Terms and Conditions | Shire-Marketing.com

Shire Marketing General Terms and Conditions

These General Terms and Conditions shall apply to all consultancy services proposed or provided by the Consultant, which are delivered entirely or partially to the Client.

1. Definitions

In these General Terms and Conditions, the following definitions are applicable:

Client means the organisation or company with whom the Contract is entered into;

Confidential Information means any information related to the Engagement disclosed by the Client to the Consultant and by the Consultant to the Client, respectively, either directly or indirectly. Confidential Information may include, by way of example but without limitation, products, specifications, formulae, equipment, formulas, models, employee interviews, records, quality monitoring 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 the Consultant, respectively;

Consultant means the user of these Terms and Conditions;

Contract means the contract between the Client and the Consultant which defines the scope of the Engagement and the services to be rendered by the Consultant, as well as the fee schedule for said services. More specifically, the Contract shall consist of the Purchase Order, these Terms and Conditions and any other documents (or parts thereof) specified in the Purchase Order;

the Engagement means any agreement, in whatever form, reached between the Consultant and the Client pursuant to which the Consultant agrees to render services to the Client in exchange for a fee plus costs;

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 the Consultant to the Client as specified in the Purchase Order;

Purchase Order means the document (i) setting out the services to be provided by the Consultant to the Client and (ii) listing any documents and the like to be provided by the Client to the Consultant such that the Consultant may perform the Project;

Subcontractor means either an affiliate or subsidiary of the Consultant, or an independent contractor, respectively, which is qualified to perform the applicable services as contemplated by the Engagement and the Contract, and has been contracted by the Consultant, accordingly, as evidenced by an agreement in writing.

2. General

2.1 These General Terms and Conditions govern the provision of all services from or on behalf of the Consultant to the Client and apply to all legal relationships between the Consultant 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. Failure of the Consultant to object to terms and conditions set by the Client shall in no event be construed as an acceptance of any terms and conditions of the Client. Neither the Consultant’s commencement of performance nor the Consultant’s delivery of services shall be deemed or constituted as acceptance of any of the Client’s terms and conditions. Any communication or conduct of the Client which confirms an agreement for the provision of services by the Consultant, as well as acceptance by the Client of any provision of services from the Consultant 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 the Consultant, even if this is not expressly stated.

3. Performance of the project

3.1 The parties shall co-operate and consult with each other in conjunction with the Project.

3.2 The Consultant shall perform its services with all reasonable skill, care and diligence practised by a best in class provider of the services and similar services, and in accordance with all applicable laws.

3.3 The Consultant shall immediately inform the Client upon learning of circumstances that may necessitate a change in the performance of the Project.

4. Subcontractors

The Consultant shall be free to involve Subcontractors, availing of specific expertise, in the performance of the Project, provided that the Consultant shall have these third parties enter into confidentiality obligations similar to the confidentiality obligations applicable to the Consultant. If requested by the Client, the Consultant shall identify these Subcontractors, specifying in each case their specific expertise.

5. Client's obligation

5.1 The Client shall at all times duly make available to the Consultant all information and documents that the Consultant deems necessary to be able to carry out the Engagement correctly, in the specified form and manner. Also, the Client shall provide all cooperation required for the proper and timely performance of the Engagement.

5.2 The Client guarantees that Consultant’s employees can at all times work under safe conditions, in accordance with the relevant health and safety regulations and environmental rules and shall indemnify and hold harmless the Consultant against all loss, expense or damage arising from or relating to this guaranty by the Client.

5.3 The Client shall duly inform the Consultant of any facts and circumstances that may be relevant in connection with the execution of the Engagement.

5.4 Furthermore, the Client shall guarantee the correctness, completeness and reliability of any information provided to the Consultant.

6. Fees and expenses

6.1 The Consultant shall make all appropriate filings with tax authorities and shall be responsible for and pay all prevailing taxes and duties, including stamp duties, fees, permits and the like (including income tax and national insurance payments). The Consultant agrees to indemnify and hold the Client harmless in respect of all such liability and all taxes, duties and other payments payable to such tax authorities in connection with the Project.

6.2 Value Added Tax (BTW), where applicable, shall be shown separately on all invoices.

6.3 Provided the Consultant has provided the services in accordance with the Agreement, all undisputed invoices shall be paid by the Client to the Consultant within thirty (30) working days of receipt of the invoice. Payment shall be into the bank account mentioned in the invoice.

6.4 The Client shall pay the Consultant fees at the rate specified in the Proposal and/or signed Contract.

6.5 All payments shall be made in Euros - €

6.6 The Client shall reimburse the Consultant for reasonable and proved costs for travel, lodging, meals and out-of-pocket expenses incurred by the Consultant in the performance of her duties hereunder subject to production of such evidence thereof as the Client may reasonably require.

6.7 The Consultant rate is subject to an annual increase of 2%.

7. Intellectual Property

All results generated by the Consultant in the Project, including reports, other documents and materials, shall become the property of the Client. The Consultant shall provide all reasonable assistance such that the Client may apply for patents, copyrights and other intellectual property rights in respect of these results.

8. Confidentiality

8.1 During the Project and for a period of three (3) years thereafter, each of the parties undertakes not to use or disclose information of confidential nature that it has received from the other party or produced in connection with the Project, except insofar as strictly necessary for the performance of this Agreement. This confidentiality undertaking also applies to information about customers, business partners and Affiliates. It does not apply to information lawfully received from a third party. Each of the parties will ensure that its personnel, and any sub-contractor and its personnel, shall adhere to the confidentiality undertaking in this Clause 8.1.

8.2 The Consultant shall at the Client’s request either return or destroy information provided to it by the Client, including copies thereof.

8.3 Each party undertakes to comply with the applicable data protection legislation. The Consultant shall process personal data on behalf of the Client only in accordance with the Customer’s instructions and undertakes, for the purpose hereof, to comply with appropriate security measures specified by the Client and stipulated by law.

9. Insurance, liability and indemnification

9.1 The Consultant shall procure and at all times maintain a liability insurance that provides sufficient protection in view of the Consultant’s possible liability towards the Client. Upon the Client’s request, the Consultant shall provide the Client with a copy of the insurance certificate.

9.2 The Consultant is only liable towards the Client for any damage resulting from a serious failure to comply with the Agreement that is attributable to her. This is the case if the Consultant fails to exercise due care in performing the Agreement or lacks professional competence.

9.3 In the event that the Consultant should be liable for any damage suffered by the Client, her liability will be limited to the amount of indemnity payable for each accident under the Consultant’s professional liability insurance, or any other liability insurances, to be increased by the Client's insurance deductible. The total amount will not exceed the maximum amount payable by the insurer. The Consultant will provide a copy of the insurance policy containing the conditions of the professional liability insurance upon request.

9.4 If, for whatever reason, no insurance pay-out takes place, liability of the Consultant towards the Client will be limited to the fee for the assignment on which the liability is based, with a maximum amount of € 5.000,-.

9.5 The Client indemnifies the Consultant against any claims by third parties arising from the performance of the Agreement between Customer and the Consultant, unless it concerns claims resulting from serious failure to perform by the Consultant.

9.6 Any claims against the Consultant by the Client must be filed within 1 (one) year from ascertaining the damage, after which the legal claim will be expired.

10. Term and termination

10.1 This Agreement enters into force as of the date of last signature of the signed Contract and may be terminated pursuant to Section 10.2 below.

10.2 Both parties have the right to terminate this Agreement and/or the Project without cause by giving the other party a month's notice period, at any stage during the contractual period.

10.3 The Client has the right to terminate this Agreement and/or the Project with immediate effect if the Consultant comes under the direct or indirect control of any direct or indirect competitor of the Customer or of an Affiliate of the Customer.

10.4 Where this Agreement and/or Project is terminated, the Consultant shall; (i) assign to the Client to the extent reasonably required by the Client all rights and title that have arisen in connection with the work performed; (ii) deliver to the Client all plans, schedules, drawings, specifications, and all other data prepared by the Consultant in connection with the Project; and (iii) return to the Client all documents, drawings and other data supplied to the Consultant by or on behalf of the Client in connection with the Project.

11. Independency

The Consultant shall perform the Contract as an independent contractor and shall not be the servant or agent of the Client.

12. Observance of legal requirements

12.1 The Consultant shall carry out her obligations under the Contract in a manner that conforms to relevant legal requirements.

12.2 Without prejudice to the generality of Article 12.1, in carrying out her obligations under the Contract the Consultant shall comply with relevant requirements contained in or having effect under current legislation relating to health, safety and welfare at work.

13. Governing law and jurisdiction

13.1 All disputes which cannot be settled amicably shall be referred to the applicable courts in The Netherlands, and the parties’ consent to the jurisdiction of the courts there.

13.2 The Contract 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 suffering thereby 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 4.0, December 2020.