Mediacooks .V.
Chamber of Commerce file no. 66272068, hereinafter referred to as ‘Supplier’.
1.1 These General Terms and Conditions apply to all (verbal or written) offers, quotations, and agreements, in the broadest sense of the word, that the Supplier has offered to or concluded with the Client.
1.2 The Client accepts these General Terms and Conditions to the exclusion of any general terms and conditions used by it, unless the Supplier and the Client have expressly agreed otherwise in writing in advance. If the parties have agreed in writing that other terms and conditions apply, these terms and conditions shall only apply to the specific assignment for which they have been agreed.
2.1 All our quotations (verbal or written) are without obligation, unless a term for acceptance or validity has been agreed in advance in writing. Nevertheless, the Supplier has the right to revoke a quotation within five working days after it has reached the Client.
2.2 An agreement is concluded and the work is scheduled at the moment that a quotation is accepted by the Client by means of a written agreement or, if no quotation is available, the Client places an order with the Supplier and the latter accepts that order.
2.3 If, after an agreement has been concluded, the Client cancels the order in whole or in part, the Supplier is entitled to charge the Client for all costs incurred or to be incurred by the Supplier in connection with that order. After payment of the cancellation costs by the Client, the Supplier will hand over to the Client everything that has been developed in the context of that order during the period prior to the cancellation, with due observance of the other provisions of these terms and conditions.
3.1 The prices and rates include the work described by the Supplier in the offer, quotation, or agreement. All prices and rates are exclusive of sales tax (VAT) and other government-imposed levies and do not include compensation for packaging, import, transport, travel and accommodation expenses, office expenses, (technical) documentation, use of audio and/or visual material from third parties, purchase of hardware, software from third parties, training of the Client, installation, implementation, and the like, which are charged separately to
Client will be charged, unless otherwise specified in the offer, quotation, or agreement.
3.2 If the Client has a request to change and/or supplement the specifications of the work to be performed by the Supplier, it will notify the Supplier thereof. The Supplier will then provide the Client with a quotation for any additional work to be performed as a result of the changes or adjustments. The Supplier will only perform additional work
perform after receiving a written order from the Client to do so. The Supplier will invoice the Client for this additional work.
3.3 The Supplier is entitled to adjust its prices and rates at any time by means of a written notification to the Client. These new prices and rates apply to all subsequent offers, quotations, and agreements between the Supplier and the Client.
4.1 All invoices shall be paid by the Client in accordance with the payment terms stated on the invoice. In the absence of specific terms, the Client shall pay no later than thirty days after the invoice date, hereinafter referred to as "the payment term."
4.2 If the payment term is exceeded, the Client will be in default by operation of law and will be charged default interest of 1.5% per month (one and a half percent) on the outstanding amount, calculated over the period that the
The client is in default, without any further notice of default or judicial intervention being required.
4.3 If the Client remains in default of payment after receiving a notice of default, the claim may be handed over for collection, in which case the Client will be liable for the amount then due as well as full reimbursement of all judicial and extrajudicial costs incurred by the Supplier in connection with the collection, without prejudice to all other rights of the Supplier.
4.4 If any payment term is exceeded, the Supplier is entitled to suspend its obligations under the agreement and any other current agreements until full payment has been made, without prejudice to the Supplier's right to compensation and without being liable to the Client for any damages.
4.5 The client waives any right to set off any claim.
The Client may therefore never invoke set-off against the Supplier to evade a payment obligation. Every payment shall in the first instance be deemed to be in satisfaction of the longest outstanding claim, even if the Client states that the payment relates to a later claim.
4.6 The Supplier reserves the right to return any items, materials, equipment, and the like made available to the Supplier by the Client only after all payments owed by the Client have been made in full.
4.7 If the work is performed on a post-calculation basis, the Supplier will invoice the Client on a monthly basis. The provisions of Articles 4.1 to 4.6 apply mutatis mutandis.
5.1 Delivery times stated by the Supplier are determined to the best of its knowledge and belief on the basis of the information known to the Supplier at the time of entering into the agreement and will be observed as far as possible. The parties will inform each other as soon as possible if any circumstances arise that may affect the (timely) performance of the work and/or the delivery times.
5.2 The Supplier shall perform and deliver the work in accordance with the functional and technical specifications agreed between the parties.
5.3 If, at the Client's request, the Supplier makes certain changes and/or additions to the specifications of the work to be performed by the Supplier, the Supplier may, after consultation with the Client, postpone the delivery date of the work to the extent necessary to implement the relevant changes or additions.
5.4 A single instance of exceeding a delivery period does not constitute a default on the part of the Supplier and does not entitle the Client to terminate the agreement, except in the case of intent or gross negligence on the part of the Supplier. The parties will then consult as soon as possible in order to set a new delivery period.
5.5 The risk of total or partial loss or damage to goods that are the subject of an agreement shall pass to the Client as soon as they have left the Supplier's office and/or warehouse.
6.1 The Supplier retains ownership of the delivered goods in respect of all claims that it has or may acquire against the Client under an agreement (due to failure to fulfill an obligation under that agreement).
6.2 The Client is not entitled to encumber the goods subject to the Supplier's retention of title and/or to transfer them to third parties. Nor may the Client exercise any licenses and/or rights of use granted by the Supplier in relation to those goods.
7.1 The Client shall always provide the Supplier in a timely manner with all data, information, documentation, materials, third-party software, assets, and/or other necessities required for the proper execution of the agreement, as described in writing by the parties (hereinafter: necessities). Furthermore, the Client shall notify the Supplier of its decisions in a timely manner, assess any documents received in a timely manner, and provide all other necessary cooperation in order to enable the Supplier to meet the delivery date. The Client guarantees the Supplier that it is entitled to dispose of the supplies made available to the Supplier and indemnifies the Supplier against all claims in this regard.
7.2 If the requirements described in Article 7.1 are not, not made available to the Supplier in a timely manner or in accordance with the agreements, if the necessary cooperation is not provided, or if the Client otherwise fails to fulfill its obligations, the Supplier is entitled to suspend the execution of the agreement and the delivery date without being liable for any compensation to the Client. Furthermore, the Supplier may charge any costs incurred as a result and any additional work to be performed in accordance with its usual rates.
7.3 If employees of the Supplier and/or third parties are required to perform work at the Client's premises or at another location designated by the Client in order to perform an agreement, the Client shall provide, free of charge, the facilities reasonably required by those employees, including but not limited to a workspace with telecommunications facilities.
8.1 If, at the request and with the consent of the Client, the Supplier outsources the delivery of certain goods, the performance of certain services, and/or the performance of certain work, in whole or in part, to one or more third parties, the Supplier may, at the request of the Client, act as the Client's legal representative.
8.2 Agreements concluded by the Supplier on behalf of the Client with third parties in accordance with the provisions of Article 8.1 are deemed to have been concluded directly between the Client and these third parties. If applicable, the terms and conditions of delivery of these third parties apply to these agreements. The Supplier accepts no liability in this regard.
9.1 The Supplier grants the Client only the non-exclusive right to use the delivered goods in perpetuity for the intended purpose as described in writing in the offer, quotation, or agreement, and in principle, all (intellectual) property rights to the goods delivered by the Supplier to the Client, including but not limited to software, concepts, designs, documentation, quotations, information or data recorded therein, as well as the preparatory material thereof, remain reserved to the Supplier, with the exception of the supplies delivered by the Supplier, unless expressly agreed otherwise in writing.
Without the prior written consent of the Supplier, the Client is not entitled to use the delivered goods in any other way and/or to make the rights and/or powers granted to it available to third parties, in whole or in part, to transfer them, and/or to license them.
If the parties have agreed in writing that certain (intellectual) property rights will be transferred by the Supplier to the Client, for which the Supplier may charge the Client a surcharge, the transfer will take place under the resolutive condition that the Client has fulfilled its payment obligations within the agreed payment term, extended by a reasonable period after a written reminder from the Supplier. If the Client subsequently fulfills its payment obligations, the transfer of intellectual property rights to the Client will take place again and will be deemed to have taken place on the date on which the transfer would originally have taken place.
Insofar as intellectual property rights are transferred, the Client does not acquire any exclusive rights to basic components of the items developed by the Supplier, as these are not subject to intellectual property rights.
9.2 The Supplier is entitled to mention its logo and name on the delivered items, on the credits thereof, and/or in the source code of the software.
9.3 The Supplier reserves the right to use the items developed for the Client, in whole or in part, for promotional, acquisition, and/or demonstration purposes.
10.1 The parties are obliged, either during the term of an agreement or thereafter, to keep confidential any confidential information that comes to their knowledge and not to disclose it in any way to third parties and/or allow it to be used by third parties, and to use it only for the purpose for which it was made available to them.
Third parties also include all persons working in the organization of parties who do not necessarily need to be informed of the information.
10.2 Confidential information within the meaning of these terms and conditions shall be understood to mean: (i) all information provided in writing, orally, or in any other way, directly or indirectly, which is designated as such and/or which the other party knows or should reasonably understand to be confidential;
11.1 The parties shall only accept legal obligations to pay compensation if and insofar as this is apparent from the provisions of this article.
11.2 The total liability of the parties for attributable failure to perform an agreement is limited to compensation for direct damage up to the amount of the price stipulated for that agreement, excluding VAT, with a maximum of €5,000 (five thousand euros). If the agreement is primarily a continuing performance agreement with a term of more than one year, the price stipulated shall be set at the total of the fees excluding VAT stipulated for one year, with a maximum of €5,000 (five thousand euros).
Direct damage suffered by the Client within the meaning of these terms and conditions is exclusively understood to mean:
Require the supplier to comply with the agreement;
insofar as the determination relates to direct damage within the meaning of these terms and conditions; (iv) reasonable costs incurred to prevent or limit damage, insofar as the Client has properly represented the Supplier's interests.
Liability of parties for indirect damage, including but not limited to consequential damage, lost profits, lost savings, damage due to business interruption, lost contracts, and/or damage to the image of the other party is excluded.
11.3 The total liability of the parties for damage resulting from death or physical injury or for material damage to property is limited to €10,000 (ten thousand euros) per event, whereby a series of related events counts as one event, on the understanding that the liability of the parties for damage to property as a result of fire and/or explosion is limited to €5,000 (five thousand euros).
11.5 Except for the cases referred to in Articles 11.2 and 11.3, the parties shall not be liable for any compensation, regardless of the grounds on which an action for compensation would be based. However, the maximum amounts referred to in Articles 11.2 and 11.3 shall lapse if and insofar as the damage is the result of intent or gross negligence on the part of the party liable for the damage.
12.1 In the event of force majeure, i.e. a failure that cannot be attributed to one of the parties and is not due to its fault and is also not for its account under the law, legal acts, or in social traffic, this party shall notify the other party in writing, stating the cause, nature, the expected duration of the force majeure, and the provisions of the agreement that cannot be fulfilled as a result. The implementation of the relevant provisions will be suspended during the force majeure.
12.2 If the force majeure situation has continued for two months after the date of the aforementioned notification, the parties will attempt to reach agreement on amending the provision(s) of the agreement suspended due to force majeure. In the absence of such agreement within one month, either party may terminate this agreement without being liable for any compensation to the other party. However, the Supplier retains the right to payment for goods already delivered, work already performed, and/or services already rendered.
13.1 If, after written notice from the other party, one of the parties fails to fulfill any essential obligation arising from an agreement and/or these Terms and Conditions, the other party is entitled, without further notice of default or judicial intervention, to terminate the agreement in question with immediate effect, and without being liable to pay any compensation to the other party, without further notice of default or judicial intervention, without prejudice to the right of the terminating party to exercise other legal rights, such as the right to compensation, and without prejudice to the Supplier's right to payment for goods already delivered, work performed, and/or services provided.
13.2 Each party is also entitled to terminate an agreement with immediate effect, without any notice of default or judicial intervention being required, and without being liable to the other party for any compensation, if the other party applies for (provisional) suspension of payments or is granted (provisional) suspension of payments, the other party files for bankruptcy or is declared bankrupt, the other party ceases its business, a substantial part of the other party's assets is seized, the other party's legal entity is dissolved, or control or the decisive vote within the other party's legal entity is transferred to a third party, without prejudice to the right of the terminating party to exercise its legal rights, such as the right to compensation, and without prejudice to the Supplier's right to payment for goods already delivered, work already performed, and/or services already provided.
14.1 Additions to and amendments of an agreement between the parties and/or these applicable General Terms and Conditions are only valid if they have been agreed in writing between the parties and signed by both parties. If the parties have agreed in writing to certain additions and/or amendments, these only apply to the specific assignment for which they have been agreed.
14.2 The invalidity of any provision of these General Terms and Conditions shall not affect the validity of the other provisions. In the event of an invalid or voidable provision, the Supplier shall
and the Client shall, in mutual consultation, establish a new provision to replace the provision in question, taking into account as far as possible the purpose and intent of the invalid, void, or voidable provision.
14.3 Dutch law applies to any agreement between the parties, these applicable General Terms and Conditions, and their implementation.
14.4 Any disputes arising from or related to an agreement between the parties shall, insofar as they cannot be resolved amicably, be submitted to the competent court in Amsterdam, to the exclusion of any other court. Nevertheless, the Supplier has the right to submit a dispute for settlement to the competent court in the Client's place of residence.
14.5 The titles above the articles are provided for the convenience of the reader. No rights can be derived from them.
14.6 The parties are obliged to notify the other party immediately in writing of any change of address.
14.7 The Dutch text of these General Terms and Conditions prevails over any certified or non-certified translations thereof.
The provisions set out in this chapter apply, in addition to the General Provisions of these General Terms and Conditions, if the Supplier develops software on behalf of the Client.
15.1 The Supplier shall develop the software and deliver it to the Client on a type and format of information carrier to be agreed upon and in accordance with the functional and/or technical specifications to be described by the parties in writing. The Supplier shall develop the software with care on the basis of the information to be provided by the Client, for the accuracy, completeness, and consistency of which the Client is responsible.
15.2 The Supplier may take technical measures to protect the software it has supplied.
If the Supplier has secured the software by means of technical protection, the Client is not permitted to remove and/or circumvent this protection. If the security measures result in the Client being unable to make a backup copy of the software, the Supplier will, at the Client's request, provide the Client with a backup copy of the software.
15.3 If the parties have agreed in writing to an acceptance test, the Client may, during a period of ten working days after delivery of the software, examine whether it complies with the specifications referred to in Article 15.1, hereinafter referred to as "the test period."
The acceptance test will take place in a pre-agreed environment and in accordance with an agreed procedure.
Acceptance of the software may only be withheld on the grounds that the software does not meet the specifications, unless it concerns minor defects in the software, i.e. defects that do not reasonably prevent the operational and/or productive use of the software, without prejudice to the Supplier's obligation to repair these minor defects free of charge.
15.4 If, during the test period, it appears that the software does not meet the specifications referred to in Article 15.1, the Client shall notify the Supplier of this in writing no later than the last day of the test period, stating the specifications with which the software does not comply, hereinafter referred to as "the defects," in which case the test period shall be interrupted. The Supplier shall then remedy the defects specified in the aforementioned notification as soon as possible and redeliver the software to the Client at no cost to the Client. Upon redelivery of the software, the 10-working-day test period shall recommence.
In the unlikely event that the Client subsequently encounters new defects in the software as a result of non-compliance with the specifications, i.e. defects that were not already present in the previous test period and of which the Client was therefore unable to inform the Supplier during the previous test period, the procedure described above will be repeated.
15.5 The client is deemed to have accepted the software:
after the Supplier has repaired the defects specified in the notification; or (iv) upon the Client's commencement of use of the software.
15.6 If the software is delivered and tested in phases and/or parts, the non-acceptance of a particular phase and/or part shall not affect the possible acceptance of another phase and/or part.
16.1 For a period of one month after delivery or, if an acceptance test has been agreed, one month after the end of the test period, the Supplier shall repair any defects in the software resulting from non-compliance with the specifications free of charge, if and insofar as it has been notified of these defects in writing by the Client within that period. The Supplier does not guarantee that the software will operate without interruption and/or defects and/or that all defects can be repaired.
16.2 The client is responsible for the correct and judicious use or application of the software, as well as for control and security procedures and adequate system management.
16.3 During the warranty period described above, the Supplier may charge its usual commercial rates and the costs of repair if the defects in the software are caused by user errors and/or improper use of the software and/or other causes not attributable to the Supplier.
16.4 The warranty obligation shall lapse if the Client has made changes to the software or has had changes made to the software without the prior written consent of the Supplier. The restoration of corrupted or lost data is not covered by the warranty obligation.
16.5 The defects shall be repaired at a location to be determined by the Supplier. The Supplier is entitled to choose between permanent or temporary solutions, or
to introduce program detours and/or problem-avoiding restrictions in the software.
16.6 After the warranty period referred to in this article has expired, the Supplier is not obliged to repair any defects in the software, unless the parties have agreed on a maintenance or service level agreement to this effect.
17.1 Without prejudice to the provisions of Article 11 of these General Terms and Conditions, the Supplier grants the Client the non-exclusive right to use the software, which right of use exclusively comprises the right to load and execute the software.
17.2 The source codes of the software and the
(Technical) documentation will not be made available to the Client. If the Client requires (technical) documentation, it must request a separate quote from the Supplier.
17.3 The Client shall immediately return all copies of the software in its possession to the Supplier if the above-described right to use the software is terminated. If the parties have agreed that the Client will destroy the relevant copies at the end of the right of use, the Client shall immediately confirm such destruction to the Supplier in writing.
18.1 At the Client's request, the parties may enter into a maintenance, hosting, or service level agreement by mutual consent, to which the Supplier's usual terms and conditions will apply.
18.2 The Supplier shall endeavor to remedy defects in the software to the best of its ability within the period specified in the relevant agreement. The defects will be repaired at a location to be determined by the Supplier. The Supplier is entitled to implement permanent or temporary solutions or program workarounds and/or problem-avoiding restrictions in the software at its discretion. The Supplier does not guarantee that the software will operate without interruption and/or defects and/or that all defects can be repaired.
18.3 The client is responsible for the correct and judicious use or application of the software, as well as for control and security procedures and adequate system management.
18.4 A separate quotation must be requested for the recovery of corrupted and/or lost data, as well as for the repair of defects resulting from changes made to the software by or on behalf of the Client without the prior written consent of the Supplier. Furthermore, the Supplier may charge its usual commercial rates and the costs of repair if the defects in the software are caused by user errors and/or improper use of the software and/or by other causes not attributable to the Supplier.
