Consulting Framework | Club of Engineers

Consulting Framework Agreement. 

Revision 1 – 2021

THIS CONSULTING FRAMEWORK AGREEMENT is entered into on X (hereinafter referred to as: the “Agreement”), between:

Parties

  1. 1. COE Coöperatief U.A., a Cooperative Association with Excluded Liability (Uitgesloten Aansprakelijkheid) incorporated under Dutch law, having its registered office and maintaining a place of business at Kingsfordweg 151 in (1043 GR) Amsterdam, the Netherlands, registered in the Trade Registry of the Chamber of Commerce under (KVK) number 70098697, hereunder represented by ir. Gijsbert Willem Bakker as representative of the Board Member COE International B.V.  (hereinafter referred to as: the “Cooperative”); 

AND

  1. 2. Company: X (If applicable, else if natural person, leave blank)

Representative of Company or natural person: X

Last Name: First Name: X

Address:

Hereunder referred to as the “Consultant”).

The Cooperative and Consultant will be referred to separately hereinafter as “Party” and jointly as “Parties”.

WHEREAS:

(A) The Cooperative is a platform for its members to perform certain engineering, project management and other project support services (mainly in the oil and gas, energy and water management and agricultural sectors) to non-related parties and pursues the object as set out in article 2 of its articles of association.

(B) Members of the Cooperative are those who are admitted and registered according to Article 3.2 of the articles of association of the Cooperative.

(C) The Consultant has been admitted as a member of the Cooperative pursuant to a resolution of the general meeting of members.

(D) Parties wish to lay down the terms and conditions for their collaboration as independent parties in this Agreement.

(E) This Agreement is a framework agreement, pursuant to which the Cooperative can engage Consultant for specific Services under a Service Order (generally in the form of Appendix A) for the benefit of an Assigned Company that has engaged with an unrelated Client (all capital terms in this recital to be further defined in the Service Order). 

(F) Consultant concerns him/herself, among other things, with the Services and has the knowledge and skills required to provide said Services.

(G) The Consultant is willing and able to provide the Services to the Cooperative, subject to the terms and conditions set forth in this Agreement.

(H) The Consultant shall preform the Assignment (as defined in Article 1.1 of this Agreement) for the Cooperative.

(I) Parties wish solely to contract with one another on the basis of an agreement for services within the meaning of Section 7:400 et seq. of the Dutch Civil Code (BW) and explicitly do not wish to enter into a contract of employment within the meaning of Section 7:610 et seq. of said Civil Code; and

(J) Parties understand and agree that in relevant cases the notional employment of homeworkers or equivalent persons within the meaning of Sections 2b and 2c of the (Dutch) Wage Tax Implementing Decree 1965 (Uitvoeringsbesluit Loonbelasting 1965) and Sections 1 and 5 of the Identification of Working Relationships as Employment Decree (Besluit aanwijzing gevallen waarin arbeidsverhouding als dienstbetrekking wordt beschouwd, “BAGAD”) (Decree of 24 December 1986, Bulletin of Acts and Decrees [Stb.] 1986, 655) will not apply and wish, to that end, to conclude the present Agreement before any payment is made.

AGREE AS FOLLOWS:

1 SERVICES

1.1 Subject to the terms and conditions set out in the present Agreement, the Consultant hereby accepts the assignment to provide Services for the Cooperative under a specific Service Order and thus assumes full responsibility for the correct performance of the agreed work.

1.2 The Services shall be performed by the Consultant.

1.3 Parties understand and agree that this Agreement shall not under any circumstances be performed or interpreted in any way as an agreement within the meaning of Section 7:610 et seq. of the Dutch Civil Code.

1.4 The Consultant shall organise his work independently. In so far as collaboration with others is necessary for performance of the Services, such collaboration shall be coordinated between the Consultant and the Cooperative so that such collaboration takes place in the best possible manner. If necessary for the work, the Consultant shall comply with the working hours applying at the Cooperative. 

1.5 Subject to the provisions of this Agreement, the Consultant shall act entirely independently in performing the agreed work. The Consultant shall perform the agreed work at the Consultant’s discretion and without supervision or guidance by Cooperative. The Cooperative may give directions and/or instructions regarding the result of the Services or the intended purpose of the Services if such does not affect the manner in which the Services are performed. The Consultant undertakes to act in accordance with said instructions by Cooperative during the Services and not to undertake any activities that are contrary to applicable law and/or regulations. In accordance with Section 7:403(2) of the Dutch Civil Code, Consultant shall report sufficiently to the designated supervisor of the project.

1.6 The Consultant shall exercise due care in performing the Services. The Consultant warrants vis‑à‑vis Cooperative that he is able to perform the Services properly. 

1.7 The Cooperative declares explicitly that it agrees to the Consultant also performing work for other clients.

1.8 If the Consultant is for any reason unable to perform the Services, the Consultant shall not be obliged to provide a replacement for the duration of such inability. For such eventuality, the Cooperative reserves the right to terminate the specific Service Order under this Agreement prematurely in accordance with the provisions of Article 4 of this Agreement. During such period of inability, the Consultant shall not be entitled to payment of the Remuneration and Expenses (as defined in Article 2.1 of this Agreement).

1.9 Without prejudice to the other rights of the Cooperative pursuant to law or this Agreement, the Consultant shall indemnify and compensate the Cooperative for any loss/harm arising from or related to any failure in performance of the obligations of the Consultant under this Agreement and/or any wrongful act on the part of the Consultant in connection with this Agreement.

2 REMUNERATION AND EXPENSES

2.1 The Company to which Consultant is assigned under the Service Order (“Assigned Company”) shall pay the Consultant remuneration for the Services as agreed in the Service Order (the “Remuneration”) directly, but only after receipt of sufficient evidence of the hours spent on the Assignment as administered on a timesheet basis in approval with the Assigned Company and the appointed Client Supervisor as outlined in the Service Order. The Assigned Company shall reimburse reasonable expenses incurred in connection with performance of the Assignment (the “Expenses”) on presentation of the original itemised bills and documented expense statements as agreed in the Service Order. Payment of said Remuneration and Expenses shall be effectuated in arrears on the basis of the payment periods agreed in the Service Order. 

2.2 The Consultant’s expense statements shall be specified and shall, in particular, include a breakdown of the hours worked, the work performed, and the Expenses incurred. The Consultant’s expense statements shall also comply with any formal requirements under applicable Dutch or foreign legislation, for instance as stated in Sections 35 and 35a of the (Dutch) Turnover Tax Act 1968 (Wet op de omzetbelasting 1968).

2.3 If the Consultant is unable to perform the Services under a specific Service Order due to illness or some other reason, Consultant shall be obliged to notify the Cooperative to that effect immediately, stating the reason and the expected duration of such inability. If the Consultant is for any reason unable to perform the Services under a specific Service Order (for example due to illness or otherwise), the Consultant shall not be entitled during such period of inability to payment of the Remuneration or the Expenses, without prejudice to the Cooperative’s right to terminate this Agreement prematurely in accordance with the provisions of Article 4 of this Agreement. 

2.4 In the event of premature termination pursuant to the provisions of Article 4 of this Agreement, the Consultant shall be entitled during the notice period to payment of the Remuneration and the Expenses, but only if the Consultant continues performance of the Services under a specific Service Order during that period.

2.5 The Consultant acknowledges and agrees that the Remuneration and reimbursement of the Expenses together constitute sole and full payment for all work that the Consultant performs pursuant to this Agreement.

3 TAXES

The Consultant warrants in regard to the Cooperative that he complies with its legal obligation to withhold and remit applicable taxes and social security contributions owed to any Tax Authority in connection with the work performed by the Consultant pursuant to this Agreement. 

3.1 If and in so far as the legal relationship specified in this Agreement, notwithstanding the position and intent of Parties, is considered by any Tax Authority as a (notional) employment relationship between the Cooperative and/or Assigned Company and the Consultant, and the Cooperative and/or the Assigned Company is consequently required to withhold and remit wage tax and national insurance contributions or the Cooperative and/or the Assigned Company is otherwise required to withhold and remit wage tax and national insurance contributions, the Consultant shall be liable to the Cooperative in that respect and he shall indemnify and compensate the Cooperative for any loss/harm arising from or in connection with any claims by any Tax Authority in that regard. The Cooperative and/or the Assigned Company shall be entitled to withhold the wage tax and national insurance contributions referred to in the previous sentence from the Remuneration and/or to claim them from Consultant against the payments referred to in Article 2 of this Agreement. 

3.2 If and in so far as the requirement to remit wage tax and national insurance contributions referred to in Article 3.2 of this Agreement is determined retrospectively and concerns a period in which no deductions were made by the Cooperative and/or the Assigned Company from the payments referred to in Article  3.2 of this Agreement, the Consultant shall be liable to the Cooperative and/or the Assigned Company in that regard and he shall pay such retrospectively demanded wage tax, national insurance contributions, penalties, and/or interest to the Cooperative and/or the Assigned Company in full.

 3.3 In the situation as referred to in Article 3.3 of this Agreement, the Consultant shall furnish sufficient security for the Cooperative and/or the Assigned Company regarding the total amount of such (retrospectively) demanded wage tax, national insurance contributions, penalties, and/or interest. During the period when no security has been furnished by the Consultant as referred to in the previous sentence, the Cooperative shall be entitled to suspend payments to the Consultant pursuant to this Agreement.  

3.4 Should any Tax Authority allege that the Cooperative may not credit any VAT or equivalent tax relating to the Consultant’s bills, the Consultant shall indemnify and compensate the Cooperative for all loss/harm sustained in that connection.

4 TERM OF AGREEMENT AND TERMINATION

4.1. Subject to the provisions of article 4.2 and 4.3 of this Agreement, the Agreement is entered into for the duration that Consultant is member of the Cooperative. Termination of Consultant’s membership with the Cooperative will automatically terminate this Agreement, without prejudice to the obligation of the Consultant to deliver Services in line with the terms of this Agreement and a specific Service Order. 

4.2. Unless Parties agree otherwise, Consultant shall ensure availability to perform the Services set out in this Agreement and under a specific Service Order, if unable to do so Consultant shall give sufficient notice such that the Cooperative may seek a replacement Consultant for the Services. The Cooperative reserves the right to terminate this Agreement and/or Service Order without notice should Consultant fail to be available.

4.3. This Agreement may be terminated prematurely by means of written communication sent to the other Party

    • (a) by either Party with due observance of a notice period of 1 month; or 
    • (b) by the Cooperative with immediate effect (and thus without any notice period needing to be observed) if the Consultant acts contrary to the provisions of this Agreement or in contradiction with applicable law in such a way that the Cooperative cannot reasonably be expected to allow this Agreement to continue and such default is not rectified within thirty (30) days after the date of a notice of default in that regard, with this being without prejudice to the right of the Cooperative to full compensation for any damage caused as a result of the Consultant’s actions and behaviour and/or the right to demand compliance with the Agreement; or
    • (c) by the Cooperative with immediate effect (and thus without any notice period needing to be observed) if the Consultant has been unable for a continuous period of at least 2 weeks to perform Services, regardless of the cause; or
    • (d) by the Cooperative with immediate effect (and thus without any notice period needing to be observed) if the Consultant is unable or indicates that he is unable to meet his debts when they fall due, ceases payments to pay off his debts, becomes insolvent, offers his creditors a voluntary arrangement outside insolvency or invokes such, becomes the object of proceedings against him relating to bankruptcy, insolvency, (temporary) suspension of payments, is admitted to the debt restructuring arrangement, the protection of rights of creditors, reorganisation, or similar proceedings; or

4.4. In the event of termination of this Agreement, the Consultant shall receive Remuneration in proportion to the work he has performed for contracted, unfinished Project Agreements / Assignments, without prejudice to the provisions in Article 2.

5 CONFIDENTIALITY

5.1 The Consultant undertakes to treat all information concerning the Cooperative and its affiliated enterprises that is not in the public domain as strictly confidential and not to disclose such information to third parties in any way or in any form, either directly or indirectly, in particular all information regarding financial, commercial, operational, or organisational knowledge and data (the “Confidential Information”), regardless of whether such information bears an indication of its confidential nature or ownership, and regardless of the manner in which Consultant became aware of the information concerned. This confidentiality obligation shall also comprise all information regarding the Cooperative’s clients and/or other contacts of the Cooperative’s affiliated enterprises of which the Consultant has become aware in the context of this Agreement.

5.2 Notwithstanding the provisions of Article 5.1 of this Agreement, the Consultant shall be permitted to disclose Confidential Information if the Consultant has acquired the prior written consent of the Cooperative or if the disclosure of such Confidential Information arises from a statutory requirement. If the Consultant is required by law to disclose Confidential Information, the Consultant shall notify the Cooperative thereof immediately, prior to effectuating any disclosure.

 5.3 Other than for performance of the Assignment, the Consultant shall also be prohibited from copying, compiling, combining, assembling, or processing information, products, and/or systems belonging to the Cooperative or from disassembling, replicating, or decompiling the source code contained in said products or systems or other computer software present at the Cooperative’s premises or attempting in some other way to derive the source code for such software.

5.4 In the event of the confidentiality provision in the present Article 5 being violated, the Consultant shall forfeit to the Cooperative an immediately due and payable penalty of EUR 9,000 for each violation and EUR 900 for each day that such violation continues, without prejudice to the Cooperative’s other rights pursuant to law or this Agreement, including but not limited to the Cooperative’s right to claim performance and/or the Cooperative’s right to claim full compensation.  

6 RETURN OF PROPERTY

Upon this Agreement terminating, the Consultant shall be obliged to return to the Cooperative, at the Cooperative’s first request, all property belonging to the Cooperative and its affiliated enterprises, including but not limited to materials, documents, and copied information, in whatever form.

7 INTELLECTUAL PROPERTY 

7.1 In the present Article 7, the following definitions shall apply:

Intellectual Property” means all intellectual property rights, including but not limited to patent rights, design rights, copyright, neighbouring rights, database rights, trademark rights, chips rights, trade name rights, and know-how which have arisen in the Netherlands or elsewhere, during or after the term of this Agreement, in the context of the Consultant’s work pursuant to this Agreement; and

Know-how” means all business secrets, secret formulas, inventions, designs, standards (technical) data or information, processes, methods, raw materials and business methods, as well as all information, knowledge, details, business practices, and improvements related thereto.

7.2 All Intellectual Property Rights shall be vested exclusively in the Cooperative. 

7.3 To the extent that any Intellectual Property Rights do not already belong to the Cooperative by operation of law, the Consultant undertakes to transfer such rights to the Cooperative, at the Cooperative’s first request, and the Consultant, to the extent possible, hereby transfers such rights to the Cooperative, which transfer is hereby accepted by the Cooperative.

7.4 To the extent that any Intellectual Property Rights are not susceptible to transfer by the Consultant to the Cooperative, the Consultant hereby grants the Cooperative the exclusive, royalty-free, worldwide, perpetual, sub-licensable right to utilise such Intellectual Property Rights in the broadest sense, which right is hereby accepted by the Cooperative. In so far as personality rights are vested in the Consultant, the Consultant – to the extent legally permissible – hereby waives its personality rights, including but not limited to the right of attribution under the Dutch Copyright Act 1912 (Auteurswet 1912).

7.5 The Consultant shall immediately notify the Cooperative of all works, inventions, results, information and Intellectual Property Rights, that have arisen in connection with the Assignment and/or are in any way relevant for the creation, protection, and/or exercise of the Intellectual Property Rights. The Consultant, both during and after termination of this Agreement, shall perform all acts necessary for registration of the Intellectual Property Rights in the name of the Cooperative with any competent authority anywhere in the world.

7.6 If and to the extent that the cooperation of the Consultant referred to in Articles 7.3, 7.4, and 7.5 of this Agreement is not provided and/or is not possible, in any way, the Consultant hereby grants to the Cooperative an irrevocable power of attorney to represent the Consultant so as to bring about the cooperation and acts relating to the Intellectual Property Rights referred to in Article s 7.3, 7.4, and 7.5 of this Agreement. 

7.7 The Consultant acknowledges that the Remuneration that he enjoys includes reasonable payment for the lack of Intellectual Property Rights. The Consultant shall not be permitted to utilise the Intellectual Property Rights or the results thereof otherwise than for the performance of its work pursuant to this Agreement. The Consultant warrants that the results of its work and/or activities pursuant to this Agreement do not infringe any rights (i.e. intellectual property rights) of third parties or are otherwise unlawful vis-à-vis third parties, and the Consultant shall indemnify and compensate the Cooperative for any loss/harm sustained in this regard.

7.8 The Cooperative shall in no case be liable for loss/harm sustained by the Consultant in connection with the use by the Cooperative of inventions, designs, works, programs, documents, data, names, marks, know-how, materials, or other types of performance that have been disclosed to the Cooperative by the Consultant during the term of this Agreement and/or that fall outside the scope of this Agreement and/or that have arisen or been developed prior to the conclusion of this Agreement.

8 OTHER PROVISIONS

8.1 All appendices attached to this Agreement form an integral part of this Agreement.

8.2 Articles 5, 7 and the present Article 8 shall remain in full force after termination of this Agreement. 

8.3 This Agreement (together with the appendices) constitutes the entire agreement between Parties and the Consultant and replaces all previous (oral or written) negotiations, commitments, agreements, and arrangements relating to the Services.

8.4 Amendments and alterations to this Agreement shall only be valid if agreed on by Parties in writing and signed by Parties and, where applicable, by Manager.

8.5 If any provision of this Agreement is or becomes wholly or partially invalid, such provision shall be deemed to be divisible as regards the invalid component and the remaining provisions of this Agreement and the remainder of the provision concerned shall remain in full force. The invalid provision shall be replaced by a valid provision that is as close as possible to what Parties intended with the invalid provision.

8.6 If a Party (partially) fails to enforce the provisions of this Agreement, or postpones enforcement thereof, such shall not be construed as a waiver of such Party’s rights pursuant to this Agreement. If a Party waives its rights in respect of a breach or failure to fulfil the provisions of this Agreement on the part of the other Party, such shall not be deemed to constitute a waiver in respect of any subsequent breach or failure to perform and such shall in no way affect the other provisions of this Agreement.

8.7 Without prejudice to Parties’ rights to effectuate notifications and/or make announcements in another legally valid manner, all notifications or other announcements pursuant to this Agreement shall be deemed to have been legally effectuated if they have been made in writing and delivered in person or by registered letter with signed confirmation of receipt to the addresses given at the beginning of this Agreement, except in the case of changes indicated by the Party whose address is changed.

8.8 This Agreement shall be governed by the laws of the Netherlands. Parties submit to the exclusive jurisdiction of the competent Dutch court.

AS EVIDENCE WHEREOF Parties have signed this Agreement on the date of this Agreement:

 

Cooperative                                           Consultant,

Signature                                                   X Signature

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