BenchmarkBridge General Terms and Conditions

Article 1. Definitions.

In these General Terms and Conditions, the following terms shall have the meanings set out below, unless expressly stated otherwise:

• BenchmarkBridge: The company BenchmarkBridge B.V., which supplies benchmarks, represented by its founders, partners and employees, in the context of the agreements to which these General Terms and Conditions apply.
• Client: The party with whom BenchmarkBridge has concluded an agreement relating to the sale of benchmarks.
• Agreement: The agreement between BenchmarkBridge and the Client to which these General Terms and Conditions apply.
• Self Service Benchmark: A benchmark that meets the basic requirements of Client and is suitable for compliance purposes. These benchmarks are offered at lower prices and do not require substantive review by the BenchmarkBridge team.
• Full Service Benchmark: A benchmark intended for audit purposes and requiring substantive involvement of the BenchmarkBridge team.
• Webshop: The online portal (webshop) through which Clients order benchmarks and make payments.

Article 2. Applicability of these Terms and Conditions

1.         These Terms and Conditions shall apply to every quotation, offer, and every Agreement between BenchmarkBridge and Client.

2.         Any deviations from the provisions of these General Terms and Conditions shall be valid only if they have been expressly agreed in writing.

3.         The applicability of any terms of purchase or other general terms and conditions of Client’s is expressly rejected.

4.         These General Terms and Conditions shall also apply to all Agreements concluded with BenchmarkBridge, for the performance of which third parties are engaged.

5.         In case one or more of the provisions of these General Terms and Conditions are void or declared invalid the remaining provisions shall remain in full force and effect. In that case BenchmarkBridge and Client shall mutually consult in order to agree new provisions replacing the provisions that are void or may be declares invalid, taking into account the purpose and purport of the original provisions to the extent as possible.

Article 3. Offers

1.         All quotations and/or offers of BenchmarkBridge are free of engagement and will be prepared fully on the basis of the information provided for that purpose by Client, and Client guarantees that the information that is essential for the planning of the engagement has been provided.

2.         An Agreement between BenchmarkBridge and Client is concluded by the signing of an Agreement, by Client having signed an offer submitted by BenchmarkBridge for approval, by BenchmarkBridge having sent a written order confirmation to Client, or by the Client having placed an order with BenchmarkBridge by phone, e-mail or in the Webshop.

3.         Modifications of an Agreement, once the Agreement has been concluded, shall be valid only if such modifications have been agreed in writing between Client and BenchmarkBridge.

Article 4. Performance of the Agreement

1.         BenchmarkBridge shall perform the Agreement to the best of its knowledge, ability, and professional standards. BenchmarkBridge is subject only to a best-efforts obligation with respect to the preparation and delivery of benchmark reports. BenchmarkBridge does not guarantee that the benchmark reports will achieve any specific result or meet any particular purpose of the Client. The benchmark reports are provided for informational purposes only, and the Client remains solely responsible for the interpretation and application thereof.

2.         BenchmarkBridge shall perform its services from a position of professional independence. Where appropriate, BenchmarkBridge may communicate with the Client regarding the progress and general approach to the preparation of benchmark reports.

3.         If and insofar as proper performance of the Agreement requires, BenchmarkBridge shall be entitled to have certain services or parts of the benchmark preparation performed by third parties.

4.         The Client shall provide BenchmarkBridge, in a timely manner, with all information, data, and materials that BenchmarkBridge identifies as necessary—or that the Client should reasonably understand to be necessary—for the preparation and delivery of the benchmark reports. The Client guarantees that such information and data are accurate, complete, and up to date.

5.         The Client shall provide BenchmarkBridge with full cooperation and access to its personnel or systems insofar as this is reasonably required for the proper execution of the Agreement.

6.         If the information or cooperation required for the performance of the Agreement is not provided in due time, BenchmarkBridge shall be entitled to suspend performance of its obligations and/or to charge the Client for any additional costs or delays resulting therefrom.

7.         BenchmarkBridge shall not be liable for any damage, loss, or inaccuracy in the benchmark reports or other deliverables that results, directly or indirectly, from incorrect, incomplete, or misleading information provided by the Client. The Client shall indemnify and hold BenchmarkBridge harmless against any claims by third parties arising from the use of such information.

Article 5. Library Benchmarks

1. BenchmarkBridge may deliver Library Benchmarks, Self Service Benchmarks and Full Service Benchmarks. The provisions in this article apply to Library Benchmarks.
2. Library Benchmarks consist of standard reports based on benchmarking studies previously conducted for other clients. These reports are delivered “as is” and without modifications to the specific circumstances of the Client.
3. BenchmarkBridge does not warrant that Library Benchmarks are suitable for the specific circumstances, transactions or structure of the Client. The Client is solely responsible for assessing whether a Library Benchmark is applicable to its situation.
4. BenchmarkBridge makes no representations or warranties, whether express or implied, regarding: a. the accuracy, completeness, reliability or timeliness of any information or data contained in the Library Benchmarks; b. the fitness of the Library Benchmarks for any particular purpose of the Client; or c. the achievement of any specific results, compliance objectives or audit objectives by the Client through the use of such reports.
5. Library Benchmarks are intended solely for general informational purposes and do not constitute professional, financial, legal or tax advice. The Client remains solely responsible for the interpretation and use of the reports and for all decisions made on the basis thereof.
6. BenchmarkBridge shall not be liable for any damages, losses or costs arising from the Client’s reliance on, or interpretation or application of, the Library Benchmarks, unless such damages are the direct result of gross negligence or wilful misconduct on the part of BenchmarkBridge.

Article 6. Self Service Benchmarks

1. BenchmarkBridge may deliver Library Benchmarks, Self Service Benchmarks and Full Service Benchmarks. The provisions in this article apply to Self Service Benchmarks.
2. Self Service Benchmarks comprise both Basic Benchmarks and Advanced Benchmarks. In both forms, the Client determines the research strategy and provides instructions to BenchmarkBridge for the execution of the benchmarking study.
3. The distinction between Basic and Advanced Benchmarks is as follows: a. Basic Benchmarks: the Client provides clear instructions to the benchmarking team and receives the results including accepted and rejected companies for approval; b. Advanced Benchmarks: the Client provides clear instructions to the benchmarking team, receives input from the benchmarking team prior to commencing the study, and receives the results including accepted and rejected companies with financial data for review and approval.
4. BenchmarkBridge shall prepare and deliver its Self Service Benchmarks with due care and in accordance with the standards that may reasonably be expected from a professional service provider. BenchmarkBridge is, however, subject only to a best-efforts obligation and provides its reports on an “as is” and “as available” basis.
5. BenchmarkBridge makes no representations or warranties, whether express or implied, regarding: a. the accuracy, completeness, reliability or timeliness of any information or data contained in the benchmark reports; b. the fitness of the benchmark reports for any particular purpose; or c. the achievement of any specific results, compliance objectives or audit objectives by the Client through the use of such reports.
6. The benchmark reports are intended solely for general informational purposes and do not constitute professional, financial, legal or tax advice. The Client remains solely responsible for the interpretation and use of the reports and for all decisions made on the basis thereof.
7. Given that in Self Service Benchmarks the Client determines the research strategy and leads the analysis, the Client accepts full responsibility for the methodological choices made and the resulting outcomes.
8. BenchmarkBridge shall not be liable for any damages, losses or costs arising from the Client’s reliance on, or interpretation or application of, the benchmark reports, unless such damages are the direct result of gross negligence or wilful misconduct on the part of BenchmarkBridge.

Article 7. Full Service Benchmarks

1. BenchmarkBridge may deliver Library Benchmarks, Self Service Benchmarks and Full Service Benchmarks. The provisions in this article apply to Full Service Benchmarks (BenchmarkBridge Pro).
2. In Full Service Benchmarks, BenchmarkBridge conducts the benchmarking study as a joint effort in which BenchmarkBridge actively provides input and leads the study in consultation with the Client.
3. BenchmarkBridge shall exercise the care that may reasonably be expected from a diligent and professional service provider in preparing and delivering its Full Service Benchmarks. BenchmarkBridge undertakes to ensure that such reports are compiled with due skill, accuracy and professional judgment, based on the information and data available at the time of preparation.
4. The Full Service Benchmarks are prepared on the basis of generally accepted OECD principles and guidelines for transfer pricing. BenchmarkBridge expressly points out that the reports do not necessarily comply with all local specific requirements or regulations, as each benchmark relates to transactions involving multiple entities and/or jurisdictions. The Client remains responsible for assessing the applicability of the benchmark in light of local laws and regulations.
5. Notwithstanding the foregoing, BenchmarkBridge does not guarantee that the Full Service Benchmarks are entirely free from errors or omissions, or that they will fully reflect all relevant circumstances or developments. The reports are prepared on the basis of sources and methodologies that BenchmarkBridge considers reliable, but no warranty is made as to the absolute accuracy, completeness or fitness for a particular purpose of the information contained therein.
6. The benchmark reports are intended for the exclusive use of the Client and for the specific purpose stated in the Agreement. BenchmarkBridge accepts no responsibility or liability towards third parties who may obtain access to or rely on the reports without the prior written consent of BenchmarkBridge.
7. BenchmarkBridge shall not be liable for any damages, losses or costs arising from the Client’s reliance on, or interpretation or application of, the benchmark reports, except to the extent that such damages are the direct and demonstrable result of gross negligence or wilful misconduct on the part of BenchmarkBridge.

Article 8. Delivery

1.         BenchmarkBridge shall deliver the benchmark reports within a reasonable period following receipt of the Client’s order and all information required to prepare the reports. Any delivery dates or timeframes communicated by BenchmarkBridge are indicative only and shall not constitute strict or binding deadlines, unless expressly agreed otherwise in writing.

2.         Delay in delivery shall not entitle the Client to terminate the Agreement or to claim damages, unless BenchmarkBridge has been given written notice of default and a reasonable additional period of at least 30 days for performance has expired without delivery having taken place.

3.         Delivery of benchmark reports shall take place digitally, by e-mail, secure download link, or through the BenchmarkBridge online portal, unless the parties have expressly agreed upon another method of delivery.

4.         The risk of loss, delay, or unauthorized access during electronic transmission shall pass to the Client once the benchmark reports have been made available for download or transmitted to the Client’s designated e-mail address.

Article 9. Webshop orders

1.         Orders for benchmark reports placed through the BenchmarkBridge webshop shall be considered final and binding upon electronic confirmation by BenchmarkBridge.

2.         All orders placed through the webshop are subject to full prepayment. Payment must be made immediately upon placing the order, using one of the secure online payment methods offered on the webshop.

3.         BenchmarkBridge shall not be required to commence preparation or delivery of any benchmark report until full payment has been received in its designated bank account.

4.         Delivery timelines, if communicated, shall only commence after receipt of payment.

5.         In the event that payment authorization is declined or payment is not received, BenchmarkBridge reserves the right to cancel or suspend the order without further notice.

6.         All electronic confirmations, invoices, and communications sent by BenchmarkBridge in connection with webshop orders shall be deemed to have been validly delivered to the Client when transmitted to the e-mail address or account provided by the Client.

7.         BenchmarkBridge reserves the right to refuse or cancel orders in cases of suspected fraud, misuse of the webshop, violation of these Terms and Conditions, or if fulfilment would contravene applicable laws or regulations.

Article 10. Intellectual property

1.         BenchmarkBridge expressly reserves all intellectual property rights and any authorizations pursuant to such rights. All documents such as Benchmarks, other reports, advice, offers and such, prepared by BenchmarkBridge for the purpose of the Agreement shall remain its exclusive property, irrespective whether they have been made available to Client or third parties.

2.         BenchmarkBridge has the right, to the exclusion of any others, to reproduce and/or disclose and repurpose its documents, such as Benchmarks, other reports, advice, offers and such, irrespective whether they have been made available to Client or third parties and irrespective whether they have been prepared together with Client.

3.         All documents provided by BenchmarkBridge such as Benchmarks, other reports, advice, offers and such are intended for use by Client only and may not be reproduced, disclosed or divulged to third parties without the prior approval of BenchmarkBridge.

4.         Without the written approval of BenchmarkBridge the documents provided by BenchmarkBridge such as Benchmarks, other reports, advice offers and such may not be copied, disclosed to any third parties or used in any other way.

5.         In case Client does not act in accordance with the provisions of this article Client shall forfeit to BenchmarkBridge an immediately due and payable penalty in the amount of € 25.000,00, which amount shall be immediately paid to BenchmarkBridge by Client upon request of BenchmarkBridge. As a result of this payment the title and possible intellectual property rights shall not pass to Client but will remain vested in BenchmarkBridge.

Article 11. Time limit for complaints

1.         Complaints about the services provided by BenchmarkBridge must be submitted by Client in writing within 10 days after delivery of the Benchmark report(s). After expiry of this time limit BenchmarkBridge is no longer obliged to look into any complaints.

2.         Any claim for damages shall expire if such claim has not been referred to a court of law within one year after the day on which the Agreement was ended by its performance or termination.

Article 12. Fee

1.         On conclusion of the Agreement the parties may agree a fixed fee. The fixed fee is exclusive of BTW (VAT) and other government levies

2.         In case no fixed fee is agreed the fee shall be determined on the basis of the number of hours worked. The fee will be calculated according to the customary hourly rates of BenchmarkBridge as they apply in the time during which the services are performed, unless a different hourly wage has been agreed. The hours worked by BenchmarkBridge will be charged each month.

3.         Any cost estimates are exclusive of BTW and other government levies and any costs to be incurred for the purpose of performance of the Agreement, office costs, travel and accommodation costs, costs of third parties, consultants, shipment and such, unless specified otherwise. These costs will each time be individually itemized to the extent as possible and charged to Client separately.

 4.        In case BenchmarkBridge has agreed a fixed fee or hourly rate with Client BenchmarkBridge shall nevertheless have the right to increase such fee or rate. BenchmarkBridge may pass on increases, including but not limited to: increases in wage prices or increases in prices of third parties engaged by BenchmarkBridge for the performance of (part of) the Agreement. Such increases may be charged to Client only if Client has been informed of these increases before commencement date. Further, BenchmarkBridge may increase the fee if it appears during performance of the services that the originally agreed or expected volume of work was underestimated to such an extent and this cannot be attributed to BenchmarkBridge, that BenchmarkBridge cannot reasonably be expected to perform the work agreed at the fee that was originally agreed.

5.         The rates of BenchmarkBridge may be modified in case of extension of an engagement or from 1 January of each year. The rate may be increased by mutual consultation by the price index figure for CAO (collective labour agreement) salaries, business services category, published by Netherlands Statistics CBS.

Article 13. Payment

1.         Invoices sent by BenchmarkBridge must be paid within 14 days of invoice date, by transfer of the amount due to the bank account referred to on the invoice, made payable to BenchmarkBridge.

2.         After expiry of the term of 14 days of invoice date Client shall be in default by operation of the law. From the time at which Client is in default BenchmarkBridge has the right to suspend its obligations under the Agreement.

3.         From the point in time at which Client is in default Client shall owe an interest of 1.5% per month on the amount due, i.e. 18% per year, unless statutory commercial interest is in excess of that, in which case statutory commercial interest shall be due.

4.         Payments made by Client shall always first be applied to all interest and costs due and then to the oldest unpaid invoices due, even if Client should state that a payment applies to a later invoice.

5.         Payment shall take place without discount or set-off..

Article 14. Costs of collection

1.         If Client is in default all reasonable costs of collection to obtain payment out of court shall be borne by Client.

2.         All extrajudicial costs of collection incurred by BenchmarkBridge for the purpose of obtaining fulfilment of the obligations of Client, shall be borne by Client. These costs are set at 15% of the principal amount of the claim, with a minimum amount of € 40,00 for each unpaid invoice. For Clients who are consumers, the costs are set at:

–          15% of the principal amount of the claim for the first € 2.500,00 of the claim;

–          10% of the principal amount of the claim for the next € 2.500,00 of the claim;

–          5% of the principal amount of the claim for the next € 5.000,00 of the claim;

–          1% of the principal amount of the claim for the next € 190.000,00 of the claim;

–          0,5% of the excess principal amount with a maximum of € 6.775,00.

3.         Client also owes statutory commercial interest on the costs of collection incurred.

Article 15. Liability

1.         BenchmarkBridge is liable for damages only if such damage is a direct consequence of an attributable failure in the performance of its obligations under this Agreement on the part of BenchmarkBridge.

2.         Eligible for compensation is only the damages against which BenchmarkBridge is or should reasonably have been insured.

3.         If it is not possible for BenchmarkBridge to take out an insurance as referred to in paragraph 2 at the time at which the Agreement is concluded or to do so on reasonable conditions or, after that, to extend such insurance on reasonable conditions, compensation of damages shall be limited to the amount (exclusive of BTW) charged by BenchmarkBridge under the Agreement.

4.         In case the insurer declines to pay any claim or in case damage is not covered by the insurance the liability of BenchmarkBridge shall be limited to an amount not exceeding the amount of the fee due for the time during which damage occurred, with a maximum amount of € 10.000.

5.         BenchmarkBridge is liable only for direct damage. Direct damage is understood to mean:

–           any reasonable costs of identification of the cause and scope of the direct damages;

–           any reasonable costs incurred to ensure that the defective performance of BenchmarkBridge meets the Agreement, unless they cannot be attributed to BenchmarkBridge;

–           reasonable costs incurred for the prevention or limitation of damage to the extent that Client shows that these costs have actually resulted in limitation of direct damages.

6.         BenchmarkBridge is never liable for indirect damages, including consequential damages, loss of profit, loss of savings and damages due to interruption of operations.

7.         In case certain parts of the Agreement are performed by third parties BenchmarkBridge shall not be liable for those parts and acts by those third parties.

Article 16. Termination and dissolution

1.         If BenchmarkBridge and Client have entered into an Agreement with a duration of more than 1 month, each of the parties may terminate this continuing performance agreement taking effect at the end of a calendar month subject to a term of notice of 1 month. Termination is possible only if the performance of the originally agreed services is considerably complicated or even prevented due to changed circumstances.

2.         In addition to that, without prejudice to the right of BenchmarkBridge to claim full damages, BenchmarkBridge has the right to suspend performance of its obligations and/or terminate the Agreement in the event that:

–           Client does not or not fully perform the obligations under the Agreement;

–           after conclusion of the Agreement, BenchmarkBridge learns of circumstances that justify the fear of BenchmarkBridge that Client will not perform its obligations;

–           BenchmarkBridge Client requested Client to provide security for the performance of its obligations on conclusion of the Agreement and such security has not been provided or is insufficient;

–           Client applies for suspension of payment, is declared bankrupt or liquidates or suspends or transfers to a third party its enterprise in whole or in part.

3.         Further, BenchmarkBridge shall have the right to dissolve the Agreement in case of circumstances that are such that, according to reasonableness and fairness, unchanged performance of the Agreement cannot possibly or can no longer be expected of BenchmarkBridge.

4.         In case the Agreement is dissolved all claims of BenchmarkBridge shall become due and payable immediately. In case of dissolution BenchmarkBridge will continue to be entitled to payment by Client of the invoices for the services performed until the time of dissolution.

Article 17. Force Majeure

1.         Force majeure is understood to mean: circumstances preventing performance of obligations which cannot be attributed to BenchmarkBridge. These circumstances (to the extent that they prevent or unreasonably complicate performance) also include: strike in companies with which BenchmarkBridge has concluded agreements for the purpose of performance of the Agreement, and cases in which BenchmarkBridge is unable to perform the services agreed.

2.         BenchmarkBridge also has the right to invoke force majeure in case the circumstance that prevents (further) performance occurs after BenchmarkBridge should have performed its obligation.

3.         During the time of force majeure the obligations of BenchmarkBridge will be suspended. In case the time during which performance of the obligations by BenchmarkBridge is not possible due to force majeure is more than 1 month, both parties shall have the right to dissolve the Agreement without ensuing obligation to pay damages in that case.

4.         In case BenchmarkBridge has already performed part of its obligations or is able to perform only part of its obligations at the time at which force majeure occurs BenchmarkBridge shall have the right to separately invoice the part that has been or may be performed, and Client shall be obliged to pay that invoice as if it were a separate engagement.

Article 18.  Confidentiality and Privacy

1.         BenchmarkBridge attaches great importance to exercising due care when handling Clients’ privacy.

2.         BenchmarkBridge processes personal date in a proper way, exercising due care, and in accordance with the applicable legislation and regulations on privacy and the protection of personal data, including (but not limited to) the General Data Protection Regulation (GDPR). To the extent that Client collects personal data and provides such data to BenchmarkBridge, Client guarantees BenchmarkBridge that this collection and provision of data is lawful.

3.         If necessary BenchmarkBridge will conclude a data processing agreement with Client.

4.         Without prejudice to legal obligations both parties are subject to an obligation of confidentiality with regard to all confidential information which they have obtained from each other or other sources under their Agreement. Information is considered confidential if so designated by the other party or if confidentiality results from the nature of the information.

Article 19. Applicable law and dispute settlement

1.         All Agreements between BenchmarkBridge and Client are governed by Dutch law exclusively.

2.         In deviation of statutory rules on the competence of civil courts all disputes between Client and BenchmarkBridge shall be submitted to the jurisdiction of the Rechtbank Zeeland West Brabant.

Article 20. Amendment

1.         Amendment of the Agreement and deviation of these General Terms and Conditions shall be valid only if agreed in writing between BenchmarkBridge and Client.

2.         BenchmarkBridge reserves the right to modify the content matter of these General Terms and Conditions at any point in time. Modified General Terms and Conditions will not be effective until after Client has been notified of the modifications and Client has not objected to these modifications in writing, stating its reasons, within five days.