Version 1. 01-02-2018
GENERAL TERMS AND CONDITIONS TAKESHAPE B.V.
Takeshape B.V. is registered with the Chamber of Commerce under KVK 32121622.
- General
1.1 These general conditions apply to any order to Takeshape B.V. hereinafter called "Takeshape".
- Definitions
2.1 Agreement: the written agreement between the principal and the contractor to which these conditions have been declared applicable within the meaning of article 7.400 ff. of the Civil Code. The effect of articles 7:407 paragraph 2, 7:404 and 7:408 paragraph 2 is excluded whereby one party, Takeshape (the contractor) undertakes towards the other party (the client) to carry out consultancy work (or have it carried out) for the benefit of the organisation of the client.
2.2 Assignment: the provision of organisational advice in the broadest sense of the word for the purpose of determining, analysing and resolving issues.
2.3 Client: the legal person or the natural person who, as the other party to Takeshape, has concluded an agreement to carry out an assignment or to have an assignment carried out.
2.4 Contractor: Takeshape, which has accepted the assignment and performs it under its responsibility.
2.5 Contractor: Takeshape employees and/or the natural or legal person charged with the execution of the assignment on behalf of Takeshape.
2.6 Parties: the client and the contractor.
- Applicability of these conditions
3.1 The provisions laid down in these general terms and conditions apply to all proposals, offers and work within the framework of an assignment of Takeshape.
3.2 All activities carried out by the performers of an assignment shall be deemed to be acts by or on behalf of Takeshape. Takeshape is entitled to engage other persons, legal persons or third parties when carrying out the assignment. The choice of the other persons, legal persons or third parties to be engaged by Takeshape will, where possible and in reasonableness, be made in consultation with the principal and with due care. Takeshape is not liable for failures by these third parties, except for intent or gross negligence on the part of Takeshape.
3.3 These general terms and conditions may only be deviated from by means of a written agreement.
3.4 If any provision in these general terms and conditions or in the assignment agreement is null and void, the remainder of the agreement will remain in force and the provision in question will be replaced in consultation between the parties by a provision that approaches the scope of the original provision as closely as possible.
3.5 Takeshape is authorised to amend these general conditions. Amended terms and conditions are deemed to be accepted if the client has not objected to the amended terms and conditions within 14 days after the amended terms and conditions have been sent to him or made known.
- Starting points
4.1 Commissioned persons shall comply with the internal rules of conduct and principles applicable at Takeshape as included in the contract of employment, additional internal regulations or the provisions in a cooperation agreement or contract for professional services.
4.2 Client shall act in accordance with the agreement and shall comply with agreements.
- Formation of the order
5.1 The agreement of assignment comes about at the time that the agreement of assignment signed by the parties or the order confirmation (in writing, by e-mail, orally) is received by Takeshape. If the order signed by the client is not (yet) returned, the order is deemed to have come about under the applicability of these general conditions at the time that Takeshape at the request of the client has started to implement the order.
- Provision of information, employees and working space by the client
6.1 The principal shall ensure that Takeshape can perform its work adequately. To this end, the principal shall make available to Takeshape, inter alia, the necessary information, facts, resources and facilities for the performance of the order.
6.2 If the data and information required for the execution of the order, facts, resources or facilities, etc. have not been provided to Takeshape, or have not been provided on time or in full, Takeshape has the right to suspend the execution of the agreement, or to charge the costs resulting from the delay to the client according to the usual rates.
6.3 The Client must inform Takeshape in good time of intentions, facts and circumstances which may be relevant to the performance of the assignment.
- Confidentiality
7.1 Contractors are bound by a duty of confidentiality as laid down in the contract of employment or cooperation agreement or other agreement. Thereby they are obliged to secrecy and to care in dealing with all data of the client towards third parties. Takeshape shall make every effort to protect the interests of the client.
7.2 Takeshape shall require all commissioned performers to comply with this confidentiality obligation and shall endeavour to ensure that commissioned performers comply with the obligation.
7.3 The Client may not, without the permission of Takeshape, disclose to third parties any information, reports or documents which have been made available by Takeshape in connection with the assignment other than as a result of a legal or professional obligation.
- Intellectual Property
8.1 Models, instruments, methodologies, software and other products which the contractor uses and/or develops or has developed and/or are part of the execution of the assignment and which are included in the advisory report or in other results of research, remain the property of Takeshape.
8.2 Further publication and distribution by the principal may only take place with the consent of Takeshape, without prejudice to the provisions of Article 7.3.
- Execution of the order
9.1 The assignment will be performed to the best of knowledge and ability and according to the requirements of professionalism and good entrepreneurship by or on behalf of Takeshape.
9.2 The performance of the assignment has the character of a best-efforts obligation, because the achievement of the intended result cannot be guaranteed automatically, unless the parties have made explicit agreements as to the result to be achieved.
9.3 The result to be achieved is to be determined objectively by the parties and is open to only one interpretation. The obligation to achieve a result is laid down in the commission contract, proposal, offer or (framework) agreement.
9.4 Takeshape may, in consultation with the principal, replace one or more of the principals. Takeshape guarantees the continuity.
9.5 Time schedule and costs of the assignment may be changed in the event of interim adjustment of the scope of the assignment, approach or working method, based on agreement between the parties.
9.6 Changes to the order or the performance of the order that lead to an adjustment of the agreed lead time, costs and/or quality, must be confirmed by the client.
9.7 Takeshape will confirm these changes in the agreement of assignment and the client will confirm his agreement with this change.
9.8 If the client does not confirm his consent to this change within a reasonable period, Takeshape is entitled to terminate the agreement without being liable to pay any compensation to the client.
- Duration and conclusion of the assignment
10.1 There may be circumstances as a result of which it cannot be indicated in advance exactly how long the lead time of the execution of the order will be. The lead time is partly dependent on the quality of the information, facts and resources and the cooperation that Takeshape obtains from the client. Periods within which work must be completed are therefore only as deadlines if these periods have been agreed.
10.2 The order is in a financial sense closed once the final account by the client is paid. If Takeshape does not receive a reaction from the client within a period of 20 days after the date of the final invoice, the final invoice is deemed to have been approved.
- Premature termination of the contract
11.1 The parties are permitted to terminate the agreement prematurely, with due observance of a reasonable notice period, if one of them is of the opinion that the performance of the assignment can no longer take place in accordance with the commission contract and any subsequent supplementary agreements.
The desire for cancellation must be communicated to the other party in writing, by e-mail or verbally, accompanied by reasons. Parties may use the power to terminate only if, as a result of facts and circumstances that are beyond the control of the terminating party or not attributable to him, completion of the contract can not reasonably be required. The work done up to that point may be charged by Takeshape to the client, whereby to the client, if possible and subject to reservation, the preliminary results of the work done up to that point will be made available. Takeshape may charge any additional costs in this respect to the client.
11.2 If one of the parties is declared bankrupt, applies for a moratorium or discontinues its business, the other party has the right to terminate the contract without observing a period of notice, all this without prejudice to its rights.
- Fees and expenses
12.1 Takeshape must include in the agreement with the client the way in which the calculation of the fee takes place. It is also possible to agree a fixed amount for the fee.
12.2 The rates are stated in the agreement and it is explicitly indicated which project-related costs (such as secretarial costs, travel hours, travel and accommodation costs, costs of renting locations and equipment) are included. These costs, insofar as they are not included, may be charged separately on condition that agreements have been made to this effect.
12.3 Takeshape may pass on interim adjustments to rates and project-related cost compensation, after consultation with and consent from the client.
12.4 Unless otherwise agreed, no interest may be charged in the fee.
12.5 The fee, possibly increased by project-related costs as mentioned in 12.2 and invoices from any third parties, will be charged to the client per agreed period or after completion of the assignment, unless the parties have made other agreements in this respect.
12.6 If the client wishes to have an audit carried out by a chartered accountant on the invoice of Takeshape, Takeshape will cooperate in this. The costs will be borne by the client.
- Payment
13.1 The Client must at all times, without deduction, discount or set-off, within the agreed periods, but in no event later than 20 days after the invoice date, pay the invoice to a bank account designated by Takeshape for this purpose.
13.2 If the term of payment is exceeded, Takeshape is permitted, after having reminded the client at least once to pay, without further notice of default and without prejudice to the other rights of Takeshape, to charge the client the statutory interest from the due date until the date of full payment.
13.3 All judicial and extrajudicial (collection) costs, in so far as reasonable, which Takeshape has to incur as a result of the non-fulfilment of the payment obligations by the client, shall be borne by the client.
13.4 Takeshape may, if the financial position or the payment record of the client gives cause to do so in the opinion of Takeshape, immediately require (additional) security in a form to be indicated by Takeshape. If the client fails to provide (additional) security, Takeshape is entitled, without prejudice to its other rights, immediately to suspend its work and all that the client owes Takeshape on any account whatsoever, is immediately due and payable.
13.5 Amounts budgeted by Takeshape will not be exceeded other than in consultation with and with the express consent of the client.
13.6 Takeshape will only charge the agreed fee to the client.
13.7 Additional work will be invoiced by Takeshape after consultation with and acceptance by the client. The nature and extent of the additional work done will be explicitly stated in the invoices.
- Complaints
14.1 If the client has a complaint about work carried out under the contract or about an invoice amount, he must within 30 days the complaint in writing (by e-mail) to Takeshape to make known.
14.2 If the client demonstrates that he could not reasonably identify the alleged shortcoming earlier, he may within 30 days after identification of the alleged shortcoming still notify Takeshape in writing (by e-mail).
14.3 The submission of a complaint does not discharge the client from the payment obligation, unless and insofar as Takeshape has informed the client that it considers the complaint to be well-founded and there is agreement on an amended payment obligation.
14.4 If Takeshape is of the opinion that the complaint is justified, Takeshape may opt to adjust the amount of the invoice, improve or carry out the relevant work again free of charge, or decide not to carry out the order any more or only in part.
- Liability
15.1 Takeshape is liable for shortcomings in the performance of the assignment insofar as they are the result of failure by Takeshape to observe the care and expertise which the client may rely on in the context of the assignment.
15.2 This liability for the damage is limited to the amount of the fee that Takeshape has agreed within the framework of the assignment of the client for the work done up to that point.
15.3 In the case of assignments with a duration of more than 6 months, the liability referred to here shall be further restricted to a maximum of the amount invoiced over the last 6 months.
15.4 Any claims from the client must be submitted within 1 year of the discovery of the damage.
15.5 Takeshape is not liable for the consequences for third parties arising from the advice given by the contractor to the client. The implementation of the commission given occurs exclusively on behalf of the client. Third parties cannot derive any rights from this.
- Disputes
16.1 In the event that a dispute arises between the parties within the framework of the assignment, the parties shall try to settle this dispute among themselves.
16.2 If no agreement can be reached, the dispute may be submitted to an independent advisor/mediator to be appointed by mutual agreement.
16.3 If it is still not possible to reach agreement, the dispute shall be submitted to the competent court.
16.4 There is a dispute as referred to in 16.1 if either party notifies the other party of this in a registered letter.
- Applicable law
17.1 Each agreement between the parties shall be governed by Dutch law.
17.2 All disputes between parties shall in the first instance be submitted to the competent court in Utrecht.
- Insurance
18.1 Takeshape has insured itself in an appropriate and customary manner against the following risks: a. Professional liability (risks arising from professional errors).
- Company liability (including liability for damage caused to persons or property owned by the client).
- Bribery and conflict of interest
19.1 The parties shall not offer to each other or to any third party, or request from each other or from any third party, accept or be promised, for themselves or for any other party, any gift, reward, compensation or benefit of any kind that could be construed as an unlawful practice.
19.2 Takeshape will ensure that no conflict of interests in whatever form will take place during the negotiations on the conclusion of the agreement or during the performance of the assignment.
19.3 In the event of a possible or apparent conflict of interest and/or conflicting interests, this will be reported and discussed between the parties before the agreement is entered into.
19.4 Takeshape must ascertain that this serves the interests of the client and that its own independence remains guaranteed.
- Mentions in external publications of Takeshape
20.1 Takeshape will not, implicitly or explicitly, mention data of the client in external expressions unless permission has been given by the client.
20.2 Takeshape may use information about the performed assignment as a reference in external expressions, unless the client has objected to this.
Version 1. 02-2018
GENERAL TERMS AND CONDITIONS TAKESHAPE B.V.
Takeshape B.V.
Amersfoort
English 
Dutch