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Terms & Conditions


GENERAL CONDITIONS OF TMC GROUP B.V. AND ITS GROUP COMPANIES
(version 2014)

Clause 1-General

  1. 1.1  TMC Group B.V. and the companies within the group (as meant in paragraph 2:24b of the Dutch Civil Code) of TMC Group B.V. are users of these general conditions en shall hereinafter be referred to as "TMC".
  2. 1.2  "Services" means: all services provided by TMC, and/or its Employees, to or at the Customer by virtue of an Agreement.
  3. 1.3  "Customer" means: each natural or legal person to which TMC directs its offers, and each natural or legal person that sends an order to TMC and/or each natural or legal person with which TMC has any kind of legal relationship concerning the supply of Services.
  4. 1.4  "Agreement" means: every agreement agreed upon between TMC and the Customer, by virtue of which TMC supplies Services to the Customer, among which so called framework agreements (“raamovereenkomsten”) and subagreements (“deelovereenkomsten”).
  5. 1.5  "Employee" means: every technical- and/or ICT-professional that has a relationship with TMC under labour law and which, on behalf of TMC, provides his or her professional services for the benefit of the Customer on a temporary basis by means of an Agreement.
  6. 1.6  The headings above the clauses in these general conditions, are solely meant as classifiers. These headings do not have legal consequences.

Clause 2 – Applicability

  1. 2.1  These general conditions apply to and form an integral part of all tenders and offers (including annexes thereto) by TMC and of all Agreements (including annexes).
  2. 2.2  TMC explicitly rejects the applicability of general conditions used by the Customer to the Agreements.
  3. 2.3  Deviations and/or supplements to these general conditions are only binding for TMC if explicitly agreed upon in writing.

Clause 3 – Conclusion of Agreements

3.1 All tenders and offers of TMC are without obligations.

  1. 3.2  If the acceptation by the Customer deviates from the tender and/or offer, such acceptation shall deem to be a renewed tender and/or offer made by the Customer and shall be qualified as a rejection of the tender and/or offer made by TMC. This renewed tender and/or offer must be explicitly accepted by TMC before TMC shall be bound by it.
  2. 3.3  TMC is only bound towards the Customer (and therefore an Agreement only exists) if a tender and/or offer made by TMC is accepted by the Customer in writing within the applicable term, or if any tender and/or offer made by the Customer is explicitly accepted by TMC in writing, or if TMC has initiated the execution thereof.
  3. 3.4  Employees, among which Employees as defined in these general conditions, which do not dispose of a written power of attorney, are not entitled to enter into or conclude any obligations and/or agreements on behalf of TMC. Oral commitments and/or Agreements can only bind TMC when explicitly confirmed to the Customer in writing by a duly representative of TMC.

Clause 4 - Employees

  1. 4.1  TMC shall be responsible for the selection of the Employees who will be engaged for the Services after consultation of the Customer. Vacation days are taken after consultation between TMC, the Employee and the Customer.
  2. 4.2  As employer TMC is entitled to instruct the Employees. However, the Customer is entitled to give general instructions to the Employees concerning the general course of business within the organisation of the Customer, to the extent these instructions do not conflict with the instructions given by TMC. Furthermore the Customer is entitled to give instructions to the Employees relating to the working conditions and security.
  3. 4.3  If the Employee due to illness, pregnancy, personal matters and/or any other cause is not able to perform its duties for the Customer during a consecutive period of at least 15 working days, TMC is obliged to provide adequate replacement as soon as possible. Alternatively, in consultation with the Customer, TMC can also choose to extend the term of the specific project with a period of time that is equal to the number of working days on which the Employee was not at the Customer’s disposal. In that event TMC is not obliged to compensate the Customer for any damages whatsoever.
  4. 4.4  During a period of 12 months after the actual emplacement of an Employee with the Customer by TMC, the Customer is not entitled to offer an employment contract to the Employees and/or to (otherwise) employ the Employees (at the Customer or any parties affiliated to the Customer) other than through TMC. In the period between 12 months and 24 months after the actual emplacement of an Employee with the Customer by TMC, such is allowed provided that the Customer has previously consulted with TMC and parties agreed in writing upon the terms and conditions under which the Customer is entitled to offer an employment contract to the Employee and/or to (otherwise) employ the Employee (at the Customer or any parties affiliated



to the Customer). The contents of such conditions depend on the moment on
which the Employee is offered an employment contract or (otherwise)
commences its employment at the Customer or any parties affiliated to the
Customer en will contain at least an obligation of the Customer to yearly
during the terms of employment of the Employee at the Customer or any
parties affiliated to the Customer (each time after a period of a year), pay to
TMC a compensation equal to a percentage of the turnover realised by the
Employee at the Customer or any parties affiliated to the Customer (which
turnover is standardized at 1840 hours per year per Employee, irrespective the
actual amount of hours worked by the Employee). If the offer of the
employment contract or the (otherwise) commencement of employment occurs
between 12 and 15 months after first emplacement of the Employee at the
Customer, the percentage is 25%, between 15 and 18 months 20%, between 18
and 21 months 15%, between 21 and 24 months 10%. Also after termination
of the Agreements this clause 4.4 and clause 4.6 in that respect will remain in
full force.

  1. 4.5  The Customer is not entitled to put the Employees at a third party’s disposal and/or to let the Employees work for third parties, without the written prior approval of TMC.
  2. 4.6  If the Customer violates paragraphs 4 and/or 5 of this clause, the Customer shall forfeit to TMC and immediately payable penalty of EUR 50,000 per violation, to be increased with a penalty of EUR 1,000 for each day that the violation continues, such without prejudice to all other rights that TMC might have (including but not limited to right to claim damages).
  3. 4.7  The Customer is obliged towards TMC and the Employee to comply with all applicable national and international laws and regulations relating to working conditions, heath and safety, as well as to ensure the compliance thereof, including but not limited to all directions provided by the Health and Safety Inspectorate (“Arbeidsinspectie”) based on such laws and regulations.
  4. 4.8  The Customer indemnifies and holds TMC harmless for all damages and/or costs that it or the Employee suffers and/or incurs as a result of, or in relation to the performance of the Services.
  5. 4.9  The Customer is obliged to reimburse all damages and/or costs that TMC suffers as a result of (integral or partial) incapacity for work, labour-related handicap and/or death of the Employee, to the extent that the incapacity for work, labour-related handicap and/or death of the Employee is (partially) caused by the working conditions at the Customer, unless the Customer can prove that: (i) it has fully complied with its obligations mentioned in clause 4.7 above and; (ii) the incapacity for work, labour-related handicap and/or death of the Employee is exclusively the consequence of gross negligence or deliberate recklessness of the Employee. The Customer shall upon request of TMC provide to TMC all reports relating to its working conditions

Clause 5 – Delivery

  1. 5.1  The Agreement mentions the commencement date of the delivery period for the Services. However, the delivery period does not commence before: i) TMC disposes of all data, documents, equipment, computer time and (office) compartment to be provided by the Customer to TMC which are needed for the correct fulfilment of TMC’s obligations under the Agreement; and (ii) TMC has received any advance payment that has been agreed upon; and (iii) the Customer – upon request of TMC - has provided sufficient security for is payment obligations towards TMC.
  2. 5.2  The delivery periods mentioned in the Agreements are indicative and without obligation. The indicated delivery times and/or delivery dates shall not be final dates, unless explicitly agreed upon otherwise in writing. In the event of overdue delivery, the Customer is obliged to give TMC a written notice thereof including a reasonable alternative delivery date. The delivery periods generally applicable in the branch of TMC are deemed to be reasonable.
  3. 5.3  Delivery dates shall be extended with a term equal to the term during which fulfilment of the Agreement is delayed due to force majeure on the side of TMC, as meant in clause 8 of these general conditions, and/or with the term during which the Customer refrains from fulfilling its obligations under the Agreement.
  4. 5.4  TMC has the right to provide its Services in consignments. For the purpose of these general conditions each delivery in consignments is deemed an independent delivery.
  5. 5.5  TMC is not liable for exceeding the delivery period, unless such is caused by wilful misconduct or gross recklessness of TMC. Exceeding of the delivery time - irrespective the cause thereof - shall never entitle the Customer to claim damages and shall never entitle the non-performance or suspension of the obligations of the Customer under the Agreement or any other agreement related thereto. The foregoing does not apply in the event that the exceeding of the delivery time by TMC was caused by wilful misconduct or gross recklessness of TMC or in the event parties agreed otherwise in the Agreement.
  6. 5.6  Extension of the delivery periods upon request of the Customer is only possible with the explicit written consent of TMC. Any costs and/or losses caused by such an extension shall be for the account of the Customer.

Clause 6 – Fees and payment

6.1 The fees due to TMC by the Customer for the Services provided by
(Employees of) TMC are mentioned in the Agreement. The amounts
mentioned in the Agreement are indicative and are calculated on the basis of
the hourly rates mentioned in the Agreement. For overtime, work outside the
Netherlands and/or work on Sundays or during holidays, apply deviating
hourly rates. The Customer is obliged to reimburse all reasonable expenses



made by the Employees (among which travel costs) in relation to the
performance of the Services.

  1. 6.2  TMC is entitled to adjust the hourly rates mentioned in the Agreement during the term of the Agreement, with a maximum of 10%, with a prior notice to the Customer, provided that TMC has reasonable grounds to do so.
  2. 6.3  Within 10 days after the end of each calendar month, TMC shall provide the Customer with a breakdown of the working hours of the Employees and the expenses incurred in the previous calendar month. This breakdown is binding for the Customer, unless the Customer submits to TMC a written and motivated objection within 5 days after receipt. This objection does not suspend the payment obligations of the Customer. If TMC considers the objection to be (potentially) legitimate, TMC and the Customer will consult in good faith in order to find an amicable settlement.
  3. 6.4  If and as soon as TMC has reasonable ground to believe that the total amount due by the Customer shall exceed the fee quote which is mentioned in the Agreement, TMC will inform the Customer thereof in writing, stating the anticipated exceeding of the fee quote. The Customer than has the right to dissolve the Agreement by means of a registered letter sent to TMC within 5 days after receipt of the information mentioned before in the event it does not agree with the additional fee. Clause 8.6 of these general conditions is applicable.
  4. 6.5  Unless explicitly agreed upon otherwise, all payments by the Customer shall be made without any discount and/or settlement and/or deductions whatsoever. The Customer is not entitled to suspend its payment obligations, unless this is allowed by virtue of clause 6.9 of these general conditions.
  5. 6.6  All payments shall be made within 30 days after the date of invoice. TMC is at all times entitled to request integral or partial payment in advance. Clauses 11.2 and 11.3 are applicable.
  6. 6.7  The term for payment mentioned in paragraph 6 of this clause is a final date which means that if the Customer fails to timely comply with its payment obligations towards TMC, it shall immediately be in default, and all claims of TMC towards the Customer are in that event immediately due and payable by the Customer, without any prior notice of default being required. Furthermore, If the Customer is in default with its payment obligations it shall owe TMC a monthly contractual interest which equals the commercial interest as mentioned in paragraph 6:119a of the Dutch Civil Code, to be increased with 1.5 percent until full payment has been made. It being understood that a part of the month shall be considered an entire month.
  7. 6.8  All payments shall be made in Euro’s, unless another currency is agreed upon in writing.
  8. 6.9  The Customer is not entitled to withhold and/or suspend its obligations towards TMC based on alleged shortcomings in the Services provided by



TMC (notified in conformity with clause 7.1) and/or the alleged inadequate
performance of the Services and/or any other reason, unless the shortcoming is
explicitly acknowledged by TMC. Only in that event the Customer is entitled
to suspend a maximum of 15% of the total amount due to TMC until the
shortcoming has been remedied.

  1. 6.10  All payments by the Customer will first be applied against all outstanding costs and interests and subsequently against the invoices which have been outstanding the longest period, irrespective of any deviating payment indications/instructions given by the Customer.
  2. 6.11  If the Customer fails to timely fulfil its payment obligations towards TMC, TMC is (without any prior notice of default being required) entitled to charge to the Customer all costs incurred by it, both judicially as non-judicially. Non- judicial costs (“buitengerechtelijke kosten”) are equal to 15% of the total principal amount due to TMC, with a minimum of EUR 40.
  3. 6.12  Any complaints relating to a specific Service do not affect (the performance of) other Services and/or parts thereof which are subject to the same Agreement. Nor do any complaints affect the payment obligations of the Customer, other than as mentioned in clause 6.9.

Clause 7 – Liability

  1. 7.1  The Customer is obliged to examine the Services provided on a weekly basis. Complaints relating to the Services, or relating to any other obligation of TMC by virtue of the Agreement, have to be notified in writing to TMC in writing within 7 days after discovery of the shortcoming and/or the grounds for the complaint. If the Customer does not timely notify its complaint, TMC can no longer be held liable and has no obligation to compensate any damages whatsoever.
  2. 7.2  All liabilities of TMC in relation to or in connection with the performed Services lapse 6 months after final delivery of the Services and/or after the termination of the Services.
  3. 7.3  TMC can not be held liable for any damages suffered by the Customer caused by products of third parties used by TMC for the performance of the Services. Upon request of the Customer TMC shall disclose the identity of the third party supplier of these products to the Customer.
  4. 7.4  TMC shall not be liable for consequential damages (including but not limited to loss of profits and trading losses).
  5. 7.5  In the event of liability of TMC, this liability shall be limited to a maximum amount that is equal to 50% of the total fee (excluding expenses) as mentioned in the Agreement, unless the insurance policy of TMC does not cover such an amount. In that case the liability of TMC is limited to the amount that is paid out by the insurance company of TMC.
  1. 7.6  TMC is not liable for and the Customer shall indemnify TMC and hold TMC harmless for damages suffered by the Customer and/or third parties, relating to or as a consequence of the Services provided, unless these damages are for the account of TMC based on mandatory rules of law, or unless all of the following conditions are fulfilled: i) the damages are clearly caused by TMC and/or the Employee and are the consequence of wilful misconduct or gross negligence; ii) the damages are arisen in the performance of the Agreement; and, if the damages are caused by the acts or omissions of an Employee: iii) the Customer and/or the third party can demonstrate that it/they could not have prevented the relevant acts or omissions of the Employee.
  2. 7.7  All costs for legal and/or other assistance incurred by TMC in relation to claims for which TMC is not liable by virtue of these general conditions, (including the costs concerning the defence against such claims and negotiations, which are deemed to amount at least 15% of the total amount of the claim) shall be for the account of the Customer and shall be reimbursed by the Customer to TMC upon request. The foregoing does not prejudice TMC’s right to charge additional costs and damages incurred by and/or suffered by TMC to the Customer, provided these costs and damages are properly specified.
  3. 7.8  TMC is not liable for damages caused by shortcomings in the Services, to the extent that these shortcomings and damages are (partly) caused by an act or omission of the Customer or any of its subordinates, or by other parties engaged by the Customer, whereby instructions of the Customer with respect to the performance of the Services are deemed to be an act of the Customer.

Article 8 – Force majeure

  1. 8.1  TMC shall never be liable vis-à-vis the Customer for damages incurred by the Customer in the event that TMC can not (timely) perform its obligations due to circumstances that qualify as force majeure.
  2. 8.2  Force majeure in these general conditions means (i) each shortcoming that can not be attributed to TMC because it is not due to its fault and can not be attributed to TMC based on the law, legal act or current prevailing opinions; and (ii) unanticipated circumstances that TMC were not taken into account by TMC at the moment of concluding the Agreement and which circumstances reasonably prevent the normal performance of the Agreement by TMC including but not limited to illness, war, threat of war, civil war and riots, acts of war, sabotage, power breakdown, floods, earthquake, fire, sit-down strike, strike, lockout, altered governmental measures, difficulties of transport, and other disturbances in the company of TMC; and (iii) the situation that suppliers of TMC who are crucial for the proper performance of the Services by TMC, do not fulfil their contractual obligations towards TMC, unless such non fulfilment is attributable to TMC.
  1. 8.3  If in the event that due to force majeure the performance of the Services by TMC is no longer possible or unreasonably onerous, TMC is entitled to terminate the Agreement by written notification to the Customer with immediate effect without any judicial intervention being necessary and without any damages being due. The notification shall be sent by registered mail.
  2. 8.4  In the event that the force majeure lasts for more than 3 consecutive months, the Customer is entitled to terminate the Agreement with immediate effect by means of registered letter to TMC.
  3. 8.5  If case the performance and/or supply of Services in a force majeure situation leads to additional costs for TMC, TMC shall notify this to the Customer before these costs are actually incurred. These additional costs shall be for the account of the Customer, unless the Customer notifies TMC within one week after receipt of the notification of TMC that it terminates the Agreement. Clause 8.6 of these general conditions is applicable.
  4. 8.6  After termination of the Agreement by the Customer – irrespective of the reason(s) thereof – TMC is entitled to claim compensation for all costs made and/or performed activities and/or supplied Services, in so far the Customer had any benefit from the costs made by TMC and/or the performed activities by TMC and/or the supplied Services.

Clause 9 – Intellectual and industrial property rights

  1. 9.1  The Customer owns all legal title to the intellectual and industrial property rights and/or database rights that arise during the term of, or in relation to the execution of the Agreement. TMC hereby transfers legal title to all intellectual and industrial property rights and/or database rights that arise during the term of or in relation to the execution of the Agreement to Customer in advance. If necessary and upon request of the Customer, TMC shall do everything that is reasonably necessary in order to effectuate the transfer, or establishment and/or registration of the mentioned rights for the benefit of the Customer.
  2. 9.2  The Customer shall indemnify TMC and shall hold TMC harmless for any and all claims of third parties alleging that the intellectual and industrial property rights and/or database rights mentioned in clause 9.1 infringe upon the intellectual and industrial property rights and/or database rights of these third parties, or other claims relating to any infringements of such rights.

Clause 10 – Confidentiality

The Customer is obliged to keep confidential all confidential information
disclosed by or on behalf of TMC to the Customer in relation to the
performance of Services, provided that TMC has informed the Customer about
the confidential nature of the information prior to the disclosure thereof.



Clause 11 – Termination of the Agreement

  1. 11.1  In
    1. the Customer does not, not properly or not timely fulfil any of its obligations by virtue of the Agreement;
    2. of bankruptcy, moratorium of payments, closing down or liquidation of the company of the Customer, the offer for a private arrangement related to debt restructuring by the Customer, appointment of a liquidator or administrator (or any person comparable thereto) within the Customer, a substantial part of the assets of the Customer is seized, or any comparable event occurs with respect to the assets of the Customer;
    3. the Customer is dissolved or discontinues its activities or a substantial part thereof or a resolution thereto is adopted;
    4. all or a substantial part of the activities of the Customer are transferred outside the Netherlands;
    5. the Customer enters into a merger or demerger, is (partly) taken over, is reorganised or the control over the Customer is transferred to a third party, or a resolution thereto is adopted;
    6. any changes occur within the bodies of the Customer who have the power to appoint the board of directors of the Company and/or the Customer’s strategy;
    7. the Customer supplied false information, failed to provide information to TMC or misled TMC by any means and TMC would, if it had know that the information was false or misleading, not have entered into the Agreement or at least under other conditions;
    TMC has the right, without any notice of default or judicial intervention being necessary, to (partly) dissolve the Agreement with immediate effect by means of a registered letter to the Customer, without any kind of damages being due, and without prejudice to TMC’s other rights. In the events mentioned above all claims of TMC are immediately due and payable.
  2. 11.2  Without prejudice to clause 6.6 hereof, TMC is entitled to suspend the fulfilment of its obligations until the Customer upon request of TMC has provided sufficient security for the fulfilment of its obligations by virtue of the Agreement.
  3. 11.3  If the Customer fails to provide sufficient security as requested by TMC, TMC has the right to immediately dissolve the Agreement without any judicial intervention being necessary and without any damages being due to the Customer.
  4. 11.4  On first written demand of TMC the Customer is obliged to proof its creditworthiness to TMC by means of submission of financial documents that show the financial position of the Customer and which have been approved by a registered accountant or any other person acceptable to TMC. If the Customer does not fulfil this obligation, TMC has the right to immediately


the event:



dissolve the Agreement without any judicial intervention being necessary and
without being any damages being due.

Clause 12 – Transfer of Agreements

  1. 12.1  TMC is at all time entitled to (partly) transfer its rights and/or obligations by virtue of the Agreement to a third party. The Customer hereby irrevocably grants its approval to such transfer in advance. “Third party” in this context means: a party that is not a party to the Agreement, irrespective if such third party is part of the group to which TMC Group B.V belongs.
  2. 12.2  Without the prior written approval of TMC the Customer is not entitled to (partly) transfer its rights and/or obligations by virtue of the Agreement to a third party.

Clause 13 – Invalidity

If any provision in these general conditions is null, voidable or not valid
and/or not enforceable, such shall have no effect on the (other) provisions of
the Agreement and of these general conditions. The relevant provision shall
deem to be replaced by a valid and enforceable provision which (from a legal
and economic perspective) deviates as little as possible from the original
provision.

Clause 14 – Applicable law and jurisdiction

  1. 14.1  All legal relationships between TMC and the Customer, including but not limited to Agreements to which these general conditions wholly or partially apply, are subject to Dutch law.
  2. 14.2  All disputes that arise between TMC and the Customer in relation to an Agreement to which these general conditions wholly or partially apply, or further agreements or other legal relationships between TMC and the Customer, shall be submitted to the competent court in the district of Oost Brabant (the Netherlands).