Terms and conditions

CORBULO GENERAL TERMS AND CONDITIONS

These are the general terms and conditions of Corbulo Executive Search B.V. and of Corbulo Interim Management B.V., hereinafter both referred to as “Corbulo”. These general terms and conditions apply to all applications, offers, assignments and agreements between Corbulo and its clients.

These general terms and conditions have been filed with the Chamber of Commerce in The Hague under number 27275421.

Definitions
1. In these general terms and conditions, the following terms have the following meanings:

• Client: the natural person or legal entity that has instructed Corbulo to perform the work described in these general terms and conditions;
• Recruitment and Selection: the selection by Corbulo of one or more candidates for the Client, which candidates will be introduced to the Client verbally or in writing with the aim of creating an Employment Relationship between the Client and the candidate;
• Employment Relationship: every (actual) working relationship, including: an employment contract, a contract for work, a contract for services, an appointment as public servant, and the hiring in of employees, whether or not through a third party;
• Intermediation: at the request of the Client that requires such work in respect of its business as the work to be performed by the Interim Professional on another basis than an employment contract, as agreed in a contract for services. This contract is qualified as a contract for services within the meaning of Article 7:400 Dutch Civil Code, in respect of which the Interim Professional performs the work in the independent performance of his profession/business and the provisions of Title 7, Book 7 Dutch Civil Code apply to the contract, except if and in so far as the parties have departed from them in the contract. The contract is identical to the model agreement assessed by the Revenue on 17 March 2016 under number 90915.68203;
• Interim Professional: a self-employed person without staff having his own business with the legal form of a private company (BV) or sole proprietorship.

General provisions

2. Corbulo may amend these general terms and conditions unilaterally. Corbulo will inform the Client of any amendment in writing. Unless the Client communicates its lack of agreement to the amendment in writing within 14 days of dispatch of Corbulo’s written notification, the amended general terms and conditions will replace the general terms and conditions prevailing at that time. In the event that the Client informs Corbulo in writing within said term that it does not agree to the amendment, the general terms and conditions existing at that time will remain in force.

3. The Client will provide Corbulo in good time with all information that Corbulo needs for the proper performance of the assignment. If Corbulo wishes to receive this information in writing, the Client will arrange for written provision of the information as soon as possible.

4. Corbulo quotations are free of obligation. A quotation has been accepted if it has been approved in writing, confirmed by email or the procedure has commenced.

5. Corbulo and the Client will treat all confidential information they acquire about each other’s companies and relations as strictly confidential and will not disclose it to third parties without the other party’s written consent, unless – and at such time in so far as – provision of that information is required to be able to properly perform the assignment or one of them has a statutory duty of disclosure.

6. Corbulo is entitled to suspend performance of its obligations ensuing from the assignment in the event that the Client has failed to meet its obligations.

7. If the Client fails to comply with any obligation from these general terms and conditions, it will be liable to pay Corbulo any and all ensuing damage and costs (including the costs of legal assistance), without any prior notice of default being required, and it will indemnify Corbulo in that respect if necessary. This does not alter the fact that Corbulo may file any other claims, for example to rely on dissolution. The Client will take out adequate insurance against liability pursuant to the provisions in this Clause. At Corbulo’s request, the Client will provide proof of insurance.

8. Corbulo will perform the assignment given to it to the best of its ability. It is subject to a best-efforts obligation. Any liability that Corbulo may have vis-à-vis the Client, both contractual and non-contractual, is limited to the amount that the Client has paid by virtue of the invoices it has received, such with a maximum of EUR 50,000. In no event will the maximum amount to be paid out by Corbulo exceed the amount to be paid out by its insurer. Liability for indirect damage, including consequential damage, loss of profits, lost savings and damage due to business interruption, is excluded for Corbulo. A precondition for the existence of any liability on the part of Corbulo is always that the Client reports the damage or loss to Corbulo in writing as soon as possible, but in any event within two months of its occurrence or of becoming aware of it.

9. Corbulo helps organisations to resolve issues related to management and personnel provision aimed at long-term employment and in respect of finance/business-related issues, specific financial expertise or the replacement of one of the organisation’s employees during an interim period. These services are performed from an independent position vis-à-vis the organisations utilising them, and the proposed candidates. Corbulo observes total discretion with regard to company and personal details, and act in accordance with the basic principles of the General Data Protection Regulation (Algemene verordening gegevensbescherming).

Special provisions on executive and talent search

Performance of the assignment

10. An assignment with regard to an executive and talent search has been successfully performed if and as soon as an Employment Relationship exists between the candidate and the Client. The existence of an Employment Relationship is also assumed if and as soon as the candidate works for the Client or a company affiliated with it, in any manner whatsoever, whether or not via a third party.

11. The situation in which a candidate proposed to the Client by Corbulo works for the Client or a company affiliated with it within 12 months of the candidate’s introduction, whether or not following the Client’s withdrawal of the assignment to Corbulo, in any manner whatsoever, whether or not via a third party, is put on a par with successful performance of the assignment.

12. Unless the Client has made an express reservation in writing in this respect in advance, the fee as referred to in Clause 15 is also due if the candidate introduced by Corbulo proves to be already known to the Client.

Responsibility

13. Corbulo is obliged to endeavour to recruit and select suitable candidates within the context of an assignment for the purpose of entering into an Employment Relationship with the Client. However, Corbulo is not responsible for the verification of references, testimonials, lists of marks, certificates, diplomas and the like of proposed candidates, nor for obtaining and/or verifying work permits and/or verifying the mental or physical condition of candidates (to the extent that this is even possible). Consequently, the Client bears full responsibility for the decision to enter into an Employment Relationship with a candidate selected by Corbulo, as well as for the arrangements made in that respect, the remuneration and the working conditions. Corbulo accepts no liability whatsoever for any failure by and/or damage caused by a candidate proposed by Corbulo.

Confidentiality

14. The Client is not permitted to disclose information of a candidate selected by Corbulo to a third party without Corbulo’s prior written consent. If the provisions in this Clause are breached, the Client will owe Corbulo an immediately payable penalty of EUR 25,000 for each breach, without prejudice to Corbulo’s right to seek full damages.

Fee

15. Upon the successful performance of the executive and talent search assignment, the Client owes Corbulo a fee, which is equal to a percentage of the candidate’s gross annual salary as laid down in the assignment confirmation, plus the VAT due on this amount. The gross annual salary as referred to in this Clause is the annual income, including all fringe benefits, that the candidate will earn within the context of the Employment Relationship created. In the event of a part-time position and/or temporary Employment Relationship lasting less than a year as well, the annual salary will be based on a full working week and a full year. ‘Fringe benefits’ includes holiday allowance, 13th and/or 14th month’s bonus, profit-sharing bonus, any other form of profit sharing and any other bonuses, on-target earnings, commission, fixed expense allowances, and all payments and employment conditions to be quantified as such. Fringe benefits are also taken to include 25% of the list price (including private motor vehicle and motorcycle tax (BPM) and VAT) of a car made available to the candidate by the Client.

Invoicing and payment

16. The fee as referred to in Clause 15 will be invoiced to the Client as soon as possible after the creation of the Employment Relationship between the Client and the candidate. The Client will so inform Corbulo immediately after the Employment Relationship has been created, giving full access to the candidate’s employment conditions and providing Corbulo with a copy of the arrangements made in writing by the candidate and the Client. In any event, the Client is obliged to provide Corbulo with information regarding the gross annual salary and commencement date of the candidate selected by Corbulo within 14 days of a request to that end. If the Client does not provide information in good time or provides insufficient or incorrect information, Corbulo will be entitled to estimate the gross annual salary and commencement date and to send an invoice in accordance with that estimate.

17. The Client is required at all times to pay every invoice submitted by Corbulo within 14 days, to be calculated as from the date of the invoice. If the Client fails to pay the invoice within the payment period, it will be in default by operation of law and owe interest of 2% per calendar month on the outstanding amount as from the first day after the end of the payment period, with part of a month being counted as a full month. The carbon copy or other copy of the invoice sent by Corbulo to the Client that is in the possession of Corbulo serves as full proof of the indebtedness of the interest and the date on which the calculation of interest commences.

18. The Client is not authorised to set off the invoice amount, regardless of whether it challenges that amount, against any counterclaim it rightly or wrongly believes it has and/or to suspend payment of the invoice.

19. All judicial and extrajudicial (collection) costs incurred by Corbulo as a result of the Client’s failure to perform its obligations are fully for the account of the Client. The compensation for extrajudicial costs is set at 15% of the principal sum owing, including VAT and interest, unless Corbulo has incurred demonstrably higher costs. The Client will always owe the set fee as soon as it is in default, and the set fee will be charged without further proof.


Guarantee scheme

20. If the assignment has been performed successfully and the Employment Relationship between the candidate and the Client is terminated within one month of its creation due to a reason that cannot be attributed to the Client and that is not within its control for other reasons, and it has complied with all its payment obligations and other obligations by virtue of these general terms and conditions vis-à-vis Corbulo, it may make a one-off request to Corbulo to select a replacement candidate. If the Client wishes to avail itself of this option, it must so notify Corbulo in writing within 14 days of the end of the Employment Relationship with the candidate, absent which it cannot rely on the provisions of this Clause and the next Clause (or cannot rely on them any longer).

21. If the Client has requested that Corbulo select a replacement candidate as referred to in Clause 20 and Corbulo has not done so within three months of the end of the Employment Relationship between the candidate and the Client, Corbulo will reimburse the Client for 30% of the fee paid by the Client (so not for any other costs). In that case, Corbulo will send the Client a credit invoice for the relevant amount and will pay that amount to the Client within 30 days thereafter.
In no event will any repayment be made if the Client itself, whether or not via a third party, has found a replacement candidate within the period of two months.

Special provisions on Intermediation for Interim Professionals

Application and selection

22. Before commencement of the assignment, the Client will provide Corbulo with an accurate project description supplemented by information about duties/qualifications, duration and location of the project. Using the information provided by the Client, Corbulo will select one or more Interim Professionals, whom it will introduce to the Client in order to perform the assignment. The Client is entitled to reject a candidate proposed.

23. Corbulo will not be in default vis-à-vis the Client and will not be obliged to compensate for any damage if its efforts, for any reason whatsoever, do not result in the actual deployment of an Interim Professional, or do not do so within the term desired by the Client.

24. Corbulo is entitled at all times not to accept assignments or to return them if, in Corbulo’s opinion, the Client’s creditworthiness has been insufficiently shown. Premature termination for this reason will entail settlement according to the progress made with the assignment. The provisions of Clauses 39 through 44 (no takeover) will continue to apply in full.

25. Corbulo will not be liable for any damage resulting from the deployment of an Interim Professional who proves not to meet the requirements set by the Client, unless the Client files a written complaint in this respect with Corbulo immediately and within 8 days of commencement of the deployment and demonstrates in this complaint that the selection involved intent or wilful recklessness.

Term of the assignment

26. The contract is entered into for the duration of the assignment as included in the contract. The contract ends by operation of law when the assignment has been completed. The contract can be terminated prematurely in writing by either the Interim Professional, the Client or Corbulo with due observance of a notice period of one month, unless a shorter notice period is justified in a specific case on the basis of reasonableness. The Client will inform Corbulo in writing of the termination if the contract is terminated at the Client’s initiative or at the Interim Professional’s initiative. The contract also ends with the mutual consent of the Client, Corbulo and the Interim Professional, whether or not with immediate effect or at a time to be determined by them or by operation of law.

27. Any extension of the assignment, as decided by the Client in consultation with the Interim Professional, is solely possible with the approval and through the Intermediation of Corbulo. Any extension will be effected in writing as a supplement to the contract. The provisions included in the contract expressly continue to be applicable in the event of such an extension, unless otherwise agreed.

28. The parties have the right to terminate the contract with immediate effect, without a notice of default being required, if:
i. one of the other parties files for suspension of payments or is declared bankrupt or is otherwise in a permanent condition of insolvency or is being dissolved;

ii. there are unforeseen circumstances (including amendment of legislation and regulations) that are not for the account of the terminating party and that are so far-reaching that, according to standards of fairness and reasonableness, the terminating party cannot be expected to maintain the contract;

iii. there is an unlawful act as referred to in Article 6:162 Dutch Civil Code by one of the other parties and this unlawful act can be imputed to that party or to a cause for which that party is answerable according to law or common opinion, as a result of which the terminating party can no longer be expected to maintain the contract;

iv. one of the other parties does not perform its obligations by virtue of the contract and this party still fails to perform this obligation within 14 days of receiving a written demand from one and/or several of the other parties, unless performance is permanently impossible, in which case with immediate effect;

v. one of the other parties ceases or transfers its activities, with the exception of a transfer within a group, or is dissolved or actually liquidated;

vi. one of the parties loses its right to free disposal of its assets in whole or in part;

vii. one or more goods of one of the other parties are seized, unless the seizure is vexatious.

29. If there is a change in circumstances as compared with the circumstances at the time that the contract was concluded, due to which – if these circumstances had already been known and/or at issue at the time that this contract was concluded – the Client would not have entered into the contract or would have stipulated other conditions, the parties will consult on any amendments to the contract. If the parties cannot reach agreement in this respect, the Client has the right, at its discretion, to terminate the contract (prematurely) without applying a notice period or to terminate the contract with immediate effect.

30. The party that terminates the contract based on the grounds referred to in Clauses 28 and 29 will never be obliged vis-à-vis the other party/parties to pay any damages with regard to any damage caused by the act of terminating the contract based on those Clauses.

31. The ending of an assignment does not affect the Client’s obligations vis-à-vis Corbulo with regard to Interim Professionals introduced to the Client by Corbulo.

Secondment prohibition

32. The Client or a company affiliated with it is not permitted during the performance of an assignment or during 12 months after its termination, regardless of the reason for termination, to employ an Interim Professional without consulting Corbulo or to have this Interim Professional perform work in a similar way, whether or not through third parties, unless otherwise agreed in writing between the Client and Corbulo.


Substitution

33. Within the context of the assignment, the Interim Professional may ask third parties to carry out the work to be performed, for example in the event of his absence. If this happens, such third parties must also have the skills and qualifications necessary for the proper and timely performance of the assignment. The Client may ask Corbulo to verify compliance with the objective qualification requirements as described in the project description by means of a screening.
The Interim Professional remains responsible for the performance of the assignment, as well as compliance with all provisions in the contract, and guarantees that the third parties engaged are aware of the provisions in the contract.
During the period of substitution as referred to in this Clause, the Interim Professional will continue to invoice the Client in the manner described in the contract and remains entitled to the fee from the Client. The Interim Professional makes his own arrangements with third parties in respect of any fees to be paid to third parties for their activities. The Interim Professional himself will take care of the payment to third parties. In the event that a substitute applies a lower rate than the Interim Professional, the Interim Professional will change his rate accordingly and charge this new rate. The Client and Corbulo are expressly not parties to these arrangements and cannot be obliged in any way whatsoever to make any payments to third parties.

Liability of the Client

34. The Client will compensate the Interim Professional for – and indemnify Corbulo against – all damage (including costs, including the actual costs of legal assistance) suffered by the Interim Professional within the context of the performance of his work, if and in so far as the Client and/or Corbulo are liable in this respect pursuant to Article 7:658 and/or possibly Article 7:611 Dutch Civil Code. If an industrial accident leads to the death of the Interim Professional, the Client will be required to compensate the persons referred to in Article 6:108 Dutch Civil Code for the damage (including costs, including the actual costs of legal assistance) in accordance with that Article. The Client will take out adequate insurance against liability pursuant to the provisions in this Clause. At Corbulo’s request, the Client will provide proof of insurance.

Liability of Corbulo

35. Corbulo will not be in default vis-à-vis the Client and will not be obliged to compensate for any damage if its efforts, for any reason whatsoever, do not result in the actual deployment of an Interim Professional, or do not do so within the term desired by the Client.

36. Corbulo will not be liable for any damage resulting from the deployment of an Interim Professional who proves not to meet the requirements set by the Client, unless the Client files a written complaint in this respect with Corbulo immediately and within 8 days of commencement of the deployment and demonstrates in this complaint that the selection involved intent or wilful recklessness.

Non-competition clause

37. For the term of this contract and during a period of 12 months after its termination, the Interim Professional will not establish or carry on or help carry on or have a third party carry on, whether directly or indirectly, any business in any form that is the same as, similar to or related to Corbulo’s business, or have a financial interest in any form in such a business or work in or for such a business in any way, whether or not for consideration, or have a share in it.

38. Without Corbulo’s prior written consent, the Interim Professional is furthermore prohibited, both for the term of this contract and during a period of 12 months after its termination, from approaching Corbulo’s business relations, including the Client, for commercial purposes and/or to maintain business contact with them in any way whatsoever, whether directly or indirectly, except by virtue of the assignment, regardless of whether this business contact materialised at the initiative of the business relations.

39. The Interim Professional warrants that the obligations as referred to in this Clause will be met, also in an identical way by any third parties. Any breach/non-performance by the third parties is considered to be a breach/non-performance by the Interim Professional and, as a result, the Interim Professional will incur the penalty as referred to in Clause 40.

40. In the event of a breach and/or non-performance of the provisions in Clauses 37 through 39, the Interim Professional will owe Corbulo, without further notice of default, an immediately payable penalty, which cannot be reduced, of EUR 5,000 per breach and a penalty of EUR 1,000 for every day that the breach/non-performance continues. The penalty will be owed by virtue of the mere breach or non-performance, but does not diminish Corbulo’s right to demand performance of the contract and does not diminish Corbulo’s right to seek full damages.

41. The Client or a company affiliated with it is not permitted during the performance of an assignment or during 12 months after its termination, regardless of the reason for termination, to employ an Interim Professional without consulting Corbulo or to have this Interim Professional perform work in a similar way, whether or not through third parties, unless otherwise agreed in writing between the Client and Corbulo.

42. Nor is the Client or a company affiliated with it permitted to employ an Interim Professional proposed by Corbulo to the Client within the context of an (intended) assignment within a period of 12 months of the aforementioned proposals to the Client without consulting Corbulo or to have this Interim Professional perform work in a similar way, whether or not through third parties, unless otherwise agreed in writing between the Client and Corbulo. Unless the Client has made an express reservation in writing in this respect in advance, this also applies if the Interim Professional introduced by Corbulo proves to be already known to the Client in any way.

43. If the Client acts contrary to the provisions in Clauses 41 and 42, it will owe Corbulo an immediately payable penalty of EUR 40,000, without prejudice to Corbulo’s right to demand performance of the Client’s obligations. The penalty will also be due if the breach is not attributable to the Client. A payable penalty does not take the place of any damages to be sought by Corbulo.


44. In the provisions in Clauses 41 through 43, an ‘Interim Professional’ is also understood to refer to an Interim Professional who was proposed to the Client by Corbulo in the previous 12 months and an Interim Professional whose deployment ended less than 12 months prior to the conclusion of the contract with the Client.

Rate

45. The fee that the Client owes to the Interim Professional will be laid down in the contract and will always be calculated at least based on the number of hours actually worked by the Interim Professional. The fee includes travel and accommodation costs, any costs for material, other expenses and travel time, unless expressly provided otherwise in the contract. VAT will be charged on the fee. Under all circumstances, the Client remains responsible for the performance of this payment obligation to the Interim Professional.

46. The parties agree in the contract that Corbulo will send invoices on behalf of the Interim Professional. The Client will subsequently pay Corbulo and Corbulo will pay the Interim Professional on the Client’s behalf by crediting the amount to his account.

47. Corbulo is entitled to change the rate during the term of the assignment if the costs have risen demonstrably. Corbulo will communicate every rate change to the Client as soon as possible and confirm it to the Client in writing. If the rate has been set at a level that is too low because of any reason that is attributable to the Client, Corbulo is entitled to raise the rate to the correct level afterwards, with retroactive effect. Corbulo may also charge the Client for the resulting shortfall in payments and for costs incurred by Corbulo as a result.

Invoicing, time accounting and payment

48. Invoicing takes place on the basis of the time accounting method agreed with the Client and also on the basis of the provisions of the contract or these general terms and conditions. Unless otherwise agreed in writing, time accounting takes place by means of time sheets approved by the Client in writing.

49. The Interim Professional will ensure that Corbulo can invoice the Client on behalf of the Interim Professional in good time, in the sense that the specification of the work performed, approved by the Client, for the past calendar month is known to Corbulo within 5 days of the end of the calendar month. The Client warrants its staff members’ authority to sign and accepts responsibility for the signing of the time sheets and the related invoicing.

50. The Client is required at all times to pay every invoice submitted by Corbulo within 14 days, to be calculated as from the date of the invoice. If the Client fails to pay the invoice within the payment period, it will be in default by operation of law and owe interest of 2% per calendar month on the outstanding amount as from the first day after the end of the payment period, with part of a month being counted as a full month. The carbon copy or other copy of the invoice sent by Corbulo to the Client that is in the possession of Corbulo serves as full proof of the indebtedness of the interest and the date on which the calculation of interest commences.

51. The Client is not authorised to set off the invoice amount, regardless of whether it challenges that amount, against any counterclaim it rightly or wrongly believes it

52. has and/or to suspend payment of the invoice.

53. All judicial and extrajudicial (collection) costs incurred by Corbulo as a result of the Client’s failure to perform its obligations are fully for the account of the Client. The compensation for extrajudicial costs is set at 15% of the principal sum owing, including VAT and interest, unless Corbulo has incurred demonstrably higher costs. The Client will always owe the set fee as soon as it is in default, and the set fee will be charged without further proof.

Confidentiality

54. The Client is not permitted to disclose information of an Interim Professional proposed by Corbulo to a third party without Corbulo’s prior written consent. If the provisions in this Clause are breached, the Client will owe Corbulo an immediately payable penalty of EUR 25,000 for each breach, without prejudice to Corbulo’s right to seek full damages.

Personal data

55. All parties undertake to act in accordance with the basic principles of the Dutch Personal Data Protection Act (Wet bescherming persoonsgegevens).

Indemnification

56. The Interim Professional warrants vis-à-vis Corbulo and the Client that he meets his statutory obligations as regards the payment of taxes owed to the tax authorities in respect of the fee paid to him by virtue of the contract, and that he will always promptly and fully meet these obligations. As proof of this, the Interim Professional will submit to Corbulo an audit opinion or a payment history report on compliance with tax obligations.



Disputes

57. Any and all disputes ensuing from or related to a legal relationship between the parties to which these general terms and conditions apply will be settled exclusively by the District Court of The Hague at first instance.

Replacement of provisions

58. If any provision of these general terms and conditions is or becomes invalid, this does not affect the validity of the other provisions. Corbulo will replace the invalid provision with a legally valid provision that, to the extent possible, accords with the substance and purport of the provision that proved to be invalid.


These general terms and conditions were filed with the Chamber of Commerce of The Hague on 22 November 2019.