Standard Terms and Conditions of Console B.V. Standard Terms and Conditions applicable to instructions issued to Console B.V., based in Amsterdam. Article 1 General In these standard terms and conditions, the following terms have the following meaning: 1. Client: the party who gives the instruction. 2. Contractor: Console B.V. Article 2 Applicability 1. These standard terms and conditions apply to all legal relationships between the Client and the Contractor, except for changes in these conditions which must be expressly confirmed by both parties in writing. 2. Any standard terms and conditions as in use by the Client do not apply unless these have been expressly accepted by the Contractor in writing. 3. If one or more provisions of these standard terms and conditions appear to be void or voidable, all remaining provisions remain in full force. The Client and the Contractor shall consult in order to determine new replacement provisions. The object and purport of the instruction shall be central in this much as possible. Article 3 Formation of the agreement 1. The agreement is formed the moment the confirmation of the instruction as signed by the Contractor and the Client has been returned to the Contractor. The confirmation is based on the information as provided by the Client to the Contractor at the time. The confirmation is deemed to reflect the agreement accurately and completely. 2. The parties are free to prove that the agreement was formed in a different way. 3. The agreement entered into is an open-ended agreement unless it follows from the content, nature or object of the issued instructions that it has been entered into for a fixed term. 4. All offers are subject to contract unless expressly stated otherwise by the Contractor Article 4 Information made available by the Client 1. The Client is obliged to make any such information and documentation available that the Client in its opinion considers necessary for the correct performance of the instruction and in the required form and manner. 2. In the event of instructions to audit of the financial accounts, the Client shall notify the Contractor of any other information which is relevant for the performance or completion of the instruction. 1
3. The Client guarantees the accuracy, completeness and reliability of the information and documentation made available to the Contractor, even if such originate from third parties, insofar it does not follow otherwise from the nature of the instruction. 4. If and insofar the Client so requests, the documents made available are returned to the Client. All this with due observance of the provisions of article 11. 5. Any extra costs and remuneration resulting from the delay in the performance of the instruction caused by not making the required information and documentation available or not making it available on time or properly, are for the account of the Client. Article 5 Performance of the instruction 1. The Contractor determines in which manner and which person shall carry out the instruction rendered. 2. The Contractor can only carry out more work than is covered by the instruction, and charge this to the Client, if the Client has given its prior consent for this. 3. If the Client wishes to engage third parties in the performance of the instruction, it shall only do so after coming to an agreement with the Contractor on this. The provision of the previous sentence applies mutatis mutandis to the Contractor. 4. The Contractor is not obliged to perform any obligation towards the Client if it is impeded in doing so as a result of a circumstance which is not attributable to fault and which is not pursuant to the law, a legal act or generally accepted standard, for its account. 5. In these standard terms and conditions force majeure means, in addition to that set out in the law and in case law in that respect, all external causes, whether foreseen or not, on which the Contractor cannot exercise any control but as a result of which the Contractor is not able to perform its obligations. Industrial action in the company of the Contractor or third parties is included in this. The Contractor is also entitled to rely on force majeure if the circumstance impeding (further) performance of the agreement, commences after the Contractor should have performed its obligation. 6. The Contractor is entitled to suspend its obligations under the agreement for the duration the force majeure continues. If this period is longer than two months, each party is entitled to terminate the agreement without there being any liability to compensate the other party. 7. To the extent the Contractor had, at the time the force majeure commenced, already partially performed the obligations under the agreement or is able to perform them and independent value can be attributed to the performed or to be performed part respectively, the Contractor is entitled to invoice the already performed or to be performed part respectively, separately. The Contractor is obliged to pay this invoice as if it were a separate agreement. 2
Article 6 Confidentiality 1. The Contractor is, unless it is under a statutory or professional duty of disclosure, obliged to adhere to a duty of confidentiality towards third parties. 2. The Contractor is not entitled to use the information made available to it by the Client for a different purpose than for which it was obtained. An exception is made to this however in the event the Contractor represents itself in disciplinary, civil or criminal proceedings where these documents could be of importance. 3. Unless the Contractor has given its prior written consent to this end, the Client shall not disclose the content of any report, advice or other statement, whether in writing or not, which have not been prepared or made with the intention to provide third parties with the information contained in it. 4. The Client shall also ensure that third parties cannot take note of the information referred to in the previous sentence. 5. The Contractor is obliged to impose its obligations pursuant to this article on any third party it engages. 6. In the event of an (impending) administrative fine on the basis of article 5 of the General Administrative Law Act [Algemene Wet Bestuursrecht (Awb)] the Client is obliged to inform the Contractor of such immediately who in turn is entitled to make a different advisor available to the Client. 7. The Contractor is not under a duty of confidentiality in the aforementioned sense, if and to the extent such would be in conflict with its right to defend itself as a coperpetrator against a claim by virtue of article 5 Awb. Article 7 Intellectual property 1. The Contractor reserves all rights, insofar as such ensue from the law, in respect of products of the mind which he uses or has used in the context of the performance of the instructions of the Client. 2. The Client is expressly prohibited, whether or not with the engagement of third parties, to copy, disclose or exploit those products, including computer programs, system designs, working methods, advice, (model)contracts and other products of the mind of the Contractor, all in the widest sense of the word. 3. The Client is not permitted to make auxiliary materials of those products available to third parties, other than for obtaining expert advice on the work of the Contractor. Article 8 Remuneration 1. The remuneration of the Contractor is not dependent on the outcome of the instructions given. 2. If after the agreement has been formed but before the instruction has been totally completed, wages and/or prices undergo a change, the Contractor is entitled to adjust the agreed remuneration accordingly, unless the Client and Contractor have come to a different agreement on this. 3
3. The remuneration of the Contractor, if necessary increased by advances and invoices of third parties engaged, are invoiced to the Client monthly, quarterly or annually or after completion of the work unless the Client and Contractor have come to a different agreement on this. 4. VAT shall be charged separately on all sums due by the Client to the Contractor. Article 9 Payment 1. Payment must be made by the Client without any deductions, discounts or setoff, within the term agreed but in any case no later than thirty days after the invoice date. Payment must be made in the Dutch currency by means of a transfer into a bank account to be indicated by the Contractor. 2. If the Client has not paid within the term referred to under 9.1, the Contractor is entitled, after it has demanded payment from the Client at least once, to charge the Client interest from the due date to the date of payment in full without any notice of default being required and without prejudice to any other rights the Contractor may have and it is entitled to suspend its activities. 3. All reasonably incurred judicial and extra-judicial (collection) costs incurred by the Contractor as a result of the non-performance by the Client of its payment obligations, are for the account of the Client. 4. The extra-judicial costs are calculated on the basis of that which is usual in the Dutch collection service, currently the calculation method according to the Voorwerk II Report, with a minimum of 150, excluding of VAT. If however the Contractor has incurred higher collection costs which were reasonably required, the actual incurred costs are eligible for payment. Any judicial and enforcement costs incurred shall also be recovered from the Client. The Client shall also pay interest on the collection costs due. 5. If, in the view of the Contractor, the financial position or the payment record of the Client gives rise to it, the Contractor is entitled to demand from the Client that it immediately provides (additional) security in a form to be determined by the Contractor. If the Client fails to provide the required security, the Contractor is, without prejudice to any other rights it might have, entitled to immediately suspend the further performance of the agreement and all that the Client owes the Contractor, on whatever basis, becomes immediately due and payable. 6. In case of a joint instruction the Clients are, to the extent the work is carried out for the benefit of the joint Clients, jointly and severally liable for the payment of the invoice sum. Article 10 Complaints 1. Any complaint relating to the work carried out and/or the invoice amount shall be notified to the Contractor in writing providing proper grounds within 30 days the day of dispatch of the documents or information in respect of which the Client is complaining or within 30 days after discovery of the defect if the Client demonstrates that it could not reasonably have discovered the defect earlier. 4
2. Complaints as referred to in the first paragraph, do not suspend the Client's payment obligation. 3. In the event of a justified complaint, the Contractor has the choice between a proportionate adjustment of the invoiced remuneration, to improve the rejected work or to carry it out again free of charge or to no (longer) carry out the whole or part of instruction in return for a proportional restitution of the remuneration as already paid by the Client. Article 11 Delivery/retention of title 1. If the Client must make an advance payment or if it has to make information and/or material available necessary for the performance, the term within which the work has to be completed shall not commence until the payment has been received in full or the information and/or materials have been provided in full respectively. 2. Any terms within which the work has to be completed are only to be viewed as strict deadlines if this has been expressly agreed. 3. Unless performance is indisputably impossible, the agreement cannot be terminated by the Client on the basis of exceeding the term, unless the Contractor also does not perform the agreement wholly or in part within a reasonable term as notified to it in writing after the agreed term for delivery expired. In that event termination is permitted in accordance with article 265 Book 6 of the Dutch Civil Code. 4. That what has been delivered in the context of the agreement remains the property of the Contractor until such time the Client has properly fulfilled all obligations under the agreement(s) entered into with the Client. 5. That delivered by the Contractor which in accordance with paragraph 1 is subject to the retention of title, may not be resold and may never be used as a payment instrument. The Client is not entitled to pledge or otherwise encumber all that which is subject to the retention of title. 6. The Client is always obliged to do all that which may reasonably required from it to secure the property rights of the Contractor. If any third party seizes that what has been delivered subject to retention of title, or wishes to create or exercise rights in respect of such, the Client is obliged to notify the Contractor of this as soon as possible. 7. In the event the Contractor wishes to exercise its property rights as referred to in this article, the Client grants the Contractor and any third party to be indicated by the Contractor, in advance its unconditional and irrevocable permission to enter all those places where the property of the Contractor is located and to repossess them. 8. The Contractor is entitled to refuse to hand over those goods in its possession belonging to the Client, if and for as long as the Client has not fulfilled its (financial) obligations towards the Contractor. 5
Article 12 Termination 1. The Client and the Contractor can at all times terminate the agreement with due observance of a term of at least two months from the end of a calendar month. 2. The other party must be notified of the termination in writing. 3. The Client shall notify the Contractor immediately if the Client: a. Intends to apply for a (provisional) moratorium; b. Has been granted a (provisional) moratorium; c. Intends to submit a bankruptcy/winding-up petition; d. Is aware that one or more creditors have petitioned the Client's bankruptcy/winding up; e. Has been declared bankrupt/insolvent. Article 13 Liability 1. The Contractor shall carry out its work to the best of its abilities and observe the care that can be expected of it. If a mistake is made because the Client has provided inaccurate or incomplete information, the Contractor is not liable for the ensuing loss. If the Client shows that it has suffered loss due to a mistake by the Contractor which would have been avoided if acts had been carried out with due care, the Contractor shall only be liable up to the amount for which the Contractor has insured itself in that context, unless there is intent or equivalent gross negligence on the part of the Contractor. In the absence of an insurance in the aforementioned meaning and/or in case such insurance does not pay out, the loss is always limited to, at most, the amount of the underlying instructions. 2. The Client indemnifies the Contractor against any claim by third parties due to loss caused by the Client having provided the Contractor with inaccurate or incomplete information, unless the Client shows that the loss is not related to any imputable acts or omissions on its part or is caused by the intent or gross negligence of the Contractor. This provision does not apply to instructions to audit the annual accounts as referred to in article 393 Book 2 Dutch Civil Code. 3. The Contractor is at all times entitled, if and insofar as possible, to remedy or limit the loss of the Client. 4. The Contractor is not liable for damage to, or loss of, documents during transport or in the mail, irrespective whether the transport or mailing was on behalf of the Client, the Contractor or a third party. 5. The Contractor is not liable for unjustified MOT* notifications. 6. Liability for consequential loss, such as loss of profit, is at all times excluded. * MOT = Meldpunt Ongebruikelijke Transacties = Office for the Disclosure of Unusual Transactions Article 14 Expiry period Insofar as it is not determined otherwise in these standard terms and conditions, any rights of action or other entitlements of the Client, on whatever basis, towards the Contractor in respect of the carrying out of work by the Contractor shall in any event 6
lapse one year from the moment the Client became aware, or reasonably could have become aware, of these rights and entitlements. Article 15 Applicable law and competent court 1. All agreements between the Client and the Contractor to which these standard terms and conditions apply are governed by Dutch law. 2. Any dispute relating to the agreements between the Client and the Contractor to which these conditions apply and which do not come within the jurisdiction of the sub-district court, are exclusively heard by the court within whose jurisdiction the Contractor has its registered office. 7