THE PARTIES
1.the private company with limited liability BIRCH LABS B.V., with its registered office in Dronten and its place of business at (8253 TE) Dronten at Koornmarktpoort 25 C, registered in the Dutch Commercial Register of the Chamber of Commerce under number 99887134, hereinafter referred to as “Contractor”,
and
2.the legal entity in whose name the Service Agreement Application has been submitted through the Contractor's website, whose legal name, legal form, business address and other identifying information are as stated in the Service Agreement Application, hereinafter referred to as “Client”,
Contractor and Client are hereinafter collectively referred to as “the Parties”.
WHEREAS
A.The Client is a commercial legal entity in good standing and authorized to enter into this agreement;
B.The Contractor provides independent analyses and reviews of risk management and control frameworks;
C.The Client has reviewed the Application Form containing the Engagement Terms and the Service Agreement Application;
D.The Client has requested the Contractor’s expertise for the preparation of a report concerning matters specified in the Engagement Terms;
E.For the purpose of the requested report, the Client has submitted the Service Agreement Application through the Contractor's website;
F.This Service Agreement sets out the terms and conditions governing the Engagement Terms between the Parties.
1.FORMATION OF THE AGREEMENT
1.1.The Application Form, the Engagement Terms, the Service Agreement and any other information on the website of the Contractor constitute an invitation to the potential Client to make an offer.
1.2.By submitting the Service Agreement Application after accepting this Service Agreement, the Client makes an offer to enter into an agreement with the Contractor on the terms set out in this Service Agreement and the Engagement Terms (the “Agreement”).
1.3.The Engagement Terms displayed with the Application Form are part of the Agreement. Other information in the Application Form forms part of the Agreement only where this Service Agreement expressly provides that it determines a term of the Agreement.
1.4.The Contractor confirms receipt of the Client’s offer electronically through the Contractor’s website. The Client’s offer is received by the Contractor, and the Contractor’s confirmation of receipt is received by the Client, when, following submission of the Application Form, the Client’s browser successfully loads the next page confirming that the Application Form has been submitted. This confirmation does not constitute acceptance of the Client’s offer or conclusion of the Agreement.
1.5.The Agreement is concluded when the Contractor has accepted the Client’s offer in writing.
1.6.If the Contractor rejects the Client’s offer, it will notify the Client in writing. No Agreement is concluded if the Client’s offer is rejected.
2.SERVICES AND REPORT
2.1.The Contractor will perform the services identified in the Engagement Terms (the “Services”) and prepare and deliver a final written assessment to the Client based on the matters specified in the Engagement Terms (the “Report”).
2.2.The subject matter and scope of the Services and Report will be as specified in the Engagement Terms.
2.3.In performing the Services and preparing the Report, the Contractor does not guarantee any particular finding, conclusion or other substantive outcome.
2.4.The Services and Report do not constitute legal, tax or investment advice; an audit or assurance engagement conducted under professional auditing or attestation standards; certification; or regulatory approval. The Services and Report do not guarantee the Client’s compliance with any applicable law or regulation.
2.5.The Contractor does not represent or warrant that the Services or Report will identify every deficiency, weakness, error, violation or other matter that may exist in relation to the subject matter of the review. The Client remains responsible for its own risk management and control frameworks and for any decisions or actions taken or not taken based on the Services or Report.
2.6.The Contractor may engage employees, agents, subcontractors or other service providers in connection with the performance of the Services.
2.7.The Report is prepared solely for the Client in connection with the Services. No third party is entitled to rely on the Report without the Contractor’s prior written consent.
3.PRICE
3.1.The fixed price for the Services and Report will be the price specified in the Engagement Terms (the “Price”).
3.2.No additional amounts will be charged to the Client except for taxes that the Contractor is required by applicable law to collect from the Client.
3.3.The Client must pay the Price within 30 calendar days after conclusion of the Agreement.
3.4.The Price is non-refundable, except that the Contractor will refund the Price if the Client validly terminates the Agreement in accordance with Article 6.8.
3.5.Under no circumstances is the Client entitled to set-off or to suspend payment.
4.CLIENT MATERIALS
4.1.The Client may provide the Contractor with documents, data, records and other information that the Client wishes the Contractor to consider in performing the Services (the “Client Materials”).
4.2.When the Client has completed providing the Client Materials it wishes the Contractor to consider, the Client must notify the Contractor in writing (the “Completion Notice”).
4.3.The Contractor is not required to begin performing the Services before it has received both the Price and the Completion Notice.
4.4.After receipt of the Completion Notice, the Contractor is not required to request, accept or consider any additional Client Materials. If the Contractor expressly elects in writing to accept additional Client Materials after the Completion Notice, the Delivery Period will restart in full on the later of the date of that acceptance and receipt of the Price, replacing any Delivery Period then in effect.
4.5.The Client represents and warrants that it has the right to provide the Client Materials to the Contractor and to permit the Contractor to use them for the performance of the Services.
4.6.The Client must not provide the Contractor with unredacted personal data relating to its customers or other third parties.
5.DELIVERY
5.1.The Contractor will deliver the Report within 30 calendar days after receipt of both the Price and the Completion Notice (the “Delivery Period”), unless the situation described under Article 4.4 applies.
5.2.The Contractor will deliver the Report using the email address provided in the Application Form, unless the Parties expressly agree in writing to another commercially reasonable secure method of delivery.
6.TERM AND TERMINATION OF THE AGREEMENT
6.1.The Agreement remains in effect until delivery of the Report, at which time it terminates automatically.
6.2.Except as expressly provided in this Agreement, neither Party may terminate the Agreement before delivery of the Report.
6.3.The Contractor may terminate the Agreement with immediate effect by written notice if the Client materially breaches the Agreement.
6.4.The Contractor may terminate the Agreement by written notice if the Client does not notify the Contractor within 6 months after the Agreement is concluded that it has completed providing the Client Materials.
6.5.The Contractor may terminate the Agreement with immediate effect by written notice if the Contractor reasonably determines that: (a) performing the Services or delivering the Report would violate applicable law or regulation; (b) continued performance would expose the Contractor to material legal, regulatory or reputational risk; or (c) a representation made by the Client concerning its identity, authority or business is materially false or misleading.
6.6.If the Contractor has not received the Price within 30 calendar days after the Agreement is concluded, the Agreement terminates automatically without notice. Upon such termination, the Client is no longer obligated to pay the Price and the Contractor is no longer obligated to perform the Services.
6.7.Any payment received after such termination does not reinstate the Agreement. The Contractor may, in its discretion, agree to apply that payment toward the price of a new engagement with the Client, which requires a new Service Agreement Application and a new Agreement.
6.8.The Client may terminate the Agreement by written notice if the Contractor fails to deliver the Report within 14 calendar days after receiving a notice of default from the Client. The Contractor is in default if it fails to deliver the Report within the Delivery Period, including any extension of the Delivery Period in accordance with Article 4.4, unless that failure is excused under Article 12 (Force Majeure).
6.9.Both Parties may terminate the Agreement with immediate effect by written notice if one Party is declared bankrupt, filed an application of suspension of payment or announces that it will cease to carry on all or a substantial part of its business.
7.COMPLAINTS
7.1.The Client may submit complaints concerning the Agreement or request information concerning the Services using the Contractor’s contact details.
7.2.Complaints concerning the Services or the Report must be submitted in writing within 30 calendar days after the Client discovers, or reasonably should have discovered, the matter giving rise to the complaint. The Client may not rely on a matter that is not complained of within that period.
8.GOVERNING LAW AND JURISDICTION
8.1.This Agreement is governed exclusively by Dutch law.
8.2.Any dispute arising from or in connection with this Agreement shall be subject to the exclusive jurisdiction of the competent court in Amsterdam, the Netherlands.
9.AUTHORITY
9.1.The Client represents and warrants that the individual submitting the Service Agreement Application on its behalf has the necessary authorization to enter into this Agreement on behalf of the Client.
10.LIABILITY
10.1.The Contractor may rely on the Client Materials and is not responsible for any error, omission or limitation in the Report to the extent resulting from inaccurate or misleading Client Materials or from information not provided by the Client, except to the extent that identifying or verifying the relevant matter is expressly within the scope of the Services.
10.2.The Contractor will be liable solely for direct loss suffered by the Client as a result of an attributable breach in the performance of the Agreement.
10.3.The Contractor’s aggregate liability under this Agreement is limited to a maximum of the Price.
10.4.The Contractor is not liable for any indirect or consequential damages, including loss of profit, loss of goodwill, loss of business opportunities, or fines or penalties imposed on the Client.
10.5.The limitations and exclusions of liability in this Article may also be invoked by the Contractor’s employees, agents, subcontractors and other service providers involved in the performance of the Services.
11.INDEMNIFICATION
11.1.The Client will indemnify and hold harmless the Contractor and its employees, agents, subcontractors and other service providers from third-party claims, including but not limited to liabilities, losses, costs and expenses, including reasonable legal costs, to the extent arising from (a) the Client Materials or the Client’s provision of them to the Contractor in violation of any third-party right, or (b) the use, disclosure or distribution of the Report by the Client or a third party in breach of this Agreement.
12.FORCE MAJEURE
12.1.Force Majeure Events are events beyond the Contractor’s reasonable control, including, but not limited to: (a) war (whether declared or undeclared), armed conflict, hostilities, invasions, military action or mobilisation, terrorism, sabotage, civil unrest, riot, rebellion or insurrection; (b) sanctions, embargoes, export or import controls, trade or financial restrictions, or other governmental, regulatory, judicial or supranational measures; (c) interruption, failure, suspension or material unavailability of electricity, telecommunications, internet, cloud, hosting, data-processing, banking, payment or other infrastructure or third-party services reasonably relied upon by the Contractor; (d) cyberattacks or other material cybersecurity incidents; (e) epidemics, pandemics or other widespread public-health emergencies; (f) fire, flood, storm, earthquake, extreme weather or other natural disasters; (g) strike, lockout or other widespread labour disturbance; and (h) illness, incapacity or unavailability of key personnel.
12.2.If the Contractor’s performance of an obligation under the Agreement is prevented or delayed by a Force Majeure Event, that obligation and any applicable period for its performance are suspended to the extent and for the duration of the prevention or delay. The Contractor is not in breach of the Agreement and is not liable for the resulting delay or failure to perform.
12.3.If a Force Majeure Event prevents or materially delays the Contractor’s performance for more than 60 consecutive calendar days, either Party may terminate the Agreement with immediate effect by written notice.
13.CONFIDENTIALITY
13.1.Each Party must keep confidential any non-public information received from the other Party in connection with the Agreement where that information is identified as confidential or, given its nature or the circumstances of its disclosure, would reasonably be understood to be confidential (“Confidential Information”).
13.2.The Contractor may disclose or make available Confidential Information received from the Client to third parties or systems reasonably used in performing the Services or operating the Contractor’s business, provided that applicable third-party service providers are subject to confidentiality obligations.
13.3.The Client may disclose Confidential Information received from the Contractor only to persons or entities that need the information in connection with the Client’s use of the Services or Report and are subject to confidentiality obligations.
13.4.Either Party may disclose Confidential Information to a supervisory authority only to the extent that such disclosure is required under applicable law or by a binding written order from a supervisory authority. The disclosing Party shall limit the disclosure to the information that is strictly necessary. It must notify the other Party in writing of the request or order prior to the disclosure, unless and for as long as it is not legally authorised to do so. The disclosing Party shall bear the burden of proof that the disclosure was mandatory and did not go beyond what was strictly necessary.
13.5.This Article survives termination of the Agreement.
14.INTELLECTUAL PROPERTY
14.1.All intellectual property rights owned or developed by the Contractor in connection with the Services, including in the Report, are and remain vested in the Contractor.
14.2.Nothing in this Agreement restricts the Contractor from using knowledge, experience or know-how acquired in connection with the Services for any purpose, provided that the Contractor does not disclose Confidential Information received from the Client except as permitted by this Agreement.
14.3.Except as expressly permitted by this Agreement, the Client may not publish or otherwise exploit the Contractor’s intellectual property without the Contractor’s prior written consent.
14.4.The Client may use and reproduce the Report for its own business and compliance purposes and may disclose it only as permitted by this Agreement. No other rights in the Report are granted to the Client.
14.5.This Article survives termination of the Agreement.
15.MISCELLANEOUS
15.1.Any amendment to this Agreement must be expressly agreed in writing by both Parties.
15.2.This Agreement is in English. Any translation is for convenience only, and the English version will prevail in the event of any inconsistency or ambiguity.
15.3.Any terms or conditions of the Client, including any purchase order, procurement or other standard terms, are expressly rejected and do not form part of the Agreement.
15.4.References in this Agreement to “writing” or “written” communications include email and other electronic communications capable of being stored and reproduced.
15.5.The Agreement constitutes a contract for services (overeenkomst van opdracht) within the meaning of Article 7:400 of the Dutch Civil Code.
15.6.The application of Articles 6:265, 7:404, 7:408(1) and (2), and 7:409 of the Dutch Civil Code is excluded.
15.7.The Contractor does not undertake to maintain or provide the Client with access to an archive of the Agreement after its conclusion. The Contractor may retain copies of the Agreement for its own records and may, from time to time, make copies or access available to the Client for convenience. Any such availability does not create an obligation to maintain or continue providing that access. The Client should retain its own copy of the Agreement.