General Terms
Clause 1. – Definitions
Cohesie:
Cohesie B.V. with its statutory seat in Voorthuizen
Services:
The services Cohesie provides to the Client or a third party designated by the Client pursuant to an Agreement.
Client:
The contracting party of Cohesie.
Agreement(s):
The agreement between Cohesie and the Client for the provision of services by Cohesie and the accompanying appendices.
Parties:
Cohesie and the Client.
Clause 2. – Applicability
These General Terms and Conditions apply to all quotations and offers from Cohesie, to all Agreements between the Parties, to all obligations and (legal) acts arising therefrom, and to all work performed by or on behalf of Cohesie. The applicability of the general terms and conditions of the Client is expressly rejected.
Deviations from these General Terms and Conditions shall only be valid after written confirmation by Cohesie. In the event that one or more provisions of these General Terms and Conditions are deviated from, the remaining provisions shall remain in full effect.
These General Terms and Conditions also apply to employees of Cohesie and others who are or were employed in any capacity by Cohesie, as well as to third parties engaged by Cohesie in the performance of the Agreement. These persons and third parties may invoke these General Terms and Conditions directly against the Client.
Cohesie shall be entitled to unilaterally amend these General Terms and Conditions. Cohesie shall inform the Client in writing in a timely manner prior to the amendments taking effect.
Clause 3. – Formation of the Agreement
Quotations from Cohesie shall be valid for the acceptance term stated therein.
Following written acceptance of a quotation, both parties shall sign the draft agreement with appendices drawn up by Cohesie.
If the acceptance by the Client deviates from the quotation or the draft agreement, an Agreement shall only be deemed concluded once Cohesie has agreed to the changes in writing.
All assignments, including assignments issued with a view to performance by a particular person, shall be exclusively issued to, accepted, and executed by, Cohesie. The applicability of Sections 7:404 of the Dutch Civil Code (DCC), 7:407 subsection 2 DCC, and 7:409 DCC is hereby excluded.
Clause 4. – The Services
Cohesie shall endeavor to the best of its ability to perform the Services with care and to realize the quality standards and performance indicators agreed upon in the Agreement. Cohesie cannot guarantee that a desired or expected result will actually be achieved; the Services shall be performed on the basis of a best efforts obligation.
Cohesie shall perform the Services from the office(s) of Cohesie or another location to be designated by Cohesie. If the Parties agree that the Services shall be performed wholly or partially at the Client’s location, the Client shall provide a suitable space that, in any event, meets the requirements of Section 7:658 DCC and the Client shall indemnify Cohesie against all claims related to failure to comply with these requirements.
Unless otherwise specified in the Agreement, Cohesie shall provide the Services within the time limits customary at Cohesie. Time limits, whether or not specified in the Agreement, are approximates only and do not constitute a contractual deadline.
Cohesie shall be entitled to engage third parties for the performance of the Services, while maintaining Cohesie's quality standards.
In the event that changes in laws or regulations relevant to the Services entail new or additional obligations for Cohesie and/or the Client, the Parties shall, in proper mutual consultation, supplement or amend the Agreement (if necessary with retroactive effect). Cohesie and the Client shall notify each other of the aforementioned new or additional obligations, the necessary adjustments to the Agreement arising therefrom, and the associated costs without delay after they become aware of them.
Clause 5. – Information and Cooperation
The Client shall provide the information and data required by Cohesie to perform the Services in a timely and proper manner and shall notify Cohesie of any changes thereto as soon as possible.
Furthermore, the Client shall provide Cohesie with all cooperation necessary for Cohesie to perform the Services. This shall include, among other things, access to and availability of the Client's employees and, with respect to the tasks for which the Client is required to be assisted by core experts pursuant to the Working Conditions Act, in any event providing the opportunity for consultation and cooperation with the health and safety officer and the Works Council, as well as unrestricted access to the workplace.
If this information is not provided in a timely manner, or if instructions are not followed or cooperation is not provided, Cohesie shall have the right to suspend the performance of an Agreement and/or to charge additional costs arising from the delay.
Clause 6. – Rates
All rates and costs listed in a quotation and the Agreement are stated in euros and are exclusive of sales tax and other levies imposed by the government. Cohesie shall be entitled to adjust the rates annually based on cost increases and market developments.
Prior to the effective date of the Agreement, the Client shall provide Cohesie with a recent consolidated payroll statement or an auditor's report, whereby both part-time and full-time employees shall be included in determining the number of employees of the Client. Subsequently, the Client shall provide Cohesie with a monthly statement. Cohesie shall be entitled to verify the Client's statement.
Costs resulting from new obligations arising from changes in legislation or regulations pursuant to Article 4 shall be borne by the Client.
Furthermore, all costs caused by incorrect or incomplete information provided by the Client shall be borne by the Client.
If, due to circumstances beyond the control of Cohesie (other than force majeure on the part of Cohesie), scheduled work is canceled or cannot be carried out, the Client shall nevertheless owe Cohesie the agreed fee and associated costs.
The agreed fee is not due in the event of written cancellation of:
a) courses and training sessions up to two months prior to commencement (the Client also has the right of substitution);
b) projects up to two months prior to commencement;
c) individual client-oriented assignments up to 48 hours prior to commencement.
Reasonable costs associated with the retention and transfer of files may be charged to the Client. This does not affect the fact that retention and transfer of files are subject to the provisions of the privacy regulations.
Clause 7. – Invoicing and payment
Unless a different payment and/or invoicing schedule is included in the Agreement, invoices are issued monthly in advance. Payments by the Client must be made within fourteen days of the invoice date unless otherwise agreed.
If the Client disputes the accuracy of an invoice (or part thereof), the Client must state this in writing and with reasons within 30 calendar days after the invoice date. The Client is nevertheless obliged to pay the undisputed portion. If and to the extent that the disputed portion proves to be due, the Client shall pay statutory commercial interest on the amount that was wrongfully not paid from the expiry of the original payment term.
The Client shall not be entitled to suspend payment or to set off amounts owed to Cohesie against any amount Cohesie owes the Client.
In the event of non-payment or late payment, the Client shall be in default by operation of law and shall owe statutory commercial interest. In addition, Cohesie shall be entitled to charge extrajudicial collection costs amounting to fifteen percent (15%) of the amount due, with a minimum of € 250. Furthermore, in such cases Cohesie shall be entitled to suspend the fulfillment of its obligation arising from the Agreement.
If, in the opinion of Cohesie, the creditworthiness of the Client gives cause to do so, Cohesie shall be entitled to shorten payment terms and/or demand further security.
Clause 8. – Liability
Cohesie’s total liability for any attributable failure in the performance of an Agreement, or for a tort, or on any other grounds, shall be limited to compensation for direct damages suffered by the Client.
Liability of Cohesie for damages other than direct damages—including, but not limited to, indirect damages, consequential damages, lost profits, lost savings, damages resulting from continued wage payments during illness, damages resulting from sanctions imposed by third parties (such as the UWV), such as an extension of the obligation to continue paying wages, reintegration costs, damages resulting from claims by the Client’s customers, damages due to loss, destruction or corruption of data, and damages resulting from premium increases for public and/or private insurance policies, is excluded.
Cohesie shall not be liable for the consequences of failing to follow instructions or advice - correctly, in a timely manner, or fully - from Cohesie or third parties it has engaged. Furthermore, the Client shall remain responsible at all times for the (timely) fulfillment of the obligations of the Client under applicable laws and regulations.
In any event, for any form of damage whatsoever and on any grounds whatsoever, the total liability of Cohesie shall be limited to no more than the fee(s) invoiced for the relevant Agreement (excl. sales tax) over the preceding 12 months, with a maximum of €25,000 (in words: twenty-five thousand euros) per year.
The limitations of liability set forth above shall not apply if and to the extent that the damage results from willful misconduct or gross negligence on the part of Cohesie.
If the Client suffers damage that is covered by its insurance, Cohesie shall never be liable for such damage.
Any claim by the Client against Cohesie shall lapse if the Client fails to give Cohesie written notice of default or to hold Cohesie liable immediately or, at the latest, within one calendar month after the Client becomes aware or could reasonably have become aware of the event giving rise to the damage. in any event, each claim for compensation shall expire by the mere passage of twelve (12) months after the claim arises.
The Client shall indemnify Cohesie against all claims by third parties, including employees of the Client or employees as defined by the Working Conditions Act, against Cohesie related to or arising from the Agreement, unless the relevant claim is the result of willful misconduct or gross negligence on the part of Cohesie and the Client also demonstrates that the Client is not at fault in any way with respect to the relevant damage.
Clause 9. – Non-attributable failure
In the event of force majeure on the part of Cohesie, the obligations under the Agreement to which the force majeure relates shall be suspended for as long as the force majeure situation continues. Force majeure is defined as any circumstance beyond the control of Cohesie that permanently or temporarily prevents the performance of the Agreement and that cannot reasonably be attributed to Cohesie.
To the extent not already included therein, force majeure shall also include: strikes, sit-ins, blockades, embargoes, government measures, war, terrorist attacks or threats, revolution, and/or any similar situation; computer or telecommunications failures; the loss of or inaccessibility of data; power outages; fire; explosions; water damage, flooding, and/or earthquakes, absence and/or illness of employees of Cohesie, as well as delays, breach of contract, or force majeure on the part of the suppliers of Cohesie, without prejudice to Cohesie’s obligation to make every effort to prevent the absence and/or illness of employees of Cohesie.
If the force majeure situation has lasted for three months, or as soon as it becomes clear that the force majeure situation will last longer than three months, either Party shall be entitled to terminate the Agreement prematurely without observing any notice period. In that event, the Client shall owe a portion of the agreed-upon fee corresponding to the progress of the work performed.
Clause 10. – Intellectual property
To the extent that any intellectual property right is attached to any manual, guide, protocol, method, or any other work created by Cohesie, such right shall remain with Cohesie. If, during the term of an Agreement, the parties make any changes to any manual, guide, protocol, or other work created by Cohesie, or if they draft a new guide, manual, protocol, or any other new document, the intellectual property rights to those documents shall also remain with Cohesie. To the extent necessary, the Client shall cooperate in the transfer of any intellectual property right arising on its part regarding material developed within the scope of an Agreement, without demanding any compensation in this respect.
Clause 11. – Privacy, confidentiality and non-disclosure
The privacy policy applicable to the Agreement are set out in an appendix to the Agreement and may be amended by Cohesie if (new) legislation or regulations, or new insights from the Dutch Data Protection Authority, warrant such amendment. The Parties shall render each other all reasonable cooperation in order to enable the other party to comply with its obligations under the General Data Protection Regulation.
As regards confidential information of one of the Parties that does not consist of the information and data already covered by the privacy policy, and of which the receiving Party knows or reasonably should know that it is of a confidential nature, the receiving Party shall not disclose this to third parties without the permission of the other Party unless this is necessary for the performance of the Agreement or the receiving Party is obliged to do so pursuant to a statutory provision. This duty of confidentiality shall apply with respect to information that can be obtained from a generally accessible source without breaching a confidentiality clause, or which was already known to the recipient of the information at the time of receipt of the information pursuant to the Agreement, or if such information was provided by a third party without that third party having breached a confidentiality clause. The Parties shall also impose the duty of confidentiality on their employees and third parties engaged by the Parties.
Cohesie may, subject to the provisions of this article, publish information regarding the work performed within the scope of an Agreement.
Clause 12. – Term and termination of the Agreement
Unless and to the extent otherwise agreed in an Agreement, the provisions of this article shall apply with respect to term and termination.
Agreements are entered into for a term of 1 year and are renewed for the same term each time, unless the Agreement is terminated in writing at least two months before the end of the agreed term.
An Agreement may be terminated by either Party without judicial intervention with immediate effect by registered letter if: one of the parties goes into voluntary or compulsory liquidation, files for a suspension of payments or bankruptcy, becomes bankrupt, or finds itself in a reasonably comparable situation, including situations where it loses control over a substantial part of its assets or ceases its business; one of the Parties is failing imputably in the fulfillment of any obligation under the Agreement and fails to fulfill that obligation within a reasonable period granted for doing so; the reputation of one of the Parties is discredited to such extent that the other Party cannot be required to continue the relationship.
Clause 13. – Prohibition on recruiting personnel
During the term of the Agreement and for one year after its termination, the Client shall not be entitled to employ any employees of Cohesie or third parties engaged by Cohesie, or employees thereof who have been involved in the provision of the Services, or to have them work for the Client in any other way, directly or indirectly.
In the event of a breach of this provision, the Client shall, without any notice of default being required, forfeit a penalty for each breach equal to the gross annual salary of the employee concerned, with a minimum of €50,000, or at least a penalty of €50,000, without prejudice to all other rights of Cohesie.
Clause 14. – Final provisions
Except with the written consent of Cohesie, the Client shall not be permitted to transfer its rights and obligations arising from an Agreement to a third party.
These General Terms and Conditions and the provisions contained in the Agreement supersede all previous agreements made between the Parties. Deviations from the provisions of an Agreement may only be made in writing.
If any provision of these General Terms and Conditions or of an Agreement is invalid or nullified, the remaining provisions of these General Terms and Conditions or the Agreement shall remain in full force and effect, and Cohesie shall draft new provisions replacing the invalid or nullified provisions, to the effect that the contents shall correspond as much as possible with the purpose and the intent of the invalid or nullified provision.
The Dutch text of these General Terms and Conditions shall prevail over any translations thereof, sworn or otherwise.
Clause 15. – Governing law and Jurisdiction
The legal relationship between Cohesie and the Client is governed exclusively by Dutch law.
The Parties shall handle disputes in accordance with the MfN Mediation Rules. If the Parties fail to reach a settlement regarding these disputes in accordance with those Rules, these disputes shall be settled, at the request of the first Party to take action, by the competent court in the district of Utrecht. During the course of a dispute, the Parties shall comply with the obligations set forth in the Agreement.
These General Terms and Conditions were last amended on 18 June 2019.