General Terms and Conditions

CPMView is the trade name of CPMview Consulting BV (CoC 09181756). These General Terms and Conditions have been filed with the Chamber of Commerce (CoC) in Gorinchem and can be viewed at www.cpm-view.com.

1. GENERAL

Definition of terms used in the General Terms and Conditions:

1.1 Customer: the Contract issuing party;

1.2 Contractor: CPMView Consulting B.V.;

1.3 Contract and/or Agreement: the agreement between the Customer and the Contractor on the basis of which the Contractor supplies services to the Customer in exchange for the payment of a fee and expenses.

2. SCOPE

2.1 These General Terms and Conditions apply to all services provided by the Contractor to the Customer, except insofar as the Letter of Engagement provides differently.

2.2 The FENIT General Terms and Conditions apply to contracts for a customer domiciled outside the Netherlands.

2.2 The Contractor’s Rules of Professional Conduct and Practice form part of the Agreement. The Customer certifies that he will consistently respect the Contractor’s obligations pursuant to these Rules of Professional Conduct and Practice.

2.3 The Contractor expressly rejects the application of the Customer’s General Terms and Conditions.

2.4 If any provision of these General Terms and Conditions is null and void or annulled, the other provisions of these General Terms and Conditions shall remain in full force.

3. FORMATION OF THE AGREEMENT

3.1 These General Terms and Conditions together with the Letter of Engagement constitute the Agreement and come into effect as soon as a return copy of the Letter of Engagement signed by both the Contractor and the Customer is received by the Contractor. As long as the Contractor has not received the return copy of the signed Letter of Engagement, the Contractor reserves the right to deploy its personnel and other resources elsewhere. The Letter of Engagement is based on the information provided by the Customer and the Contractor at the time. The Letter of Engagement is considered to accurately and fully reflect the Agreement.

3.2 If the Contract was awarded verbally, or a return signed copy the Letter of Engagement has not (yet) been received, the Contract is deemed to have come into effect subject to these General Terms and Conditions as soon as the Contractor, at the request of the Customer, has started work on implementing the Contract.

3.3 The Agreement replaces all previous proposals, correspondence, agreements or other communications effected verbally or in writing.

3.4 The term of the Agreement is for an indefinite period of time, unless it follows from the substance, nature and import of the Contract that it is for a definite period of time.

4. COOPERATION BY THE CUSTOMER

4.1 The Customer shall ensure that all data and documents that the Contractor in his opinion requires for the correct and timely implementation of the Contract are made available to the Contractor on a timely basis and in the form and using the method required by the Contractor.

4.2 The Customer shall ensure that the Contractor is immediately informed of events and circumstances that could potentially be of importance to the correct execution of the Contract.

4.3 Unless the nature of the Contract dictates otherwise, the Customer is responsible for the accuracy, completeness and reliability of the data and documents provided to the Contractor, even when these are provided via or by third parties.

4.4 The Customer shall ensure that the Contractor is provided with office space and other facilities that in the opinion of the Contractor are essential or useful for the execution of the Agreement and that comply with all applicable statutory and other requirements.

This includes the use of ICT3 facilities. In relation to the ICT facilities made available to the Contractor, the Customer is obliged to ensure the continuity of these facilities, for example by providing sufficient backup, security and virus protection procedures. The Contractor shall implement virus protection procedures whenever the Contractor makes use of the Customer’s facilities.

4.5 Unless the nature of the Contract dictates otherwise, the Customer shall assign the personnel deemed necessary by the Contractor, or have this personnel assigned, to enable the Contractor to carry out the required work. If specific personnel is required this shall be jointly agreed upon and laid down in the Letter of Engagement. The Customer shall ensure that his personnel has the right skills and experience required to perform the work.

4.6 The additional costs and additional fees arising from a delay in the execution of the Contract due to the failure to provide the required data, documents, facilities and/or personnel or due to the failure to provide these resources on time or due to the failure to provide these resources at a sufficient level of quality, are for the account of the Customer.

4.7 If the Customer is not the material stakeholder or not the only material stakeholder in the execution of the Contract by the Contractor, then the Customer guarantees that the material stakeholder and/or the other material stakeholder(s) fully concur with the Letter of Engagement and the present General Terms and Conditions and provisions, in the absence of which the Customer, judicially and extra judicially, indemnifies the Contractor of all damages and costs that are related to or arise from the breach of this guarantee.

5. IMPLEMENTATION OF THE CONTRACT

5.1 All work performed by the Contractor shall be carried out in accordance with his best insight and ability in accordance with high standards. In relation to the planned work, the Contractor is obliged to perform to the best of his ability, unless expressly indicated otherwise.

5.2 The Contractor determines the manner in which and by which person(s) the Contract shall be executed, but shall take the Customer’s stated requirements into account to the maximum possible extent. If the Letter of Engagement identifies one or more individuals by name, the Contractor will make every possible effort to ensure that the relevant employee(s) will be available throughout the term of the Contract to carry out the work. Notwithstanding the above, the Contractor is entitled to replace such employees following consultation with the Customer.

5.3 The Contractor may only invoice the Customer for more work than specified in the Contract if the Customer provided prior consent accordingly. However, if the Contractor pursuant to his duty of due care is bound to perform additional work, he is entitled to invoice the Customer for this work, including in the event that the Customer did not provide explicit prior permission for the Contractor to perform this additional work.

5.4 If the Customer wishes to involve third parties in the execution of the Contract, he will only do so after reaching agreement on this with the Contractor, since the direct or indirect involvement of a third party in the execution of the Contract can significantly influence the Contractor’s ability to correctly execute the contract. The provision of the preceding sentence shall apply mutatis mutandis to the Contractor.

5.5 The Contractor shall maintain a working file for the Contract with copies of the relevant documents. This file is the property of the Contractor.

5.6 The Customer accepts that the schedule will be changed if the parties, after signing the Contract, agree to change the Contract and/or the work that ensues from it.

5.7 If the conditions under which the Contract must be executed change after the Contract is signed and this cannot be attributed to the Contractor, the Contractor is permitted to implement all changes to the Contract required to meet the agreed upon quality or otherwise applicable service standards and pass on the costs of these changes to the Customer. If an adjustment of this nature results in additional work the Customer shall be informed accordingly.

6. CONFIDENTIALITY

6.1 Unless a statutory provision, directive or other (professional) rule dictates otherwise, the Contractor and/or the employees assigned by the Contractor shall undertake not to disclose any confidential information acquired from the Customer to third parties. The Customer can grant exemptions in this matter.

6.2 Except with the express prior written permission of the Customer, the Contractor is not entitled to use the confidential information made available to it by the Customer for a purpose other than that for which the information was obtained. An exception hereto shall be made, however, if the Contractor acts on his own behalf in disciplinary, civil or criminal proceedings where such information could be important.

6.3 Unless a statutory provision, directive or other (professional) rule requires the Customer to make a disclosure or the Contractor has provided prior written permission, the Customer shall refrain from disclosing the content of proposals, action plans, project schedules, presentations, reports, advice or other written or non-written communication from the Contractor to third parties.

6.4 The Contractor and the Customer shall impose their obligations pursuant to this article on third parties to be engaged by them.

6.5 Not considered to be in breach of the provisions of Articles 6.1 and 6.2 is the Contractor’s right to report the broad outline of the work performed to the Contractor’s existing and potential clients and then only to provide an indication of the Contractor’s experience.

6.6 The Customer shall indemnify the Contractor against claims by persons whose personal data has been recorded or processed in connection with a register of persons maintained by the Customer or for which the Customer is responsible under law or otherwise, unless the Customer proves that the facts underlying the claim are solely imputable to the Contractor.

7. INTELLECTUAL PROPERTY

7.1 The Contractor reserves all rights in respect of the intellectual property related to products of the mind which the Contractor uses or has used and/or develops and/or has developed in the context of executing the Contract, and in respect of which he holds the copyright or other intellectual property rights or can enforce such rights.

7.2 The Customer is expressly prohibited from reproducing, disclosing or exploiting such products, including computer programs, system designs, working methods, recommendations, contracts and model contracts, and other products of the mind of the Contractor, the foregoing in the broadest sense of the word, irrespective of whether the services of third parties have been engaged for such purposes. Reproducing and/or disclosing and/or exploiting is only permitted after obtaining the Contractor’s written permission. The Customer has the right to reproduce the written documents for use in his own organisation to the extent that such use is appropriate within the object of the Contract. In the event of early termination of the Contract, the foregoing shall apply mutatis mutandis.

7.3 The Customer is prohibited from submitting auxiliary materials of such products to third parties, other than for the purpose of obtaining an expert opinion regarding the Contractor’s execution of the Contract.

7.4 If, in deviation from Article 7.1, the Contractor is prepared to undertake to transfer an intellectual property right, such an obligation shall only be entered into expressly in writing. If the Parties expressly agree in writing that intellectual property rights regarding products specifically developed for the Customer shall be transferred to the Customer, this shall not affect the Contractor’s right to apply and to use, either for itself or for third parties, the parts, general principles, ideas, designs, documentation, works, programming languages and the like underlying that development, without any limitation on other purposes. Nor shall a transfer of intellectual property rights affect the Contractor’s right to undertake developments for itself or third parties which are similar to those completed or to be completed for the Customer.

7.5 The Customer shall not be allowed to remove or modify any designation concerning the confidential nature or concerning copyrights, brands, trade names or other intellectual or industrial property rights from the products delivered by the Contractor.

7.6 The Customer warrants that there are no third-party rights that are inconsistent with providing the Contractor with equipment, software, materials intended for websites (visual materials, text, music, domain names, logos, etc), data files, or other materials, including draft materials, intended for adaptation, installation or incorporation (for example, in a website). The Customer shall indemnify the Contractor against any action based on the claim that such provision, use, adaptation, installation or incorporation infringes a third-party right.

8. FEES

8.1 Unless expressly agreed on otherwise in writing, the Contractor’s fees are not dependent on the result of the issued Contract.

8.2 In the event that fee-setting factors, for example, wages and/or prices, are subject to change after the formation of the Agreement, but before the engagement has been fully executed, the Contractor shall be entitled to amend the earlier agreed upon fee accordingly.

8.3 the Contractor’s fee is exclusive of expenses (such as travel and accommodation expenses and other Contract-related expenses) and exclusive of the expense claims of third parties to be involved by the Contractor.

8.4 All fees shall be exclusive of turnover tax (VAT) and other levies that are or can be imposed by the government.

8.5 If the Customer makes regular payments, the Contractor shall be entitled to adjust the applicable prices and rates by providing written notice at least three months in advance. If the Customer does not wish to agree to such an adjustment, the Customer shall, within thirty days after the notice, be entitled to terminate the Agreement before the date on which the adjustment would have become effective.

9. PAYMENT

9.1 Payment by the Customer must take place without deduction, discount or setoff, within 30 days after the invoice date. Payment must be made in the currency stated on the invoice, by way of transfer to a bank account designated by the Contractor. Objections in respect of the amount of submitted invoices shall not lead to a suspension of the Contractor’s payment obligation.

9.2 If the term referred to in Article 9.1 is exceeded, the Customer, after having been sent at least one reminder by the Contractor to make payment within a reasonable term, is legally in default. In that case, the Customer is liable to pay statutory interest on the outstanding amount from the due date to the date of payment. In addition all legal and extra-legal collection costs incurred after the Customer is in default are for the account of the Customer. The extra-legal costs are set at a minimum of 15% of the principal and interest, without prejudice to the Contractor’s right to recover the extra-legal costs that exceed this amount. The legal costs comprise the full costs incurred by the Contractor, even when these costs exceed the statutory court-approved cost scale.

9.3 If, in the Contractor’s opinion, the Customer’s financial position and/or payment record gives rise thereto, the Contractor is entitled to demand of the Customer that he immediately provide (supplemental) security in a form to be determined by the Contractor and/or to provide an advance. If the Customer fails to provide the demanded security, the Contractor is entitled, without prejudice to his other rights, to immediately suspend the further execution of the Contract, and everything the Customer owes the Contractor for whatever reason is immediately due and payable.

9.4 In the event of a jointly awarded Contract, the Customers, to the extent that activities have been performed for the benefit of the joint Customers, shall be jointly and severally liable for the payment of the full invoice amount.

10. COMPLAINTS

10.1 The Contractor must be notified of complaints made by the Customer in respect of the activities performed and/or the invoice amount within 60 days of the date of dispatch of the documents or information to which the complaints relate, or within 60 days of the defect’s discovery, if the Customer demonstrates that he could not have reasonably discovered the defect earlier.

10.2 Complaints as referred to in the first paragraph shall not suspend the Customer’s obligation to pay. The Customer, on the basis of a complaint about a certain service, in no case has the right to defer or refuse payment of other services supplied by the Contractor to which the complaint does not pertain.

10.3 In the event of a justifiably submitted complaint, the Customer shall have the option of modifying the fee charged, having the rejected activities improved or re-executed free of charge, or, in whole or in part, ceasing to execute the Contract against the pro-rata reimbursement of the fee previously paid by the Customer.

11. DELIVERY DATE

11.1 If the Customer owes an advance payment or if he must make available information and/or materials required for the execution, the delivery date by which the activities must be completed shall not commence until after payment has been received in full by the Contractor or the information and/or materials has/have been fully made available to the Contractor, respectively.

11.2 The Agreement may – unless execution is certain to be permanently impossible – not be dissolved by the Customer due to failure to meet the deadline, unless the Contractor also fails to execute the Agreement in whole or in part within a reasonable period of time of which he has been notified in writing after expiry of the agreed upon delivery date. In such a case, dissolution is permitted pursuant to Book 6, Section 265 of the Dutch Civil Code.

12. DURATION AND CONCLUSION OF THE CONTRACT

In addition to the Contractor’s effort, the duration of the Contract can be influenced by other factors, including the quality of the information received by the Contractor and the cooperation received from the Customer and involved third parties. The Customer and Contractor both are aware that the Contract’s schedule can be subject to change during the course of the Contract. The Contractor therefore cannot guarantee the Contract’s elapsed time. The Customer and the Contractor both are aware that

dates specified as deadlines, milestones, delivery dates or designated using some other term must be considered to be estimates and therefore cannot be considered strict deadlines.

13. TERMINATION OF THE CONTRACT

13.1 The Customer and the Contractor can unilaterally prematurely terminate the Contract if one of them is of the opinion that it can no longer be continued or completed in accordance with the Letter of Engagement and any subsequent additional Contract specifications. Termination of this nature must be communicated to the other party in writing and with proper justification.

13.2 In case of Contract termination by the Customer, the Customer owes the Contractor compensation equal to the agreed upon fees calculated on the basis of the already completed activities, increased by the expenses incurred by the Contractor.

13.3 The Contractor is entitled to invoke his authority to prematurely terminate the Contract if the Contractor in all reasonableness cannot be expected to complete the Contract. The Contractor in this respect retains the right to claim payment of the invoices for the work it has undertaken thus far, whereby the provisional results of the work undertaken so far shall, subject to approval, be made available to the Customer. Insofar as this entails additional costs, these are payable to the Contractor by the Customer.

13.4 If an agreement which, by its nature and substance, will not end when certain conditions, acts or the like are fulfilled, has been entered into for an indefinite period of time, each of the Parties may terminate the Agreement by written notice after proper consultation and with a statement of reasons. If the Parties have not agreed on an express notice period, a reasonable notice period must be observed in terminating the Agreement. The Parties shall never be liable for damages for terminating the Agreement.

13.5 In case the Customer or Contractor becomes bankrupt, requests suspension of payment, terminates its business operations, or due to circumstances neither the Customer or the Contractor can in all reasonableness be expected to continue work on the Contract, the other Party is entitled to immediately terminate the Contract, without prejudice to any rights.

14. LIABILITY

14.1 The Contractor’s total liability for imputably failing to perform the Agreement shall be limited to compensating direct damage, up to at most the amount (exclusive of VAT) stipulated for the Agreement. If the Agreement is primarily a continuing performance agreement with a term exceeding one year, the price stipulated for the Agreement shall be set at the total of the fees (exclusive of VAT) stipulated for one year. The total compensation for direct damage shall not, however, in any case exceed € 500,000 (five hundred thousand euros). ‘Direct damage’ exclusively means:

  1. reasonable expenses which the Customer would have to incur to make the Contractor’s performance conform to the Agreement; this alternative damage shall not be compensated, however, if the Agreement is rescinded by or at the suit of the Customer;
  2. reasonable expenses which the Customer has incurred out of necessity to keep its old system or systems and related faculties operating longer because the Contractor did not provide delivery on a firm delivery date which was binding for it, minus any savings resulting from the delay in delivery;
  3. reasonable expenses incurred to determine the cause and scope of the damage, insofar as the determination relates to direct damage within the meaning of these Terms and Conditions;
  4. reasonable expenses incurred to prevent or mitigate damage, insofar as the Customer demonstrates that these expenses resulted in mitigation of direct damage within the meaning of these Terms and Conditions.

14.2 The Contractor’s liability for injury or damage through death or bodily injury or because of material damage to objects shall never exceed € 1,250,000 (one million two hundred and fifty thousand euros).

14.3 The Contractor’s liability for indirect losses, consequential damages, lost profits, lost savings, loss of goodwill, damage through business interruptions, damage ensuing from claims by the Customer’s clients, mutilation or loss of data, damage relating to the use of objects, materials or software of third parties prescribed for the Contractor by the Customer, damage relating to the engagement of suppliers prescribed for the Contractor by the Customer and all other forms of damage or injury besides those mentioned in Article 14.1 and 14.2, on any account whatsoever, shall be excluded.

14.4 The limitations mentioned in the preceding paragraphs of this Article 14 shall not apply if and insofar as the damage or injury is the result of intentional acts or omissions or gross negligence by the Contractor’s employees or its managers.

14.5 The Contractor’s liability because of an imputable failure to perform an Agreement shall in all cases only arise if the Customer immediately and properly provides a written notice of default to the Contractor, with a reasonable time period for remedying the failure being given and the Contractor still imputably failing to perform its obligations after that period as well.

The notice of default must contain a description of the breach which must be as complete and specific as possible, so that the Contractor can respond adequately.

14.6 The condition for the existence of any right to damages consistently is that the Customer reports the damage to the Contractor as soon as possible after the damage occurs. Any claim for compensation against the Contractor expires by the mere lapse of 24 months after the claim has arisen.

14.7 The Customer shall indemnify the Contractor against all third-party claims because of product liability ensuing from a defect in a product or system which has been delivered by the Customer to a third party and which partly consisted of equipment, software or other materials delivered by the Contractor, except if and insofar as the Customer proves that the damage or injury was caused by that equipment, software or other materials.

14.8 The provisions in this Article shall also apply for the benefit of all legal and natural persons employed by the Contractor in executing the Agreement.

15. FORCE MAJEURE

15.1 Neither Party shall be obliged to perform any obligation if it is prevented from doing so by a situation of force majeure. Force majeure shall also include a situation of force majeure for the Contractor’s suppliers, improper performance of obligations by suppliers prescribed for the Contractor by the Customer, as well as defects in objects, materials or software of third parties which the Customer has required the Contractor to use.

15.2 If a situation of force majeure lasts for more than ninety days, the Parties shall be entitled to terminate the Agreement by rescinding it in writing. What has already been performed pursuant to the Agreement shall in that case be settled proportionately, without the Parties otherwise owing each other anything.

16. CONTRACT TAKEOVER

16.1 The Customer is prohibited from transferring any obligations under the Agreement, or the Agreement in its entirety, to a third party, unless the Contractor expressly agrees to this. The Contractor is entitled to attach conditions to the giving of this consent. In that event the Customer in any case commits to imposing all relevant obligations and payment obligations in the Agreement and these General Terms and Conditions on the third party. Aside from the third party, the Customer at all times remains liable for the obligations in the Agreement and the General Terms and Conditions, unless the parties explicitly agree otherwise.

16.2 In case of a contract takeover, the Customer indemnifies the Contractor of all third party liabilities that could arise as a result of the Customer’s failure to perform or correctly perform any obligation in this Agreement and/or these General Terms and Conditions, unless any mandatory national or international rule or law does not allow for such a provision.

17. INTERNET USE

During the execution of the Contract, at the request of one of the Parties, the Customer and the Contractor shall be able to communicate with each other through means of electronic mail. The Contractor and the Customer both recognise that the use of electronic mail entails risks, such as – but not limited to – distortion, delay and virus infection. The Customer and Contractor hereby agree that they shall not be liable to one another for any damages that may arise for any one party or both parties as a result of the use of electronic mail. The Customer and the Contractor will both do or omit to do everything that may reasonably be expected of each of them in order to prevent the risks referred to above from occurring. In case of doubt concerning the accuracy of the e-mail received by the Customer or the Contractor, the contents of the e-mail sent by the sender prevails.

18. EXPIRY PERIOD

To the extent that this Agreement does not provide for otherwise, the Customer’s rights of action and other authorities for whatever reason vis-à-vis the Contractor expire in any case six months after the date on which an event occurs that enables the Customer to apply these rights and/or authorities against the Contractor.

19. WAIVER OF RIGHTS

Failure to immediately enforce any one of the Contractor’s rights or authorities shall not influence or limit the Contractor’s rights and authorities under this Agreement. A waiver of right to any provision or condition in the Agreement shall exclusively have effect if it is effected in writing.

20. CONVERSION

If and to the extent that any provision of this Agreement cannot be relied upon due to the principle of reasonableness and fairness or the unreasonably onerous character thereof, the relevant provision shall, as regard to content and purport, in any case be given a meaning that corresponds as much as possible thereto, so that such provision can then be relied upon.

21. SURVIVING CONDITIONS

The provisions in this Agreement that are explicitly or implicitly meant to remain in force after the termination of this Agreement, shall subsequently remain in force and shall continue to bind both Parties.

22. CONFLICTING PROVISIONS

In the event that these General Terms and Conditions and the Letter of Engagement contain mutually conflicting provisions, the terms and conditions laid down in the Letter of Engagement shall prevail.

23. BAN ON RECRUITMENT

None of the Parties, during the execution of the Contract and within a period of one year following the termination of the Contract, is permitted to hire employees from the counterparty who are or were involved in the execution of the Contract, negotiate employment with these employees, or otherwise allow these employees, directly or indirectly, to perform work for them, other than in consultation with the counterparty. In case of violation, the Customer owes the Contractor an immediately due and payable fine of six times the gross monthly salary of the relevant employee as last applied by the Contractor increased by an amount of € 5,000 (in words: five thousand euros) per week that the violation persists – whereby a part of the week is rounded up to a full week – likewise up to a maximum of six times the gross monthly salary of the relevant employee as last applied by the Contractor, without prejudice to the Contractor’s right to claim full compensation for damages in case these are higher than the above-referenced fine.

24. APPLICABLE LAW AND CHOICE OF FORUM

24.1 All Agreements between the Customer and the Contractor shall be governed by Dutch law.

24.2 Unless the Parties expressly agree otherwise in writing, any dispute related to Agreements between the Customer and the Contractor shall be resolved by the competent court in the district in which the Contractor has its place of business.