Terms and conditions Proces Media B.V.
Article 1. Definitions and application
- User: Proces Media B.V., registered in Uithoorn, the Netherlands.
- Counterparty: anyone who is a client, buyer, seller, contractor, or who enters into a contract with the user in any other capacity, as well as any person or company that makes use of the User’s Content through the User’s website.
- Terms and Conditions: these terms and conditions.
- Content: product information (in whatever form) that is uploaded to the User’s Website or made available to the User in another way.
- Subscription: agreement on the basis of which the User periodically provides Content and/or Deliverables and/or Updates to the Counterparty.
- Intellectual property rights: all intellectual property rights and related rights, such as copyright, trademark law, patent law, design law, trade name law, database law and related rights, as well as rights to know-how and performances on a par with a patentable invention.
- These general terms and conditions apply to all legal relationships, including agreements and offers, between the User and the Counterparty.
- The Counterparty’s general terms and conditions are not applicable and do not bind the User.
- The present terms and conditions also apply to all legal relationships between the Counterparty and any party affiliated with the User, such as a subsidiary, or sister or parent company. In that case, ‘User’ in the present terms and conditions refers to this affiliated party.
- Deviations from the present terms and conditions are permitted only insofar as expressly agreed in writing. Any terms and conditions that have not been expressly amended in writing, remain valid. Any deviation from the present terms and conditions only applies to the cases defined in that agreement, unless expressly agreed otherwise in writing.
- If one of the provisions in these general terms and conditions is null and void, another provision, as closely connected to the null and void provision as possible, which can be regarded as valid is assumed to have been included in its place. The same applies to provisions that the User cannot invoke for other reasons.
- If the Dutch terms and conditions have been translated into another language, in the event of a conflict about any discrepancy between the translated text and the original Dutch text, the Dutch text will prevail.
- User reserves the right to unilaterally change these general terms and conditions. The amended general terms and conditions apply to new agreements and quotations drawn up after the amendment and to existing agreements starting thirty days after the Counterparty has been notified of the amendment in writing.
- Whenever these general terms and conditions mention ‘notifications in writing’, this includes notifications by e-mail.
Article 2. Agreements and offers
- All offers from the User are non-binding, unless they specify a time limit for acceptance. If no time limit has been specified, no rights can be derived in any way from the quotation or offer.
- The mere act of submitting a quotation, budget, calculation or similar offer, regardless of whether it is explicitly designated as a quotation, does not oblige the User to conclude an agreement. Quotations from the User are based on the information provided by the Counterparty. The Counterparty guarantees that it has provided all the information essential to the design, execution and completion of the order in a timely and truthful manner.
- Prices in the contract are based on the prices applicable at the time of the offer. The stated prices are always exclusive of sales tax (VAT) and other government levies, unless expressly stated otherwise.
- A contract is concluded once the User has been informed that their non-binding offer has been accepted, unless the User revokes their non-binding offer immediately after being informed about this acceptance. Acceptance can take place in writing, by e-mail or verbally in person or by telephone.
- If the acceptance includes any reservations or changes to the offer, notwithstanding the provisions in the previous paragraph, the contract will only be concluded after the User has notified the Counterparty in writing that the User agrees to these changes. However, this consent never pertains to any applicability of the Counterparty’s general terms and conditions.
Article 3. Changes to the order
- Any changes to the Counterparty’s order that could not be foreseen by the User and that cause additional work, will be paid by the Counterparty to the User in accordance with the rate agreed in the contract. The term additional work also applies to activities that the User has to reschedule, replan or reorganize as a result of the Counterparty providing incorrect or incomplete information. The User will charge the cost of additional work to the Counterparty based on ex-post calculation.
- Should the Counterparty wish to make any changes to the order after the contract has been drawn up, they must inform the User in writing and in due time. Implementation of any changes not confirmed in writing will be at the Counterparty’s own risk.
- Changes made to an order that has already been issued may result in the User exceeding the delivery time originally agreed upon.
- Legal transactions between the Counterparty and subordinates of the User do not bind the User, unless and insofar as the User has expressly agreed to these transactions.
- Contracts are entered into for an indefinite period of time, unless it is clear from the content, nature or purport of the order that it has been entered into for a fixed term.
Article 4. Rates
- If, after the parties have entered into the contract, but before the order has been completed, costs that affect pricing (e.g. wages or production costs) go up, the User is entitled to adjust the previously agreed rate accordingly.
- The Counterparty is entitled to dissolve the contract if the annual increase exceeds 10%. If the increase in price arises from the law, the Counterparty is not entitled to dissolution.
- The User’s fee does not include User’s expenses, third-party invoices, VAT and other government-imposed levies.
- The User is entitled to increase the agreed price if one or more of the following circumstances occur after the contract has been entered into: increase in the costs of services required to execute the order; increase in shipping costs; wages; employers’ contributions; social security contributions; costs associated with other employment conditions; new or increased government levies and/or taxes at home and abroad; or generally comparable circumstances. If such circumstances arise, the User is entitled to increase the agreed price in proportion to the increases described above.
- The parties will agree upon prices and/or rates (hereinafter jointly referred to as ‘prices’) for all goods, and, if applicable, work. Failing this, the User will apply a commonly used or fair price, whichever is higher. Previously agreed upon or applied prices do not bind the User, unless these have been expressly confirmed in writing in a subsequent agreement.
Article 5. Execution of the order; Engagement of third parties
- When executing the order, the User will comply with good business practices to the best of their ability and make every possible effort to achieve the best result for the benefit of the Counterparty. The User thus has an obligation to use best endeavors and does not give any guarantee regarding the results of the order, unless expressly stipulated otherwise.
- The Counterparty is obliged to do everything, within reason, necessary and/or desirable to enable the timely and correct execution by the User of the work specified in the contract. If the goods and/or data required for the execution of the order have not been provided or made available to the User, or have not been made available in time, the User has the right to suspend the execution of the order, or to charge the Counterparty for the costs resulting from this delay, or to charge the Counterparty for the damage suffered as a result of the delay.
- The User has the right to engage third parties to carry out the order in whole or in part, insofar as the proper execution of the order requires this
- The applicability of Articles 7:404, 7:407 paragraph 2 and 7:409 of the Dutch Civil Code is expressly excluded.
- Without the prior written consent of the User, the Counterparty is not permitted to transfer its rights and/or obligations under a contract to a third party or to encumber rights in favor of third parties with a limited right.
Article 6. Periods and deadlines
- If a period has been agreed within the duration of the contract for the completion of certain work, this is never a strict deadline. If the term of execution is exceeded, the Counterparty must give the User notice of default in writing.
- A Subscription is entered into for a minimum period of one year. The effective date is the start of the subscription period stated on the invoice. Subscriptions are billed in advance for the entire subscription period, unless otherwise agreed.
- Subscriptions will be tacitly renewed for a 12-month period, unless the Counterparty has canceled the Subscription in writing at least two months before the end of the current 12-month period.
Article 7. Payment
- Payment must be made in full in euros, without deduction of discounts, compensation or settlements, within 30 days of the invoice date in a manner to be indicated by the User. Objections to the amount invoiced do not suspend the Counterparty’s obligation to pay.
- If the Counterparty fails to pay an invoice on time, the Counterparty will be automatically in default by operation of law and will owe the contractual interest of 12% per annum, over each month or part of the month, whereby part of the month is considered the entire month. Interest on the amount due will be calculated from the moment that the Counterparty is in default until the moment that the full amount due has been paid.
- In the event of the Counterparty’s liquidation, bankruptcy, admission to statutory debt restructuring pursuant to the Dutch Natural Persons Debt Restructuring Act, attachment or (provisional) suspension of payment, the User’s claims against the Counterparty are immediately due and payable.
- Payments are first applied to reduce the costs, then to reduce the outstanding interest and finally to reduce the principal sum and the accrued interest. The User can, without being in default, refuse an offer of payment if the Counterparty sets a different order of allocation of the payment. User can refuse full repayment of the principal, if the outstanding and accrued interest and collection costs are not paid as well.
- The Counterparty is never entitled to set off or suspend what it owes the User.
- If the Counterparty is in default or in breach of the (prompt) fulfillment of its obligations, all reasonable costs incurred to obtain payment, both in and out of court, will be borne by the Counterparty.
- The User is entitled to stipulate sufficient security for the prompt fulfillment of the Counterparty’s payment obligations before delivering, continuing to deliver, or (otherwise) commencing the execution of the order. In the event of any default, the Counterparty is obliged to provide sufficient securities, including pledges, at the discretion of the User, to ensure fulfillment of its payment obligations. The security offered must be such that the claim and any interest and costs accruing thereon are properly covered. In the event of any default, the Counterparty is obliged to meet its payment obligations to the User’s satisfaction at the User’s first request. The User is at all times entitled to refuse a method of payment proposed by the Counterparty in the sense referred to above, without being obliged to pay any compensation and without waiving their other rights under this agreement or the law.
- The Counterparty’s refusal to provide the requested security entitles the User to dissolve the contract, without prejudice to its right to compensation for any damage incurred.
Article 8. Complaints and assessment
- The Counterparty must assess the User’s performance without delay after delivery and/or otherwise determine whether the User has properly fulfilled the agreement and is also obliged to immediately inform the User in writing if this appears not to be the case. The Counterparty must in any case assess the User’s performance referred to in this paragraph and notify the User within two calendar days after delivery at most, failing which any claim against the User will lapse.
- In the event of non-conformity, the User is always entitled to substitute a new sound performance for a previous defective performance, or, at the User’s discretion, to reimburse the Counterparty for the difference in value between a sound performance and the actual performance. In this case, the obligations agreed upon in the contract are deemed to have been fulfilled in full. In this case, the contract cannot be dissolved by the Counterparty.
- The obligations in the contract are also considered to have been fulfilled if the Counterparty has failed to carry out the assessment referred to in paragraph 1 of this article in time.
- The User’s invoice is considered correct if the Counterparty has not submitted a written complaint to the User within eight calendar days from the invoice date.
- Complaints such as those referred to in the first paragraph do not suspend the Counterparty’s payment obligations.
- If, according to manifest criteria of reasonableness and fairness, the periods referred to in the first and fourth paragraphs are considered unacceptably short for even a careful and alert Counterparty, these periods will be automatically extended until the first moment at which the Counterparty can be reasonably expected to assess the User’s performance and/or inform the User of its dissatisfaction.
- If and insofar as a complaint is honored, the Counterparty can choose between adjustment of the fee charged, or having the User improving or redoing the rejected work free of charge. If redoing the work has become demonstrably pointless, the Counterparty is entitled to a refund in proportion to the fee already paid by the Counterparty.
Article 9. End of contract
- If the Counterparty fails to fulfill its obligations towards the User, or fails to do so on time or properly, as well as if it is declared bankrupt, applies for suspension of payment or statutory debt restructuring, or reaches a settlement with all or some of its creditors, as well as in the event of seizure of all or part of its assets, or if it proceeds to sell or liquidate the company, as well as in the event of death, placement in receivership or other situations where it loses the power to control, manage or dispose ofits company or assets or part thereof, as well as if the Counterparty has used Content in violation of the applicable rights of use or usage restrictions and/or has violated any intellectual property rights pertaining to the Content, the User has the right, without any notice of default, to suspend the agreement or to dissolve the contract in whole or in part. The User is at all times authorized to claim compensation from the Counterparty and to repossess the deliverables.
- In the event that the Counterparty wishes to dissolve the contract, it must at all times first give the User written notice of default and allow them a reasonable time to fulfill its obligations or to repair shortcomings, which shortcomings the Counterparty must accurately describe.
- Termination of a contract regarding the provision of Content also includes the immediate termination of the rights of use of said Content.
Article 10. Confidentiality
- The Counterparty and the User promise to maintain the confidentiality of all confidential information they have obtained from each other or from another source in the context of the contract. Information is considered confidential if either party has clearly stated this, or if this follows from the nature of the information.
- If the User is obliged on the basis of a statutory provision or a court decision to provide confidential information to third parties designated by law or the competent court, and the User cannot invoke a right of non-disclosure in this case, the User is not obliged to pay compensation and the Counterparty is not entitled to dissolve the order based on any damage caused by this.
- The Counterparty and the User will impose their obligations under this article on any third parties they may engage.
Article 11. Intellectual property
- All copyrights and any other intellectual or industrial property rights, as well as similar rights for the protection of know-how and confidential business information, in respect of services provided by the User to the Counterparty are exclusively vested in the User. The Counterparty acknowledges these rights and will refrain from any form of direct or indirect infringement of these rights under penalty of forfeiture of a fine payable in full of € 5,000.00 for each violation and € 2,500.00 for each day, or part thereof, that the violation continues, without prejudice to the User’s other rights in this respect, including the right to fulfillment and/or compensation or payment of profits.
- Without the prior written permission of the User, the Counterparty is not permitted to reproduce, publish or change, in whole or in part, any Content supplied by the User to the Counterparty and/or the result of the services provided by the User, or to publish it in a daily or weekly newspaper or magazine (whether or not in digital form) or in a broadcast of a radio or television program, unless agreed otherwise. The provisions in this paragraph constitute a reservation in accordance with Article 15 paragraph 1 of the Dutch Copyright Act.
- No provision in the contract or in the general terms and conditions or agreements based on those terms and conditions is intended to fully or partially transfer the rights referred to in paragraph 1 of this article to the Counterparty, unless expressly agreed otherwise.
- The User grants the Counterparty a non-transferable and non-exclusive right of use for the duration of the contract for the Content uploaded to the User’s website. This right of use only includes the powers expressly granted in these general terms and conditions, namely:
- Downloading the Content in order to make it available to licensed Users (Licensed Users are exclusively understood to be persons who work in the Counterparty’s organization.
- Displaying, consulting, storing or printing non-substantial portions of the Content.
- Quoting the Content (with due observance of Article 15a of the Copyright Act) in documents that are made, used or sent in the context of the Counterparty’s normal business operations.
- If the Counterparty notices or suspects that third parties are infringing on, or will infringe on, the User’s rights, the Counterparty is obliged to immediately report this to the User in writing. Without written permission from the User, the Counterparty will not take any action, either judicially or extrajudicially, against such an infringement. If the User chooses to take action against an infringement, the Counterparty will provide all necessary cooperation at its own expense.
- Unless expressly agreed otherwise, all intellectual and/or industrial property rights to all goods or works made available and/or delivered by the Counterparty to the User under the contract rest exclusively with the User.
- If and insofar as this would be otherwise, the Counterparty grants the User a non-exclusive, non-transferable right that are not subject to use the Content for their own company or organization. The User is thus permitted to include the Content in their own database and to make it available to third parties. The User is also permitted to reproduce, publish and/or edit the Content in whole or in part. The User does not owe the Counterparty any compensation for the use of the Content, unless agreed otherwise. Termination of the agreement, for whatever reason, does not result in termination of the right of use granted to the User.
- The User is not liable for any inaccuracies or other imperfections in the Content.
- The Counterparty is responsible for all content, in the broadest sense, that it uploads to the User’s Website. The Counterparty guarantees that the content is correct and complete and does not in any way infringe any right, including third-party Intellectual Property Rights. In the event that this guarantee is violated, the User has the right to make the uploaded Content permanently or temporarily inaccessible. This is without prejudice to the other rights of the User.
- The Counterparty indemnifies the User against all third-party claims with regard to the Content and will fully compensate the User, including a reasonable fee for legal costs.
Article 12. Liability
- User is not obliged to pay compensation for a shortcoming in the fulfillment of any obligation or for an unlawful act, if this cannot be directly attributed to the User. This is the case if the User is blameless in the matter and is not culpable in terms of the law, a legal act or generally accepted standards. In this case, the contract cannot be dissolved by the Counterparty.
- Non-culpability as referred to in paragraph 1 refers to force majeur, including extreme and/or unsuitable weather conditions, war or threat of war, contamination or risk of contamination, illness of staff, extreme or unexpected traffic congestion, obstruction of the transport route, malfunctions in the User’s company or in that of one of the suppliers or third parties engaged to execute the order, malfunctions of machines used by the User or third parties involved, any shortcoming of suppliers or third parties involved, delayed delivery of parts, government measures, as well as any delay and shortages at the User due to the circumstances mentioned in this paragraph.
- Although the utmost care is taken with regard to the Content, services and products delivered by the User, the absence of errors or incompleteness therein or in the transmission thereof cannot be guaranteed. Neither the User nor the authors, editors and third parties they engage are liable for such errors or omissions.
- Any dissatisfaction with the aesthetics of the Deliverables on the part of the Counterparty can never lead to an culpable failure on the part of the User.
- The User does not accept any liability for failure to fulfill the contract due to Counterparty’s fault or actions, or to the fault or actions of third parties engaged by the Counterparty. Neither is the User liable for damage caused by the User’s subordinates acting on the Counterparty’s instructions, advice or orders beyond the scope of the agreement, unless the Counterparty can demonstrate that the damage is due to gross negligence or intent.
- The User is only liable for failure to perform, or incorrect or partially incorrect performance of the agreement as well as for advice given or analyses carried out if and insofar as this is the direct result of intent or gross negligence on the part of the User’s executives.
- The User’s liability is in any case always limited to the amount of the payment from their insurer, if applicable, plus the amount of the deductible to be paid by the User. If the insurer does not cover the damage, the User’s liability is limited to a maximum of the invoice amount, that is, to that part of the amount to which the liability pertains.
- The User is only liable for direct damage. Direct damage is exclusively understood to mean the reasonable costs incurred to determine the cause and extent of the damage, insofar as the determination relates to damage in the sense of these terms and conditions; any reasonable costs incurred to remedy the User’s defective fulfillment of the agreement, insofar as the User can be deemed to be responsible for these; and reasonable costs incurred to prevent or limit damage, insofar as the Counterparty can demonstrate that these costs have led to limitation of the type of direct damage referred to in these general terms and conditions.
- The User is never liable for any indirect damage, including consequential loss, loss of profit, missed cost reductions and damage due to business interruption.
- Managers, partners, directors, employees and other parties engaged by the User can invoke the same defenses against the Counterparty to ward off or limit liability, if they are held liable by the Counterparty.
- The User accepts no liability for damage resulting from shortcomings of third parties engaged by the User. If and insofar as required, the User will, at the Counterparty’s first request, transfer to the Counterparty the rights it can exercise against the relevant third party in connection with the damage, of whatever nature, caused by this third party.
Article 13. Indemnification
- The Counterparty indemnifies the User against possible claims from third parties who incur damage in connection with the fulfillment of the agreement and for which others than the User are culpable. The Counterparty is also obliged to indemnify the User against damage from and/or due to fines, claims, penalty payments and other government measures. These indemnification obligations of the Counterparty also apply to the managers, partners, directors, employees and other parties engaged by the User.
- The Counterparty is obliged to assist the User both in and out of court if the User is held liable on the basis of the first paragraph of this article and to immediately make every effort that the Counterparty can be expected to make in this case. If the Counterparty fails to take adequate measures, the User entitled to do so, without notice of default. Any costs and damage incurred by the User and third parties as a result thereof will be entirely at the expense and risk of the Counterparty.
Article 14. Limitation periods
Contrary to the statutory limitation periods, the limitation period for all claims and defenses of the Counterparty against the User is one year.
Article 15. Multiple Counterparties or signatories
In the event that multiple Counterparties have jointly entered into an agreement, or several persons have signed an agreement with the User, each of them is jointly and severally liable for any obligation of the Counterparties arising from the agreement.
Article 16. Applicable law
- Dutch law applies to this agreement.
- All disputes arising between the parties with regard to the present agreement and its implementation will be submitted exclusively to the competent court in the User’s place of residence.
- The Vienna Sales Convention (CISG) of 11 April 1980 (Trb. 1986, 61) does not apply and is hereby expressly excluded.
Proces Media B.V.
1421 AC Uithoorn
+31 (0)297 223 462