Terms of Business
release 2.2 March 2020
1. Agreement, offers and confirmation
1.1 These General Terms andConditions apply, to the exclusion of any purchase or other conditions of theclient, to the preparation, content and performance of all agreements betweenthe client and People Creating Value B.V., trading as PCV Group (the “contractor”).
1.2 All offers are withoutcommitment and are valid for two months. Prices quoted may be subject to changeowing to unforeseen changes in the work. Prices are exclusive of VAT and othergovernment levies. The rates and offers quoted will not automatically apply tofuture commissions.
1.3 Commissions must be confirmed by the client inwriting. If the client fails to do so but consents to the contractor commencingthe commissioned work, the terms of the offer will be deemed to have beenagreed. Any subsequent oral agreements and stipulations will not be binding onthe contractor unless he has confirmed them in writing.
2. Performance of the agreement
2.1 The contractor shall undertake the work commissionedwith skill and care and in accordance with agreed specifications. To the extentnecessary the contractor shall keep the client informed of the progress of thework.
2.2 The client shall do any andall things that are reasonably necessary or required to enable the contractorto deliver punctually and properly, in particular by supplying (or causing thesupply of) complete, sound and clear requirements, data or materials in atimely manner.
2.3 Timelines quoted by the contractor for completion ofthe commissioned work are approximations only, unless the content of theagreement requires otherwise.
2.4 Where a commissioned work isof a developmental nature (meaning that the required technical solution is notreadily available and needs to be created or invented), trade-offs may berequired for technical, commercial, cost or legal reasons and accordinglyachieving full compliance with specifications cannot be guaranteed by thecontractor.
2.5 Where specifications are not expressly agreed at thestart of the project as being final specifications for the relevant product,component or system, the specifications shall undergo the following process ofiteration:
(a) atproject initiation, the specifications will be treated as development targets,subject to trade-offs in terms of performance, features and cost as indicatedby the contractor;
(b) during the pre-development phase, the partieswill refine the specifications based on the architecture chosen;
(c) by the end of the pre-development phase, targetrequirements for the commissioned work will be developed and agreed based ontests, evaluation, and analysis during the pre-development phase. These targetrequirements will define the standard (nominal) performance and provide confirmationthat the commissioned work is capable of achieving the nominal performancetargets;
(d) during the development phase, the commissionedwork will be developed to satisfy the target requirements, and non-standard(nonnominal) performance and precise tolerances will be investigated.Validation testing and investigation of tolerances of components will alsoenable non-nominal performance conditions to be identified and optimised, andthe specification to be adjusted accordingly;
(e) bythe end of the development phase, the commissioned work will be finalised(which will include proof of function and robustness testing and a frozenproduct specification including non-nominal performance requirements) andhanded over to the client;
2.6 Following the development phase, if agreed,contractor may jointly define with the client the detailed sub-assembly andpart specifications, and perform simulations and other activities to supporttool acquisition and pre-production. The accuracy and completeness ofsub-assembly and part specifications and any other pre-production andproduction activity is the final responsibility of the client. Any simulationscarried out by contractor are approximations of real-life conditions andcontractor does not guarantee their accuracy or completeness.
2.7 Unless otherwise agreed, the performance oftests, the application for permits and the assessment whether the client’sinstructions comply with safety and technical laws and standards do not fallwithin the scope of the work commissioned to the contractor.
2.8 Prior to production, reproduction orpublication, each party must give the other the opportunity to check andapprove the final draft, prototype or galley proofs of the commissioned work.If the contractor is to place orders with or give instructions to manufacturingcompanies or other third parties, whether or not in the client’s name, theclient must confirm its aforesaid approval in writing at the contractor’srequest.
2.9 Following completion of the development phaseand final closure of a project (and in any event prior to any pre-productionsupport phase), contractor will complete the handover of the commissioned work,for client’s final acceptance (in accordance with an agreed acceptance testingprocess, if any).
2.10 Any client complaints to the contractor inrelation to the commissioned work and its conformance with specifications mustbe filed in writing at the earliest possible time but not later than within tenbusiness days after completion of the commissioned work and its handover, failingwhich the client will be deemed to have accepted the work commissioned work inits entirety and any and all rights to claim (additional or changed)performance or compensation of damages will lapse. In relation to any latentdefects which could not have been reasonably identified during the acceptanceprocess, the client must notify the contractor within 90 days of theirdiscovery, and raise any claim within 6 months of the date of such notice,failing which all rights to claim compensation of damages will lapse. Thepreceding is without prejudice to the long stop date for claims under article12.5.
3. Engagement of third parties
3.1 Unless otherwise agreed,instructions to third parties to be given in the context of executing the workcommissioned will be given by or on behalf of the client. At the client’srequest the contractor may act as an agent for the client’s account and risk.The parties may agree on a fee for such services.
3.2 If the contractor provides anestimate of third-party costs at the client’s request, such estimate will be anapproximation only. If required, the contractor may seek quotations from thirdparties on the client’s behalf.
3.3 If the contractor procures goods or servicesfrom third parties in the performance of the commissioned work, for thecontractor’s own account and risk and on the basis of an express agreement, thegeneral conditions of such supplier with regard to the quality, quantity,properties and delivery of such goods or services will also apply to theclient.
4. Intellectual and other property rights
4.1 Except as otherwise set outin article 4.2, all patents, design rights and other intellectual property inthe commissioned work developed in the course of the performance of thisagreement will vest in the client, once the client has fulfilled all its obligationsunder the agreement. Until such time as the client has fulfilled all itsobligations under the agreement, the above mentioned rights will vest in thecontractor.
4.2 The contractor’s BackgroundIP (including incremental improvements to it) will be owned by the contractor.For the purposes of articles 4 and 5, “BackgroundIP” means all intellectual propertyowned by the contractor prior to the date of this agreement or generated oracquired at any time independently of its activities under this agreement whichis necessary for the client to make, market or sell products to the extent theyutilise the commissioned work. “Incrementalimprovements” to contractor’sBackground IP means improvements which are developed by contractor without anymaterial contribution by the client and which cannot be separated from or usedindependently of the contractor’s underlying Background IP. Contractor’s BackgroundIP will be available to the client by way of the licence in article 5.
4.3 Where, during anypre-development phase, contractor applies its know-how to present alternativeengineering possibilities or concepts for achieving a solution (“Concepts”), such Concepts shall betreated as contractor’s Background IP. Once a particular Concept is selected bythe client at the end of the pre-development phase (“Selected Concept”), the Selected Concept and further developmentsto it shall be treated in accordance with article 4.1. Concepts which are notselected for further development within the project (“Non-selected Concepts”) shall be available to the client togetherwith other Background IP in accordance with article 5 below.
4.4 Unless specifically agreed, thecommissioned work does not include conducting searches for the existence of anyrights of third parties (“FTO”),including patents, trademark rights, drawing or design rights, copyrights orportrait rights. The same applies to any investigation into the possibility ofsuch forms of protection for the client. The parties may agree to involve thecontractor in an FTO search as part of the project, in which case the followingprocess will apply:
(a) thecontractor will identify advisers (a firm of patent attorneys or similar, theidentity of which will be subject to client’s approval, not to be unreasonablywithheld) to undertake the FTO. The cost of the advisers will be incorporatedinto the cost of the project;
(b) thecontractor will instruct the advisers, on the client’s behalf and followingagreement with client on the scope of the instructions. The FTO report will beissued solely to the client, as the customer of the advisers;
(c) the client may make the content of the FTOreport available to the contractor and request it to provide further input oranalysis of the technical content to assist the client with assessing the FTOreport;
(d) any analysis or other support provided by thecontractor shall not extend to or be deemed to constitute legal advice to theclient regarding issues of infringement or validity of any third party rights,and the client shall be fully responsible for any final assessment of any riskand any final decision on how to proceed with its project pursuant to the FTOreport;
(e) if, based on the FTO report, the commissionedwork gives rise, or in either party’s opinion is likely to give rise, to a claimof infringement of third party intellectual property rights, the parties maywork together under this agreement to replace or modify the commissioned workin such a way as to make it non-infringing, however neither party shall beobliged to proceed with the work if the other party does not wish to carry outmodification work necessary to materially reduce the infringement risk.
4.5 Unless the work is not suitable for that purpose,the contractor will at all times be entitled to imprint his name on or in or toremove it from the work (or to have his name imprinted on or in or removed fromthe work).
4.6 With exception of article 12.5 upon completionof the commissioned work, neither the client nor the contractor will have anyobligation to retain any of the materials and data used.
4.7 Contractor personnel (including PCV networkpartners engaged as sub-contractors in the undertaking of the commissionedwork) will be entitled to be included in the list of inventors in any patentapplication in respect of the commissioned work. The client acknowledges thatthe right to be named as inventor is a right given by law which cannot bewaived other than by the inventor in writing.
5. Use and licence
5.1 The contractor grants to theclient a non-exclusive, worldwide, royalty-free, non-transferable licence underits Background IP to (i) make, have made, use, sell, import, export,distribute, display or market client’s products utilising the commissionedwork; (ii) sub-license the Background IP to its component manufacturingpartners for the purpose of procuring components for such products; (iii) touse the Background IP contributed to the project in further developing thecommissioned work provided that this does not extend to licensing or disclosingany Background IP to third parties; and (iv) to permit any of its affiliates todo any of the things set out in this article 5.1. (For the purposes of thisarticle, “affiliate” means any entitywhich from time to time controls, is controlled by or is under common controlwith the client, and “control” meansownership or control of a majority of the voting rights, or the legal power todirect or cause the direction of the general management of the relevantentity).
5.2 With regard to any Non-selected Concepts licensedunder this agreement, the contractor shall have no further obligation todisclose or teach the client beyond what is disclosed for the purposes of theproject.
5.3 The contractor may use the commissioned work at hisdiscretion for his own publicity or promotional purposes, with due observanceof the client’s interests.
6.1 Parties shall not discloseconfidential information concerning or received from the other party, unlessotherwise obligated by law or a judicial order.
6.2 Partiesshall oblige their personnel to comply with article 6.1.
6.3 At the first request of contractorparties shall enter into a non-disclosure agreement, the terms of which willcontinue to apply to the project for the duration of this agreement, unlessotherwise agreed.
6.4 The confidentialityobligations of this agreement shall remain valid beyond its termination orexpiry (a) in relation to market strategies and financial position, until theybecome public; (b) in relation to technical specifications or solutions, untilthey are made available to the public as the result of the market introductionof a product implementing such specifications or solutions; and (c) in relationto all other confidential information, for a period of 5 years.
6.5 If the client fails to comply to any obligation inthis article 6 it shall forfeit to contractor an immediately payable penalty of€ 25,000 notwithstanding the right of contractor to claim its actual damages inaddition.
7. Processing of personal data
7.1 In so far as parties shall process personal data inexecuting the agreement, parties shall do so in a careful manner, in accordancewith the applicable GDPR regulations implemented in the Dutch AVG.
7.2 Inaccordance with clause 32 AVG parties shall take appropriate organisational andtechnical measures to safeguard personal data.
7.3 Ifpersonal data is processed parties shall enter into a data processing agreementcontaining at least:
(a) an obligation of the client to safeguardcontractor against any and all damages (including penalties form responsibleauthorities) and claims from third parties deriving from the processed data;
(b) anobligation of the client to forthwith notify contractor of any infringement asreferred to in clause 33 AVG.
8. Fees and additional costs
8.1 In addition to payment of the agreed fee, thecontractor will be entitled to reimbursement of any costs incurred by him inthe performance of the work commissioned.
8.2 If the contractor is required to perform more or otherwork due to late delivery or non-delivery of complete, sound and clear dataand/or materials, or any change or error in instructions, briefings orspecifications, such additional work will be charged separately on the basis ofthe contractor’s usual fees.
9.1 Payments must be made withinthe pay term indicated in the contractor's offer (or, if not indicated, within30 days of the invoice date). If the contractor has not received payment (orpayment in full) at the end of that term, the client will be in default andwill owe interest at the statutory rate. All costs incurred by the contractorin connection with overdue payments, such as costs of litigation and judicialand extrajudicial costs, including the cost of legal assistance, bailiffs anddebt collection agencies, will be for the client’s account. The extrajudicialcosts will be not less than 10% of the invoice amount, with a minimum of € 150.
9.2 Invoicing frequency will be indicated in the contractor'soffer (but if not indicated, the contractor will have the right to invoice theclient at monthly intervals for work performed and costs incurred in theperformance of the commissioned work).
9.3 The client will pay the amounts due to the contractor withoutany reduction or set-off, save for settlement against adjustable advancepayments relating to the agreement which the client may have made to thecontractor. The client is not entitled to suspend payment of invoices for workthat has already been performed.
10. Termination of the agreement
10.1 If the client gives notice oftermination of an agreement, he must pay the contractor’s fees and the costs(including committed third party costs) incurred in connection with the workperformed until that date.
10.2 If the agreement is terminated by the contractoron the grounds of breach by the client in the performance of the agreement, theclient will be required to pay, in addition to damages, the contractor’s feesand the costs incurred in connection with the work performed until that date.In this context any conduct by the client on the grounds of which thecontractor cannot reasonably be required to complete the work commissioned willalso be regarded as breach.
10.3 The damages referred to inArticle 10.2 will include (but not be limited to) the costs (includingcommitted costs) arising from obligations undertaken by the contractor in hisown name with third parties for the performance of the work commissioned, aswell as 30% of the balance of the fee that the client would owe the contractorif the work commissioned were fully completed.
10.4 Both the contractor and theclient will have the right to terminate the agreement in whole or in part withimmediate effect if the other party is declared bankrupt or is granted asuspension of payments (whether or not provisional). If the client is declaredbankrupt, the contractor will have the right to terminate the right of usegranted, unless the consequences would be contrary to the principles ofreasonableness and fairness.
10.5 In the event of terminationby the client on the grounds of breach in the performance of the contractor’sobligations, the performance already completed and the related paymentobligation will not be subject to cancellation, unless the client providesevidence that the contractor is in default of that performance. Amounts thatthe contractor has invoiced before the dissolution for work performed ordelivered properly under the agreement will remain payable in full with dueobservance of the previous sentence and will fall due immediately upontermination.
10.6 If the contractor’s workconsists of recurrently performing work of a similar nature, the agreement inquestion will be valid for such time as the work is requested by the client(plus any agreed notice period), unless otherwise agreed in writing. Suchagreement may be terminated by written notice given with due observance of areasonable notice period of not less than three months.
10.7 Contractor waives the right to declare the agreementvoid for reasons of error (clause 6:228 Dutch Civil Code) or file a claim tomodify the agreement (clause 6:230 Dutch Civil Code).
11. Warranties and indemnities
11.1 The contractor warrantsthat the commissioned work supplied to the client has been made by thecontractor or on its behalf and, if the design is protected by copyright, thatthe contractor is the author within the meaning of the Auteurswet (DutchCopyright Act) and as the copyright owner has the power of disposition of thework.
11.2 The contractor warrantsthat, to the best of the contractor’s knowledge, client’s permitted use ofcontractor’s Background IP licensed to it under this agreement shall notinfringe any intellectual property right vested in any third party (subject toany third party rights identified in the FTO, which shall be treated as adisclosure against this warranty).
11.3 The client indemnifies thecontractor or persons engaged by the contractor in the performance of thecommissioned work against any third-party claim or action arising from theexploitation or use of the commissioned work except to the extent such claim oraction arises as the result of contractor’s breach of its warranties in thisarticle 11.
11.4 The client indemnifies the contractor against anyclaim or action relating to intellectual property rights in materials orinformation supplied by the client and used in the performance or exploitationof the commissioned work.
12.1 The contractorwill not be liable for:
(a) errors or defects in materials or informationsupplied by the client or caused by acts of the client, such as late deliveryor nondelivery of complete, sound and clear requirements, information and/ormaterials, or client decision not to proceed with any steps reasonablyrecommended by the contractor;
(b) errors or defects by third parties engaged by oron behalf of the client;
(c) inaccuracies in offers made by suppliers, orprices quoted by suppliers being exceeded;
(d) errorsor defects in the commissioned work or errors in the text/data if the clienthas given its approval in accordance with the provisions of article 2.9 or hashad the opportunity to perform approval testing or inspection and has failed todo so;
(e) errors or defects in the commissioned work orerrors in the text/data if the client has not had a particular model orprototype prepared or a particular test performed and the errors would havebeen apparent in such model, prototype or test.
(f) improper or defective manufacture of productsincorporating the commissioned work;
(g) improper or unsafe handling or use of productsby consumers or maintenance personnel;
(h) any addition or modification to the commissionedwork in the final product or components or subsystems in or included with anythe products which were not designed by contractor;
(i) anymatters relating to application for permits in relation to final productsincorporating the commissioned work, and compliance of such products withtechnical or safety regulations or standards.
12.2 Thecontractor will be liable only for direct damage attributable to it. Directdamage will include only:
(a) reasonable costs to assess the cause and extentof the damage, to the extent that such assessment concerns damage within the meaningof these general conditions;
(b) any reasonable costs necessarily incurred toreplace, correct or complete any defective part of the commissioned workprovided that, where reasonably practicable, the contractor is given anopportunity to carry out such remediation itself at its cost; and
(c) reasonablecosts incurred to prevent or limit the damage, to the extent that the clientdemonstrates that those costs led to a limitation of the direct damage referredto in these general conditions.
12.3 The contractor shall not be liable for indirectand consequential damage, including loss of profits, loss of anticipatedsavings, loss of business, intervention in the field or product recall,corrupted or lost data or materials, or damage due to business interruption.
12.4 Save in the event of wilful intent orrecklessness by the contractor, the contractor’s total liability for damage orloss arising from this agreement or any wrongful act committed against theclient will be limited to the value of amounts invoiced and paid in respect ofthe relevant project under this agreement.
12.5 Any and all liability will expire twelve monthsfrom the date of completion of the commissioned work.
12.6 Where reasonably possible the client will berequired to retain copies of materials and data he has supplied until the workcommissioned has been completed. If the client fails to do so the contractorcannot be held liable for any damage or loss that would not have occurred ifsuch copies had existed.
13. Other terms
13.1 The client will not be permitted to transfer orassign to third parties any of the rights under an agreement concluded with thecontractor, save in the event and as part of a transfer of the client’s entirebusiness.
13.2 The headings in theseGeneral Terms and Conditions have been included for easy reference only and areno part of these Terms and Conditions.
13.3 All agreements between the contractor and the clientare governed by Dutch law. All disputes arising out of this agreement, orrelating to the performance of this agreement, will be resolved exclusively bythe competent court in the place of domicile of the party bringing the claim.However, if this would render a court outside of the EU or Switzerlandcompetent, the court in the place of domicile of the party alleged to be inbreach will have exclusive jurisdiction to settle the dispute. The preceding iswithout prejudice to a party’s right to seek injunctive relief in relation toany breach and/or imminent breach of this agreement, or to seek enforcement ofa payment obligation, in any court of competent jurisdiction in any relevantterritory.