General terms and conditions
| "Relay": | Relay Corporate Finance B.V., established in Amsterdam under KvK number 84719370; |
| "Enterprise": | The customer, as defined in the order letter, to whom these general terms and conditions apply; |
| "Terms and Conditions": | these general terms and conditions of Relay, or the general terms and conditions of Relay, as they will read from time to time; |
| "Affiliate (Legal) Person": | in relation to a person (the "Principal Person") all its subsidiaries, branches, affiliates (including without being exhaustive, joint venture parties of its or its holding companies or subsidiaries), holding companies (and subsidiaries thereof) and the respective employees, directors, supervisory directors, employees, representatives, controlling persons, shareholders and proxies of them and of the Principal Person; |
| "Released Person": | Relay and its Affiliated (Legal) Persons; |
| "Assignment": | the assignment as described in the Agreement; |
| "Agreement": | The signed agreement and the Terms and Conditions; |
| "Force majeure": | any unforeseen circumstance beyond the reasonable control of the party concerned, including, but not limited to, any strike, civil commotion, terrorist act, riot, war, threat of war, political upheaval and fire, explosion, storm, flood, earthquake or other natural disaster; |
| "Damage: | all damages, claims, costs, demands, expenses and expenses (including fees/costs and expenses for legal counsel) incurred in connection with the investigation, preparation for, defence of, or participation as a party or witness in any investigation, inspection or pending or threatened proceedings; |
| "Indemnification": | the indemnity and exclusion of liability set out in these terms and conditions. |
2. General
- The responsibilities of Relay and its Affiliated (Legal) Persons do not include giving or performing tax, legal, regulatory, accounting, actuarial or other specialist or technical advice or work, on which the Company will in all cases seek independent advice from its other advisers.
- Advice, communications and work provided under this Agreement are for the sole benefit of the Company in connection with this Engagement, may not be used for any other purpose and may not be disclosed to, used by or relied upon by others without Relay's prior written consent.
- Nothing in this Agreement creates any liability of or obligation on the part of Relay or its Affiliated (Legal) Persons to shareholders, creditors or other interested parties of the Company, and no opinion or advice given by Relay or its Affiliated (Legal) Persons shall be construed as a recommendation to such persons as to what action they should take in connection with the Engagement.
- The liability of Relay and its Affiliated (Legal) Persons under this Agreement shall not be increased by any limitations of liability agreed by the Company in favour of its other advisers.
- Applicability of the General Terms and Conditions applied by the Company is hereby excluded.
3. Execution of the Assignment
- Relay and its Affiliated (Legal) Persons will carry out the work to be performed under the Order with due observance of the agreements made between the parties in this respect or in accordance with the procedures agreed in this respect, to the best of their knowledge and ability, according to the standards and values as applicable in the branch. The results of the use of the work and advice provided by Relay depend on many factors beyond its control and therefore Relay cannot give any guarantees in respect of the results of the work and advice provided by it. The obligation resting on Relay and its Affiliated (Legal) Persons is an obligation of best intents.
- Relay will determine in which way, with which persons, by which persons (including the engagement of third parties) and with which means the Order will be executed. In executing the work, Relay will take into account as much as possible the reasonable wishes and instructions in this respect from the Company, provided that in the opinion of Relay this is conducive to a timely and correct execution of the Order. The operation of article 7:404 of the Dutch Civil Code, which provides a regulation if an Assignment is given to a certain specific person, as well as the regulation of article 7:407 paragraph 2 of the Dutch Civil Code, which establishes a joint and several liability for cases in which an Assignment is given to two or more persons, are hereby excluded.
- The periods stated by Relay for the execution of the Order are always target periods.
4. Information, confidentiality and intellectual property
- The Company shall timely provide Relay and its Affiliated (Legal) Persons with all information, which Relay considers important in the context of the Engagement, and shall also provide Relay with access to its Affiliated (Legal) Persons and warrant that the information provided is true, complete and accurate in all respects, is not misleading and no material information is missing.
- If the execution of the Assignment is delayed because the Company does not comply with its obligations mentioned in article 4.1 or the information provided by the Company does not comply with the provisions of article 4.1, Relay shall be entitled to charge the Company, if necessary, additional compensation and expenses to be incurred for the additional work that has become necessary for this purpose.
- All information received by Relay and its Affiliated (Legal) Persons from the Company or its Affiliated (Legal) Persons in relation to this Engagement which is currently of a confidential nature, including to the extent applicable (i) the fact that discussions are held between the parties and the content of such discussions and (ii) documents prepared by Relay in relation to the Engagement (other than information that is or becomes public or known to Relay without a duty of confidentiality) will be kept confidential (unless the Company decides otherwise), except for disclosure by Relay and its Affiliated (Legal) Persons as a result of a legal requirement, court or other order or any applicable regulations.
- All correspondence, notes, work products and other documentation (including and not limited to financial models) provided or prepared by Relay and its Affiliated (Legal) Persons in relation to this Engagement may, subject to clause 4.3, be used by Relay for other purposes.
5. Terms of payment
- Expenses, fees and other amounts due will be invoiced and shall be paid within 7 days from the date of the relevant invoice.
- GST or other similar tax shall be payable on the fees payable to Relay under this Agreement, where applicable, and shall be paid without set-off, deduction or withholding except as required by law.
- The Company shall reimburse Relay for all expenses and other expenses reasonably incurred by it and its Affiliated (Legal) Persons in connection with this Assignment (including, but not limited to, fees and expenses of professional consultants engaged by Relay, postage, printing costs, accommodation and travel costs, costs of procuring data and research reports).
- All amounts due under this Agreement shall be paid in Euro.
- After the expiry of 7 days from the invoice date, the Company shall be in default by operation of law; the Company shall owe interest of 1% per month from the time of default on the amount due, unless the statutory interest rate is higher, in which case the statutory interest rate shall apply.
6. Termination/termination
- The Agreement and the Assignment may be terminated at any time with or without cause by the Company or by Relay.
- Notwithstanding the termination or expiry of the Agreement or Assignment, all rights and obligations (including, but not limited to, Relay's right to fees and expenses) acquired by the parties hereby shall survive, and these Terms and Conditions shall remain in full force and effect. Relay's right to success fee will exist for 2 years from termination of the Agreement or Assignment.
7. Indemnification
- None of the Indemnified Persons shall have any liability for loss of profits, loss of business opportunities or any other form of indirect or consequential loss suffered by the Company or its Affiliated (Legal) Persons.
- Save for a claim by the Company against Relay or its other Affiliated (Legal) Persons, the Company shall not take any legal action in respect of such claim against any director, auditor, employee, employee, shareholder, controlling person or nominee of Relay or its Affiliated (Legal) Persons.
- Neither Relay nor any Released Person shall be liable or be held liable for non-performance (or delay in performance) of any obligations in relation to this Order to the extent caused by a Force Majeure Event.
- Neither Relay nor any Released Person shall be liable or may be held liable for any amount in excess of the minimum compensation under this Agreement with a maximum of EUR 10,000.
- The Company shall indemnify each of the Indemnified Persons against all claims, proceedings, demands, investigations of regulators or authorities, legal actions and judgments, filed, threatened or instituted against any Indemnified Person and all Damages which any Indemnified Person may suffer or incur, directly or indirectly caused by or arising out of the Assignment or the performance of work thereunder or the involvement of any Indemnified Person in the transaction(s) contemplated thereby, and/or the distribution, publication, content or accuracy, or omission in any statement made or any document issued in connection with this Engagement, unless in respect of an Indemnified Person, the foregoing according to a final judgment of a court of competent jurisdiction is the result of wilful misconduct or gross negligence on the part of the Indemnified Person concerned.
- If the Company or an Indemnified Person becomes aware of any claim, which could lead to liability under this Indemnity, said party shall (to the extent lawful), promptly notify the other party in writing.
- If an Indemnified Person fails to notify the Company in writing of any claim or is late in doing so, the Company shall not be relieved of its obligations unless (and only to the extent that) the Company is materially prejudiced by such failure or delay (where failure to notify due to a statutory or regulatory restriction shall not be deemed to constitute negligence or delay by an Indemnified Person).
8. Transaction
- A Transaction includes any transaction or series or combination involving the direct or indirect transfer of control over, or an interest in, the Company and/or associated entities and/or the subject matter of the Transaction, interests or assets by way of sale, lease, transfer or other for consideration, including but not limited to a sale or transfer of shares, subordinated equity or assets, lease of assets, a merger, demerger, formation of a joint venture, minority interest or formation of a joint venture, entering into one or more strategic alliances, or a transaction that has the same purpose as described above.
- The Transaction Value means, for each Transaction, the aggregate of: (a) the amount paid or payable in cash, shares, interest-bearing securities or any non-cash consideration, the amount of which is determined by the higher of (i) the issue price, (ii) the quoted market price or (iii) if (i) and (ii) is not possible, the calculation thereof by Relay, (i), (ii) and (iii) at the time of completion of the Transaction; (b) any dividend or distribution or other payment made or payable to the Company or associated entities as part of the Transaction; (c) the entire debt of the Company and/or related associated entities and/or the object of the Transaction including on and off balance sheet financing, leases, preference shares or liabilities to tax authorities, pension, other outstanding employee liabilities, including bonuses or similar and transaction costs; and (d) any deferred payment or potential payable, including earn-outs or bonuses, to be calculated by Relay based on a reasonable estimate of the affordability thereof, to be based on financial expectations and other information available at completion of the Transaction.
9. Applicable law and jurisdiction
- This Agreement is governed by Dutch law.
- All disputes relating to the legal relations between Relay and the Company to which these General Terms and Conditions apply shall be submitted exclusively to the competent court in the district of Amsterdam.
10. Miscellaneous
- The court in the district of Relay's place of business has exclusive jurisdiction to hear disputes.
- Any agreement between Relay and the Company is governed by Dutch law.
- Relay is authorised to make amendments and/or additions to these terms and conditions. These amendments will take effect at the announced time of entry into force.
- Relay is at all times authorised to perform similar services for third parties, including any competitors of the Company.
- Relay is entitled to include a summary description of the Transaction on its website and for general marketing purposes, unless the Company has serious objections to this.
- Should one or more provisions of these terms and conditions prove to be void or non-binding, the remaining provisions of these terms and conditions will remain in full force.