1. General
1.1 BBKW is an association of mediators (“mediators”) who publicly act under the name BBKWmediation.
1.2 The services of BBKWmediation include mediation, independent chairmanship, supervised negotiation, intervision guidance, the BBKWAcademy and carrying out a QuickConflictScan©.
1.3 The mediators are individually considered to be the contractor. When accepting an assignment, the mediator concerned shall clearly indicate who the contractor is and what activity is involved.
1.4 These general conditions are part of all tenders and assignments of services that are issued or accepted by the mediators. An assignment is accepted as soon as it has been confirmed in writing or the mediator has started to carry it out.
1.5 In the event of mediation, the mediation agreement, the MfN[1] regulations and the rules of conduct for MfN-registered mediators, signed by all parties involved, shall apply as handed to the parties involved at the beginning of the mediation. In the event of any conflict between these general terms and conditions and the MfN regulations and the MfN rules of conduct, the latter shall prevail.
2. Confidentiality
2.1 All information about clients obtained by the mediators shall be treated confidentially. The privacy statement BBKWmediation (https://www.bbkwmediation.nl/over-ons/avg ) applies.
2.2 To the extent that the mediator, by virtue of the assignment or applicable rules of conduct, has an obligation of secrecy, this obligation shall be waived in relation to her/his professional and business liability insurer if the mediator appeals to her/his insurance in connection with a claim for liability.
3. Fee and payment
3.1 The client shall owe the mediator a fee for her/his services, based on an hourly rate, costs and VAT. The fee shall be agreed upon at the start of each case. The fee shall be invoiced in the name of BBKWmediation. The amount and indebtedness shall not be dependent on the result achieved.
3.2 The hourly rate includes: preparing and holding meetings, telephone conversations, correspondence by post and e-mail, preparing reports, studying documents, preparing drafts of documents desired by the parties, other activities provided that they have been approved by the client in advance. Half rate is charged for travel time. Costs are understood to mean travel expenses, hire of meeting space and refreshments used during meetings, as well as the costs of third parties called in after obtaining the client’s approval.
3.3 BBKWmediation may charge an advance before the mediation starts. Furthermore, BBKWmediation will invoice the client periodically, or at the end of the commission, for the fees due and the costs to be reimbursed.
3.4 The client shall pay the invoices of BBKWmediation within fourteen days of the date of the invoice. If the client fails to do so, he shall be deemed to be legally in default without any notice of default being required. If payment is not made on time, the mediator concerned shall have the right to stop carrying out the assignment and BBKWmediation may charge legal commercial interest as well as the full extrajudicial and judicial collection costs. The fees due up to that point shall become immediately payable. The extrajudicial collection costs shall be fixed at 10% of the amount of the unpaid invoice(s), unless the (actual) extrajudicial collection costs are higher, in which case BBKWmediation shall have the right to charge these higher amounts. If a client is a consumer within the meaning of the Besluit Buitengerechtelijke Incassokosten (Decree on Extrajudicial Collection Costs), the rates stipulated in this Decree shall apply.
4. Third parties
4.1 A mediator may, if desired and with the approval of the client, engage third parties to perform services. All clauses in these general conditions are also made for the benefit of these third parties.
4.2 If a third party has stipulated a limitation of liability, the mediator has the right to accept this limitation on behalf of the client.
5. End of the assignment
Both the mediator and the client are entitled to terminate the assignment if the mediator or the client expects that the assignment will not or cannot be properly completed. The obligation of the client to pay the fee and expenses remains unaffected until the time of termination.
6. Liability
6.1 A mediator shall only be liable in the event of his/her own attributable shortcoming in the performance of the agreement with the client. The mediator cannot be held liable for shortcomings of other mediators who are affiliated to BBKWmediation, nor for shortcomings of third parties, even if these third parties have been engaged by the mediator.
6.2 Any and all liability of the mediator is limited to the amount that is paid out on the basis of the professional and/or business liability insurance policies taken out, increased by the mediator’s deductible excess.
6.3 If and insofar as no payment takes place, the mediator’s liability is limited to direct financial loss and the compensation will not exceed the fee actually paid by the client with a maximum of € 5000,- ex VAT.
6.4 Liability for indirect or consequential damage, such as loss of profit or turnover, trading loss, damage to image or reputation and damage as a result of claims by third parties is excluded.
6.5 The mediators shall never be liable for errors in the means of communication used.
6.6 The client shall indemnify the mediator(s) against claims by third parties and shall compensate the mediator(s) for all claims that a third party may make and any related procedural costs, to the extent that these are not covered by the mediator’s liability insurance.
6.7 Without prejudice to the provisions of Article 6:89 of the Dutch Civil Code, a claim as referred to in this Article shall lapse one year after the client has become aware or ought to have become aware of the facts on which the claim is based, unless the client has commenced mediation as referred to in Article 7.2 of these Conditions. In that case the expiry period as referred to in this paragraph shall be suspended. The period shall continue as soon as the mediation is terminated without a settlement agreement.
6.8 The aforementioned limitations of liability do not apply if there is intent or conscious recklessness on the part of the mediator.
6.9 A series of damaging events which are connected or result from each other shall be considered as one event.
7. Applicable law, mediation clause, competent court
7.1 All agreements concluded between the mediators and their client shall be governed by Dutch law.
7.2 If a dispute relating to (a shortcoming in) the implementation of this agreement cannot be settled through consultation between the parties, the parties shall, before resorting to the competent court, make an effort to solve the dispute through mediation in accordance with the regulations of the MfN or its legal successor, as they read on the date of signature of the agreement in dispute.
7.3 The most diligent party shall notify the other party in writing or electronically of its intention to proceed to mediation.
7.4 As long as this notification has not taken place and/or the mediation has not been terminated, neither party shall apply to the court or arbitrator, except to take precautionary or urgent measures.
7.5 If, within 30 days, or within a period to be further agreed by the parties after receipt of the notification referred to above under 3, it has proved impossible to resolve the dispute by means of mediation, the dispute shall be settled by the competent court.
In the event of a difference between a translated version and the Dutch text of these General Terms and Conditions, the Dutch text shall prevail.
[1]Mediators Federation Netherlands