Terms & Conditions
Article 1. Definitions
1.1 In these Terms and Conditions, the following terms have the following meanings:
Documents: any and all items provided by the Principal to the Contractor, including print documents or data media, as well as any movable property created by the Contractor as part of the performance of the contract, including print documents and data media.
Kreston Lentink Corporate Finance B.V.: a private limited company established under Dutch law
Contractor: the private limited liability company Kreston Lentink Corporate Finance B.V., with its registered office in Huizen, the Netherlands, trading under the name Kreston Lentink or otherwise.
Principal: the party which has instructed the Contractor to provide Services, as well as the party to whom or to which the Contractor has made an offer to provide Services.
Agreement: a contract for services or pertaining to another type of legal relationship between the Contractor and the Principal, whereby the Contractor will provide Services relating to the establishment of a Transaction, the valuation of enterprises or legal entities, the organisation of the financing or refinancing of enterprises and the support of corporate reorganisations.
Regulations: all applicable laws, rules and regulations imposed by any supervisory or regulatory body, government entity or exchange/stock exchange, which may be amended intermittently.
Target: the company or enterprise owned/operated by the Principal which is the subject of the Transaction or a valuation.
Transaction: the agreement pursuant to which (i) shares in the Target are transferred or acquired either directly or indirectly and/or (ii) the assets and/or liabilities in the Target are transferred or acquired in whole or in part and/or (iii) the Target’s business is transferred or acquired in whole or in part in any other manner.
Services: any and all Services for which instructions have been provided or which are provided by the Contractor on any other basis on behalf of the Principal.
Article 2. Applicability
2.1 These General Terms and Conditions apply to all Agreements.
2.2 These General Terms and Conditions may be departed from only in writing.
Article 3. Negotiation of the Agreement
3.1 The Agreement will be deemed to have been negotiated as soon as the Contractor has received the signed proposal it has drafted from the Principal by return post, or at such time as the Contractor, at the Principal’s request (verbal or otherwise) has begun providing the Services on the Principal’s behalf.
3.2 The Agreement will be deemed to have been entered into exclusively by the Contractor, also if it has been accepted by one of the Contractor’s employees or representatives. The Principal will not be entitled to hold any other natural person or legal entity than the Contractor accountable or liable for fulfilment of the Agreement, even if the Principal has granted a contract with the objective of having it performed by this specific person.
Article 4. Performance of the Agreement
4.1 In performing the Agreement, the Contractor will exercise due care to the extent possible. The Contractor’s obligations constitute best-efforts obligations. The Contractor does not guarantee a specific outcome whatsoever.
4.2 Unless otherwise agreed by the Parties, the Services assigned by the Principal to the Contractor under the Agreement are of an exclusive nature, and the Principal cannot, without the Contractor’s written consent, engage the services of another consultant and/or any other third party in order to provide equivalent, similar or related services as part of the Transaction.
4.3 The Contractor will not be responsible for providing legal, tax and accounting advice relating to the Transaction, valuation or financing/refinancing or a reorganisation. The Principal will engage the services of legal, tax and accounting consultants at its own risk and expense. Note that engaging such third parties in order to provide Services is subject to the Contractor’s consent.
4.4 The Contractor is authorised to engage the services of third parties in the performance of Contracts at the Principal’s expense, if and to the extent it deems this necessary. The Contractor accepts no liability for any errors committed by these third parties, nor for any loss or damage relating thereto.
4.5 If the Contractor agrees on deadlines for the provision of specific Services, these always constitute guidelines, unless expressly otherwise agreed between the Parties.
4.6 The use of academic titles by the parties (individuals or entities) charged with the performance of the contact or involved therewith serves solely to indicate the level of competence of the individuals in question. Individuals who use the title of Registeraccount (Chartered Accountant) or Accountant Administratieconsulent (Accounting Consultant) will not act in the capacity of accountants (for auditing purposes or otherwise). The data supplied by them will not be audited, unless it is confirmed explicitly and in writing that an investigation has been conducted into the accuracy of the accounting in question.
4.7 If and to the extent that the parties charged with the performance of the contract or whose services have been engaged act as brokers or as sworn appraisers in business interests or as Register Valuator (RV), the Contractor will comply with the rules of conduct and professional rules imposed by the Netherlands Organisation of Brokers, Auctioneers and Valuers/Appraisers of movable property (Nederlandse Orde van Makelaars/Taxateurs in Bedrijfsbelangen) or the Netherlands Institute of Chartered Business Valuators (Nederlands Instituut voor Register Valuators/NIRV).
4.8 The Contractor will be authorised to suspend fulfilment of all its obligations, including the issue of Documents or other items to the Principal or third parties, up to the time when all due and payable
claims have been paid in full by the Principal.
4.9 During the performance of the contract and within 12 (twelve) months following termination thereof, the Principal will not be authorised to hire employees of the Contractor, unless this is done by mutual agreement and subject to the Contractor’s prior written consent.
Article 5. Required information
5.1 The Principal will provide the Contractor with all the information the latter might require for the performance of its duties, and will do so in a timely fashion, in the appropriate format and in the manner required. Furthermore, the Principal will, of its own instigation, immediately notify the Contractors of all facts and circumstances of which it is aware, or should reasonably be aware, that they are important, or could potentially be important, for the correct performance of the contract by the Contractor.
5.2 The Principal will cooperate in any way necessary for the correct performance of the Services by the Contractor. The Principal will be available to attend meetings with the Contractor and will ensure that the Target’s management will be available for meetings with the Contractor.
5.3 ThePrincipal warrants the accuracy, completeness and reliability of the information and Documents provided to the Contractor, irrespective of how this information and these Documents were provided to the Contractor and irrespective of whether this information and Documents originate from third parties. The Principal indemnifies the Contractor against any and all third-party claims which may be traced back to information which the Principal has provided to the Contractor, either through third parties or otherwise.
5.4 If the performance of the contract is delayed because the Principal fails to meet its obligations pursuant to Articles 5.2 and 5.3 or if the information provided by the Principal fails to satisfy the provisions of Article 5.3, any expenses or additional expenses arising therefrom will be borne by the Principal, and the Contractor will be authorised to charge the Principal for any additional Services provided.
5.5 The Contractor will be entitled to suspend the performance of the contract until such time as the Principal has fulfilled all the obligations specified in this article, notwithstanding the Contractor’s right to rescind the contract for services, without the Principal being entitled to any form of compensation whatsoever.
Article 6. Confidentiality
6.1 The Contractor will treat confidentially any information regarding the Principal and the Target of which the Principal has made clear it is of a confidential nature, unless (i) the Contractor is required by law to disclose, (ii) disclosure is made on the instruction of the court or the competent regulator, (iii) the information is sourced from public registers/databases or is otherwise in the public domain and/or (iv) the information is relevant to legal proceedings between the Contractor and the Principal.
6.2 If third parties are engaged by the Contractor in the performance of the Agreement – in accordance with the provisions of Article 4.3 – the Contractor will be authorised to share this information with such third parties, unless the Principal has stated in advance that this requires its prior consent.
6.3 To the extent that information which has been classified by the Principal as confidential is included in the Information Memorandum or Funding Memorandum to be drafted by the Contractor, the latter will be entitled to provide copies of this Information Memorandum or Funding Memorandum to potential buyers or potential financiers following receipt of a signed non-disclosure agreement. The Contractor will not be liable to the Principal if a potential buyer and/or financier acts in contravention of the non-disclosure agreement.
6.4 Unless otherwise agreed between the Parties, the Contractor will be authorised to speak out in public regarding its role in the Transaction on completion thereof, including (but not exclusive to) the production of tombstones, the issue of press releases, and notices in leaflets/brochures and on the Contractor’s website. Any press releases to be issued by the Principal in relation to the Transaction and its preparation require the Contractor’s prior consent.
Article 7. Relationship between the Contractor and Kreston Lentink Corporate Finance B.V.
7.1 The Contractor is affiliated with Kreston Lentink Corporate Finance B.V.. In accepting these General Terms and Conditions, the Principal acknowledges that other companies or organisations forming part of Kreston Lentink Corporate Finance B.V. are not responsible or liable for the services provided by the Contractor.
7.2 The Principal accepts that Kreston Lentink Corporate Finance B.V. undertakes a collection of several advisory services (Accountancy and Tax), both for themselves and/or their business associates. During the provision of its services to its clients, there is a possibility of Kreston Lentink Corporate Finance B.V. (or sections thereof) providing services and/or products to parties whose interests conflict with those of the Principal or with whom there is a relationship of material significance. The Contractor is not obliged under any circumstances to provide information regarding such business associates. The Contractor has implemented a number of procedures, including Chinese Walls, which ensure an independent recommendation to the Principal.
7.3 Neither the Contractor nor its employees are obliged to provide information to the Principal which is obtained during the provision of services for any other parties.
Article 8. Intellectual Property Rights
8.1 The Contractor reserves all rights regarding the works (intellectual property and otherwise) used by the Contractor under the Agreement or which are the result of the work performed by the Contractor. Such works (including intellectual property) include, but are not limited to, models, techniques, analyses, software, checklists, the Information Memorandum, the Funding Memorandum, processes and procedures, advice/recommendations, and plans.
8.2 The Principal will not be authorised to use the works specified in Article 8.1 for any purpose(s) other than the negotiation of the Transaction. Furthermore, the Principal will not be authorised to reproduce, publish or commercially exploit the products specified in Article 8.1.
8.3 The Principal will not be authorised to make the products specified in Article 8.1 available to any third parties other than to obtain an expert opinion regarding the Contractor’s services.
Article 9. General Data Protection Regulation (GDPR)
9.1 If and to the extent that the Contractor, pursuant to the performance of the Agreement, gains access to personal data as specified in the General Data Protection Regulation (GDPR), the Contractor will process such data exclusively in the performance of the Agreement. To the extent required under the law, the Contractor will notify the party to whom the personal data relates in accordance with the applicable regulations.
Article 10. Electronic communications
10.1 If the Principal and the Contractor communicate with one another through the use of electronic technologies, including e-mail and the internet, both parties must take the appropriate security measures by using the standard virus and access protection. Once these obligations have been satisfied, neither party will be liable to the other party for any loss or damage relating to any viruses transmitted or hacks, including, among other things, loss related to disclosures, damage to data files to be transferred, damage to other files or data stored on the computer systems of the other Party or expenses related to the correction or repair thereof. E-mails will be sent unencrypted, unless expressly otherwise agreed by the Parties prior to dispatch. If the Principal believes important messages have been sent to the Contractor, it must verify whether these messages have reached the addressee at the Principal’s offices in time and intact.
Article 11. Rates and Billing
11.1 The Contractor will charge for its Services the fee specified in the proposal it has drafted. If the Parties have not agreed on a fee, the Principal will be required to pay a fee equal to that which the Contractor typically charges for its Services.
11.2 The Contractor will charge any expenses incurred and expense claims filed by third parties (including travel and accommodation expenses, translation expenses, postage and courier charges and printing costs) to the Principal under separate cover
11.3 All invoices will include the applicable Dutch VAT rate. If the Contractor has not charged VAT for whatever reason and it subsequently becomes evident that VAT should have been charged, it can charge the Principal for the amount not charged as VAT at a later stage, and the Principal will be required to pay the Contractor this amount at such later stage.
11.4 Payment to the Contractor must be made within 14 days of the date of invoice, without deduction, discount or settlement. If the Principal fails to make payment in time, the Contractor will be authorised, without further notice of default, to charge the statutory commercial interest.
11.5 In the event that the Contractor provides the Services to more than one principal, the Principals will be jointly and severally liable to pay the invoice amount.
11.6 The Contractor will be authorised at all times to demand from the Principal a reasonable advance payment in fulfilment of its payment obligation. The Principal is furthermore required to provide adequate security for the payment of the Services if so requested by the Contractor.
Article 12. Term and Termination
12.1 The Agreement is being entered into for an indefinite period of time, unless otherwise provided for in the Agreement. The Agreement will terminate as a result of:
a. completion of the Transaction in accordance with Article 12.2;
b. completion of the funding application in accordance with Article 12.3;
c. completion of the valuation engagement in accordance with Article 12.4;
d. termination of the Agreement by the Principal in accordance with Article 12.5;
d. termination of the Agreement by the Contractor in accordance with Article 12.6;
f. rescission of the Agreement pursuant to Section 265 of Book 6 of the Netherlands Civil Code; and
g. termination of the Agreement by mutual agreement between the Parties.
12.2 The Transaction will have been completed as soon as an agreement has been entered into pursuant to which (i) shares in the Target are transferred directly or indirectly and/or (ii) the assets and/or liabilities in the Target are transferred in whole or in part and/or (iii) the Target’s business is otherwise transferred in whole or in part. Transfers occurring as part of an internal reorganisation will not be regarded as Transactions in this context.
12.3 The funding application will be completed as soon as an agreement has been entered into based on which the funding was provided by a financier.
12.4 The valuation engagement will be completed as soon as a final valuation report has been provided to the Principal and has been discussed.
12.5 The Principal may cancel the Agreement by registered post, subject to four weeks’ notice. If the Principal cancels the Agreement, the Principal will be required to pay the following amounts, in addition to any break-up fee agreed:
a. if a fixed fee has been agreed for the Contractor’s services, the Principal will be required to pay this fixed fee;
b. if a fee has been agreed which depends on completion of the Transaction, the Principal will be required to pay this fee if the Transaction is completed, as specified in Article 12.2, within twelve months following the date of receipt of the cancellation letter, whereby any previously paid break-up fee will be deducted from this Transaction-dependent fee, with the proviso that, if this were to add up to a negative amount, the Contractor will not be required to repay any portion of the break-up fee.
c. the Principal is required to pay a fee to cover all expenses incurred by the Contractor.
12.4 The Agreement may be cancelled by the Contractor at any time at the latter’s discretion. If the Contractor cancels the Agreement due to circumstances attributable to the Principal (e.g. consistently failing to follow the Contractor’s reasonable recommendations) and these circumstances are such that the Contractor can no longer be expected to provide its Services, the Principal will be required to pay the Contractor a fee equal to the break-up fee agreed by the Parties. Irrespective of the reasons for cancellation, the Principal will be required to cover the expenses incurred by the Contractor.
12.5 If the Agreement ends by mutual agreement between the Parties, the Principal, if a fee has been agreed which depends on the completion of the Transaction or funding, will still be required to pay this fee if the Transaction or funding is completed within twelve months of termination of the Agreement, as specified in Articles 12.2 and 12.3, unless expressly otherwise agreed on termination of the Agreement.
Article 13 Limitation of liability and indemnification
13.1 The Contractor will solely be liable to the Principal for loss or damage resulting directly from an error attributable to the Contractor (and not to any third party whose services the Contractor has engaged) in the performance of the Contract. If the performance of a Contract results in liability, such liability will always be limited to the amount which would be paid in the case in question under the Contractor’s applicable liability insurance policy, including the insurance excess which would be payable by the Contractor in the case in question. Any liability on the part of the Contractor arising from or relating to an attributable error or unlawful act, or which is based on any other legal ground will – to the extent that the Contractor’s liability insurance provider fails to pay compensation – be limited to the amount paid by the Principal to the Contractor for the services in connection with which the loss or damage was created, subject to a maximum of €100,000 (one hundred thousand euros). The Contractor will not invoke this limitation of liability if the loss or damage is the result of gross negligence or willful misconduct on the Contractor’s part.
13.2 Any claims for compensation against natural persons (individuals) employed by the Contractor and who would be held responsible or co-responsible for the loss or damage is excluded. Such individuals can – by way of third-party clause – invoke these General Terms and Conditions and, by implication, this article (Article 13.2).
13.3 The Principal will indemnify the Contractor – and the above-mentioned natural persons (individuals) – against any third-party claims arising from or related to an error or unlawful act on the part of the Contractor – or on the part of those individuals – as part of the Services provided or to be provided.
Article 14. Amendment
14.1 If the circumstances were to change in any relevant way, the Contractor will be authorised to amend the General Terms and Conditions. The amended General Terms and Conditions will take effect 14 (fourteen) days after the Contractor has notified the Principal of the amendment in writing. A change in circumstances will be deemed to be relevant if it concerns an amendment of the applicable laws and regulations or if the Contractor cannot be expected to uphold the current Terms and Conditions without any amendment based on standards of reasonableness and fairness.
Article 15. Compliance with Regulations
15.1 The Principal warrants and guarantees to the Contractor that it:
a) will comply with the applicable Regulations at all times and will assist the Contractor in complying with the relevant Regulations;
b) possesses/has obtained all the required approvals, authorisations, powers of attorney and permissions to enter into the Agreement with the Contractor;
c) possesses/has obtained/will obtain/will exercise all the required approvals, authorisations, powers of attorney and permissions in a timely manner from or with all competent government or regulatory bodies.
Article 16. Miscellaneous
16.1 The applicability of sections 404, 407 (2) and 409 of Book 7 of the Netherlands Civil Code are excluded.
16.2 Any claims on the part of the Principal will expire twelve (12) months after the services to which the claims relate have been completed, unless any rights on the part of the Principal expired on an earlier date under the law.
16.3 The Agreement entered into between the Contractor and the Principal is governed by Dutch law.
16.4 Any disputes between the Principal and the Contractor will be referred to the competent court in the Contractor’s domicile, notwithstanding the Contractor’s authorisation to refer disputes to a court which would be competent in the absence of this provision.
Huizen, the Netherlands, September 2019