General Terms & Conditions
1. Emendo Capital is a trade name of Emendo Capital B.V., a private company with limited liability established under Dutch law and registered in the trade register of Amsterdam under file number 55629652, hereafter referred to as: “EMENDO”.
2. These General Terms and Conditions are applicable to every assignment, including any follow-up assignment or modified or supplementary assignment, given to EMENDO, the (direct and indirect) managers or to persons who are in the employment of EMENDO, as well as all legal relationships resulting therefrom or in connection therewith. These General Terms and Conditions are applicable to any third party, whether in direct employment or not, who is engaged for the undertaking of any assignment or is or may be liable in connection with this.
3. The applicability of the general terms and conditions of the Client and/or third party is expressly rejected.
4. In the event that any provision of the General Terms and Conditions is void or becomes annulled, the other provisions of the General Terms and Conditions shall remain in full force and effect. The parties shall in this case enter into discussions with the purpose of agreeing to new provisions to replace the void or annulled provisions, taking into account as much as possible the objective and scope of the void or annulled provisions.
Assignment and commissioning
5. Only EMENDO shall apply as the contractor to the Client. Articles 7:404 and 7:407 paragraph 2 of the Burgerlijk Wetboek (Dutch Civil Code, hereafter “BW”) are not applicable.
6. An assignment is deemed to have been agreed by the Parties after the Letter of Engagement provided to the Client by EMENDO has been signed by the Parties. EMENDO shall only be bound to further verbal agreements and conditions after these have been confirmed in writing by EMENDO.
7. Based on that which is stated in Article 6: 219 of the BW, EMENDO is entitled to revoke its offer made in the Letter of Engagement as long as this has not been signed by the Client.
8. In the event that the Client wishes to provide the same assignment at the same time to a party other than EMENDO, or has previously provided the assignment to another party, it must inform EMENDO of this, stating the names of any other parties.
9. The Client is free to make changes to the assignment. The Client must inform EMENDO of such changes promptly and in writing. In the event that the Client fails to do this, any incorrect execution of changes to the assignment shall be at the Client's own expense and risk. In addition, changes to the assignment shall only be valid through and from the time of their acceptance by EMENDO, which acceptance may include, among other things, the execution of the desired changes.
10. Cost increases or reductions arising from changes in the assignment shall be at the expense of or to the benefit of the Client respectively.
11. In the event that a change in an assignment results in any deadlines initially indicated by EMENDO being exceeded, the Parties shall enter into discussion on this as soon as possible.
12. If, for whatever reason, the Client decides to cancel a granted assignment and/or to abandon execution or further execution before an assignment has been completed, the Client shall, unless agreed otherwise in writing, be obliged to pay to EMENDO the costs of that part of the work that EMENDO has already undertaken for the assignment, as well as all reasonable costs already incurred by EMENDO, including all costs owed by EMENDO to third parties for the undertaking of the assignment, without prejudice to any other rights granted by law to EMENDO.
13. It is possible that prices quoted by EMENDO may be subject to change due to an unforeseen change in the tasks. EMENDO shall strive to notify the Client of changes in quoted prices as much as possible in advance. The Client is obliged to accept and pay the adjusted prices in the context of the unforeseen circumstances in accordance with the conditions as set out in the Letter of Engagement, unless there is a compelling reason for not doing so
14. EMENDO is obliged to exercise the care that can be reasonably expected of it in the services provided by it or on its behalf under the given circumstances. This means that EMENDO - as far as it may be reasonably expected of it - will follow timely and responsible instructions regarding the execution of the assignment. In addition, EMENDO will strive to keep the Client informed of its activities in the undertaking of the assignment and the manner of these, and shall notify the Client when the assignment has been completed.
15. EMENDO is not responsible for the achievement of the intended result.
16. The Client is obliged to do that which is reasonably necessary or desirable to enable timely and proper delivery by EMENDO, and in particular by promptly providing or having provided complete, suitable and clear information or materials.
17. The deadlines stated by EMENDO for completing the assignment are indicative in nature and shall not apply as definitive deadlines unless stated otherwise in the Letter of Engagement. The exceeding of any deadline shall not discharge the Client from its obligations to EMENDO.
18. The Client has an obligation to examine regarding the assignment submitted by EMENDO. The completed assignment must be examined by the Client for validity and completeness within 24 hours of delivery. Complaints of whatever nature with regard to the execution of any obligation under the Letter of Engagement concluded between the Parties must be notified in writing to EMENDO, clearly described and substantiated and as soon as possible after completion of the obligation to examine, but in any case within thirty working days of the completion of the assignment, in the absence of which the Client shall be deemed to have fully accepted the result of the assignment.
Involvement of third parties
19. When undertaking an assignment, EMENDO may involve one or more persons who are neither directly nor indirectly associated with EMENDO. A shortcoming of such a person may only be attributed to EMENDO if the Client shows that the choice by EMENDO of this person was not made with diligence. The Client authorizes EMENDO to accept any liability limitations stipulated by such persons on behalf of the Client.
20. If a third party is engaged at the request of the Client or, in the opinion of EMENDO, this is useful or necessary for the undertaking of an assignment, or if this arises from the nature of the assignment, EMENDO is entitled to provide assignments to third parties on behalf of and at the expense of the Client. The costs of these engaged third parties, provided this is described in the Letter of Engagement, have been included in the remuneration for EMENDO in accordance with the Letter of Engagement. If these costs have not been included in the Letter of Engagement (in, for example, the case of additional work that has been undertaken by the third party), the third party shall submit its invoices directly to the Client, unless stated otherwise in the Letter of Engagement.
21. EMENDO shall strive to notify the Client prior to the time that the costs for the engagement of a third party will be made so that the Parties may - if desired - discuss this. If EMENDO drafts an estimate of third-party costs, this estimate shall only be indicative in nature. If desired, EMENDO may request quotations from third parties on behalf of the Client.
22. Any provisions of the general terms and conditions that apply between EMENDO and an engaged third party may, if this is in the interest of the activities and/or assignment, also be declared applicable to the agreement or the Letter of Engagement between EMENDO and the Client. EMENDO shall inform the Client of these provisions, which provisions the Client then must accept before they will apply to the agreement or the Letter of Engagement between the Parties. The General Terms and Conditions of EMENDO already declared applicable to the agreement or the Letter of Engagement between it and the Client shall remain in full force and effect.
23. The Client permits EMENDO, and the persons involved in the execution of an assignment by or due to EMENDO, to share the information pertaining to the Client and to the assignment with other persons associated with EMENDO, to the extent that this is necessary or useful for the undertaking of the assignment. The Client is not permitted to disclose information about EMENDO or about the content of the assignment undertaken (the advice) to third parties unless EMENDO has explicitly agreed to this in writing (by means of a release letter for example).
Prices and payment
24. For the activities that have been agreed in the Letter of Engagement, the Client is obliged to pay the remuneration as stated in the Letter of Engagement.
25. In addition to the agreed remuneration, the costs that are not part of the remuneration that EMENDO incurs for the undertaking of the assignment will be eligible for compensation. These costs include costs of third parties that have been engaged, courier services, travel expenses, accommodation costs, other expenses and travel time, unless other agreements have been made regarding these costs in the Letter of Engagement. Prior to the time that these costs are actually incurred, EMENDO will strive to inform the Client of them so that the Parties may - if desired - discuss them.
26. If, due to the late delivery or non-delivery of full, suitable and clear information/materials or due to an incorrect briefing by the Client, EMENDO is required to perform more or other tasks, it shall invoice the costs of these tasks separately based on the remuneration applied in the Letter of Engagement. If more or other work must be undertaken by EMENDO, it will attempt to inform the Client of this as soon as possible.
27. Prices are excluding VAT and other government charges, unless stated otherwise. Payments must be made in euros.
28. Unless agreed otherwise in writing, invoices submitted by EMENDO must be paid within 14 days of the invoice date and without deferment and/or settlement, in default of which the Client shall be deemed to be in breach. Payments can only be made by bank transfer.
29. In the event that the invoice has not been paid within the payment period, statutory interest shall be owed. If after a reminder payment is still not made, all judicial or extrajudicial collection charges shall be owed that shall amount to at least 15% of the invoice amount with a minimum of € 50.
30. Setoff by the Client is excluded. The Client is not entitled to suspend payment of invoices for work in the Letter of Engagement already completed and/or to be completed.
31. EMENDO is not liable for errors and/or shortcomings in the undertaking of the assignment that have their cause in the conduct and actions of the Client, including but not limited to: a) Errors or shortcomings in the materials and/or information provided by the Client or non-timely delivery of materials and/or information; b) Misunderstandings, errors or shortcomings regarding the undertaking of the agreement if these have their reason or cause in actions of the Client, such as the late delivery or non-delivery of complete, suitable and clear materials and/or information; c) Errors or shortcomings of third parties engaged by or on behalf of the Client; d) Defects in quotations from suppliers or the exceeding of estimates of suppliers; e) Errors or shortcomings in the result of the assignment if the Client has given its approval or has been given the opportunity to carry out a check and not made use of this.
32. EMENDO is only liable for direct loss due to deliberate action or conscious recklessness that is attributable to it. The liability of EMENDO for all loss other than that stated above, such as indirect loss, including consequential loss, loss of profits, corrupted or lost data or materials, or damage due to interruption of operations, is excluded.
33. Any liability arising from or in connection with the undertaking of an assignment is limited to the amount that EMENDO may invoice to the Client in the context of its services for the assignment concerned. The liability will in no event exceed EUR 1 (one) million per claim and per annum. The lowest amount applicable based on this article shall apply at all times.
34. Without prejudice to the provisions of Article 6:89 of the BW, the right to compensation shall in any case lapse twelve months after the event from which the loss directly or indirectly arose and for which EMENDO is liable.
35. The provisions of articles 33 and 34 shall also apply if the Client claims compensation on the basis of any other assumed or acquired right.
36. The Client indemnifies EMENDO in the event of claims by third parties arising from (a) an (incorrect) use of the advice of EMENDO and/or (b) the use of materials/files/information/etc. provided by the Client on which a third party has an intellectual property right.
37. If both the Client and a third party or third parties claim damages from EMENDO in connection with a service rendered to the Client by or due to EMENDO, the Client's own loss will not be eligible for compensation insofar as the amount of damages to be paid already itself, or after the addition of the amount of the claim of the third party or third parties exceeds the limit stated in Article 33.
38. Duration and termination
39. The agreement between the parties is entered into for the duration of the assignment. Premature termination of the agreement is permitted only if the provisions set out in Article 12 are observed.
40. A Party is entitled to dissolve the agreement in whole or in part if the other party is in default (after a notice of default has not been complied with, except in case it is already clear that the shortcoming cannot be remedied or in case of a final deadline and therefore no notice of default needs to be sent), bankrupt or in a situation of moratorium of payment of the other Party as well as in the event of closure or liquidation of the company of the other Party. 5
41. If EMENDO is prevented as a result of force majeure from executing the agreed assignment in full and/or in a timely manner, EMENDO shall have the right to suspend execution of the agreement concerned or to dissolve the agreement in whole or in part by means of a declaration in writing, without EMENDO being liable for any compensation for loss.
42. In case of termination of the agreement due to an (attributable) shortcoming of one of the parties, there shall be no cancellation of that which EMENDO has already provided and/or has undertaken. Amounts invoiced by EMENDO before the dissolution in connection with that which it has already properly performed or delivered for the execution of the agreement shall remain payable in full, with due observance of that which is set out in the previous sentence. Competent court and applicable law
43. The District Court of Amsterdam has exclusive jurisdiction to hear all disputes between the Client and EMENDO, provided that EMENDO remains entitled to address the Client in a court that without the aforementioned choice of forum would be competent to hear disputes between the Client and EMENDO.
44. Dutch Law shall exclusively apply to all relations between the Client and EMENDO. Other
45. The General Terms and Conditions drafted in the Dutch language have precedence over the General Terms and Conditions drafted in English or any other language.
46. The rights and obligations that result from an agreement between the Client and EMENDO are not transferable.
47. EMENDO is permitted to make use of the logos of the Client on its website and/or social media channels, or make mention of the name of the Client to indicate that the Client is a client of EMENDO.
48. Unless agreed otherwise, all the Intellectual Property rights resulting from the assignment - including, but not limited to, patents, design rights and copyright - shall be assigned to EMENDO. Insofar as such right may only be obtained through an application or a registration, EMENDO shall have sole right to do this. As soon as the Client has fully met its payment obligations arising from the agreement, EMENDO shall bestow on it an exclusive, time unlimited license to the use of the result of the assignment, for which license a payment has been included in the payment due for the assignment. The parties expressly agree that this right of use relates solely to the purpose agreed upon in the assignment.