Article 1 Definitions
1.1
In these General Terms and Conditions, the following terms, whether used in the singular or plural, are capitalised and have the following meanings:
Appendix: An appendix to the General Terms and Conditions containing specific provisions relating to the Service to be provided;
Service: The services to be provided by Concept7 to the Client under the Agreement, including, where applicable, the results of those services;
IP Rights: All intellectual property rights and related rights, including copyrights, trademark rights, patent rights, design rights, trade name rights, database rights and neighbouring rights, as well as rights relating to know-how and equivalent rights;
Client: The natural person or legal entity that has entered into or intends to enter into an Agreement with Concept7;
Agreement: The agreement between Concept7 and the Client concerning the provision of the Service;
Parties: Concept7 and the Client;
Personal Data: Any information relating to an identified or identifiable natural person, as referred to in Article 1(a) of the Dutch Personal Data Protection Act;
DDA: Dutch Digital Agencies, the Dutch industry association and knowledge organisation for digital agencies, of which Concept7 is a member; and
General Terms and Conditions: These general terms and conditions of Concept7, including all applicable appendices.
Article 2 General provisions
2.1
These General Terms and Conditions apply to and form an integral part of all proposals and quotations issued by Concept7, all Agreements and all other related legal acts between Concept7 and the Client or its legal successor.
In addition to these General Terms and Conditions, any specific Appendix or Appendices agreed between Concept7 and the Client shall also apply.
2.2
Where these General Terms and Conditions require an act to be performed in writing, communication by email shall also be regarded as written communication.
2.3
Any deviations from these General Terms and Conditions shall only be valid if they have been expressly agreed in writing by Concept7 and the Client. Such deviations shall apply only to the specific Agreement for which they have been agreed.
2.4
Concept7's General Terms and Conditions shall at all times take precedence over any purchasing conditions or other terms and conditions applied by the Client.
2.5
Once these General Terms and Conditions have applied to a legal relationship between Concept7 and the Client, the Client shall be deemed to have agreed in advance to their applicability to all subsequent Agreements entered into between the Parties.
2.6
If any provision of these General Terms and Conditions is declared null and void or is annulled, the remaining provisions shall remain fully effective.
In such a case, the Parties shall consult with each other to agree on a new provision to replace the invalid or annulled provision. The purpose and intent of the original provision shall be taken into account as far as possible.
2.7
In the event of a conflict between the provisions of an Agreement and these General Terms and Conditions, the provisions of the Agreement shall prevail.
In the event of a conflict between these General Terms and Conditions and a specific Appendix, the provisions of the specific Appendix or Appendices shall prevail.
2.8
Electronic communications between the Parties shall be deemed to have been received on the date on which they were sent, unless proven otherwise.
Article 3 Quotations and formation of the Agreement
3.1
Quotations and other offers issued by Concept7 are non-binding and shall be regarded as invitations to submit an offer to enter into an Agreement, unless Concept7 has stated otherwise in writing.
3.2
Offers and quotations shall expire 30 days after their date of issue, unless otherwise stated in writing.
3.3
The Client guarantees the accuracy and completeness of all information provided by or on behalf of the Client and on which Concept7 bases its offer.
If this information proves to be inaccurate or incomplete, Concept7 shall be entitled to amend its offer.
3.4
An Agreement is formed when the Client provides written confirmation of an unchanged and valid quotation or offer issued by Concept7.
Article 4 Performance of the Agreement and delivery
4.1
Concept7 shall perform the Agreement to the best of its knowledge and ability, in accordance with the requirements of professional competence and on the basis of the scientific and technological knowledge available at that time.
The Agreement between Concept7 and the Client constitutes a best-efforts obligation, unless Concept7 has expressly promised a specific result in the written Agreement and that result has been described with sufficient precision.
4.2
The Parties shall specify in the Agreement the delivery periods and delivery dates, as well as the place and manner in which the Services will be provided or delivered.
The time required to complete an assignment depends on various factors and circumstances, including the quality of the data and information provided by the Client and the cooperation of the Client and relevant third parties.
Any delivery periods stated shall therefore not constitute strict deadlines, unless the Parties have expressly agreed otherwise in writing.
In the event of an actual or anticipated failure to meet a delivery deadline, the Parties shall consult with each other as soon as possible in order to take appropriate measures.
4.3
If the Parties have agreed that the Agreement will be performed in phases, Concept7 shall be entitled to postpone the commencement of Services belonging to a subsequent phase until the Client has approved the results of the preceding phase in writing.
4.4
Concept7 is not obliged to follow instructions that amend or extend the content or scope of the agreed Services.
If Concept7 nevertheless follows such instructions, the relevant work shall be charged at Concept7's customary rates. Concept7 shall notify the Client accordingly.
4.5
Concept7 shall be entitled to have the Agreement performed in whole or in part by third parties or to engage third parties in connection with the performance of the Agreement.
4.6
Services shall be deemed to have been accepted by the Client unless, within five working days of delivery, the Client provides a detailed written explanation of why the Services have not been accepted.
If the Client's comments fall within the scope of the Agreement, Concept7 shall replace or amend the Services within a reasonable period.
If the Client does not accept the amended Services, the Parties shall repeat the acceptance procedure. This procedure shall be repeated each time the Client provides substantiated reasons for not accepting the Services during a subsequent acceptance test.
4.7
The risk of loss, theft, misappropriation or damage relating to goods, products, information, data, documents or programs created or used in connection with the performance of the Agreement shall pass to the Client as soon as they are placed under the Client's actual control or that of an auxiliary person engaged by the Client.
Article 5 Prices and payment terms
5.1
All prices are exclusive of value-added tax and any other taxes or levies imposed by public authorities.
5.2
Unless expressly agreed otherwise, any price indications, estimates, budgets or preliminary calculations provided by Concept7 are indicative only. No rights or expectations may be derived from them.
Concept7 shall only be obliged to inform the Client that a preliminary calculation or budget is likely to be exceeded if the Parties have expressly agreed to this.
5.3
The Parties shall specify in the Agreement the date or dates on which Concept7 will invoice the Client for the Services.
The Client shall pay invoices in accordance with the payment terms stated on the invoice. In the absence of a specific arrangement, the Client shall pay each invoice within 14 days of the invoice date.
5.4
If the Client fails to pay an amount when due, the Client shall owe statutory interest on the outstanding amount without any reminder or notice of default being required.
If the Client continues to fail to pay after receiving a reminder or notice of default, the supplier may refer the claim to a third party for collection.
In that case, the Client shall be required to pay the total outstanding amount, as well as all judicial and extrajudicial collection costs, including the costs of external experts.
5.5
Concept7 shall be entitled to retain Services or deliverables that remain in its possession if the Client has not fulfilled its payment obligations.
Concept7 may retain those Services or deliverables until the Client has fulfilled its payment obligations, regardless of whether the payment arrears relate to the specific Services or deliverables being retained.
5.6
During the term of an Agreement, Concept7 shall be entitled to increase the prices of its Services annually with effect from 1 January.
The increase may be based on the consumer price index for all households published by Statistics Netherlands for the preceding calendar year, plus a maximum of 15%.
Concept7 shall be entitled to implement the price increase at a later date if it considers this desirable for administrative reasons.
5.7
Any objections or complaints concerning invoices, statements or declarations must be submitted in writing within 14 days of receipt.
If no complaint is submitted within this period, the invoice, statement or declaration shall be deemed to have been accepted.
Such complaints shall not suspend the Client's payment obligations.
5.8
Concept7 shall be entitled to invoice the Client periodically, on the basis of advance payments or during the performance of the Agreement. Concept7 shall also be entitled to set off amounts or require security for the Client's performance of its obligations.
5.9
The Client agrees to receive invoices from Concept7 electronically.
Article 6 Amendments to the assignment and additional work
6.1
The Client acknowledges that the timetable for the Agreement may be affected if the scope of the Agreement is extended or amended during its performance.
If an interim amendment affects the agreed fee, Concept7 shall inform the Client as soon as possible.
6.2
If Concept7 is required to perform additional work as a result of an amendment to the Agreement or additional requests or requirements from the Client, this work shall be charged on the basis of Concept7's customary rates applicable at that time.
This shall not apply if the Parties have expressly agreed otherwise in writing.
6.3
Concept7 shall be entitled to perform additional work without the Client's prior written consent, provided that the costs associated with the additional work do not exceed 10% of the total fee originally agreed.
6.4
If the costs of the additional work exceed 10% of the total fee originally agreed, Concept7 shall inform the Client.
The Parties shall then consult with each other regarding the measures to be taken.
Article 7 Client obligations
7.1
The Client shall ensure that all data and information that Concept7 identifies as necessary, or that the Client should reasonably understand to be necessary for the performance of the Agreement, is provided to Concept7 in a timely manner.
This includes information concerning any laws and regulations specific to the Client's sector that Concept7 is required to observe.
The Client shall provide all cooperation reasonably requested by Concept7.
Concept7's quotations and offers, as well as any subsequent Agreement, are based on the information provided by the Client.
7.2
If, less than one month before the scheduled performance of the Agreement, the Client has failed to complete the necessary preparations, provide required deliverables or otherwise fulfil its obligations towards Concept7 in a timely manner, Concept7 shall be entitled to suspend performance of the Agreement.
Concept7 shall also be entitled to charge the Client for any additional costs arising from the delay at its customary rates applicable at that time.
7.3
Where Concept7 provides usernames or passwords in connection with the Agreement, the Client shall be responsible for those usernames and passwords.
The Client shall be fully and independently liable for any misuse of usernames or passwords, unless the misuse is the result of intentional misconduct or gross negligence on the part of Concept7.
7.4
The Client may not provide usernames or passwords supplied by Concept7 to third parties without Concept7's permission.
Article 8 Interim termination and its consequences
8.1
An Agreement shall commence on the date described in Article 3, for the period agreed in writing between the Parties.
The Agreement shall terminate automatically on the date agreed between the Parties or when the provision of the Services has been completed.
8.2
Unless expressly agreed otherwise, neither Party may terminate the Agreement before the end of the agreed term.
8.3
Either Party shall be entitled to terminate the Agreement in whole or in part in the event of the bankruptcy or suspension of payments of the other Party.
The same applies if the other Party ceases or liquidates its business, other than for the purpose of restructuring or merging businesses, or if there is a change in the controlling interest of the other Party's business.
8.4
Termination of the Agreement on the grounds of an attributable failure to perform shall only be permitted after the defaulting Party has received a written notice of default containing as much detail as reasonably possible and allowing a reasonable period in which to remedy the failure.
This shall not apply where these General Terms and Conditions or applicable law provide otherwise.
8.5
In the event of termination of the Agreement, Services already provided or work already performed by Concept7 shall not be reversed, nor shall the related payment obligations be cancelled.
This shall only be different if the Client proves that Concept7 is in default with respect to a substantial part of those Services or activities.
Amounts invoiced by Concept7 before termination in relation to Services or work already properly provided or performed shall remain payable and shall become immediately due and payable upon termination.
8.6
In the event of termination of the Agreement, all rights granted to the Client shall lapse.
The Client shall no longer be entitled to use the Service.
8.7
Any provisions which, by their nature, are intended to remain in force after the termination of the Agreement shall continue to apply in full.
Article 9 Intellectual Property Rights
9.1
Unless otherwise provided in the Agreement, all IP Rights relating to the Services provided under the Agreement and all other materials or information made available by Concept7 shall remain vested exclusively in Concept7 or its licensors.
9.2
Nothing in these General Terms and Conditions or the Agreement shall result in the transfer of any IP Rights.
The Client shall only receive a non-exclusive and non-transferable right to use the Services for the purposes specified in the Agreement and subject to the conditions set out in the Agreement.
Unless otherwise agreed in writing, the right of use granted to the Client shall apply only in the Netherlands.
9.3
The Client may not remove or alter any notices relating to IP Rights from the results of the Services.
9.4
Concept7 expressly does not waive its moral rights as referred to in Article 25 of the Dutch Copyright Act.
9.5
Concept7 shall be entitled to use the Services and any materials used in performing the Agreement, including designs, drawings, films, software, electronic files, reports, formats and interviews, for its own promotional and publicity purposes, unless otherwise provided in the Agreement.
9.6
Concept7 reserves the right to incorporate technical protection measures into the Services.
The Client may not circumvent these technical protection measures or offer tools or resources intended to circumvent them.
9.7
Concept7 shall indemnify the Client against third-party legal claims alleging that parts of the Services developed by Concept7 infringe an IP Right valid in the Netherlands.
This indemnification is subject to the condition that the Client immediately informs Concept7 in writing of the existence and content of the legal claim and leaves the handling of the matter, including the conclusion of any settlement, entirely to Concept7.
The Client shall provide Concept7 with the necessary powers of attorney, information and cooperation to defend against such claims, where necessary in the name of the Client.
9.8
The indemnification obligation described above shall not apply if the alleged infringement relates to:
materials made available to Concept7 by the Client; or
amendments made or commissioned by the Client to the Service.
9.9
If it is irrevocably established in legal proceedings that Services developed by Concept7 infringe an IP Right belonging to a third party, or if Concept7 believes there is a reasonable likelihood of such infringement, Concept7 shall, where possible, ensure that the Client can continue to use the Service or a functionally equivalent alternative without interruption.
If, in Concept7's sole opinion, it is unable to ensure continued use of the Service, or can only do so in a manner that would be financially unreasonable for Concept7, Concept7 shall take back the delivered Service.
Concept7 shall credit the acquisition costs, less a reasonable fee for the Client's period of use.
Any other or further liability or indemnification obligation on the part of Concept7 in connection with the infringement of third-party IP Rights is excluded.
Article 10 Privacy
10.1
If Concept7 processes Personal Data relating to the Client's customers in connection with the performance of the Services, Concept7 shall be regarded as the processor within the meaning of the Dutch Personal Data Protection Act and the Client shall be regarded as the controller.
10.2
The Client guarantees to Concept7 that the data is not unlawful and does not infringe the rights of third parties.
The Client shall indemnify Concept7 against all third-party claims, including claims from supervisory authorities and data subjects, in connection with the processing of this data under the Agreement.
10.3
Under legislation relating to the processing of Personal Data, including the Dutch Personal Data Protection Act, the Client has obligations towards third parties.
These obligations include providing information and allowing data subjects to access, correct and delete their Personal Data.
The Client bears full and exclusive responsibility for complying with these obligations.
To the extent technically possible, Concept7 shall cooperate with the Client in fulfilling these obligations, including forwarding requests received from third parties.
All costs associated with such cooperation shall be borne by the Client.
10.4
Concept7 shall implement, maintain and, where necessary, update appropriate technical and organisational measures to protect the Personal Data it processes on behalf of the Client against unlawful processing.
Concept7 shall not process Personal Data obtained from the Client for its own purposes.
10.5
Concept7 shall discuss with the Client the appropriate technical and organisational measures required to protect Personal Data against loss or any other form of unlawful processing.
10.6
The Client acknowledges that it is fully informed about the technical and organisational measures implemented by Concept7.
The Client declares that, taking into account the state of the art and the costs of implementation, these measures guarantee an appropriate level of security in view of the risks associated with the processing and the nature of the data to be protected.
10.7
If, despite Concept7 having implemented the agreed appropriate measures, a security incident occurs involving:
destruction;
loss;
alteration;
unauthorised disclosure of or access to Personal Data; or
any other form of unlawful processing of Personal Data,
the Client may not hold Concept7 liable for any damage suffered by the Client as a result.
10.8
If the Client expressly requests measures that, in Concept7's opinion, cannot be regarded as appropriate technical and organisational measures, those measures shall be implemented entirely at the Client's expense and risk.
Concept7 accepts no liability for any damage suffered by the Client or third parties as a result.
10.9
The Client shall fully indemnify Concept7 against all claims from third parties, including but not limited to fines imposed by supervisory authorities, that are based in any way on the assertion that the technical and organisational measures referred to in Article 10.8 are inappropriate or otherwise inadequate.
Article 11 Confidentiality
11.1
The Parties shall treat all information received from each other in any form, whether written, oral, electronic or tangible, as strictly confidential.
This includes, but is not limited to, software, source code, programs, applications, customer data, know-how, technical specifications and documentation, collectively referred to as Confidential Information.
11.2
The Parties shall use Confidential Information only for the purposes for which it was provided.
Each Party shall apply at least the same standard of care and protection to the other Party's Confidential Information as it applies to its own internal confidential information.
The Parties shall only disclose Confidential Information to employees to the extent necessary for the performance of the Agreement.
11.3
The confidentiality obligations shall not apply to the extent that the receiving Party can demonstrate that the relevant information:
was already known to it at the time of receipt;
was already publicly available at the time of receipt;
became publicly available after receipt without this being attributable to the receiving Party;
was lawfully received from a third party together with the right to disclose it without any confidentiality obligation;
must be disclosed pursuant to applicable laws or regulations or a court order, provided that the disclosing Party informs the other Party of the required disclosure; or
was disclosed with the approval of the Party that originally provided the information.
11.4
During the term of the Agreement and for a period of one year following its termination, neither Party may employ or otherwise directly or indirectly engage an employee of the other Party who is or has been involved in the performance of the Agreement without the other Party's prior consent.
Article 12 Liability
12.1
Concept7's liability for an attributable failure to perform its obligations or for an unlawful act shall be limited to compensation for direct damage suffered by the Client.
Concept7's total liability shall not exceed €10,000 or, if lower or higher as applicable, the amount of the fee agreed for the performance of the Agreement.
In the case of a continuing performance agreement, the agreed fee for one year shall apply.
12.2
Direct damage shall exclusively mean:
reasonable costs that the Client would have to incur to ensure that Concept7's performance complies with the Agreement, provided that such replacement damages shall not be reimbursed if the Agreement is terminated by or at the request of the Client;
reasonable costs incurred by the Client as a result of having to keep its former system or systems and related facilities operational for longer because Concept7 failed to deliver by a binding final delivery date, less any savings resulting from the delayed delivery;
reasonable costs incurred to determine the cause and extent of the damage, provided that this determination relates to direct damage within the meaning of the Agreement; and
reasonable costs incurred to prevent or limit damage, provided that the Client demonstrates that these costs resulted in a reduction of direct damage within the meaning of the Agreement.
12.3
Concept7 shall not be liable for any damage other than direct damage.
This exclusion includes, but is not limited to, consequential damage, loss of or damage to data, loss of profit and loss of revenue.
12.4
The limitations set out in the preceding paragraphs of this Article shall not apply to the extent that the damage is the result of intentional misconduct or deliberate recklessness on the part of Concept7 or its management.
12.5
Concept7 shall only be liable for an attributable failure to perform an Agreement if the Client immediately provides Concept7 with a valid written notice of default.
The notice of default must allow Concept7 a reasonable period in which to remedy the failure, and Concept7 must continue to fail to perform its obligations after that period has expired.
This requirement shall not apply where performance has become permanently impossible.
The notice of default must contain as complete and detailed a description of the failure as possible, so that Concept7 is able to respond adequately.
12.6
Any right to compensation is subject to the condition that the Client reports the damage to Concept7 in writing as soon as possible after it occurs.
Any claim for compensation against Concept7 shall lapse 12 months after the claim arose.
12.7
The Client uses the Services entirely at its own risk and under its own responsibility.
Concept7 accepts no liability for the Client's use of the Services.
The Client shall indemnify Concept7 against any third-party claims arising from the Client's use of the Services.
Article 13 Force majeure
13.1
Neither Party shall be regarded as having committed an attributable failure to perform the Agreement if the failure is caused by force majeure.
13.2
Force majeure includes, but is not limited to:
interruptions to the electricity supply;
strikes;
civil unrest;
government measures;
fire;
natural disasters;
flooding;
failures by suppliers of either Party;
failures by third parties engaged by either Party;
internet connection failures;
hardware failures;
failures in telecommunications or other networks; and
other unforeseen circumstances.
13.3
If the force majeure event continues for at least 30 days, either Party shall be entitled to terminate the Agreement without being obliged to pay damages, reverse any performance or provide compensation in connection with the termination.
13.4
If Concept7 is still able to perform part of its obligations during a force majeure event, or has already performed part of its obligations, Concept7 shall be entitled to perform and invoice that part separately as though it were covered by a separate Agreement.
Article 14 Transfer of rights and obligations
14.1
The rights and obligations arising from the Agreement may only be sublicensed or transferred by either Party to a third party with the other Party's written consent.
Article 15 Settlement and mediation
15.1
If a dispute between the Parties cannot be resolved to their satisfaction, the dispute shall, before being submitted to a court, be referred to authorised representatives of the Parties to explore the possibility of reaching a settlement.
Alternatively, the dispute may be referred to an independent mediator.
Article 16 Applicable law and competent court
16.1
These General Terms and Conditions shall be governed exclusively by Dutch law.
16.2
The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
16.3
Any disputes arising between Concept7 and the Client in connection with or relating to the Agreement shall be submitted exclusively to the competent court in the district of Groningen.