T E R M S A N D C O N D I T I O N S
Terms and conditions IMPROVED Corporate Finance BV
Article 1: Applicability
These terms and conditions apply to all agreements between client (“Client”) as defined in the written order confirmation (“Agreement”) and IMPROVED Corporate Finance BV (“ICF”). In case of conflict between the terms and conditions and the Agreement, the latter is decisive.
This Agreement is expected to be given exclusively to ICF and not to any person affiliated with ICF. This also applies if it is the intention of parties to have an Agreement executed by a certain person affiliated with ICF. The effects of article 7:404 and of article 7:407 section 2 of the Dutch Civil Code are excluded. “Affiliated person” is understood as the employees, the advisors, the partners, the subsidiaries, and the stockholders of ICF.
Article 2: Duration, termination and changing of the Agreement
Agreements between ICF and Client last until the moment in which the ensuing obligation/obligations is/are carried out in full, or this Agreement shall remain in force for a period of nine months from the date on which it is first signed by all parties. Thereafter, the Agreement will be automatically prolonged for successive three-month periods unless terminated at the end of any such period by either party giving not less than fifteen days prior written notice.
Both ICF and Client are authorised to cancel the Agreement at any time, in compliance with a term of notice of 15 (fifteen) working days and in writing. In case of a party’s failure to comply with its material obligations pursuant to the Agreement, which failure, where remediable, is not cured within a period of fifteen (15) days following the date of the first notice of breach, the Agreement will be terminated
In case of the termination of an Agreement, ICF will be discharged of all obligations ensuing from the Agreement.
Changes to an Agreement can only be agreed upon in writing. This article leaves the effects of article 3 unaffected.
In all cases, except if ICF cancelled the Agreement for a reason other than Client’s failure to comply with its material obligations pursuant to the Agreement, Client will remain liable for any Advisory Fees that are due and not yet paid.
In addition, except if it has breached any of its material obligations or if ICF cancelled the Agreement for a reason other than Client’s failure to comply with its material obligations pursuant to the Agreement, ICF will retain its post-termination right pursuant to Article 21.
Article 3: Rates, payment conditions and proof of administration
ICF offers its Client corporate finance services. The objective of these services is to advise Client regarding corporate finance related matters. As a result, the services of ICF are taxed with VAT. Insofar the services of ICF result in advising regarding the transfer of shares, these services form an integral part of the corporate finance services.
All indicated rates of the services to be performed by ICF are excluding A) VAT and any other or future taxes, B) costs related to employing third parties and C) travel and accommodation costs.
Client shall pay the invoices in full within thirty days after the invoice date. After the expiration of this date, the Client shall be deemed in default without any further notice being required. From this moment all collection charges made by ICF both inside and outside court are for the account of the Client, including the costs of legal assistance.
With regards to the determination of the sum of the declarations sent by ICF, the administration of ICF will provide full proof, subject to proof to the contrary provided by Client.
The invoice containing the Advisory Fee will be paid by the notary, out of the proceeds from the transaction.
Article 4: Liability with multiple Clients
In the case that the Agreement involves multiple Clients, each of them is jointly and severally liable to ICF for the (payment) obligations ensuing from the Agreement/Agreements agreed upon jointly or with each of them individually.
In the case that Client enters an agreement with ICF on behalf of third parties, Client is jointly and severally liable for the (payment) obligations to these third parties ensuing from that agreement.
Article 5: Exclusivity
The Agreement/Agreements between Client and ICF has/have an exclusive character. Client will not enter into an agreement with third parties similar to the Agreement issued to ICF.
Article 6: Information (to be) provided by Client & ICF
When entering into an Agreement and for the duration of the Agreement, parties should inform one another – either on their own initiative or at request - timely and fully regarding all facts and circumstances that could be of importance in any way for the timely and correct execution, including towards third parties, of the Agreement.
Parties shall disclose to one another, in advance and within a reasonable time, all necessary information (including accounting, financial and legal) for the fulfilment of the Agreement and will at all times keep one another fully informed of any strategy, development or discussion which is relevant to the Agreement, its progress and/or any event likely to directly or indirectly affect the Agreement and/or render inaccurate or modify the transaction. Information provided by parties shall be complete, truthful and, to the best of the parties’ knowledge, accurate.
In case of a breach of the preceding paragraph by parties, parties will be entitled to terminate this Agreement immediately on giving five (5) days’ notice. In such a case, the Client acknowledges in particular that ICF will be entitled to indemnification as provided by article 13 below and shall also retain its post-termination right, under article 21.
Article 7: Schedule
Deadlines and schedules that have been agreed upon in the Agreement are indicative and meeting the deadlines and schedules is dependent on the circumstances. Should a deadline or schedule not be met, due to whichever cause, Client and ICF will agree upon a new deadline or schedule.
Article 8: Composition advisory team
Changes in the advisory team will be implemented by ICF after consultation with and approval of Client.
Article 9: Transfer of employees
From the moment of signing the Agreement until a year after its termination, Client will not employ employees of ICF or third parties employed by ICF or let them perform activities in any way, either for compensation or otherwise.
Article 10: Privacy, confidentiality and communication
Upon acceptance and execution of the Agreement/Agreements, ICF and Client will
a) treat the Agreement, the involvement of ICF and the obtained information confidentially insofar this information is not public knowledge;
b) not communicate or give access to the issued advices, notes, reports, documents and such to third parties without prior permission nor make announcements regarding them and/or make use of them.
Article 11: Obligation to perform
ICF will attempt to the best of its abilities and as can be reasonably expected – in observance of the nature of the Agreement, the agreements made by the parties regarding it and the circumstances of the case – to fully and timely execute the Agreement. ICF does not guarantee that the Agreement given to them will be or can be executed.
The execution of the Agreement issued to ICF happens solely on behalf of the Client. Third parties cannot derive any rights from the execution of activities performed by ICF for Client.
Article 12: Liability
ICF cannot be held liable for damages of Client as a result of a shortcoming of ICF in the event that Client has (i) not provided information on time; (ii) provided incorrect or incomplete information; or (iii) misrepresented matters to ICF or third parties employed by ICF.
For all direct damages incurred by Client, caused by not timely or inadequately executing the Agreement by ICF, this liability is limited to 1 times the invoice value with a maximum of EUR 2.500.000, increased by the applicable deductible excess.
ICF cannot be held liable for the indirect losses suffered by Client as a result of a shortcoming of ICF.
In the case that ICF is liable for bodily injury and or physical damage, this liability is limited to the amount that is provided by the general public liability insurance taken out by ICF for that case, increased by the applicable deductible excess.
In all other circumstances, ICF’s liability is limited to a maximum of 1 times the invoice value of the contract, to at least to that part of the contract to which the liability relates, with a maximum of EUR 2.500.000. If the assignment lasts longer than six months, the aforementioned liability is limited to an amount equal to the total amount ICF received in the context of the assignment in the last 12 months before the damage occurred.
Client specifically acknowledges that ICF shall have no liability for the content, use or consequences of the transaction, Client being fully responsible for such document and for its consequences, and for all information and documents, in particular relating to accounting, financial and commercial matters, used in its preparation.
ICF shall not be liable for the completeness or the accuracy of the documents and information provided to approved third parties for the purposes of the Agreement, or for any advice or documents, including in particular any legal or tax advice provided by any expert appointed by Client, whether recommended by ICF or not, in connection with the preparation and implementation of the Agreement.
ICF cannot be held liable for the damaging, negation and/or unauthorised cognizance of documents and/or data during transport, shipment by post, electronic transfer, processing and/or shipping by means of an online system, regardless of whether the transport, the shipment and/or processing takes place because of or in name of ICF, Client or third parties.
A claim for the compensation of damages should be submitted to ICF within three months after Client discovered the damage, well documented and in sufficient detail, in the absence of which the right to damage compensation lapses.
The limitations of liability included in this article do not apply in the case that the damage occurred due to the intent or gross fault of ICF or its managing employees.
Article 13: Indemnification
Client agrees to indemnify and hold harmless ICF, its direct and indirect shareholders, its corporate officers and its employees (each an “Indemnified Person”) against any damages, costs, liabilities, expenses, fines, penalties or losses of any kind whatsoever suffered by an Indemnified Person and also agrees to settle any expenses incurred by an Indemnified Person (including attorney's fees and judicial expenses) as a result of any action brought against it by a third party in connection with the Agreement, except in case of fraud or gross negligence on the part of the relevant Indemnified Person, as evidenced by a final and non-appealable court decision (res judicata).
In the case of a claim by a third party as mentioned above, Client will (a) meet every reasonable request by ICF for assistance from Client or their employees and (b) meet every reasonable request by ICF for the provision of information that can be serviceable in the to be supplied defence of ICF against the claims. Client will furthermore no longer allow or perform activities which could be detrimental to the position of ICF, unless ICF has agreed in writing beforehand with the performance or allowance of those activities.
Article 14: Employment of third parties
In executing the Agreement(s), ICF is authorised to make use of the services of third parties, provided that the employment of these third parties has been approved by Client beforehand and that these third parties ensure the confidentiality of confidential information as meant in article 10 regarding Client which is obtained directly or via ICF. ICF will act with the necessary care in choosing these third parties.
Article 15: Regulations
Client hereby confirms to be aware of the fact that ICF does not have a license to mediate in securities transactions on the basis of the Financial Supervision Act and of the fact that ICF, for that reason, will not and cannot provide services that can be qualified or interpreted as mediation in securities. In addition, Client and ICF confirm that no services can be or will be provided which conflict with the regulations in an arbitrary national jurisdiction. Client and ICF are entitled to terminate the activities in the case such a conflict is discovered and to claim compensation for any damage ensuing from this.
Article 16: Non-assertion agreements
Not or not immediately asserting any right to which ICF is entitled towards Client or towards third parties in addition to Client that are severally liable for the compliance with their obligations to ICF shall not be interpreted as the concession of any right by ICF.
Article 17: Changes in representative authority
In the case that Client grants representative authority to someone as part of the Agreement, he is obligated to report changes or revocation of that authority to ICF in writing. In the absence of such an announcement, this change cannot be enforced on ICF, regardless of the registration of the change in the public registrars.
Article 18: Force Majeure
Neither party shall have any liability in any circumstances where the performance of its obligations under this Agreement is delayed, restrained or rendered impossible by the occurrence of a case of force majeure (as defined below).
In the event of a case of force majeure occurring, the performance of the parties’ obligations shall be suspended.
If the case of force majeure continues for more than thirty (30) days, the Agreement may be terminated at the request of either party, without either party being liable to the other in respect of such termination. Each party shall bear the burden of the expenses it has incurred as a result of a case of force majeure. The effective date of such termination shall be the date of notification of the case of force majeure, which shall be effected by notice sent by registered post, any amount owed by the Company to ICF on that date becoming immediately payable.
For the avoidance of doubt, force majeure shall not excuse negligence or other malfeasance of either party committed prior to its occurrence.
An event shall be deemed a case of force majeure if an extraordinary event or circumstance beyond the control of the parties, such as a war, strike, riot, crime, or an event described by the legal term “act of God” (e.g, flooding, earthquake, volcanic eruption), prevents one or both parties from fulfilling their obligations under the Agreement.
Article 19: Miscellaneous
The terms of this Agreement shall not be construed or interpreted in a way that would create a
partnership or any other legal entity between Client and ICF.
No failure by either party to exercise nor any delay by either party in exercising any right or power under this Agreement shall operate as a waiver of that right or power in favour of the other party. Likewise, the exercise of one right or power or partial exercise of any right or power shall not preclude the exercise of any other right or power provided by this Agreement. No waiver shall be effective unless it is set out in writing signed by representatives of both.
Article 20: Applicable law and jurisdiction
The legal relationships between Client and ICF ensuing from the Agreement are subject to Dutch law. All conflicts arising from the Agreement will principally be settled by the authorised court in Amsterdam.
Article 21: Financial consequences of interim termination
If, within twelve (12) months following termination of this Agreement for any reason whatsoever, Client enters into an agreement of any kind implementing a transaction with one or more buyers/investors, including existing shareholders; ICF’s rights under the Agreement will be preserved and any Advisory Fee described in paragraph 3 of the Letter shall be due and payable in full by Client on the same terms as those set out in such paragraph 3.
For these purposes ICF will, within five (5) days of the termination of the Agreement, communicate to the Client a list of buyers/investors, agreed upon together with the Company to be approached during the Agreement, in respect of which a post-termination right will apply. The list of buyers/investors will consist out of all buyers/investors identified by ICF and Client.
Client shall keep ICF immediately informed of any event or fact that may give rise to such a post-termination right.