These General Terms and Conditions shall apply to all consultancy services proposed or provided by STELLAX.
1. DEFINITIONS
In these General Terms and Conditions, the following definitions are applicable:
“Client” means the organisation or company with whom STELLAX has entered into an agreement or to whom STELLAX has otherwise delivered services or has otherwise engaged for the provision of services;
“Confidential Information” means any information related Agreement and/or any Project disclosed by the Client to STELLAX and by STELLAX to the Client, either directly or indirectly. Confidential Information may include, by way of example but without limitation, products, specifications, formula, models, employee interviews, records, schemes/programs, training materials, business strategies, customer lists, know-how, drawings, pricing information, inventions, ideas, and other information, or its potential use, that is owned by or in possession of the Client and STELLAX, respectively;
“STELLAX” means Stellax Business Consulting B.V., Chamber of Commerce registration number: 72861827, having its office at Bellamystraat 43 A1, 1053BG, Amsterdam, further to be referred to as: ‘Stellax’.
“Agreement” means any agreement, in whatever form, reached between STELLAX and the Client pursuant to which STELLAX agrees to render services or deliver products to the Client.
“Force Majeure” means any cause beyond the reasonable control of the affected party, including, but not limited to, any act of God, war, riots, acts of the public enemy, fires, strikes, labour disputes, accidents, or any act in consequence of compliance with any order of any government or governmental authority;
“Project” means the services to be provided by STELLAX to the Client under the terms of an Agreement and as specified in any defined specific project;
“Subcontractor” means either an affiliate or subsidiary of STELLAX, or an independent contractor, respectively, which is qualified to perform the applicable services as described in the Agreement and/or any specific Project, and has been contracted by STELLAX.
2. GENERAL
2.1 These General Terms and Conditions govern the provision of all services from or on behalf of STELLAX to the Client and apply to all legal relationships between STELLAX and the Client.
2.2 These General Terms and Conditions supersede any and all prior oral and written quotations, communications, agreements and understandings of the parties and shall apply in preference to and supersede any and all terms and conditions of any order placed by the Client and any other terms and conditions submitted by the Client.
Any communication or conduct of the Client which confirms an agreement for the provision of services by STELLAX, as well as acceptance by the Client of any provision of services from STELLAX shall constitute an unqualified acceptance by the Client of these General Terms and Conditions.
2.3 By contracting on the basis of these General Terms and Conditions, the Client agrees to the applicability thereof in respect of future agreements between itself and STELLAX, even if this is not expressly stated.
3. (PROJECT) PERFORMANCE
3.1 STELLAX shall determine the manner in which and the person by whom the Agreement and/or any specific Project will be carried out, taking into account, as far as is feasible, the reasonable requests expressed by the Client.
3.2 STELLAX shall execute the Agreement and all Projects with reasonable skill, care and diligence.
3.3 The Client hereby accepts that the time schedule allocated for the agreed performance under the Agreement or a Project may be subject to change in case of amendment of the Agreement or the Project.
3.4 In case of any change of circumstances under which the Agreement or any Project is to be performed which cannot be attributed to STELLAX, STELLAX may make any such amendments to the Agreement and/or Project as it deems necessary to adhere to the agreed quality standard and specifications, in consultation with the Client. Any costs arising from or related to agreed changes will be borne by the Client, provided Client is informed of material cost consequences upfront.
3.5 STELLAX may, at its discretion and, where possible, in consultation with the Client, replace the person or persons charged with performing the Agreement and/or any Project, if and in so far as STELLAX believes that such replacement is necessary for its performance of the Agreement or the Project.
3.6 STELLAX shall provide the Client with such reports of its work on the Agreement and any Project on request. The Client has the right to notify STELLAX that it wishes to modify its requirements in relation to the Agreement or a Project. Such modifications shall not enter into effect until the parties have agreed on the consequences thereof such as to the Agreement fee and the completion date of the Project.
4. SUBCONTRACTORS
STELLAX shall be free to involve Subcontractors with specific expertise or capacity, in the performance of any Project or execution of the Agreement, provided that STELLAX shall have these third parties enter into confidentiality obligations similar to the confidentiality obligations applicable to STELLAX. If requested by the Client, STELLAX shall identify these Subcontractors, specifying in each case their specific expertise.
5. CLIENT’S OBLIGATION
5.1 The Client shall make available to STELLAX all information, documents and access to Salesforce production, test, and development environments that STELLAX deems necessary to be able to carry out the Agreement or a Project correctly, in comprehensive form and in accordance with any pre-agreed format. Also, the Client shall provide all cooperation required for the proper and timely performance of the Agreement and any Project.
5.2 The Client guarantees that STELLAX’s employees can at all times work under safe conditions as far as any work is to be executed in an environment not controlled by STELLAX. Client shall indemnify and hold harmless STELLAX against all loss, expense or damage arising from or relating to a breach of this guarantee by the Client.
5.3 Client shall duly inform STELLAX of any facts and circumstances that may be relevant in connection with the execution of the Agreement or specific Project.
5.4 Furthermore, the Client shall guarantee the correctness, completeness and reliability of any information provided to STELLAX.
6. FEES AND EXPENSES
6.1 The Client shall pay to STELLAX fees at the rate set out in the Agreement or agreed otherwise. Unless otherwise explicitly stated, the agreed rate is the exclusive of Value Added Tax and other payable taxes.
6.2 Unless otherwise stated in the Contract, STELLAX shall be entitled to be reimbursed by the Client for all reasonable traveling and lodging expenses, as far as incurred in the performance of the agreement. Client may ask evidence of the claimed expenses prior to reimbursing STELLAX.
6.3 Unless otherwise stated in the Contract, payment will be made within thirty (30) days of receipt of an invoice. Invoices shall be submitted monthly in arrears, unless agreed otherwise. Payment shall be made including any payable taxes by Client into the bank account mentioned on the invoice.
6.4 Any extra costs arising from or related to any delays in the completion of the Agreement or any specific Project as a result of the failure of the Client to duly make available to STELLAX the requested information, documentation or access to required environments, shall be borne by the Client.
7. INTELLECTUAL PROPERTY
All results generated by STELLAX in the Project, including reports, other documents and materials, shall become the property of the Client. STELLAX shall provide all reasonable assistance for transferring intellectual property rights to the Client on request, should that be necessary. In the event cost are associated with such transfer, these shall be borne by Client.
8. CONFIDENTIALITY
8.1 STELLAX shall keep confidential, shall not disclose, and shall procure that its employees, subcontractors and partners keep confidential and shall not disclose any Confidential Information obtained by them during the execution of the Agreement or any Project. The foregoing shall not apply to information which (i) is or becomes part of the public domain without action on the part of STELLAX; (ii) was already known by STELLAX, other than under an obligation of confidentiality at the time of disclosure by the Client; (iii) is lawfully acquired by STELLAX from a third party on a non-confidential basis; or (iv) STELLAX is required to disclose pursuant to any law, lawful governmental, quasi-governmental or judicial order.
8.2 Except with the prior written permission of STELLAX, the Client shall not publish or otherwise make available the contents of proposals, reports, presentations, memos, or other communications by STELLAX, unless these have been provided with the intention of providing third parties with the information set out therein. Furthermore, the Client shall not disclose any of STELLAX’s methods and work strategies without STELLAX’s written permission.
8.3 The provisions of this Article 8 shall apply during the term of the Agreement and for a period of three (3) years thereafter.
9. WARRANTIES, LIABILITY AND INDEMNIFICATION
9.1 STELLAX generally shall execute the Agreement and any Project on a best effort basis only, applying professional care in accordance with industry standard. STELLAX and any person put forward by STELLAX, shall not be liable if the services provided or the results generated by him in executing the Project or Agreement are not fully correct. STELLAX nor any person put forward by STELLAX to execute the Project or Agreement, warrant that the performance by him of the Project or Agreement will not infringe upon intellectual property rights of any third party.
9.2 STELLAX, nor any person put forward by STELLAX to perform the Agreement or Project, shall not be responsible for any loss, or damage of whatsoever nature incurred by the Client, its employees or third parties, resulting from execution of, or the use of the results of the Agreement or the Project, except to the extent that any damage is the direct result of gross negligence or wilful misconduct on the part of STELLAX, or its employees. The Client shall indemnify STELLAX accordingly.
9.3 The Client shall not be responsible for any loss, or damage of whatsoever nature incurred by STELLAX, its employees or third parties, related to the execution of the Agreement or Project by STELLAX, except to the extent that the same can be shown to be due to gross negligence or wilful misconduct on the part of the Client or its employees. STELLAX shall indemnify the Client accordingly.
9.4 Should a party be deemed liable to the other party under the Agreement, by way of indemnity or by reason of breach of contract or otherwise, STELLAX’s liability shall in aggregate not exceed the total of last three paid subsequent invoices excluding VAT, directly prior to the moment the damage occurred. In the event there are multiple Projects defined, the liability is limited applying this mechanism per Project, in that case the maximum liability is determined by paid Project invoices.
9.5 In any event, neither party shall be liable to the other party for any consequential, indirect, special, incidental or exemplary damages of any nature whatsoever that may be suffered by the other party, and STELLAX’ liability shall never exceed EUR 50.000,=.
10. TERM AND TERMINATION
10.1 Any times or dates set forth in the Agreement for provision or completion by STELLAX of the services under the Project are estimates only and shall never be considered as fatal deadlines. Furthermore, the parties hereby acknowledge that the time schedule set out for the performance agreed in the Agreement may change during the course of said performance. In no event shall STELLAX be liable for any delay in providing these services.
10.2 Either party may terminate the Agreement by notice in writing forthwith in the event the other party:
I. is in default with respect to any material term or condition of the Contract, and such default continues unremedied for a period of thirty (30) days after written notice thereof by the aggrieved party to the defaulting party;
II. is affected by a Force Majeure which cannot be removed, overcome or abated within three (3) months; or
III. shall make any assignment for the benefit of creditors or shall file any petition in connection thereto, shall file a voluntary petition in bankruptcy, be adjudicated bankrupt or insolvent, if any receiver is appointed for its business or property, or if any trustee in bankruptcy or insolvency shall be appointed for that party (and is not dismissed within sixty (60) days after appointment).
10.3 If the Client issues a termination notice, the Client shall be obliged to pay STELLAX a compensation equal to the agreed fees apportioned to the services already rendered by STELLAX, plus any additional costs incurred by TELLAX as a result of said early termination.
10.4 In case STELLAX cannot be reasonably expected to complete the works due to unforeseen circumstances, STELLAX may unilaterally terminate the Agreement. The Client shall be liable for payment of an amount corresponding to the fees due for services already performed, while being entitled to receive the (preliminary) results of the services already performed, without the Client being entitled to derive any rights therefrom.
11. INDEPENDANCY
STELLAX shall perform the Agreement as an independent contractor. Parties shall work together to avoid that any authority qualifies the contractual relationship as employment.
12. NOTICES
Any notice given under or pursuant to the Agreement shall be given in writing, which for this purpose includes scans letters in PDF sent to the email address that is used in communication on a regular basis in the recent past, or registered mail to the other Party.
13. GOVERNING LAW AND JURISDICTION
13.1 All disputes which cannot be settled amicably shall be referred to the applicable courts in Amsterdam, The Netherlands.
13.2 The Agreement is governed by and interpreted in accordance with the laws of The Netherlands.
14. FORCE MAJEURE
Neither party shall be liable in any way for any damage, loss, cost or expense arising out of or in connection with a Force Majeure event. Upon the occurrence of any Force Majeure event, the party impacted by a Force Majeure event shall promptly inform the other party by written notice thereof specifying the cause of the Force Majeure event and how it will affect its performance.
Version 1, July 2020