General Terms and Conditions
Article 1 Scope
1.1 All legal transactions between the Client and NCO Consult shall be subject to these General Terms and Conditions exclusively. The version valid at the time the Contract is concluded shall be applicable.
1.2 These General Terms and Conditions shall also apply to any future contractual relationships even if these General Terms and Conditions are not expressly referred to in collateral contracts.
1.3 Any conflicting General Terms and Conditions on the part of the Client shall be invalid unless they have been explicitly accepted in writing by NCO Consult.
1.4 If any provision of these General Terms and Conditions is or becomes invalid, the other provisions and any contracts concluded pursuant to these provisions shall not be affected thereby. The invalid provision shall be replaced by a provision which best corresponds to the intention and economic purpose of the invalid provision.
Article 2 Scope of Consulting Assignments / Representation
2.1 The scope of each particular consulting assignment shall be individually agreed by contract.
2.2 NCO Consult shall be entitled to subcontract, in whole or in part, the services for which NCO Consult is responsible to third parties. Payment of said third parties shall be effected exclusively by NCO Consult. No contractual relationship of any kind shall exist between the Client and said third party.
2.3 During the validity of this Contract and for a period of three years after termination thereof, the Client shall agree not to enter into any kind of business transactions with persons or organisations NCO Consult employs to perform NCO Consult’s contractual duties. In particular, the Client shall not employ said persons or organisations to render consulting services the same or similar to those offered by NCO Consult.
Article 3 Client’s Obligation to Provide Information / Declaration of Completeness
3.1 The Client shall ensure that during the performance of the consulting assignment, organisational conditions in the Client’s place of business allow the consulting process to proceed in a timely and undisturbed manner.
3.2 The Client shall also inform NCO Consult in detail about previously conducted and/or currently active consulting projects, including those in other areas of competency.
3.3 The Client shall, in a timely manner and without special request on the part of NCO Consult, provide NCO Consult with all documents necessary to fulfil and perform the consulting assignment and shall inform NCO Consult of all activities and conditions pertinent to the performance of the consulting assignment. This includes all documents, activities and conditions that become known or available during the performance of the consulting assignment.
3.4 The Client shall ensure that all employees as well as any employee representation (works council) provided by law, if established, are informed of NCO Consult’s consulting activities prior to the commencement of the assignment.
Article 4 Maintenance of Independence
4.1 The contracting parties shall be committed to mutual loyalty.
4.2 The contracting parties shall be obligated to take all necessary measures to ensure that the independence of all persons working for NCO Consult and/or of any third parties employed by NCO Consult is not jeopardized. This applies particularly to any employment offers made by the Client or the acceptance of assignments on their own account.
Article 5 Reporting / Obligation to Report
5.1 NCO Consult shall be obligated to report to the Client on the progress of services performed by persons working for NCO Consult and/or any third parties employed by NCO Consult.
5.2 NCO Consult shall deliver the final report in a timely manner, depending on the type of assignment.
5.3 NCO Consult shall not be bound by directives while performing the agreed service and shall be free to act at NCO Consult’s discretion and under NCO Consult’s own responsibility. NCO Consult shall not be required to work in a particular place or to keep particular working hours.
Article 6 Protection of Intellectual Property
6.1 NCO Consult shall retain all copyrights to any work done by NCO Consult and/or by persons working for NCO Consult and/or by third parties employed by NCO Consult (including but not limited to tenders, reports, analyses, expert opinions, organization charts, programmes, performance descriptions, drafts, calculations, drawings, data media, etc.). During the contract period and after termination thereof, the Client may use these materials exclusively for the purposes described under the Contract. Therefore, the Client shall not be entitled to copy or distribute these materials without the explicit consent of NCO Consult.
6.2 Any violation of this provision by the Client shall entitle NCO Consult to prematurely terminate the Contract and to enforce other legal claims, in particular for restraint and/or damages.
Article 7 Warranties
7.1 NCO Consult shall be entitled and obligated, regardless of fault, to correct any errors and/or inaccuracies in NCO Consult’s work which have become known subsequently. NCO Consult shall immediately inform the Client thereof.
7.2 This right of the Client expires six months after completion of the respective service.
Article 8 Liability / Damages
8.1 NCO Consult shall be liable to the Client for damages - with the exception of personal injury – only to the extent that these are the result of serious fault (intention or gross negligence). Correspondingly, this also applies to damages resulting from third parties employed by NCO Consult.
8.2 Any claim for damages on the part of the Client may only be enforced by law within six months after those entitled to assert a claim have gained knowledge of the damage and the liable party, but not later than three years after the incident upon which the claim is based.
8.3 The Client shall furnish evidence of NCO Consult’s fault.
8.4 If NCO Consult performs the required services with the help of third parties, any warranty claims and claims for damages which arise against the third party shall be passed on to the Client. In this case, the Client shall primarily refer to the third party.
Article 9 Confidentiality / Data Protection
9.1 NCO Consult shall be obligated to maintain complete confidentiality concerning all business matters made known to NCO Consult in the course of services performed, especially trade and company secrets and any other information concerning type and/or scope of business and/or practical activities of the Client.
9.2 Furthermore, NCO Consult shall be obligated to maintain complete confidentiality towards third parties concerning the content of the work completed, as well as any information and conditions that contributed to the completion of the work, particularly concerning data on the Client’s clients.
9.3 NCO Consult shall not be obligated to maintain confidentiality towards any person working for NCO Consult or representatives of NCO Consult. NCO Consult is required to obligate such persons to maintain complete confidentiality and shall be liable for any violation of confidentiality on their part in the same way as if NCO Consult had breached confidentiality.
9.4 The obligation to maintain confidentiality shall persist indefinitely even after termination of this Contract - with the exception of any duty to give evidence.
9.5 NCO Consult shall be entitled to use any personal data entrusted to NCO Consult for the purposes of the services performed. NCO Consult shall guarantee the Client that all necessary measures will be taken, especially those regarding data protection laws, e.g. that declarations of consent are obtained from the persons involved.
Article 10 Remuneration
10.1 After completion of the services agreed upon, NCO Consult shall receive remuneration agreed upon in advance between NCO Consult and the Client. NCO Consult shall be entitled to render intermediate accounts and to demand payment on account as required by the progress of the work. Remuneration shall be due and payable immediately after rendering accounts by NCO Consult.
10.2 NCO Consult shall render accounts which entitle to deduct input tax and contain all elements required by law.
10.3 Any cash expenditures, expenses, travel expenses, etc. shall be reimbursed to NCO Consult by the Client separately, upon submission of the appropriate receipts.
10.4 In the event that the work agreed upon is not completed due to reasons on the part of the Client, or due to a premature termination of contract by NCO Consult for cause, NCO Consult shall be entitled to claim payment in full of the remuneration agreed upon in advance, less expenses not incurred. In the event that an hourly fee had been agreed upon, the Client shall pay for the number of hours expected to be required for the entire contracted assignment, less expenses not incurred. Expenses not incurred shall be calculated as a lump sum consisting of 30% of the fee required for those services that NCO Consult did not perform by the date of termination of the agreement.
10.5 In the event that intermediate invoices are not paid, NCO Consult shall be released from NCO Consult’s commitment to provide further services. This shall not apply to any further claims resulting from default of payment.
Article 11 Electronic Invoicing
11.1 NCO Consult shall be entitled to transmit invoices electronically. The Client agrees explicitly to accept invoices transmitted electronically by NCO Consult.
Article 12 Duration of the Agreement
12.1 This Contract terminates with the completion of the project.
12.2 Apart from this, this Contract may be terminated for good cause by either party at any time without notice. Grounds for premature termination include the following:
Article 13 Final Provisions
13.1 The contracting parties declare that all information contained herein is accurate and made in good conscience. They shall be mutually obligated to immediately inform the other party of any changes.
13.2 Modifications of and amendments to this Contract or these General Terms and Conditions shall be made in writing. This shall also apply to a waiver of this requirement in written form.
13.3 This Contract is governed by the substantive law of the Netherlands excluding the conflict-of-law rules of international private law. Place of fulfilment is the registered business establishment of NCO Consult. Jurisdiction in all disputes is the court in the place where NCO Consult is based.