Terms and conditions for The Evaluators

Article 1 Definitions

In these general terms and conditions, the following definitions have the meanings set forth below, unless expressly stated otherwise:

a) Contractor: The Evaluators, with its registered office and principal place of business in Hilversum, the Netherlands, and registered with the Chamber of Commerce under 82589739;

b) Client: The Contractor’s co-contracting party, as well as its affiliated legal and natural persons;

c) Agreement: The (oral or written) agreement to provide services, of which these terms and conditions form an integral part;

d) Conditions: These general terms and conditions;

e) Work: All work ordered, or which is or may be performed by the Contractor on another basis. The foregoing applies in the broadest sense of the word and includes in any event the work as stated in the Agreement;

f) Partners: external parties who perform certain work on behalf of the Contractor.

Article 2 General

These Conditions apply to every (successive) offer, quotation and/or agreement between the Contractor and a Client.
The present Conditions also apply to the performance of work by Partners and/or will also be agreed on for the benefit of these Partners with regard to the performance of this Agreement. In this context, “Contractor” can also be read as “Partners”.
Any derogations from these Conditions are only valid if these have been expressly agreed in writing. Should any deviation be void, not (legally) valid and/or not enforceable, the provisions of these Conditions will apply in full.
The general terms and conditions of the Client do not apply to this Agreement and are rejected by the Contractor. Should this not stand up in court, the general terms and conditions of the Client will only have effect insofar as they are not in conflict with these Conditions. In case of doubt as to whether such a conflict exists, these Conditions will prevail.
If any provision of the Agreement and its constituent Conditions is void or voidable, the other provisions will remain fully applicable. In such a case, the Contractor and the Client will enter into consultation to agree to a new provision to replace the void or voidable provision whereby, if and as far as possible, the purpose and scope of the original provision will be taken into account.

Article 3 Offers and quotations

All quotations and/or offers made by the Contractor are without obligation and are valid for 30 days, unless otherwise indicated. The Contractor is entitled to make interim changes to or withdraw its offer.
Should it become apparent within 10 working days of receipt by the Contractor of the written acceptance of the assignment that the Agreement contains inaccuracies and/or omissions, the Contractor will report this within the specified period, and the Agreement will not come into effect, unless the Client accepts the suggested amendments.
The prices and/or fees in the aforementioned offers and quotations are exclusive of VAT and other government levies, as well as any costs to be incurred in the context of the Agreement, including shipping and administrative costs, unless otherwise indicated.

Article 4 Performance of the Agreement

The Contractor will perform the Agreement to the best of its knowledge and ability and in accordance with high standards. The work under this Agreement concerns a best-efforts obligation on the part of the Contractor and never an obligation to achieve a result, unless expressly agreed otherwise in writing.
The Agreement comes into being between the Client and the Contractor, being the person who will perform the work. The applicability of Sections 7:404 and 7:407(2) of the Dutch Civil Code is expressly excluded.
If and insofar as required for proper execution of the Agreement, the Contractor is entitled to have certain work carried out by Partners.
The Client will ensure that all information indicated by the Contractor as being necessary, or which the Client reasonably ought to understand is necessary for the performance of the Agreement, is provided to the Contractor in a timely manner. If the information needed for the performance of the Agreement is not provided to the Contractor in time or in full, the Contractor will have the right to suspend the performance of the Agreement and/or to charge the Client for the extra costs arising from the delay in accordance with the usual rates.
All agreed terms, dates or times by which the agreed work must be completed are guidelines only, unless they have been expressly and unequivocally agreed between the Client and the Contractor as (a) strict deadline(s) [fatale termijn/termijnen].
The Contractor is not liable for damage or loss of any kind arising from the Contractor having relied on inaccurate and/or incomplete information provided by the Client, unless such inaccuracy or incompleteness should have been known to the Contractor, for which the burden of proof lies with the Client.
If, in the context of the assignment, work is carried out by the Contractor or Partners engaged by the Contractor at the Client's location or at a location designated by the Client, the Client will provide the facilities reasonably required by those Partners and/or required for the performance of the work, free of charge.

Article 5 Amendment of the Agreement

If during the performance of the Agreement it appears to the Contractor that for a proper performance it is necessary to change or supplement the work to be carried out, the Parties will amend the Agreement accordingly in a timely manner and in joint consultation.
The Client accepts that, if additional requests or amendments to the Agreement reasonably result in more work, the additional costs and/or hours involved will be charged to the Client.
If (content of) the Agreement changes or is supplemented, this may affect the time of completion of the performance.
Notwithstanding the foregoing paragraphs, the Contractor will not be entitled to charge additional costs if the change or addition is the result of circumstances that can only be attributed to the Contractor.

Article 6 Contract period and termination

The Agreement between the Parties is entered into for an indefinite period of time, unless the Parties expressly agree otherwise in writing.
Early termination of a fixed-term Agreement is not possible, unless otherwise agreed in writing. If the possibility of early termination has been agreed, the Parties may give notice of termination in writing, subject to the notice period agreed in writing. If no notice period has been agreed, the notice period and conditions specified in paragraph 3 will apply.
Notice of termination of an open-ended Agreement must be given in writing with due observance of a notice period. If no notice period has been agreed in writing, a notice period of 1 month applies. Termination always occurs with effect from the end of a calendar month.
The Agreement may be terminated immediately, without observing a notice period, by the other Party, if:
1. the other Party is in default and the failure of the other Party justifies the termination;
2. the other Party is wound up or discontinued;
3. the other Party is declared to be bankrupt or in a state of liquidation or if a petition is filed for the other Party's liquidation or bankruptcy; or
4. the other Party is granted a suspension of payment or has applied for a suspension of payment.

All claims of the Contractor will become immediately due and payable as a result of such termination, without prejudice to the Contractor's right to claim damages or compensation.

Article 7 Fee

In the Agreement, the Parties may agree on a fixed fee or a fee at an hourly rate.
If no fixed fee is agreed, the fee will be determined on the basis of hours actually spent. The fee will be calculated in accordance with the Contractor’s usual hourly rates, applicable during the period in which the work is performed, unless a deviating hourly rate has been agreed.
If a fixed fee has been agreed and this fee is based on a time estimate or other information as a result of information provided by the Client, then if the actual time or costs for performing this work exceed the fixed fee by more than 10 percent, further consultation with the Client will take place in a timely manner.
Notwithstanding the foregoing, the Contractor will be entitled to increase its prices and/or fees:
1. when it appears that the Client has provided incorrect information regarding the work ex Article 4 and;
2. annually, as at 1 January of any year based on the change in the price index according to the consumer price index (CPI), CPI series for ”all households”, on the most recent basis, published by Statistics Netherlands (CBS), over the period 4 months prior to the rate adjustment and 16 months prior to the rate adjustment.

Article 8 Payment, default and objection

Payment must be made within 14 days of the invoice date, in a manner to be indicated by the Contractor. Objections to the amount of the invoices do not suspend the payment obligation.
If the Client fails to make payment within the term of payment, the Client will be in default by operation of law. The Client will then owe an interest of 2% per month, as well as a compensation for extrajudicial costs, fixed at 15% of the principal sum due including VAT and interest (with a minimum of € 250 per outstanding invoice).
If the Client disputes the invoice, in whole or in part, the Client must notify the Contractor in writing within thirty calendar days of the invoice date, giving detailed reasons. After this period, the Client's right to dispute the invoice will lapse. The burden of proof regarding timely dispute of the invoice rests with the Client. Disputing the invoice will not release the Client from its obligation to pay, at least not with respect to the undisputed portion.
If the Client is in default of the (timely) fulfilment of its payment obligations, the Contractor may withdraw any discounts granted.
The Contractor is entitled to suspend the fulfilment of all its obligations, including the handing over of data, goods or other items to the Client or Partners, until all due and payable claims against the Client have been paid in full.
The Contractor is not liable for any loss by the Client and/or third parties caused by the suspension referred to in paragraph 4.

Article 9 Retention of title, right of retention and risk

All items delivered by the Contractor, including any advice, texts, models, electronic and other files, etc., will remain, are and/or will become the Contractor's property, unless the Parties agree otherwise, and will not be transferred until the Client has fulfilled all payment and other obligations arising from all Agreements concluded with the Contractor.
If the Client fails to fulfil its payment obligation, the Contractor will be entitled to retain any of the Client's goods that the Contractor has in its possession at that time, irrespective of whether these goods are related to the present Agreement or to any other Agreement entered into with the Client, so as to settle all claims which the Contractor has against the Client at that time. The Contractor will waive the right of retention if the Client has provided adequate security for these claims.
The Contractor also has the right of retention if the Client enters into liquidation, is declared bankrupt or granted a suspension of payment, if the Client’s assets become subject to attachment, if the Client dies as a natural person and if the Client is placed under guardianship. The Client, or a person acting rightfully on the Client's behalf, is obliged to inform the Contractor thereof immediately.
The risk of loss or damage of the items that are the subject of the Agreement, will transfer to the Client at the time when the ownership of these items is transferred to the Client and/or when these items are actually delivered and are thereby brought under the control of the Client or third parties to be appointed by the Client.

Article 10 Intellectual property

The Contractor reserves all rights with respect to products of the mind that it uses, has used or which arise in the context of the performance of the Agreement, insofar as rights to these products may exist or be established in a legal sense.
Unless the Parties agree otherwise, the Client will acquire a non-exclusive and revocable license to use the rights referred to in paragraph 1 within the scope and purpose of the work performed by the Contractor under the Agreement.
All documents provided by the Contractor, such as reports, advice, agreements, designs, sketches, drawings, software, etc., are intended solely for use by the Client during the term of this Agreement and may not be reproduced, disclosed or brought to the knowledge of third parties by the Client without the prior written consent of the Contractor, unless the nature of the Agreement or arrangements made provide otherwise.
The Contractor reserves the right to use the knowledge gained in performing the work for other purposes, provided that no confidential information is brought to the attention of third parties.
The Contractor is entitled to mention the work it has performed for the Client in its communications (including its website), mentioning (free of charge) the Client's name and (figurative) marks.
The Client indemnifies the Contractor against all claims by third parties in connection with an alleged infringement of the (intellectual property) rights of those third parties to materials made available by the Client to the Contractor or the third parties in the context of the offer, order or other agreement.

Article 11 Indemnification

The Client indemnifies the Contractor against all claims by third parties in respect of intellectual property rights on materials or data provided by the Client, which are used in the performance of the Agreement.
If the Client provides the Contractor with data carriers, electronic files or software etc., the Client guarantees that this will not infringe any property or copyrights of third parties and that the information carriers, electronic files or software are free of viruses and defects.

Article 12 Return of provided items

If the Contractor has made items available to the Client during the performance of the Agreement, the Client will be obliged to return these items in their original condition, free of defects and in their entirety within 14 days of the termination of the Agreement or immediately on request by the Contractor. If the Client fails to comply with this obligation, all resulting costs will be borne by the Client.
If, for any reason whatsoever, the Client still fails to comply with the obligation referred to in paragraph 1, after having received a reminder to that effect, the Contractor will be entitled to recover any ensuing loss and costs, including replacement costs, from the Client.

Article 13 Liability

Should the Contractor be liable, then such liability will be limited to the provisions of this Article.
The Contractor will only be liable to the Client for direct loss or damage which is the direct result of (a connected series of) attributable failure(s) in the performance of the work. This liability will be limited to the amount of the fee charged for the performance of the work, up to a maximum of the payment to be made by the Contractor's insurer, with a maximum of € 5,000 per event, whereby a series of related events counts as one single event.
If the Agreement concerns a continuing performance contract with a duration of more than 12 months, the amount referred to above will be set at the amount of the fee charged to the Client in the three months preceding the occurrence of the loss or damage, up to a maximum of the payment to be made by the Contractor's insurer, with a maximum of € 10,000 per event.
“Direct loss or damage” is understood to mean exclusively:
1. the reasonable costs incurred in determining the cause and extent of the loss or damage, insofar as the determination relates to loss or damage within the meaning of these Conditions;
2. any reasonable costs incurred to have the defective performance of the Contractor conform to the Agreement, unless such costs cannot be attributed to the Contractor;
3. any reasonable costs incurred to prevent, limit or compensate loss or damage, to the extent that the Client demonstrates that these costs have resulted in limitation of direct loss or damage as referred to in these Conditions.
The Contractor will never be liable for indirect loss, including consequential loss, loss of profit, loss due to (business) stagnation, fines, loss due to loss or damage of data or damage to one's image.
The limitations of liability for direct loss or damage included in these Conditions do not apply if the loss or damage is due to intent or gross negligence on the part of the Contractor.
All possible claims of the Client will lapse if they are not submitted in writing and with reasons to the Contractor within 1 year after the Client became aware or could reasonably have been aware of the facts on which his claims are based.

Article 14 Force majeure

The Parties are not obliged to fulfil any obligation, if they are prevented from doing so as a result of a circumstance that is not attributable to their fault and which they are not accountable for by virtue of the law, a legal act or generally accepted practice.
In these Conditions, force majeure is understood to mean, in addition to its definition in law and in case law, all external causes, foreseen or unforeseen, over which the Client cannot exercise any control, but which prevent the Client from fulfilling its obligations. This includes jobs strikes in the company of the Contractor, imposed government measures and illness or absence of Partner(s).
The Contractor will also be entitled to invoke force majeure if the circumstance preventing (further) performance arises after the date that the Contractor should have fulfilled its obligations.
During the period that the force majeure continues, the Parties may suspend their obligations under the Agreement. If this period lasts longer than four months, each of the Parties will be entitled to terminate the Agreement, without any obligation of compensation of damage or loss to the other Party.
Insofar as the Contractor has already partially fulfilled its obligations under the Agreement at the time of the occurrence of force majeure, or will be able to fulfil them and insofar as independent value can be attributed to the part already fulfilled or still to be fulfilled respectively, the Contractor will be entitled to separately invoice the part already fulfilled or still to be fulfilled respectively. The Client will be bound to pay this invoice as if it were a separate Agreement.

Article 15 Confidentiality

The Parties are obliged to maintain confidentiality towards third parties who are not involved in the performance of the work, except for obligations imposed on the Parties by law to disclose certain information. This confidentiality concerns all information of a confidential nature that has been made available by the Parties to each other and/or has been obtained in the performance of the work. This information may not be disclosed to third parties or used in any way other than for the purposes of this Agreement.
Paragraph 1 does not apply if such information (a) is already in the public domain (and is not attributable to either party), (b) was already in the possession of the receiving party, (c) is obtained by the receiving party from a third party without breach of any obligation of confidentiality, or (d) is independently developed by the receiving party without using the confidential information of the providing party.

Article 16 Penalty clause

In the event of violation of any provision of this Agreement, the Client will forfeit an immediately payable penalty of € 5,000 (in words: five thousand euros) per event, as well as € 1,250 (in words: twelve hundred and fifty euros) for each day the violation continues, to be paid to the Contractor. The foregoing will be without prejudice to the Contractor’s right to claim full compensation, should this be higher.

Article 17 Privacy

The processing of personal data of contact persons of the Client is subject to the privacy statement of the Contractor. The privacy statement can be found at www.evaluators.nl/privacyverklaring/

Section 18 Disputes and applicable law

Any disputes between the Client and the Contractor will be settled by the competent court in the district of the Central Netherlands.
All agreements between the Contractor and the Client are governed by Dutch law.

Version: October 2021

Terms and Conditions