Article 1 Definitions
In these general terms and conditions, the following terms are used with the indicated meanings, unless otherwise stated.
Prime Marketing B.V., located at Euclideslaan 60, 3584BN, Utrecht, Chamber of Commerce number 93917066, is referred to in these general terms and conditions as the contractor.
The purchaser of services from the contractor is referred to in these general terms and conditions as the client.
Parties refers to the contractor and the client together.
The agreement refers to the service agreement between the parties.
Article 2 General
2.1 These general terms and conditions apply to all offers, quotations, activities, assignments, and agreements between the contractor and client(s), to which the contractor has declared these conditions applicable, insofar as these conditions have not been deviated from in writing.
2.2 These conditions also apply to assignments with the contractor where third parties are involved.
2.3 If one or more provisions in these general terms and conditions become void, the remaining provisions of these general terms and conditions remain applicable. In that case, the parties will consult to agree on replacement provisions, whereby the purpose and intent of the original provision will be maintained as much as possible.
Article 3 Quotations
3.1 Quotations from the contractor are based on the information provided by the client. The client guarantees that they have provided all information essential for the design, execution, and completion of the assignment to the best of their knowledge.
3.2 Quotations made by the contractor are without obligation and valid for 30 days, unless otherwise indicated. The contractor is only bound by the quotations if their acceptance is confirmed in writing by the counterparty within 30 days, unless otherwise indicated.
3.3 The prices in the mentioned quotations are exclusive of VAT, other government levies, and other costs incurred for the assignment, such as shipping and administrative costs, unless otherwise indicated.
3.4 If the acceptance deviates (on minor points) from the offer included in the quotation, the contractor is not bound by it. The assignment will then not be established according to this deviating acceptance, unless the contractor indicates otherwise.
3.5 A composite price quote does not oblige the contractor to perform a portion of the assignment for a corresponding part of the stated price.
3.6 Quotations do not automatically apply to future assignments.
Article 4 Provision of Information and Cooperation
The client shall provide the contractor in a timely manner with all documents, information, and contacts necessary for the proper execution of the assignment.
Article 5 Execution of the Assignment and Involvement of Third Parties
5.1 The contractor shall perform the activities within the framework of the assignment to the best of their insight, expertise, and ability.
5.2 Insofar as necessary for the proper execution of the assignment, the contractor has the right to have (parts of) the work performed by third parties without consulting the client. The contractor will do their utmost to achieve the agreed obligations and quality.
5.3 The contractor accepts no liability for work performed by third parties, insofar as they have entered into an agreement with the client themselves.
5.4 The contractor is not liable for damage caused by relying on incorrect and/or incomplete data provided by the client, unless the incorrectness or incompleteness of the data should have been known to them.
5.5 If it has been agreed that the assignment will be carried out in phases, the contractor may suspend the execution of those parts belonging to a subsequent phase until the client has approved the results of the preceding phase in writing.
5.6 If work is performed for the assignment at the client’s location or a location designated by the client by the client or third parties engaged by the contractor, the client shall provide the facilities reasonably desired by those employees free of charge.
Article 6 Amendment of the Assignment, Additional Work
6.1 The client accepts that the time planning of the assignment may be influenced if the parties decide to change the approach, method, or scope of the assignment and the resulting activities in the interim. If changes arise in the execution of the assignment due to the client in the interim, the contractor will make the necessary adjustments at the client’s request. If this leads to additional work, they will charge this to the client as a supplementary assignment. The contractor may charge the extra costs for amending the assignment to the client.
6.2 In deviation from paragraph 1, the contractor will not charge additional costs if the amendment or supplement to the assignment is the result of circumstances attributable to the contractor.
Article 7 Contract Duration; Execution Period
7.1 Parties enter into the assignment for an indefinite period, unless otherwise agreed in writing.
7.2 If a period has been agreed upon within the term of the assignment for the completion of certain activities, this is not a strict deadline. In the event of exceeding the execution period, the client must therefore give the contractor written notice of default.
Article 8 Rates
8.1 Unless the parties have agreed otherwise in writing, the contractor determines their rate according to their monthly rate.
8.2 The contractor’s rate includes the costs of secretarial work and telephone costs.
8.3 Amounts are exclusive of VAT.
Article 9 Payment Terms
9.1 Payment must take place within 30 days of the invoice date, unless otherwise agreed.
9.2 After the due date, the client is in default by operation of law and the contractor has the right to charge statutory interest. The client calculates the interest on the amount payable from the moment the client is in default until the amount is paid in full. The costs of a reminder, demand, and summons are €100.00 each time and are for the account of the client.
9.4 The contractor has the right to apply payments made by the client first to reduce costs, then to reduce accrued interest, and finally to reduce the principal sum and current interest. The contractor may, without being in default, refuse an offer of payment if the client designates a different order for the allocation of the payment. The contractor may refuse full repayment of the principal sum if the accrued and current interest and collection costs are not also paid.
9.5 In the event of liquidation, bankruptcy, seizure, or suspension of payment of the client, the contractor’s claims against the client are immediately due and payable.
9.6 In the event of non-compliance with obligations by the client, all costs incurred to facilitate collection, both judicial and extrajudicial, are for the account of the client.
Article 10 Retention of Title
10.1 All items delivered by the contractor, including designs, sketches, drawings, films, software, and (electronic) files, remain the property of the contractor until the client has fulfilled all their obligations.
10.2 The client is not authorized to pledge or otherwise encumber items subject to
retention of title.
10.3 If third parties seize items delivered under retention of title or wish to establish or assert rights over them, the client must inform the contractor as soon as can reasonably be expected.
10.4 The client is obliged to insure and keep insured the items delivered under retention of title against fire, explosion, water damage, and theft, and to provide the policy of this insurance for inspection immediately upon request.
10.5 Items delivered by the contractor, which according to paragraph 1 of this article fall under retention of title, may only be resold within the framework of normal business operations but may never be used as a means of payment.
10.6 If the contractor wishes to exercise their property rights indicated in this article, the client gives unconditional and irrevocable permission to the contractor – or third parties to be designated by them – to enter all locations where the contractor’s property is located in order to take back these items.
Article 11 Investigation, Complaints, and Grievances
11.1 Complaints about the work performed must be reported in writing to the contractor by the client within two weeks of the invoice date and no later than three weeks after completion of the relevant work. The notice of default must contain as detailed a description of the deficiency as possible, so that the contractor can respond adequately.
11.2 If a complaint is justified, the contractor will still perform the work as agreed, unless this has demonstrably become pointless. The latter must be made known in writing by the client.
11.3 If performing the agreed work is no longer possible or meaningful, the contractor is liable within the limits of Article 15.
Article 12 Termination
If the agreement is terminated prematurely by the contractor, the contractor will, in consultation with the client, ensure the transfer of work still to be performed to third parties. This is unless the termination is attributable to the client. If the transfer of work entails extra costs for the contractor, these will be charged to the client. The client is bound to pay these costs within the specified period, unless the contractor indicates otherwise.
Article 13 Suspension and Dissolution
13.1 The contractor is authorized to suspend the fulfillment of obligations or to dissolve the agreement if the client does not, not fully, or not timely fulfill the obligations under the agreement, if circumstances come to the contractor’s knowledge after concluding the agreement that give good reason to fear that the client will not fulfill the obligations, if the client was requested to provide security for the fulfillment of their obligations under the agreement upon conclusion and this security is not provided or is insufficient, or if due to delay on the part of the client, the contractor can no longer be required to fulfill the agreement under the originally agreed conditions.
13.2 Furthermore, the contractor is authorized to dissolve the agreement if circumstances arise of such a nature that fulfillment of the agreement is impossible or if other circumstances arise of such a nature that unchanged maintenance of the agreement cannot reasonably be required of the contractor. If the agreement is dissolved, the contractor’s claims against the client are immediately due and payable. If the contractor suspends the fulfillment of obligations, they retain their claims under the law and the agreement.
13.3 If the contractor proceeds to suspension or dissolution, they are in no way obliged to compensate for damage and costs arising in any way as a result.
13.4 If the dissolution is attributable to the client, the contractor is entitled to compensation for damage, including costs, arising directly and indirectly as a result.
13.5 If the client does not fulfill their obligations arising from the agreement and this non-fulfillment justifies dissolution, the contractor is entitled to dissolve the agreement immediately and with direct effect without any obligation on their part to pay any compensation or indemnification, while the client, on account of breach of contract, is indeed obliged to pay compensation or indemnification.
Article 14 Return of Provided Items
14.1 If the contractor has provided items to the client during the execution of the assignment, the client must return the delivered items in their original state, free of defects, and in full within 14 days of their written request. If the client does not fulfill this obligation, all resulting costs are for their account.
14.2. If the client, after receiving a reminder, still remains in default, the contractor may recover the resulting damage and costs, including replacement costs, from them.
Article 15 Liability
15.1 For accepted assignments, the contractor has an obligation of effort. Should the contractor be liable, then this liability is limited to what is regulated in this provision.
15.2 The contractor is not liable for damage of any nature whatsoever caused by the contractor relying on incorrect and/or incomplete data provided by or on behalf of the client.
15.3 The contractor is exclusively liable for direct damage. Direct damage exclusively means the reasonable costs to determine the cause and extent of the damage, insofar as the determination relates to damage within the meaning of these conditions, any reasonable costs incurred to make the contractor’s defective performance conform to the agreement, insofar as these can be attributed to the contractor, and reasonable costs incurred to prevent or limit damage, insofar as the client demonstrates that these costs led to the limitation of direct damage as referred to in these general terms and conditions. The contractor is never liable for indirect damage, including consequential damage, lost profit, missed savings, and damage due to business stagnation.
15.4 If the contractor is liable for direct damage, then this liability is limited to a maximum of the invoice amount and in any case the amount of the payout to be provided by the contractor’s insurer in the relevant case.
15.5 The limitations of liability mentioned in this article do not apply if the damage is due to intent or gross negligence of the contractor or their managerial subordinates.
Article 16 Indemnification
The client indemnifies the contractor against claims from third parties who suffer damage in connection with the execution of the agreement and whose cause is attributable to parties other than the contractor. If the contractor should be held liable by third parties for this reason, the client is bound to assist the contractor both extrajudicially and judicially and to immediately do everything that may be expected of them in that case. Should the client fail to take adequate measures, the contractor is entitled to do so themselves without notice of default. All costs and damage on the part of the contractor and third parties arising as a result are entirely for the account and risk of the client.
Article 17 Force Majeure
17.1 Parties are not required to fulfill any obligation if they are hindered by circumstances that are not due to fault, and – according to the law – also not when a legal act or generally accepted views are for their account.
17.2 Force majeure is understood to mean – in addition to what is understood in law and jurisprudence – all external causes, foreseen or unforeseen, over which the contractor has no influence, but which prevent them from fulfilling their obligations. Strikes in the contractor’s company, illness, and/or disability are also included.
17.3 The contractor also has the right to invoke force majeure if the circumstance preventing (further) fulfillment occurs after they should have fulfilled their obligations.
17.4 Parties may postpone their obligations during the force majeure situation. If the force majeure situation lasts longer than two months, all parties may dissolve the agreement without obligation to compensate the other party for damage.
17.5 If the contractor has already partially fulfilled their obligations at the time of force majeure or will be able to fulfill them, they may invoice this part. The client shall pay this invoice as if it were a separate assignment.
Article 18 Confidentiality
18.1 Both parties are obliged to keep confidential information obtained for the assignment secret. Information is considered confidential if this is indicated by the other party or if this follows from the (type of) information.
18.2 If the contractor is required by a statutory provision or a court ruling to provide confidential information to third parties – designated by law or the competent court – and they cannot invoke a legal right of privilege or one recognized or permitted by the competent court, they are not obliged to pay compensation or indemnification and the counterparty is not entitled to dissolve the assignment on the grounds of the damage caused by this.
Article 19 Intellectual Property and Copyrights
The contractor reserves the rights and powers to which they are entitled under the Copyright Act and other intellectual property laws and regulations. The contractor has the right to use the knowledge increased by the execution of an agreement for other purposes as well, provided that no strictly confidential information of the client is brought to the knowledge of third parties.
Article 20 Disputes
20.1 In the event of disputes arising from this agreement or from agreements building upon it, parties will first attempt to resolve these with the help of mediation according to the regulations of the Netherlands Mediation Institute Foundation in Rotterdam, as applicable at the start of the Mediation.
20.2 If it proves impossible to resolve such a dispute with the help of Mediation, the dispute will be settled by the competent court.
Article 21 Applicable Law
Dutch law applies to every assignment between the contractor and the client. Even if an obligation is performed entirely or partially abroad or if the client resides or is established abroad. Any dispute for the benefit of this agreement that does not relate to Article 20 will be exclusively viewed and assessed by the court in Utrecht.
Article 22 Amendments
These conditions have been filed with the Chamber of Commerce where the contractor is registered. The last filed version or the version as it applied at the time the assignment was established is always the applicable version.
Prime Marketing B.V.
Euclideslaan 60, 3584 BN Utrecht
+31 6 838 280 04
Chamber of Commerce 93917066
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