1.1 In these General Terms and Conditions, the following terms are used with an initial capital letter, both in singular and plural. These terms mean:
Annex: Appendix to the General Conditions containing specific provisions in respect of the Service to be provided;
Service: The services to be provided by Concept7 to Customer under the Agreement, including, where applicable, results of services;
IE rights: All intellectual property rights and related rights, such as copyright, trademark rights, patent rights, design rights, trade name rights, database rights and neighbouring rights, as well as rights to know-how and one-line performances;
Client: The natural or legal person who has concluded or will conclude an Agreement with Concept7;
Agreement: The agreement between Concept7 and Customer regarding delivery of the Service;
Parties: Concept7 and Client
Personal data: Any data relating to an identified or identifiable natural person, as referred to in Article 1 sub a of the Personal Data Protection Act;
DDA: Dutch Digital Agencies, the trade association and knowledge organisation of internet agencies in the Netherlands of which Concept7 is a member; and
General Terms and Conditions: These terms and conditions of Concept7 including all applicable appendices.
2.1 These General Terms and Conditions apply to and form an inseparable part of all offers and quotations of Concept7, Agreements and all other possible related legal acts between Concept7 and Customer, or its legal successor. In addition to these General Terms and Conditions, the specific Annex(es) to these General Terms and Conditions agreed between Concept7 and Client shall also apply.
2.2 Where the General Terms and Conditions state that an action must be performed in writing, this also means by e-mail.
2.3 Deviations from the General Conditions are only valid if expressly agreed in writing by Concept7 and Client and only have validity for the specific agreement for which they have been agreed.
2.4 The General Conditions of Concept7 shall at all times prevail over any purchasing or other conditions used by Client.
2.5 Once these General Conditions have been applicable to a legal relationship between Concept7 and Client, Client shall be deemed to have agreed in advance to the applicability of these General Conditions to subsequently concluded and to be concluded Agreements.
2.6 If and insofar as any provision of the General Terms and Conditions is declared void or annulled, the other provisions of the General Terms and Conditions shall remain in full force and effect. In that case, the parties will determine in consultation a new provision to replace the void/annulled provision, whereby the scope of the void/annulled provision will be observed as much as possible.
2.7 In the event of a conflict between provisions from an Agreement and the General Conditions, the provisions from the Agreement shall prevail. In the event of a conflict between the General Terms and a specific Schedule, the provisions of the specific Schedule(s) shall prevail.
2.8 Electronic communication between the Parties shall be deemed to have been received on the day of transmission unless proven otherwise.
3.1 Quotations and other offers from Concept7 are without obligation and should be regarded as an invitation to make an offer to enter into an Agreement, unless otherwise indicated in writing by Concept7.
3.2 Offers and quotations lose their validity after 30 days from their date, unless otherwise stated in writing.
3.3 Customer warrants the accuracy and completeness of the data supplied by or on behalf of him to Concept7 on which Concept7 bases its offer. If such data prove to be incorrect or incomplete, Concept7 shall be entitled to amend the offer.
3.4 An Agreement is established by written confirmation by Client of an unchanged valid quotation and/or offer from Concept7.
4.1 Concept7 shall perform the Agreement to the best of its knowledge and ability and in accordance with the requirements of good craftsmanship and on the basis of the then known state of science and technology. The Agreement to be concluded between Concept7 and Customer has the character of an obligation to perform to the best of one's abilities, unless and insofar as Concept7 has expressly promised a result in the written Agreement and the result concerned has also been described with sufficient certainty in the Agreement.
4.2 The parties determine in the Agreement the delivery periods and dates as well as the place and manner in which the Services will be delivered and/or completed. The lead time of an assignment depends on various factors and circumstances, such as the quality of the data and information provided by the Customer and the cooperation of the Customer and relevant third parties. Mentioned delivery deadlines shall therefore not apply as deadlines, unless the Parties have expressly agreed otherwise in writing. In the event of an (impending) exceeding of a (delivery) date, Parties shall consult as soon as possible in order to take appropriate measures.
4.3 If it has been agreed that the Agreement will be performed in phases, Concept7 is entitled to postpone the commencement of Services belonging to a subsequent phase until Client has approved results of the preceding phase in writing.
4.4 Concept7 shall not be obliged to follow instructions that change or supplement the content or scope of the agreed Services; if such instructions are followed, the work in question shall be remunerated in accordance with Concept7's usual rates and Concept7 shall notify the Client accordingly.
4.5 Concept7 is entitled to have all or part of the Agreement executed by third parties or at least to engage third parties in the execution of the Agreement.
4.6 Services shall be deemed accepted between the parties if Customer has not provided detailed written justification as to why the Services are not accepted within five (5) working days after delivery of the relevant Services. If the comments fit within the agreement, Concept7 shall then replace or modify the Services within a reasonable period of time. If Customer again does not accept the Services, the parties will go through the acceptance procedure again. This procedure will be repeated each time if during the renewed acceptance test it is again substantiated by Customer why the Services are not accepted.
4.7 The risk of loss, theft, embezzlement or damage of items, products, information/data, documents or programmes created or used in the context of the performance of the Agreement shall pass to the Customer at the time they are placed in the actual control of the Customer or an auxiliary person of the Customer.
5.1 All prices are exclusive of sales tax (VAT) and other levies imposed by the government.
5.2 Unless explicitly agreed otherwise, price indications, budgets, budgets and/or pre-calculations of Concept7 are indicative only and no rights or expectations can be derived from them. Only when parties have agreed so, Concept7 is obliged to inform Client when a pre-calculation or budget is exceeded.
5.3 The parties will set out in the Agreement the date(s) on which Concept7 will charge the fee for Services to Customer. Invoices shall be paid by Customer according to the payment terms stated on the invoice. In the absence of a specific arrangement, Client shall pay within fourteen (14) days from the invoice date.
5.4 If the Customer does not pay the amounts due in time, the Customer shall owe statutory interest on the outstanding amount without any reminder or notice of default being required. If the Customer fails to pay the claim after a demand for payment or notice of default, the Supplier may pass on the claim for collection, in which case, in addition to the total amount then due, the Customer shall also be obliged to pay all judicial and extrajudicial costs, including costs for external experts.
5.5 Concept7 has the right to retain Services that are still under Concept7 in the event that Customer fails to meet its payment obligation, until Customer does meet its payment obligation, regardless of whether the payment arrears relate to the Services that Concept7 still retains.
5.6 Concept7 is entitled during the term of an Agreement to increase the prices for its Services annually, starting from 1 January, in accordance with the price index figure for the previous calendar year, as published by the CBS (Consumer Price Index "All households"), increased by a maximum of fifteen percent (15%). Concept7 is entitled to implement the cost increase at a later date if it deems it desirable from an administrative point of view.
5.7 Comments or complaints about invoices, bills and declarations sent shall be made in writing within fourteen (14) days of receipt of the relevant invoice, bill or declaration, failing which they shall be deemed to be accepted. Such complaints do not suspend the obligation to pay.
5.8 Concept7 is entitled to invoice Client on an interim basis and/or on the basis of advances, to set off or to require security for fulfilment by Client.
5.9 Client agrees to electronic invoicing by Concept7.
6.1 Customer accepts that the time schedule of the Agreement may be affected if the scope of the Agreement is extended and/or changed in the interim. If the interim change affects the agreed fee, Concept7 shall inform Client thereof as soon as possible.
6.2 If, pursuant to an amendment of the Agreement as a result of additional requests or wishes from Customer, additional work has to be carried out by Concept7 (additional work), this work will be charged to Customer on a post-calculation basis at the rates customary at that time, unless expressly agreed otherwise in writing.
6.3 Concept7 shall be entitled to carry out this additional work without (prior) written consent of Client to the extent that the costs incurred by this additional work do not exceed ten per cent (10%) of the originally agreed total fee.
6.4 If the costs for additional work exceed ten per cent (10%), Concept7 shall inform Client thereof. The parties will then discuss by mutual agreement the measures to be taken.
7.1 The Client shall ensure that all data and/or information which Concept7 indicates to be necessary or which the Client should reasonably understand to be necessary for the performance of the Agreement, including information with regard to legislation and regulations to be observed by Concept7 which are specific to the industry of the Client, shall be provided to Concept7 in good time and shall render all cooperation requested by Concept7. Quotations and offers of Concept7 as well as the Agreement concluded thereafter shall be based on the information provided by Client.
7.2 If less than one month prior to the scheduled execution of the Agreement, preparations are not made, deliveries are made and/or other obligations towards Concept7 are met in time by the Client, Concept7 shall have the right to suspend the execution of the Agreement and/or charge the additional costs resulting from the delay to the Client according to the then current usual rates.
7.3 To the extent that usernames and/or passwords are provided by Concept7 under the Agreement, Client is responsible for such usernames and/or passwords and is fully and independently liable for any misuse made of the usernames and passwords, unless such misuse is the result of intent or gross negligence on the part of Concept7.
7.4 Insofar as user names and/or passwords are provided by Concept7 in the context of the Agreement, Client is prohibited from providing these user names and/or passwords to third parties without Concept7's permission.
8.1 An Agreement shall commence on the date described in Article 3 for the period as agreed in writing between the Parties and shall terminate by operation of law on the date agreed between the Parties or upon completion of the provision of the Services.
8.2 Unless expressly agreed otherwise, the Parties cannot terminate the Agreement prematurely.
8.3 Each Party shall be entitled to rescind the Agreement in whole or in part in the event of bankruptcy or suspension of payments of the other Party, as well as in the event of cessation or liquidation of the other Party's business other than for the purpose of reconstruction or amalgamation of companies, or if the decisive control of the other Party's business changes.
8.4 Dissolution of the Agreement on the grounds of attributable failure shall only be admissible after a written notice of default which is as detailed as possible and in which a reasonable period is given to remedy the failure, unless otherwise provided for in these General Terms and Conditions or otherwise prescribed by law.
8.5 In the event of dissolution of the Agreement, there shall be no undoing of what Concept7 has already delivered and/or performed and the related payment obligation, unless the Customer proves that Concept7 is in default with regard to the essential part of that performance. Amounts which Concept7 has invoiced before the dissolution in connection with what Concept7 has already duly performed or delivered in execution of the Agreement shall, with due observance of the previous sentence, remain due in full and shall become immediately payable at the moment of dissolution.
8.6 In the event of dissolution of the Agreement, all rights granted to the Customer shall lapse. The Customer is no longer entitled to use the Service.
8.7 Articles which by their nature are intended to continue to apply after the end of the Agreement shall remain in full force and effect after termination of the Agreement.
9.1 Unless otherwise provided for in the Agreement, all IP Rights vested in all Services provided under the Agreement as well as any other materials or information made available by Concept7 shall be vested solely in Concept7 and/or its licensors.
9.2 Nothing in these General Conditions and/or the Agreement implies a transfer of IP Rights. Customer only acquires the non-exclusive and non-transferable right to use the Services for the purposes and under the conditions specified in the Agreement. If not provided otherwise in writing, the right of use granted shall only apply to the Netherlands.
9.3 The Client is not allowed to remove or change any indication concerning IP Rights from the results of Services.
9.4 Concept7 expressly does not waive its personality rights mentioned in Article 25 Copyright Act.
9.5 Concept7 is allowed to use the Services and the materials used for the execution of the Agreement, such as designs, drawings, films, software, (electronic) files, reports, formats and interviews, for its own promotion and/or publicity, unless otherwise provided in the Agreement.
9.6 Concept7 reserves the right to implement technical protection measures in the Services. Client is not allowed to circumvent these technical protection measures or to offer means for that purpose.
9.7 Concept7 shall indemnify Customer against legal claims of third parties based on the allegation that (parts of) the Services developed by Concept7 itself infringe any IP Right applicable in the Netherlands on the condition that Customer informs Concept7 immediately in writing about the existence and content of the legal claim and leaves the handling of the case, including the making of any settlements, entirely to Concept7. To this end, Client shall provide Concept7 with the necessary powers of attorney, information and cooperation to defend itself, if necessary in the name of Client, against such legal actions.
9.8 The above obligation to indemnify shall lapse if the alleged infringement relates to:
(i) materials made available to Concept7 by Customer; and/or
(ii) changes made or caused to be made to the Service by Customer.
9.9 If it is irrevocably established in court that the Services developed by Concept7 itself infringe any IP Right belonging to a third party or if in Concept7's opinion there is a reasonable chance that such an infringement will occur, Concept7 shall ensure as far as possible that the Customer can continue to use the Service (or something functionally equivalent) undisturbed. If Concept7, in its sole opinion, cannot ensure or cannot ensure other than in a (financially) unreasonably burdensome manner for it that Customer can continue to use the supplied Service undisturbed, Concept7 shall take back the supplied Service against crediting of the acquisition costs minus a reasonable user fee. Any other or further liability or indemnification obligation of Concept7 due to infringement of IP Rights of a third party is entirely excluded.
10.1 If Personal Data of customers of Customer is to be processed by Concept7 in the context of the performance of the Services, Concept7 must be regarded as "processor" within the meaning of the Personal Data Protection Act and Customer as "responsible".
10.2 Customer warrants to Concept7 that the data are not unlawful and do not infringe any rights of third parties. Client indemnifies Concept7 against any (legal) claim by third parties, including supervisors and data subjects, on any basis whatsoever, in connection with the processing of such data under the Agreement.
10.3 Client has obligations towards third parties under the legislation concerning the processing of Personal Data (such as the Personal Data Protection Act), such as the obligation to provide information, as well as to allow inspection, correction and deletion of Personal Data of data subjects. The responsibility for compliance with these obligations rests entirely and exclusively with Client. Concept7 shall cooperate, as much as technically possible, with the obligations to be fulfilled by Customer, including the forwarding of requests from third parties within the framework of Customer's obligations. The costs associated with this cooperation shall be entirely for the account of Client.
10.4 Concept7 shall take, maintain and if necessary adapt appropriate technical and organisational measures to secure the Personal Data it processes on behalf of Customer to prevent unlawful processing. Concept7 shall not process the Personal Data obtained from Customer for its own purposes.
10.5 Concept7 shall discuss with Client the appropriate technical and organisational measures to be taken in order to secure Personal Data against loss or any other form of unlawful processing.
10.6 Client acknowledges that it has full knowledge of the technical and organisational measures to be implemented by Concept7 and hereby declares that, taking into account the state of the art and the costs of implementation, they guarantee an appropriate level of security, given the risks involved in the processing and the nature of the data to be protected.
10.7 If, notwithstanding the fact that Concept7 has implemented the agreed appropriate measures, a security incident occurs involving i) destruction, ii) loss, iii) forgery, iv) unauthorised dissemination and/or access to, or v) any other form of unlawful processing of Personal Data, Customer shall not hold Concept7 liable for any damage suffered by Customer as a result thereof.
10.8 If Client expressly requests measures which, in Concept7's opinion, cannot be regarded as appropriate technical and organisational measures, the implementation of these measures shall take place entirely at the expense and risk of Client and Concept7 accepts no liability for any damage suffered by Client or third parties.
10.9 Customer fully indemnifies Concept7 against all claims by third parties, including - but not limited to - fines imposed by regulatory bodies, which are in any way based on the assertion that the technical and organisational measures taken by Concept7 as referred to in article 10.8 are not appropriate and/or otherwise inadequate.
11.1 The parties shall treat all information they obtain from each other in any form - written, oral, electronic or tangible - including - but not limited to - software, (source) code, programmes, applications, customer data, know-how, technical specifications, documentation ("Confidential Information") as strictly confidential and keep it secret.
11.2 Parties shall only use the Confidential Information for the purposes for which it was provided and in doing so they shall observe at least the same duty of care and safeguard that apply to their own internal confidential information. Parties shall only provide the Confidential Information to employees to the extent necessary in the context of the (performance of the) Agreement.
11.3 The obligations to keep Confidential Information confidential do not apply to the extent that the Party that received information can demonstrate that the information in question:
i) was already known to it at the time of receipt;
ii) was already publicly known at the time of receipt;
iii) became publicly known after receipt without being attributable to the receiving Party;
iv) was lawfully received from a third party together with the right to disclose it free from any obligation of confidentiality;
v) is required to be disclosed by law or regulation or pursuant to a court order and the providing Party informs the other Party of such mandatory disclosure
vi) has been disclosed with the approval of the providing Party.
11.4 Each of the Parties shall, during the term of the Agreement as well as 1 (one) year after the end thereof, only with the prior consent of the other Party, employ or otherwise, directly or indirectly, allow employees of the other Party who are or have been involved in the performance of the Agreement to work for them.
12.1 Concept7's liability for attributable shortcomings in the fulfilment of its obligations and/or on account of an unlawful act is limited to compensation of direct damage suffered by Customer to a maximum of €10,000, or to a maximum of the amount of the fee stipulated for the execution of the Agreement, whereby in the case of continuing performance agreements the stipulated fee shall apply for one year.
12.2 Direct damage means exclusively:
i) reasonable costs which the Customer would have to incur to make Concept7's performance conform to the Agreement; however, such substitute damage shall not be compensated if the Agreement is rescinded by or at the request of the Customer;
ii) reasonable costs incurred by the Customer for keeping his old system(s) and related facilities operational longer out of necessity because Concept7 did not deliver on a deadline binding for him, minus any savings resulting from the delayed delivery;
iii) reasonable costs incurred in determining the cause and extent of the damage, insofar as the determination relates to direct damage within the meaning of this Agreement;
iv) reasonable costs incurred in preventing or limiting damage, insofar as the Customer demonstrates that these costs have resulted in limiting direct damage within the meaning of this Agreement.
12.3 Any liability of Concept7 for other than direct damage ("indirect damage"), including - but not limited to - consequential damage, loss and/or damage to data loss of profits and loss of turnover, is excluded.
12.4 The limitations mentioned in previous paragraphs of this article shall lapse if and insofar as the damage is the result of intentional or deliberate recklessness of Concept7 or its executives ("own actions").
12.5 Concept7's liability for attributable failure in the performance of an Agreement shall in all cases only arise if the Customer gives Concept7 immediate and proper notice of default in writing, whereby a reasonable period is given to remedy the attributable failure, and Concept7 continues to fail imputably in the performance of its obligations even after that period, except in the case of a permanent attributable failure. The notice of default should contain as complete and detailed a description of the shortcoming as possible, so that Concept7 is able to respond adequately.
12.6 A condition for the creation of any right to compensation is always that Customer reports the damage to Concept7 in writing as soon as possible after its occurrence. Any claim for damages against Concept7 shall lapse by the mere expiry of twelve (12) months after the claim arose.
12.7 Customer's use of the Services is entirely at Customer's own risk and responsibility. Concept7 accepts no liability for Customer's use of the Services. Customer indemnifies Concept7 against any third party claims arising from Customer's use of the Services.
13.1 There shall be no attributable failure to perform the Agreement by the Parties in the event of force majeure.
13.2 Force majeure shall include interruptions in the supply of electricity, strikes, riots, government measures, fire, natural disasters, floods, failures of suppliers of the Parties, failures of third parties engaged by the Parties, internet connection failures, hardware failures, failures in (telecommunications) networks and other unforeseen circumstances.
13.3 If the force majeure continues for at least thirty (30) days, the Parties shall be entitled to dissolve the Agreement, without being obliged to compensate any damage, undoing or compensation in respect of such dissolution.
13.4 If, at the time of the force majeure, Concept7 can still partially perform, or has performed, it shall be entitled to perform this performance and invoice it separately, as if it were a separate Agreement.
14.1 The rights and obligations under the Agreement can only be (sub)licensed and/or transferred by the Parties to third parties if the other party agrees to this in writing.
15.1 If a dispute between the Parties cannot be satisfactorily resolved, the dispute shall, before it is submitted to the court, be submitted to duly authorised representatives of the Parties to try the possibilities of settlement, or to an independent mediator for mediation.
16.1 These General Conditions are exclusively governed by Dutch law
16.2 The applicability of the Vienna Sales Convention is excluded.
16.3 Any disputes arising between Concept7 and Customer under or in connection with this Agreement shall be submitted exclusively to the competent court in the district of Groningen.