General terms and conditions for service providers (B2B)

Article 1 – Definitions.

1. Movements Marketing Services BV, located in Hilversum, KvK number 77330277, is referred to in these general terms and conditions as service provider.
2. The other party of service provider is referred to as client in these general terms and conditions.
3. The parties are service provider and client together.
4. Agreement means the agreement to provide services between the parties.

Article 2 – Applicability of general conditions

1. These terms and conditions apply to all quotations, offers, work, agreements, and deliveries of services or goods by, or on behalf of, service provider.
2. Deviation from these terms and conditions is possible only if expressly agreed upon in writing by the parties.
3. The agreement always contains effort obligations for service provider, not result obligations.

Article 3 – Payment

1. Invoices must be paid within 14 days of the invoice date, unless the parties have agreed otherwise in writing, or the invoice states a different payment term.
2. Payments shall be made without any recourse to suspension or set-off by transferring the amount due to the bank account number provided by service provider.
3. If the client fails to pay an invoice within the agreed period, he shall be in default by operation of law, without any reminder being necessary, and a penalty interest clause of 1.0% per day on the amount due shall apply. From that moment service provider is also entitled to suspend the obligations until client has fulfilled his payment obligations.
4. If the principal remains in default, the service provider shall proceed to collection. The costs relating to collection shall be for the principal’s account. When the client is in default, he owes the service provider, in addition to the principal sum, statutory (commercial) interest, extrajudicial collection costs and other damages. The collection costs are calculated according to the “Decree on compensation for extrajudicial collection costs”.
5. In case of liquidation, bankruptcy, attachment or suspension of payment of the principal, the claims of service provider against the principal are immediately due and payable.
6. If the client refuses to cooperate with the execution of the order by the service provider, he is still obliged to pay the agreed price to the service provider.

Article 4 – Offers and tenders

1. Service provider’s offers are valid for a maximum of 2 months after the date, unless another period of acceptance is mentioned in the offer. If the offer is not accepted within that period, the offer expires.
2. Delivery times in quotations are indicative and if exceeded do not entitle the client to dissolution or damages, unless the parties have expressly and in writing agreed otherwise.
3. Offers and quotations do not automatically apply to repeat orders. The parties must expressly agree in writing.

Article 5 – Prices

1. The prices stated on service provider’s offers, quotations and invoices are exclusive of VAT and any other government taxes, unless explicitly stated otherwise.
2. The prices of goods are based on the cost prices known at that time. Increases thereof, which could not be foreseen by the service provider at the time of making the offer or entering into the agreement, may give rise to price increases.
3. With regard to the provision of services, the parties may agree on a fixed price when the agreement is concluded.
4. lf no fixed price has been agreed, the rate relating to the provision of services may be determined on the basis of the hours actually spent. The rate shall be calculated according to the service provider’s usual hourly rates applicable to the period in which he performs the work, unless a different hourly rate has been agreed.
5. If no rate based on the actual hours spent has been agreed upon, a guide price for the services shall be agreed upon, from which the service provider is entitled to deviate up to 10%. If the guide price will be more than 10% higher, service provider shall inform client in time why a higher price is justified. In that case, the client is entitled to cancel part of the order that exceeds the guide price plus 10%.

Article 6 – Price Indexation

1. The prices and hourly wages agreed upon at the time of entering into the agreement are based on the price level applied at that time.
   Service Provider has the right to adjust the fees to be charged to the Client annually as of January 01.
2. Adjusted prices, rates and hourly wages will be communicated to client as soon as possible.

Article 7 – Provision of information by client

1. Client shall make all information relevant to the execution of the order available to service provider.
2. The client shall be obliged to make available all data and documents which the service provider deems necessary for the correct execution of the order in a timely manner, in the desired form and in the desired manner.
3. The client guarantees the accuracy, completeness and reliability of the data and documents made available to the service provider, even if they originate from third parties, insofar as the nature of the assignment does not dictate otherwise.
4. Client shall indemnify service provider for any damage in any form resulting from failure to comply with the provisions of the first paragraph of this article.
5. If and to the extent that the client so requests, service provider shall return the relevant documents immediately upon receipt of the client’s request to do so.
6. If the client fails to provide the data and documents required by the service provider, or fails to provide them on time or properly, and the execution of the order is delayed as a result, the resulting additional costs and additional fees shall be borne by the client.

Article 8 – withdrawal of assignment

1. The client is free to terminate the order to service provider at any time.
   This interim termination of the order by the client must be communicated to service provider in writing, with a notice period of 2 (two) months, unless otherwise agreed.
2. If the client withdraws the order, the client is fully obliged to pay the wage due and expenses incurred to service provider.

Article 9 – Execution of the agreement

1. Service Provider shall perform the Agreement to the best of its knowledge and ability, in accordance with the requirements of good workmanship.
2. Service Provider reserves the right to have work performed by third parties.
3. Performance shall be by mutual agreement and after written agreement and payment of any agreed advance.
4. It is the client’s responsibility that service provider can begin the assignment in a timely manner.

Article 10 – Contract duration of assignment

1. The agreement between the client and service provider is entered into for an indefinite period of time, unless something else follows from the nature of the agreement, or the parties have expressly agreed otherwise in writing.
2. If, within the term of the agreement, the parties have agreed on a deadline for the completion of certain work, this is never a final deadline. If this deadline is exceeded, the client must give service provider written notice of default.

Article 11 – Modification of the agreement

1. If, during the execution of the agreement, it appears that for a proper execution of the assignment it is necessary to modify or supplement the work to be performed, the parties shall adjust the agreement accordingly in a timely manner and by mutual agreement.
2. If the parties agree that the agreement will be amended or supplemented, the time of completion of performance may be affected as a result. Service Provider shall inform the client as soon as possible.
3. If the change or supplement to the agreement has financial and/or qualitative consequences, service provider will inform client in writing about this as soon as possible.
4. If the parties have agreed on a fixed fee, service provider shall indicate the extent to which the change or supplement to the agreement results in an excess of this fee.

Article 12 – Force majeure

1. In addition to the provisions of article 6:75 of the Civil Code, “a service provider’s failure to fulfill any obligation to the client cannot be attributed to the service provider in the event of a circumstance independent of the service provider’s will, as a result of which the fulfillment of its obligations to the client is prevented in whole or in part or as a result of which the fulfillment of its obligations cannot reasonably be required of the service provider”. Such circumstances include defaults by suppliers or other third parties, power failures, computer viruses, strikes, bad weather conditions and work interruptions.
2. If a situation as mentioned above occurs, as a result of which service provider cannot fulfill its obligations to client, those obligations are suspended. If the situation referred to in the previous sentence has lasted for 30 calendar days, the parties shall be entitled to dissolve the agreement in whole or in part in writing.
3. Service provider is not bound to compensate any damage in the case mentioned in the second paragraph of this article, even if service provider enjoys any advantage as a result of the force majeure situation.

Article 13 – Offset

Client waives its right to set off a debt to service provider against a claim against service provider.

Article 14 – Suspension

Client waives the right to suspend the performance of any obligation under this agreement.

Article 15 – Transfer of rights

Rights of a party under this agreement cannot be transferred without the prior written consent of the other party. This provision counts as a clause with property law effect as referred to inarticle 3:83, second paragraph, Civil Code.

Article 16 – Forfeiture of the claim

Any right to compensation for damage caused by service provider shall in any event lapse 6 (six) months after the event from which the liability arises directly or indirectly. This does not exclude the provisions of Article 6:89 of the Civil Code.

Article 17 – Warranty

The parties have entered into an agreement with a service character, which for Movements Marketing Services BV only includes an obligation to perform to the best of one’s ability, and therefore no obligation to achieve a result.

Article 18 – Insurance

1. Client undertakes to adequately insure and keep insured against, among other things, fire, explosion and water damage, as well as theft, delivered items that are necessary for the execution of the underlying agreement, as well as items of service provider present at client’s premises, and items delivered under retention of title.
2. Client shall make the policy of such insurance available for inspection upon first request.

Article 19 – Liability damages

1. Service Provider shall not be liable for damages resulting from this Agreement unless Service Provider caused the damages intentionally or with gross negligence.
2. In the event that service provider owes damages to client, the damages shall not exceed the fee.
3. Any liability for damages arising out of or related to the performance of an agreement shall always be limited to the amount paid in the case in question by the (professional) liability insurance(s) taken out. This amount will be increased by the amount of the excess according to the relevant policy.
4. The limitation of liability also applies if service provider is held liable for damages resulting directly or indirectly from the malfunctioning of the equipment,software, data files, registers or other items used by service provider in the execution of the order.
5. Not excluded is the liability of service provider for damages resulting from intentional or deliberate recklessness of service provider, its executive or subordinates.

Article 20 – Principal’s liability

1. In case an order is given by more than one person, each of them is jointly and severally liable for the amounts due to service provider by virtue of that order.
2. If an assignment is given directly or indirectly by a natural person on behalf of a legal entity, this natural person can also be the principal in private. This requires that this natural person can be regarded as the (co)policymaker of the legal entity. In the event of non-payment by the legal entity, the natural person is therefore personally liable for payment of the invoice, regardless of whether it is made out in the name of a legal entity or in the name of the client as a natural person or both of them, whether or not at the client’s request.

Article 21 – Indemnification

The client shall indemnify service provider against all claims of third parties, related to the goods and/or services provided by service provider.

Article 22 – Duty to complain

1. Client is obliged to report complaints about the work performed to service provider within 10 (ten) working days by email (complaint@ movementsmarketing.com). The complaint shall contain as detailed a description of the shortcoming as possible, so that Service Provider is able to respond adequately.
2. In any case, a complaint cannot result in the service provider being held to perform other work than agreed upon.

Article 23 – Retention of title, right of suspension and right of retention

1. The goods and parts delivered to the client shall remain the property of service provider until the client has paid the entire agreed price. Until that time, service provider may invoke its retention of title and repossess the goods.
2. If the agreed amounts to be paid in advance are not paid or not paid on time, the service provider is entitled to suspend the work until the agreed part is still paid. There is then a question of creditor default. Late delivery cannot be held against the service provider in that case.
3. Service Provider is not authorized to pledge or otherwise encumber the items subject to its retention of title.
4. If goods have not yet been delivered, but the agreed advance payment or price has not been paid in accordance with agreement, service provider has the right of retention. The item will then not be delivered until client has paid in full and in accordance with agreement.
5. In the event of liquidation, insolvency or suspension of payments of the client, the client’s obligations shall become immediately due and payable.

Article 24 – lntellectual property

1. Unless the parties have agreed otherwise in writing, service provider retains all intellectual absolute rights (including copyright, patent, trademark, drawing and model rights, etc.) in all designs, drawings, writings, carriers containing data or other information, quotations, illustrations, sketches, models, models, etc.
   The said intellectual absolute rights may not be copied, shown and/or made available to third parties, or used in any other way without service provider’s written consent.
2. Client undertakes to keep confidential the confidential information made available to him by service provider.
   Confidential information shall in any case mean that to which this article relates, as well as company data.
   Client undertakes to impose on his personnel and/or third parties involved in the execution of this agreement a written duty of confidentiality of the scope of this provision.

Article 25 – Secrecy

Each of the parties shall keep secret the information which it receives (in whatever form) from the other party, and all other information concerning the other party which it knows or can reasonably suspect to be secret or confidential, or information the dissemination of which it can expect to harm the other party, and shall take all necessary measures to ensure that its personnel also keep the said information secret.
The duty of confidentiality referred to in the first paragraph of this article shall not apply to information:

1. that was already public at the time it was received by the recipient or has subsequently become public without a breach by the receiving party of a duty of confidentiality owed to him;
2. which the receiving party can prove was already in its possession at the time of provision by the other party;
3. received by the receiving party from a third party, where such third party was entitled to provide such information to the receiving party;
4. disclosed by the receiving party pursuant to a legal duty.

The obligation of confidentiality described in this article shall apply for the duration of this agreement and for a period of3 (three) years after its termination.

Article 26 – Penalty for breach of confidentiality obligation

If the client violates the article of these general terms and conditions on confidentiality, the client forfeits to the service provider an immediately payable fine of € 5,000 (in words: five thousand euros) for each violation, and in addition an amount of € 1,000 (in words: one thousand euros) for each day that the violation continues. This is regardless of whether the violation can be attributed to the principal. Moreover, no prior notice of default or legal proceedings are required for the forfeiture of this penalty.
There is also no need for any form of damage.
The forfeiture of the penalty referred to in the first paragraph of this article does not affect the service provider’s other rights,including his right to claim damages in addition to the penalty.

Article 27 – Non-acquisition of personnel

The client shall not employ any employees of the service provider (or of companies called upon by the service provider for the performance of this agreement, and who are (have been) involved in the performance of the agreement). Nor shall he allow them to work for himself in any other way (directly, or indirectly). This prohibition shall apply during the term of the agreement until one year after its termination.
In the event of violation of this article, the service provider shall charge the client €10,000 (in words: ten thousand euros) as compensation for damages. There is an exception to this prohibition: parties may make other arrangements in good business consultation with each other.
These arrangements shall apply insofar as they have been recorded in writing.

Article 28 – Modification of general conditions

Movements Marketing Services shall be entitled to amend or supplement these general terms and conditions.
Changes of minor importance may be made at any time; major substantive changes will be discussed with the client/client in advance as much as possible.

Article 29 – Applicable law and competent court

All agreements between the parties shall be exclusively governed by Dutch law.
The Dutch court in the district where Movements Marketing Services BV has its registered office/offices shall have exclusive jurisdiction to hear any disputes between the parties, unless the law imperatively dictates otherwise.