CLAUSE 1: DEFINITIONS
"HOMECARE SOLUTIONS" is taken to be: HOMECARE SOLUTIONS Consult
& Interim with registered office at Satijnvlinder 12, 2317
KJ Leiden, The Netherlands, under the Dutch Chamber of Commerce
nr. 66297249. The "client" is taken to be: Any natural or legal
person, who places an order with HOMECARE SOLUTIONS or requests
a quotation from it, or who enters into an agreement with it,
directly or via an authorised person who acts in name of and for
the account of the client (or present themselves as a person
authorised to represent the client).
CLAUSE 2: SCOPE
2.1 The following conditions are applicable to all quotations,
assignments and order confirmations, and to any modifications of
- or to the assignment, as well as to all deliveries, invoices
and all agreements undertaken by HOMECARE SOLUTIONS, unless
HOMECARE SOLUTIONS has declared its express, unambiguous and
advance agreement to a different provision in writing.
2.2 With the exception of special provisions, the information
shown in the quotations (including presentations, brochures,
etc) of HOMECARE SOLUTIONS, is solely indicative in nature, and
is given merely for the purpose of further finalisation in
consultation with the client, with the aim to come to a final
agreement.
2.3 The final assignment and order will be confirmed by HOMECARE
SOLUTIONS in an order confirmation. An order confirmation will
consist of (i) a description of the assignment, (ii) if
applicable, the various phases and, if the case may be, an
indication of the periods of time within which the
assignment/phases of the assignment must be executed, and; (iii)
the price of the order/for each phase, including any price
adjustments for long-term assignments, and any costs that would
not be included in the price. The order confirmation will be
valid for thirty (30) calendar days from the date on which it is
made.
2.4 The order confirmation will contain the entire assignment,
as it will be executed against the price agreed between the
parties; the modalities listed in the order confirmation are,
together with these general conditions and any annexes, fully
applicable to the assignment. The signature of the order
confirmation by the client, or the payment of the advance
payment provided for in clause 4.1, will constitute a valid
agreement between the parties regarding the order confirmation,
its annexes and these general terms and conditions, the latter
being fully applicable to the order confirmation and its
annexes. If no agreement is reached within thirty (30) calendar
days from the date of the order confirmation, the order
confirmation cease to be valid, and HOMECARE SOLUTIONS will no
longer be bound to what is provided therein. The client
expressly waives any existing terms and conditions of his own,
even if these should be defined as the only applicable
conditions and/or had been presented in other communication
between the parties. Any change or amendment to the present
general terms and conditions must be expressly agreed in
writing.
2.5 If the Client has had knowledge of the present terms and
conditions in relation to a written quotation or an order
confirmation, he will not be able to challenge the applicability
of these in relation to any verbally given quotations and /or
order confirmations of a later date.
2.6 Cancellation of an assignment, or part of an assignment,
must take place in writing, and must be expressly accepted by
HOMECARE SOLUTIONS. Every cancellation of an assignment, whether
accepted or not and for whatever reason, will in all
circumstances entitle HOMECARE SOLUTIONS to claim full payment
of the agreed fees for the services that have already been
executed, with a minimum of one half of the sum of the agreed
advance payment(s), as well as full payment of all the extra
costs and indemnities that are due by HOMECARE SOLUTIONS to
third parties, for the commitments and obligations that it
already entered into in the framework of the assignment and/or
subsequent to its cancellation,
2.7 Any annexe(s), which has/have been added to the order
confirmation, will be an integral part of this agreement. The
annexe(s) will list, amongst others, the characteristics of the
project that HOMECARE SOLUTIONS will execute for the client.
CLAUSE 3: PRICES
3.1 All the prices and costs that are given will be exclusive of
VAT, unless stated to the contrary.
3.2 In accordance with clause 2.2. of these general terms and
conditions, all prices, including any price adjustments for
long-term assignments and costs, which are stated in our
quotations are indicative and not binding for HOMECARE
SOLUTIONS.
3.3 All prices, including any price adjustments for long-term
assignments, and all costs documented in an order confirmation,
will be valid for a term that is determined in the order
confirmation. If no term is shown in the order confirmation, the
prices stated will be valid for thirty (30) calendar days, from
the date of the order confirmation.
3.4 Unless expressly provided otherwise in the order
confirmation, all internal costs and costs of subcontractors are
included in the shown prices. Unless expressly provided
otherwise in the order confirmation, none of the transfer and
travel costs in The Netherlands and abroad or/and any of the
communication and accommodation costs outside The Netherlands,
are included in the shown prices.
3.5. Changes to the agreed prices, in consequence of an
extension or modification of the agreed assignment, or for any
other reason, can only be implemented by express written
agreement. HOMECARE SOLUTIONS reserves the right not to commence
the extended or modified part of the assignment– or, if the case
may be, to defer it - as long as no express agreement exists
concerning the price of the extension or modification.
3.6. If discounts are granted to a client, these will apply
exclusively to that specific assignment or the relevant part of
the assignment, for which they are granted. Under no
circumstances, not even where such discounts are granted
repeatedly will they create a right for the client to similar
discounts on later orders.
3.7. For prices that are expressed as a daily rate, the “daily
rate” is deemed to apply to an average day’s activity of eight
full performed working hours.
CLAUSE 4: INVOICING AND MODES OF PAYMENT
4.1 Assignments that have been agreed with the client will be
executed in phases, as set out in the order confirmation. Save
any express agreement to the contrary, the client shall make an
advance payment of 30% of the total price of the requested
assignment, as documented in the order confirmation, and by the
date determined in the order confirmation. Concurrently with the
confirmation of his agreement with the order confirmation, the
client must present all necessary information and, in
particular, his references (PO number, etc..), so that HOMECARE
SOLUTIONS can invoice the client for the advance payment. The
granting of an express or tacit extension of the deadline for
the making of the advance payment, does not deprive HOMECARE
SOLUTIONS of the right to rely upon the application of clauses
4.3 and 4.4 at any time during the extension period.
4.2 Save for what is provided in clause 4.1, in special
provisions of the order confirmation, or in an express agreement
on the part of HOMECARE SOLUTIONS, HOMECARE SOLUTIONS will
invoice its services at the end of each phase of a given order.
The invoice will show the prices for the services that have been
provided and, if the case may be, any discounts that have been
granted as well as the prices for the extension or modification
of the assignment in accordance with clause 3.5, and any costs
that have not been included in the prices as set out in clause
3.4.
4.3 Unless stated to the contrary in the order confirmation, all
invoices are payable within thirty (30) days after the invoice
date. In case of non-payment within this period of time, or
within the period of time agreed in the order confirmation,
interest on arrears will be - by right and without proof of
default - due at the rate of 12% per year on the outstanding
balance until full payment has been made. In addition, a
flat-rate indemnity will be due at a rate of 10% of the invoice
sum that has not been paid.
4.4 A non-payment, or a partial non-payment of the advance
payment or any subsequent invoice on its due date, constitutes
gross negligence as referred to in clause 14.2, and entitles
HOMECARE SOLUTIONS to defer (further) execution in full or in
part, including works that were already initiated, until full
payment has been made of the (advance payment) invoice, without
prejudice to the right for HOMECARE SOLUTIONS to claim an
additional indemnity and/or to adjust the deadlines that have
been agreed in accordance with clause 5.2. and/or to terminate
the agreement in accordance with clause 14.
4.5 When an order confirmation or a modification of an
assignment is signed by an independent intermediary, who present
themselves as a person authorised by the client to enter into
the agreement with HOMECARE SOLUTIONS on behalf of the client,
this intermediary will be held jointly and severally liable with
the client for the payment of the invoices, including any
interest on arrears and costs that are payable, as well as for
any other indemnity to which HOMECARE SOLUTIONS is entitled, as
a consequence of the non-payment of the invoices.
4.6 An invoice can only be validly challenged, if this is
notified to HOMECARE SOLUTIONS within a period of seven (7) days
by registered letter with return receipt.
CLAUSE 5: EXECUTION DEADLINES
5.1 The execution deadlines will be set by HOMECARE SOLUTIONS.
Unless agreed otherwise, the first period of time will commence
at the moment when the advance payment is received, as provided
for in clause 4.1. Failure to meet the execution deadline for
whatever reason, with the exception of gross negligence or
premeditation on the part of HOMECARE SOLUTIONS, will not give
the client any right to an indemnity, nor will it allow him to
cancel or annul the agreement, or not to meet any obligation
that may be imposed upon him in virtue of this agreement or in
virtue of any other agreement between the client and HOMECARE
SOLUTIONS.
5.2 HOMECARE SOLUTIONS has the right to unilaterally alter or
extend the defined deadlines, or to postpone them, in case the
client does not provide HOMECARE SOLUTIONS in time with the
components that it requires for completion of its task, and/or
if the client does not provide in time the
approvals/confirmations that HOMECARE SOLUTIONS might require
from the client in order to execute the assignment. In such
case, HOMECARE SOLUTIONS will provide the client as soon as is
reasonably possible with a new planning after receiving the
relevant components and/or consents; in any case, the time
periods will be extended with a term that is at least equal to
the term of the delay that has occurred in the supplying of the
components and/or approvals/confirmations.
CLAUSE 6: EXECUTION OF THE AGREEMENT AT THE CLIENT'S PREMISES
6.1 When the execution of the instruction requires the presence
of HOMECARE SOLUTIONS’s staff at the client’s premises, the
latter will be obliged to provide all the facilities that are
needed in order for the agreed services to be executed in
favourable circumstances. These facilities will consist amongst
others - but not exclusively - of: Easy access to the premises
where the assignments are to be executed; Provision of a
workplace and the material resources that are necessary for the
execution of the agreed services; Provision of a work
environment that enables HOMECARE SOLUTIONS to meet its
obligations, amongst others those relating to health and safety
with respect to its employees.
CLAUSE 7: COMPLAINTS
In order for it to be valid, notification of every complaint or
refusal connected with an item or the provision of services must
be given to HOMECARE SOLUTIONS by registered letter with return
receipt, such notification to be made within seven (7) days
after the goods or services in question have been supplied.
CLAUSE. 8: LIABILITY
8.1 HOMECARE SOLUTIONS will carry out the assignments with which
it has been entrusted to the best of its ability and in
accordance with the professional standards relating to research
and consulting.
8.2 HOMECARE SOLUTIONS will only indemnify the client for
material damage and/or bodily injury, which has been caused
directly by proven gross negligence or premeditation on the part
of HOMECARE SOLUTIONS, in the provision of the services as
described in the order confirmation and/or any later express
agreement regarding any modification or adjustment of the
assignment. HOMECARE SOLUTIONS will only be liable for direct
damages suffered by the client with whom HOMECARE SOLUTIONS has
entered into an agreement, to the exclusion of all other damages
such as, amongst others, financial losses, commercial damages,
loss of profit and/or loss of income, damages caused by the loss
of information, etc.
8.3 The liability of HOMECARE SOLUTIONS will be limited to
refunding an amount corresponding to that part of the service
only that is not compliant with the assignment, the amount of
the indemnity being in any case limited to the lowest amount
that is arrived at on the basis of: (i) actual proven damages;
or (ii) the total for all the invoices presented to the client
during the last twelve months; or (iii) five hundred thousand
Euros (€ 500,000);
8.4 HOMECARE SOLUTIONS cannot be held liable for any failure in
the execution of an order by a third party if the latter has
intervened with the express approval or at the request of the
client.
8.5 HOMECARE SOLUTIONS has taken all reasonable steps to protect
all data that it stores and processes. However, unless expressly
agreed otherwise, HOMECARE SOLUTIONS can not be held liable for
any loss, theft or abuse by third parties, of any data
transferred by the client to HOMECARE SOLUTIONS and stored
within the premises of HOMECARE SOLUTIONS.
8.6 The products, services and consultancy services that have
been ordered will be provided at the client’s risk. HOMECARE
SOLUTIONS can not be held liable for any loss that might occur
during - or as a result of - the transfer of confidential or
secret information to and from the client.
8.7 The client will hold HOMECARE SOLUTIONS harmless of any
claim or complaint by third parties, concerning works,
documents, information or resources that are supplied to
HOMECARE SOLUTIONS by, on behalf of - or via the client.
HOMECARE SOLUTIONS cannot be held liable under any circumstances
for the client’s failure to comply with the statutory
obligations that are applicable to him, or any other obligations
that are imposed on him by an administrative or judicial body or
authority, or a deontological rule, professional rule or
relevant custom.
CLAUSE 9: INTELLECTUAL PROPERTY
9.1 The goods, services and consulting services that are sold,
whether or not already supplied, will remain the property of
HOMECARE SOLUTIONS until they have been paid for in full by the
client.
9.2 The client expressly gives HOMECARE SOLUTIONS its consent to
reproduce and publicise its trading name, company name,
trademarks and logos on its website and in company
presentations, so that HOMECARE SOLUTIONS’s activities can be
promoted amongst - and explained to - its clients and prospects.
The client may use HOMECARE SOLUTIONS’s trading name, company
name, trademarks and logos unless expressly prohibited by
HOMECARE SOLUTIONS.
CLAUSE 10: PRIVACY OF INFORMATION
10.1 The client agrees that HOMECARE SOLUTIONS and its business
units may input and store information relating to the contact
persons within the client’s company, including their names,
telephone numbers and e-mail addresses, in all the countries in
which HOMECARE SOLUTIONS operates. This information will be
processed and used within the context of the commercial
relations between HOMECARE SOLUTIONS and the client, amongst
others, for the sending of information concerning HOMECARE
SOLUTIONS’s activities and services. The latter will only apply
insofar as the client has not disallowed such types of use. The
client and his employees are entitled, free of charge and at all
times, to request access to the information that HOMECARE
SOLUTIONS has stored in connection with him/her, and to request
that it be corrected or eliminated. The request to eliminate
such information cannot be granted while the assignment is being
carried out, in relation to the information that HOMECARE
SOLUTIONS requires for the execution of its assignment and for
administration and invoicing.
10.2 Insofar as the client transfers personal information or
makes it available to HOMECARE SOLUTIONS, he must bear sole
responsibility for this. HOMECARE SOLUTIONS undertakes to adhere
to the client’s instructions in the matter, but will not be
liable in any way whatsoever to the persons in question as
concerns the storage, safety and use of the information relating
to them. The client guarantees that he will comply with the
applicable legislation in the matter, amongst others that which
is related to the protection and processing of personal
information, and in this regard it holds HOMECARE SOLUTIONS
harmless with respect to any such complaint or demand on the
part of persons, whose information has been transferred or made
available, and as concerns any such intervention on the part of
the authorities that have been empowered in this matter.
CLAUSE 11: CONFIDENTIALITY
11.1 The information and data that are exchanged as a
consequence of the assignment agreed between the parties, which
are collected by HOMECARE SOLUTIONS as a consequence of the
assignment, and the analyses and recommendations that are a
result thereof, together with the other information that is
supplied to HOMECARE SOLUTIONS by the client and by HOMECARE
SOLUTIONS to the client, are entirely confidential and must not
by any means be disclosed. "Confidential information" is defined
here as any form of information, be it written or spoken or made
known by the parties to each other in any other form and within
the context of the agreement, with the exception of information
that has already been disclosed or become available legitimately
via a source other than the parties and/or other than the
information disclosed pursuant to clause 10.3. All information
(e.g. quotations, presentations, models, algorithms…), that has
been made known by HOMECARE SOLUTIONS prior to any agreement
with a (potential) client also constitutes confidential
information. It is only with the express consent of the party to
whom the data or information belongs, or when it is strictly
necessary for the execution of the assignment, or in order for
their rights to be asserted in a dispute with respect to the
other party, that the information may be disclosed or passed on
to third parties. HOMECARE SOLUTIONS and the client also
undertake to impose the agreed confidentiality obligation on
their employees, staff, sub-contractors and suppliers, to whom,
for the execution of the assignment or the use of the research
and the results of it, it might be compelled to grant access to
confidential information belonging to the other party. HOMECARE
SOLUTIONS and the client will nevertheless remain solely and
fully liable to the other party as concerns fulfilment of the
confidentiality obligation.
11.2 This confidentiality obligation will apply for the full
duration of the agreement and for five (5) years after its
termination, unless agreed to the contrary in writing.
CLAUSE 12: FORCE MAJEURE
12.1 "Force majeure" is taken to be any situation that renders
the execution of the assignment impossible or so difficult that
its execution would be detrimental to the party subject to force
majeure, or would be entirely disproportionate to the value of
the agreement that has been entered into, such as, amongst
others, natural disasters, war, strikes, lock-outs, a lack of
raw materials and energy, electricity power cuts, technical
malfunctions of server systems or internet traffic, the
disruption of trade or business, fire, breaking and entering,
water damage and explosions, and any other similar or
unforeseeable event.
12.2 If HOMECARE SOLUTIONS is prevented by force majeure from
meeting its obligations to the client, then it will be entitled,
without judicial interventions and at its own discretion, either
to defer the execution of the agreement or to consider the
agreement to have been dissolved in full or in part, without the
possibility of being obliged to pay indemnity for this. The
client will also be entitled to cancel the agreement without any
right to indemnity if the force majeure lasts longer than six
(6) months, or if the client can demonstrate that the force
majeure affecting HOMECARE SOLUTIONS has the consequence that
the assignment entrusted to HOMECARE SOLUTIONS becomes entirely
obsolete,.In all instances, the client is obliged to pay for the
services rendered by HOMECARE SOLUTIONS.
CLAUSE 13: (EARLY) TERMINATION OF THE AGREEMENT
13.1 The agreement will terminate upon full payment of the last
invoice from HOMECARE SOLUTIONS, which relates to or that
follows the completion of the assignment, on the understanding
that its provisions will continue to be in effect with regard to
any dispute and/or the consequences of each event, action or
circumstance that has come into being or has emanated from the
agreement or its execution, and with the exception of what is
provided for in clause 11.2. concerning the confidentiality
obligation.
13.2 This agreement can be immediately terminated by a party
before its term for gross negligence or premeditation of the
other party, upon notification to the defaulting party by
registered letter to which no response has been received for ten
(10) days.
13.3 A party can immediately terminate the agreement upon
notification by registered letter to the other party, in the
case of force majeure in accordance with the conditions provided
for in clause 12.2., as well as in the case of obvious
insolvency, petition for bankruptcy or bankruptcy of the latter
party.
CLAUSE 14: APPLICABLE LAW AND PLACE OF JURISDICTION
14.1 This agreement will be subject to Dutch law.
14.2 All disputes connected with the validity, interpretation or
implementation of this agreement will fall within the exclusive
jurisdiction of the competent courts of The Netherlands.