for the benefit of all “partners” (as referred to above) and all other persons working for Hermes Advisory B.V., all persons engaged by Hermes Advisory B.V. in the performance of any assignment and all persons for whose acts or omissions Hermes Advisory B.V. might be liable.

1. Definitions

In these general terms and conditions, the following definitions apply:

1.1 Client: The natural person or legal entity that has commissioned the Contractor to perform Work.

1.2 Contractor: Hermes Advisory B.V. (hereinafter to be referred to as: Hermes Advisory).

1.3 Work: All work commissioned in writing or orally. The foregoing applies in the broadest sense of the word and in any event includes the work as stated in the order confirmation.

1.4 Documents: All items made available by the Client to the Contractor, including documents and/or other data carriers, as well as all items manufactured by the Client in the context of the execution of the assignment, including documents and/or other data carriers.

1.5 Agreement: any agreement between the Client and the Contractor for the performance of Work by the Contractor on behalf of the Client.

2. Applicability

2.1 These general terms and conditions apply to all offers of, agreements of, both written and oral, as well as to all Work by the Contractor. Third parties involved in the performance of the Work may also rely on these General Terms and Conditions.

2.2 Provisions deviating from these General Terms and Conditions shall only apply if they have been agreed in writing. In the event that these General Terms and Conditions and the Agreement concluded between the Client and the Contractor contain conflicting conditions, the conditions included in the Agreement will apply.

2.3 If one or more of the provisions of these General Terms and Conditions are null and void or annulled, the remaining provisions of these General Terms and Conditions will continue to apply. Contractor and Client will then enter into consultations to agree on new rules to replace the void or voided provisions, which will reflect as much as possible the purpose and intent of the void or voided provisions.

2.4 General Terms and Conditions of Client are not accepted by Contractor unless their acceptance has been confirmed in writing by Contractor.

3. Conclusion and duration of the Agreement.

3.1 All quotations are non-binding and are valid for 30 days, unless the Contractor and the Client expressly agree otherwise in writing.

3.2 An Agreement is concluded when the order confirmation signed by the Client or the quotation signed ‘for approval’ has been returned by the Contractor.

3.3 All assignments are accepted and executed exclusively by Contractor. This also applies if it is the express or tacit intention that an assignment be performed by a specific person. The applicability of Section 7:404 of the Dutch Civil Code, which regulates the latter case, and of Section 7:407(2) of the Dutch Civil Code, which establishes joint and several liability in cases where an assignment is given to two or more persons, is expressly excluded.

3.4 The Contractor shall be free to have assignments awarded under its responsibility carried out by “partners” (as referred to above) and other persons working under the name of Hermes Advisory to be designated by the Contractor, where appropriate involving third parties.

3.5 Any changes in the signed order confirmation or in the offer signed ‘for approval’, as a result of which the acceptance, whether or not on minor points, deviates from the offer included in the quotation or offer will be regarded by Contractor as a (further) offer by Client to which Contractor is not bound. The assignment agreement will then not be concluded unless Contractor explicitly accepts the (further) offer made by Client.

3.6 The order confirmation is based on the information provided by Client to Contractor at that time. The order confirmation is deemed to accurately and completely reflect the Agreement.

3.7 In the event of an assignment given verbally for the performance of Work, as well as in the event that a signed assignment confirmation or an offer signed for approval has not or not yet been received by the Contractor, the assignment agreement, subject to the applicability of these general terms and conditions, is deemed to have been concluded at the time that the performance of the Work commences at the Client’s request.

3.8 As long as an offer has not resulted in an order, the Contractor reserves the right to deploy its capacity elsewhere.

3.9 The parties are free to prove by all means that an Agreement was concluded by other means.

3.10 The Agreement is entered into for an indefinite period unless the parties have agreed otherwise in writing or it follows from the content, nature or scope of the Work commissioned that it has been entered into for a definite period.

3.11 If the assignment is suspended by the Client in the interim, the Contractor reserves the right to deploy its capacity elsewhere and cannot guarantee that it will resume the assignment on the date desired by the Client, unless it is agreed that the Client will pay a fee during the period of suspension.

4. Cooperation of the Client

4.1 The Client is obliged to make all Documents which the Contractor believes it needs for the correct execution of the assignment to perform Work, available to the Contractor in good time in the desired form and manner. If the information required for the performance of the Agreement is not provided to the Contractor in good time, the Contractor is entitled to suspend the performance of the Work.

4.2 The Client will also inform the Contractor of all other information relevant to the execution or completion of the Work.

4.3 The Client guarantees the accuracy, completeness and reliability of the aforementioned Documents, even if they originate from third parties.

4.4 The Client will ensure that the employees of its organization involved in the Assignment are available in time and in sufficient numbers for the performance of the Assignment. If the Contractor or any third parties engaged by the Contractor are required to perform Work at the Client’s location or at a location designated by the Client, the Client will provide the facilities reasonably required, such as its own workspace, free of charge.

4.5 The Client will bear any damage, additional costs and additional fees resulting from delays in the performance of the Work caused by the fact that the required information and documents were not made available or were not made available on time or properly.

4.6 Upon completion of the assignment, the documents made available to Contractor will be made available to Client at Client’s request. A claim by Client to Contractor to surrender the documents made available to Contractor shall expire two years after completion of the assignment.

5. Performance of the assignment

5.1 The Contractor shall perform the assignment to perform work with due observance of the applicable laws and regulations and the professional and/or rules of conduct applicable to it, which must always be fully respected by the Client (including the rules of conduct and professional rules of the Netherlands Institute of Chartered Valuators).

5.2 The Contractor shall exercise the care of a good contractor in the performance of the assignments granted to it, in the performance of all work and in the selection of other persons to be engaged by it.

5.3 The Contractor will perform the Work to the best of its knowledge and ability and in accordance with the requirements of good workmanship. The Contractor gives no warranty with regard to the achievement of any intended result of the Work performed. The Contractor only has a best-efforts obligation, unless explicitly agreed otherwise in writing.

5.4 The Contractor will determine the manner in which and by which person(s) the granted assignment will be performed. If possible, the Contractor will take account of timely and responsible instructions given by the Client regarding the performance of the assignment.  If, on reasonable grounds, the Contractor is not prepared to perform the assignment in accordance with the instructions given to it by the Client and the Client nevertheless complies with those instructions, the Contractor will have the right, without any obligation to pay damages, to terminate the Agreement for important reasons.

5.5 The Contractor may, after consultation with the Client, change the composition of the advisory team or replace the person charged with performing the Work by another person if, in the opinion of the Contractor, this is necessary for the performance of the Work. This change may not reduce the expertise of the advisory team or of the person to be deployed or adversely affect the continuity of the performance of the Work.

5.6 Neither the Client nor the Contractor may employ personnel of the other party during the performance of the Work or within one year of its termination or negotiate employment with such personnel other than in consultation with the other party.

5.7 The Contractor is entitled, after consultation with the Client, to have certain work performed by (a) third party (parties), to be designated by the Contractor, if, in the Contractor’s opinion, this is desirable for the best possible performance of the Work for the Client. Should such third party/parties wish to limit its/their liability in this respect, Hermes Advisory shall be of the opinion, and if necessary hereby stipulate, that the Assignments given to it, include the authority to accept such limitation of liability on behalf of the Client.

5.8 Any deadlines specified in the Agreement within which the Work is to be performed are approximate only and not deadlines unless expressly agreed in writing. If the Client owes an advance payment or has to provide information and/or materials required for the performance, the period within which the Work must be completed will not commence until after payment has been received in full or the information and/or materials have been made available, respectively.

5.9 If the Contractor is unable to fulfill its obligations under the Agreement, or is unable to do so on time or properly, as a result of force majeure, those obligations will be suspended until such time as the Contractor is still able to fulfill those obligations in the agreed manner.

6. Confidentiality and exclusivity

6.1 Unless statutory or professional rules impose a duty of disclosure on the Contractor, the Contractor is obliged to maintain confidentiality vis-à-vis third parties who are not involved in the performance of the Work. This confidentiality concerns all Documents of a confidential nature made available to the Contractor by the Client and the results obtained by processing them.

6.2 The Contractor is not entitled to use Documents made available to it by the Client for a purpose other than that for which they were obtained, unless the Contractor is acting on its own behalf in disciplinary, civil or criminal proceedings in which this information is relevant.

7. Intellectual property

7.1 The Contractor reserves all rights with respect to products of the mind that he uses or has used in the performance of the Work. The Agreement concluded with the Client in no way implies the transfer of intellectual property rights, unless explicitly stipulated otherwise in writing.

7.2 The Client is explicitly forbidden to reproduce, disclose or exploit those products, including computer programs, system designs, working methods, advice, (model) contracts, spreadsheet models and other intellectual products of the Contractor, all in the broadest sense of the word, with or without the involvement of third parties.

7.3 Without the Contractor’s explicit written permission, the Client is not permitted to make these products available to third parties other than for the purpose of obtaining an expert opinion regarding the Contractor’s Work, but only after prior consent of the Contractor.

8. Fee

8.1 The Contractor’s fee consists of a predetermined amount and/or is calculated on the basis of rates per unit of time worked by the Contractor. The fee for work other than valuation work may also be increased by a transaction fee (success fee) if agreed in writing.

8.2 The fee and all rates are exclusive of invoices from third parties engaged by Contractor, turnover tax and other government levies, unless otherwise agreed in writing.

8.3 The Contractor will be permitted to increase the fee if, during the performance of the Work, it becomes apparent that the original agreed or expected amount of work was underestimated to such an extent when the Agreement was concluded, and this is not exclusively attributable to the Contractor, that the Contractor cannot reasonably be expected to perform the agreed Work at the originally agreed fee.

8.4 Contractor’s fee, if necessary plus disbursements and invoices from engaged third parties, including any turnover tax/VAT due and other government levies, will be charged to the Client on a monthly basis, unless agreed otherwise in writing.

8.5 If after the conclusion of the Agreement, but before the assignment has been fully completed, factors such as wages and/or prices included in the rates are subject to change, Contractor will be entitled to adjust the agreed rate accordingly, unless otherwise agreed in writing.

9. Payment

9.1. Payment of the amounts due by the Client to the Contractor shall, without the right to any deduction, discount or set-off, always be made within 14 days of the invoice date, in a manner to be indicated by the Contractor in the currency invoiced, unless otherwise indicated in writing by the Contractor. Contractor is entitled to invoice periodically. In each case the Contractor reserves the right to provide the final report to the Client after its invoices have been paid.

9.2. If the Client fails to pay an invoice on time, the Client shall be in default by operation of law. The Client shall then owe interest of 1% per month, unless the legal interest rate is higher, in which case the legal interest rate shall be payable. Interest on the amount due and payable will be calculated from the moment the Client is in default until the moment of payment of the amount due in full.

9.3. If the Client is in default or omission in the (timely) fulfillment of its obligations, all reasonable costs incurred to obtain satisfaction out of court shall be borne by the Client. The extrajudicial costs will be calculated on the basis of what is customary in Dutch collection practice, currently the calculation method according to ‘Rapport Voorwerk II.’ However, if the Contractor has incurred higher costs for collection that were reasonably necessary, the actual costs incurred will be eligible for reimbursement. Any judicial and execution costs incurred will also be recovered from the Client. The Client shall also owe interest on the collection costs due.

10. Complaints

10.1 Complaints concerning the Work performed and/or the invoice amount must be made known to Contractor in writing within 30 days of the date of dispatch of the documents or information about which the Client is complaining, or within 30 days of the discovery of the defect if the Client proves that it could not reasonably have discovered the defect earlier.

10.2 Complaints as referred to in the first paragraph will not suspend Client’s payment obligation.

10.3. In the event of a justified complaint, in the opinion of Contractor, Contractor shall have the choice between adjusting the fee charged, correcting the rejected work or performing it again free of charge, or not (or no longer) performing the assignment in whole or in part against a proportionate refund of the fee already paid by Client.

11. Termination

11.1 The Client and the Contracted Party will be authorized to terminate the Agreement, subject to reasonable notice, by giving written notice, unless reasonableness and fairness dictate otherwise.

11.2 In the event that the Client or the Contractor is unable to pay its debts, files for bankruptcy or suspension of payments or discontinues its business operations, the other party will have the right to terminate the Agreement by registered letter without observing a notice period.

11.3 The Contractor shall in all cases retain the right to payment of the fee for the work performed by him up to the time of termination or dissolution.

12. Liability

12.1 Contractor is not liable for damage suffered by Client because Client or third parties not engaged by Contractor provided incorrect or incomplete information to Contractor.

12.2 Client shall indemnify Contractor against claims by third parties for damage caused by the fact that Client or third parties not engaged by Contractor provided Contractor with inaccurate or incomplete information.

12.3 Contractor is not liable for damage suffered by Client as a result of advice from third parties obtained on the instructions of or with the explicit consent of Client.

12.4. The Contractor is not liable for damage or destruction of Documents during transport or during shipment by mail, regardless of whether the transport or shipment is made by or on behalf of the Client, the Contractor or third parties.

12.5 The Contractor shall only be liable for shortcomings in the performance of the assignment to the extent that they are the result of the Contractor’s failure to exercise the due care, expertise and craftsmanship that may be relied upon when providing advice in the context of the assignment in question. The liability for the damage caused by the shortcomings shall be limited to the amount of the fee received by the Contractor for its work in connection with that assignment. In the case of assignments with a lead time exceeding six months, the liability referred to  shall be further limited to a maximum of the invoice amount for the last six months. The liability shall at all times and under all circumstances be limited to the amount covered by the professional liability insurance taken out by Contractor  .

12.6 If damage is caused to persons or property by or in connection with the performance of an assignment, for which Contractor is liable, such liability will be limited to the amount(s) to which the general liability insurance policy (AVB) taken out by Contractor gives entitlement including the excess borne by Contractor in connection with that insurance policy.

12.7 Contractor shall at all times have the right, if and to the extent possible, to undo Client’s damage.

12.8 Contractor shall never be liable for indirect or consequential damages.

12.9 Client shall indemnify Contractor and hold Contractor harmless from and against all third party claims arising from or related to the Work performed or to be performed for Client, unless such claims result from intent or willful recklessness on the part of Contractor. The indemnity also covers all damage and (legal) costs suffered or incurred by the Contractor in connection with such a claim. This indemnification and guarantee also applies to partners of the Contractor, and other persons working under the name of Hermes Advisory or third parties engaged by the Contractor for the performance of the Work, who may directly invoke this indemnification.

13. Electronic communication

We would like to communicate with you electronically. However, as you know, sending data electronically is not guaranteed to be secure or error-free, and such data may be lost or intercepted, corrupted or destroyed, arrive late or incomplete, or otherwise adversely affected or unsafe for use. Accordingly, we use business prudent procedures to check for the then most common viruses before we transmit data electronically. Notwithstanding any contracts, warranties or confirmations, liability of Hermes Advisory B.V. and its affiliates, other persons working under the name of Hermes Advisory and other representatives is excluded on any grounds whatsoever (including contract, unlawful acts – including negligence – or otherwise) with respect to any errors or omissions arising out of or relating to the electronic transmission of data to you and the reliance you place on such data, including (but not limited to) the acts and omissions of our service providers. This exclusion of liability will not apply to us if the acts, errors or omissions are the result of the criminal, dishonest or fraudulent conduct of our partners, other persons working under the name of Hermes Advisory or other representatives. Please let us know if you do not want us to communicate with you electronically. If the communication relates to an important issue and you are concerned about the potential impact of electronic transmission, please ask us for a hard copy. If you would like us to password protect all or certain documents to be sent, please notify us so that we may make the necessary arrangements.

14. Expiry period

Unless provided otherwise in the confirmation of the assignment or these General Terms and Conditions, rights of action and other powers of the Client vis-à-vis Hermes Advisory B.V., on any grounds whatsoever, shall lapse one year after the date on which the Client became aware or could reasonably have become aware of the existence of such rights and/or powers.

15. Privacy

Hermes Advisory B.V. processes personal data of (contact persons of) its clients in order to (i) execute the agreement and provide the services to the client; (ii) if the consent of the client has been obtained; (iii) in order to comply with its legal obligations; and (iv) if there is a legitimate interest to do so.

Hermes Advisory B.V. will process personal data in accordance with the applicable (European) privacy regulations, such as the AVG of the European Union (EU 2016/679). Hermes Advisory B.V. will take appropriate technical and organizational measures to protect the personal data provided by the client against loss, misuse, unauthorized access, disclosure and changes.

The personal data that Hermes Advisory B.V. has collected about the Client can, if desired, be viewed, rectified, deleted, limited, transferred and opposed to its processing by the Client. Requests must be submitted in writing to the office address of Hermes Advisory B.V. or via info@hermes‐advisory.com. Hermes Advisory B.V. will comply with the client’s requests in a timely manner, unless they are manifestly unfounded or excessive.

Hermes Advisory B.V. sends electronic newsletters and other electronic messages about its products and services to clients who have given permission for this. The option to unsubscribe is included in every electronic message.

16. Language

These general terms and conditions are in Dutch and English. In the event of an error in the content of these General Terms and Conditions, the Dutch text will be binding.

17. Governing Law and Choice of Forum

The legal relationship to which these General Terms and Conditions apply is governed by Dutch law. Disputes will, at the option of the claimant, be settled by the District Court in Amsterdam. If Hermes Advisory B.V. is the claimant, it is, by way of derogation from this, entitled to submit the dispute to the foreign court that is appropriate for the Client.