General Terms and Conditions
1. In these General Terms and Conditions the following terms shall have the following meanings:
- General terms and conditions: the present provisions;
- Agency: Nexxdott, established in Soest;
- Client: the party who contracts or intends to contract with the agency;
- Assignment: every agreement between the agency and the client to deliver products and services to the client;
- Offer: any verbal or written offer by the agency to enter into an assignment with it;
- Materials: all products, reports, advice, results, concepts, presentations and other material objects developed by the agency in the context of the assignment
2. Applicability of General Terms and Conditions
- The general terms and conditions apply to all offers, quotations, assignments, work, agreements and legal acts whereby the agency supplies goods and/or services of any kind to the client.
- The applicability of any purchase or other conditions of the client is expressly rejected.
- Amendments to the order or the general terms and conditions are only valid if and insofar as they have been agreed in writing by authorised representatives of both parties.
3. Realisation of Assignment
- An offer of the agency is always without obligation, unless explicitly stated otherwise.
- Offers are based on the information provided by the client to the agency up to the date of the offer. The client guarantees that the agency has been provided with all the information essential for the design and implementation of the assignment. The agency is not responsible or liable for the accuracy and completeness of the information provided by the client and the use thereof.
- The assignment shall be effected in accordance with the agreed rate after the client's written acceptance of the offer submitted by the agency. If the offer is not confirmed by the client in any way and the agency nevertheless proceeds to execute the assignment with the client's consent, the contents of the offer shall be deemed to have been agreed between the parties.
- The agency shall be entitled to engage third parties for the execution of the order.
4. Rights and obligations of the Agency
- The agency shall make every effort to carry out the assignment to the best of its knowledge and ability, in accordance with the requirements of good craftsmanship. However, the agency cannot guarantee that the client's objective or intended result will be achieved.
- During the execution of the assignment, the agency and the client will regularly consult about the state of affairs and the manner in which the assignment is being carried out.
- If, during the acceptance and implementation of the assignment, facts or circumstances occur which (may) adversely affect the progress of the assignment or the result thereof, the agency and the client shall inform each other of this as soon as possible.
- If the information required for the performance of the assignment and provided by the client is not made available to the agency in good time or in accordance with the agreements, or if the client fails to fulfil his obligations in some other way, the agency shall be entitled to suspend the performance of the assignment and to charge the client for the costs incurred in this connection in accordance with its usual rates.
5. Client's rights and obligations
1. The client shall ensure that:
- the Agency is provided in good time with all useful and necessary information, documents and data which the Agency requires for the performance of the assignment;
- all facts and circumstances relevant and necessary for the assignment, among others arising from changes in the policy and/or the organisation of the client and changes in its direct (market) environment, are communicated to the agency as soon as possible, so that the agency can take these into account in a proper manner in the performance of the assignment;
- the client's employees involved in the execution of the order are sufficiently available and deployable;
- the consultant(s) of the agency will, unless explicitly agreed otherwise, at the first request be provided free of charge with an own workplace at the client's with proper telecommunication facilities, such as an internet connection.
2. The client shall indemnify the agency against claims from third parties (including consultants of the agency) who suffer damage in connection with the execution of the assignment as a result of the actions or omissions of the client or of unsafe situations in his company or organisation.
3. The client shall indemnify and hold harmless the agency and the consultants engaged by it from and against all possible claims, by whatever name and based on whatever position, by the Tax Authorities and/or the Employee Insurance Schemes Implementing Body (UWV) to withhold and/or pay taxes and/or social security contributions, including interest thereon and any administrative penalties, in connection with the work performed by the agency and the consultants engaged by it.
6. Adjustment of the (content of the) order
- If, in the framework of the assignment, circumstances arise that were not foreseen at the start of the assignment, a solution will be sought in mutual consultation and in good harmony, including, for example, adjustment of the (content of the) initial assignment.
- The client acknowledges and accepts that adjustments to (the contents of) the assignment (for example, changes in scope, working method or approach) may affect the agreed planning. If adjustment of (the contents of) the order is the result of requests or actions of the client or other circumstances that can be attributed to the client, the agency may charge for any additional work resulting from this as an additional or separate order on the basis of its usual rates.
- Both Parties shall ensure that all information received from the other Party, which is known to be or should be known to be confidential, is kept secret, unless a legal obligation mandates disclosure of that information. The Party receiving the confidential information shall use it only for the purpose for which it was provided. Information shall in any case be regarded as confidential if it has been designated as such by one of the parties. Without the prior written consent of the agency, the client shall not disclose to third parties the approach, working method and materials of the agency.
8. Duration and termination of the assignment
- The assignment is entered into for its duration and will therefore end by operation of law when the assignment is completed.
- The client acknowledges that the duration and planning of the assignment may be affected by all kinds of unforeseen factors, including but not limited to the quality of the information provided by the client within the framework of the assignment and the (degree of) availability and deployment of the client's employees involved in the assignment.
- The agency will make every effort to carry out the assignment within the agreed planning. However, this planning and the (partial) deadlines included therein can never be regarded as deadlines. Except in the case of intent or gross negligence on the part of the agency, exceeding the planning and the (partial) deadlines included therein shall not entitle the client to dissolve or cancel the commission in whole or in part, nor shall it entitle the client to compensation for any loss suffered as a result.
- The parties shall both be entitled to terminate the assignment prematurely in writing, with a notice period of one (1) calendar month, if and insofar as one of them demonstrates that the execution of the originally agreed assignment and any additional assignments has become considerably more difficult or impossible due to weighty reasons, and completion of the assignment cannot reasonably be required.
- In the event of termination of the assignment for any reason whatsoever, the client shall compensate the agency fully and in good time for all work carried out within the framework of the assignment up to that point. All invoices already sent to the client shall remain due and payable and shall become immediately payable at the time of termination.
- Each party shall be entitled to dissolve the commission in whole or in part, with immediate effect and without judicial intervention, if the other party (a) files a petition in bankruptcy, (b) applies for a moratorium, (c) liquidates or discontinues its business or (d) if a considerable part of the other party's assets is seized. In the event of dissolution, the agency shall never be obliged to refund funds already received or to pay damages to the client.
9. Rates and costs
- The work performed and services provided by the agency shall be charged to the client on the basis of time spent and costs incurred, unless otherwise agreed in writing. Unless otherwise agreed in writing, the agency shall send an (advance) invoice once a month. In the event of delivery of products, an invoice shall be sent upon or following delivery thereof.
- The rates of the agency and the cost estimates based thereon include all costs such as normal office costs and travel and accommodation costs. The applicable price lists or quoted prices shall apply to products. The costs of third parties incurred by the agency for the purposes of the assignment shall be charged to the client against submission of invoices.
- All prices and rates are exclusive of turnover tax (VAT) and other levies imposed by the government. Interim changes necessitating an adjustment of rates or prices will be charged to the client no more than once every six months.
- The client shall pay all invoices from the agency within 14 days of the invoice date to the account number specified by the agency.
- If the client fails to pay the amounts due on time or in full, the client shall be in default, without any reminder or notice of default being required, and shall owe statutory commercial interest on the outstanding amount. If client fails to pay even after notice has been given, the agency may pass on the claim for collection, in which case client shall be obliged to pay all judicial and extrajudicial costs in addition to the total amount then owed, including costs calculated by external experts in addition to the costs established in court.
- The agency shall be entitled, before fulfilling its obligations, to demand full payment and/or sufficient security for the fulfilment by the client if, in the agency's opinion, it is likely that the client will not (be able to) fulfil its obligations in time or in full.
- The agency and the advisers it engages shall only be liable for damage suffered by the client which is the direct consequence of an attributable shortcoming in the performance of the commission. The aforementioned contractual liability of the agency and liability on other grounds shall in all cases be limited to the amount that the agency has received from the client for its work on the commission. If the assignment continues for more than six months, the aforementioned liability shall be limited to an amount equal to the total amount that the agency has received from the client for its work within the framework of the assignment in the last six months before the damage occurred.
- The agency and the advisors hired by it are not liable for damage suffered by the client or any third party as a result of the application or use of the materials, ideas and/or results of the work. The client shall indemnify the agency and the advisers and third parties engaged by the agency within the framework of the assignment against all damage referred to in this paragraph.
- The agency's liability on account of attributable failure in the fulfilment of a contract shall arise only if the client gives the agency immediate and proper notice of default in writing, setting a reasonable period within which to remedy the failure, and if the agency continues to fail attributably in the fulfilment of its obligations even after that period. The notice of default should contain as detailed as possible a description of the shortcoming, which will enable the agency to respond adequately.
- The agency shall not be liable for any consequential loss, trading loss or indirect loss suffered by the principal as a result of the agency's failure to perform, or its failure to perform on time, or its failure to perform properly.
- The limitations of liability included in this Article 11 do not apply if and insofar as there is intent and/or gross negligence on the part of the agency.
- A condition for the existence of any right to compensation is always that the client reports the damage in writing to the agency as soon as possible after it has occurred. Any claim for compensation against the agency lapses by the mere lapse of six (6) calendar months after the claim has arisen.
12. Intellectual Property Rights
- Unless the Agency and the Client have expressly agreed otherwise in writing, the Agency is and shall remain the full and exclusive owner of the (intellectual) property rights (including but not limited to: copyrights, personality rights, design rights and database rights) vested in the materials.
- The agency grants the client the right to use the materials, including for example the results of think tanks, exclusively within and for the benefit of its own organisation, but only after the client has fulfilled all its (payment) obligations arising from the assignment.
- Without the prior written consent of the agency, the client is not permitted: a) to make the materials available for inspection, to make them public or to reproduce them in any way whatsoever outside the circle of persons who, within the framework of the assignment, are members of the staff directly involved in the assignment.
13. Final provisions
- If one of the parties is affected by a situation of force majeure within the meaning of Article 6:74 of the Dutch Civil Code, this party shall notify the other party immediately. The parties will then try to reach a reasonable solution in consultation. If the force majeure situation continues for more than three (3) months, both parties shall be entitled to terminate the agreement by written notice. What has already been performed as a result of the assignment shall be settled proportionately in the event of force majeure, without the parties owing each other anything else.
14. Applicable law and dispute resolution
- Dutch law shall apply to all disputes relating to and/or arising from the general terms and conditions and/or assignments or agreements to which these general terms and conditions have been declared applicable.
- In the event of disputes between the client and the agency, the parties shall first attempt to resolve the dispute amicably. All disputes that cannot be resolved amicably shall be submitted exclusively to the competent court in Amsterdam.