Article 1. Definitions
- Contractor shall be understood to mean Value@Stake BV, based in Hilversum (The Netherlands), that has accepted the order for the work to be done.
- Client shall be understood to mean the party that has issued the order to Value@Stake BV for the work to be done.
- Order shall be understood to mean the request from the Client to Value@Stake BV to perform work that is compensated by payment.
- Work shall be understood to mean everything that Value@Stake BV makes and does, or has third parties do, for the Client within the framework of the orders issued by the Client for the communication objectives.
- Offer shall be understood to mean the more or less specified work to be done and the estimate of the costs associated with this work.
Article 2. Deviating conditions
- These conditions apply to all offers, agreements and deliveries from Value@Stake BV, unless they are expressly stated in writing not to be applicable, in part or in full.
- Any conditions imposed by the Client for the issue of orders shall only form part of the agreement made between the parties if both parties expressly agree to this in writing.
- Should the conditions of the Client be found to be applicable anyway, together with the conditions of Value@Stake BV, then the Client shall be considered to have relinquished any stipulation in the conditions that is contradictory to the conditions of Value@Stake BV, or be required to confirm that the Client has relinquished the applicability of such stipulations in writing upon first demand.
Article 3. Prices, delivery and payment
- Unless otherwise expressly stated, all prices exclude VAT, costs for the services of involved third parties and any shipping, transport, or travel costs.
- If between the acceptance and delivery of any service, any changes have taken place in the prices of the suppliers of Value@Stake BV, the wages of the staff and/or other circumstances have occurred that result in an increase in costs, then Value@Stake BV shall be entitled to charge these changes to the Client.
- If any involved third parties impose general conditions that deviate from the applicable conditions of Value@Stake BV, then Value@Stake BV is entitled to apply these deviating conditions to the services that are delivered to the Client with the aid of these third parties. Following notice of this from Value@Stake BV, these third party conditions shall be considered to be part of these present conditions.
- All deliveries shall be considered to be made at the location where Value@Stake BV is established.
- All payments shall be made by the Client to an account indicated by Value@Stake BV within the payment period applied by Value@Stake BV.
Article 4. Offers
- All offers are free of obligation, unless otherwise stated in the offer. Withdrawal by Value@Stake BV of any offer that is free of obligation shall be possible within 48 hours after acceptance.
- The services and prices offered in any offer are always based on an estimate of the practicality. Allowable margins are subject to what is later stated in these conditions with regard to deviations and transgressions.
- If requested, Value@Stake BV shall submit an offer for approval to the Client prior to starting work. The notification by the Client that an offer has been approved shall only apply as acceptance after the Client has expressly stated that they give the order to Value@Stake BV in accordance with the approved offer.
- Insofar as unavoidable deviations occur in the execution of the order with regard to an offer, Value@Stake BV shall inform the Client of this at the earliest possible occasion.
Article 5. Customer contact
- At the request of the client, Value@Stake BV shall compile a meeting report of meetings that take place.
- In case of contact by telephone, confirmation will only be sent if the content of the conversation gives cause for this in the opinion of Value@Stake BV.
- If the Client has not responded within two working days after sending a meeting report or confirmation, the content of the report shall be considered to be correct and complete and the Client and Value@Stake BV shall be bound by the content of the report.
- Value@Stake BV shall send the confirmation or the meeting report to the contact person with whom the meeting has taken place.
Article 6. Duration and termination of collaboration
- The collaboration shall be entered into for an indefinite period, unless a defined period is mutually agreed upon. With an agreement for an indefinite period, the parties shall mutually arrange a period of notice in the agreement for termination of the agreement.
- In case of termination, a two-month period of notice shall be applicable. In case of collaboration that has lasted longer than a year, a three-month period of notice shall be applicable.
- In case of premature termination of the order by the Client, the Client shall be required to pay Value@Stake BV monthly compensation during the period of notice equal to the average declared fee over the twelve months prior to the period of notice, or the duration of the order if this is shorter.
Article 7. Orders and changes
- Exceeding offers by up to 10% shall be accepted by the Client as an estimation risk and shall not be reported as such.
- An order shall be accepted by Value@Stake BV by confirming acceptance in writing or verbally to the Client, or by starting work so that the Client knows that Value@Stake BV has begun the execution.
- The Client shall be bound by and as of the issue of the order, even if the period of withdrawal of the offer has not yet elapsed.
- Changes in the order, after the order has been issued, shall be made known in good time by the Client to Value@Stake BV verbally and in writing. Notifications that are not received or not received in good time by the Client shall not be considered and do not affect the original order. Only after written confirmation of receipt of the change is this binding for Value@Stake BV, without prejudice to possibility that the extra and/or reduced costs that result from the change to the service must still be established between the parties to be binding.
- Any extra or reduced costs as a result of changes in the order shall be debited or credited to the Client. Changes in the order may result in the indicated time periods for the provision of any service by Value@Stake BV being exceeded.
Article 8. Employment of third party services
- If the involvement of third parties is reasonably necessary in the opinion of Value@Stake BV for the proper fulfillment of an order, or results from the nature of an order, Value@Stake BV is entitled to extend orders to third parties on behalf of and on the account of the Client to deliver or otherwise make available certain goods and/or services to Value@Stake BV.
Article 8A. Details for the execution of work
- The work shall be performed in accordance with the arrangements for implementation made with the Client. If deemed necessary by the Client in the interest of good execution, it is always possible to deviate from this upon consultation.
- Value@Stake BV shall be informed in good time of such deviations. Failure to inform Value@Stake BV does not mean that the order has not been performed properly. Only work that cannot be supposed to concern the execution of what has been agreed falls outside the order, excepting what is stated in the paragraph below.
- Value@Stake BV shall always be permitted to perform work that falls outside the order, if this has been additionally agreed either verbally or in writing. Only for an additional order in the area of work that is usually agreed with Value@Stake BV via a standard model, is a written agreement according to that model required.
Article 9. Payment and payment conditions
- Payment must, without prejudice to the stipulations of the following paragraphs, be made within fourteen days of the invoice date, and in the absence of such a period within thirty days of the invoice date.
- Value@Stake BV shall ensure timely invoicing. Partial invoicing is always possible, unless this has been expressly excluded in writing.
- Value@Stake BV is, regardless of the agreed payment conditions, entitled to timely payment to Value@Stake BV in case of doubt, exclusively to be assessed by the latter and regardless of the basis for such doubt, to request a bank guarantee that is agreed by Value@Stake BV as security for the payment from the Client and/or to payment in or more advances.
- If the Client does not fulfill his payment obligation within the agreed period with regard to Value@Stake BV, he shall – without a prior injunction or default being required – owe the legal interest on the invoice amount from the day upon which the invoice should have been paid. Inasmuch as the Act implementing Directive 2000/35/EC of the European Parliament and of the Council of 29 June 2000 on combating late payment in commercial transactions is not applicable, the legal interest shall not be owing, but a percentage that is equal to the definition of legal interest in the new Article 120 paragraph 2 of the Dutch Civil Code to be implemented by this law. According to this definition, the legal interest is equal to the refinancing rate that has been established by the European Central Bank, supplemented by seven percentage points, as defined in the latter article of legislation.
- All costs, both legal and non-legal, associated with the collection of the amount owing by the Client that has not been paid in a timely manner, shall be borne by the Client, also if this concerns the costs of a lawyer that exceed the liquidated legal costs. The existence of these invoices and the submission of a photocopy to the Client shall serve as binding proof that these costs are owing. Regardless of the actual costs incurred, with regard to the non-legal collection of a claim at least 15% of the involved invoice amount shall always be payable as compensation with a minimum of €100 per invoice.
- Payments made by the Client shall always first be applied to the owing interest and costs and only then to fulfil the invoice amount that has been outstanding the longest, even if the Client indicates upon payment to wish to pay another invoice with that payment.
- The obligation to payment of amounts that the Client has charged for his services cannot be put against a claim that Value@Stake BV has against the Client with regard to compensation of damages. Any claim regarding compensation of damages can only then be exchanged if the damage and the compensation amount to be paid by Value@Stake BV are determined to be binding in mutual discussion between the parties.
- The Client can only object to the invoice within the payment period stated on the invoice.
- The Contractor is entitled to request an advance on the costs.
Article 10. Personnel
- The Client shall not be permitted to employ employees of Value@Stake BV during the period of the agreement or in the subsequent period of one (1) year.
- For any transgression of the previous paragraph, the Client shall owe a fine of € 2,500 (two thousand-five hundred euros) to Value@Stake BV, payable immediately for each day that the Client continues the transgression, without prejudice to the right of Value@Stake BV to recover the actual damages from the Client.
Article 11. Suspension, stoppage and dissolution
- Value@Stake BV is entitled to suspend or to stop the further implementation of the order, if the Client does not respect the payment conditions and/or remains in default with setting a bank guarantee and/or the payment of the desired advances.
- Moreover, Value@Stake BV is entitled to dissolve the existing agreements between him and the Client insofar as they have not yet been implemented, without court intervention, if the Client does not in good time or adequately meet his obligations resulting from any agreement made with Value@Stake BV, including the obligation to adequately inform Value@Stake BV of the wishes of the Client, or in case of bankruptcy or suspension of payment of the Client or in case of cessation or liquidation of his company.
- The consequences of suspension, stoppage and/or dissolution shall be borne in full on account and at risk of the Client.
- Suspension, stoppage and/or dissolution do not affect the obligation of payment for the work that has already been done. In addition, Value@Stake BV is then entitled to claim from the Client compensation of damages, costs and interest caused by the default of the Client and the dissolution of the contract, including the income lost by Value@Stake BV.
Article 12. Delivery times
- Any times given upon which a service may be expected shall only be applicable as an approximation. Regardless of what has been otherwise agreed with regard to points in time, the failure to timely provide an agreed service shall in no case give the Client any right to compensation of damages. Dissolution of the agreement on these grounds is only possible after Value@Stake BV has failed to provide the service owing for thirty days after proof of default.
Article 13. Duty of care, confidentiality
- In the performance of the work for the Client, Value@Stake BV shall exercise the greatest possible care when providing the services for which the Client has employed Value@Stake BV. Unless Value@Stake BV has guaranteed a result, expressly and in writing, Value@Stake BV is only bound to a best effort obligation as this is formulated in the first sentence of this article and is elaborated elsewhere in these general conditions.
- In particular, Value@Stake BV shall – assuming that clear agreements have been made regarding the purpose – ensure the design and execution of the communications and other materials and for the fulfillment of the applicable legal requirements, code of conduct, normative values and guidelines, insofar as these can reasonably be expected to be known to Value@Stake BV.
- At the same time Value@Stake BV shall maintain the confidentiality of the data and information that is considered to be of a confidential nature that is made available to Value@Stake BV by the Client in the framework of the order.
Article 14. Objections, complaints and evidence
- With regard to deficiencies that can be detected directly, an objection must be made in writing by the Client immediately after Value@Stake BV has delivered or presented the work done to the client.
- With regard to deficiencies that are not directly noticeable, an objection must be made in writing within eight days of the moment in time that they could reasonably have been detected.
- Objections regarding invoicing must be made in writing to Value@Stake BV within eight days after the date of sending the invoice. The payment period shall not be suspended as a result of such an objection.
- After expiry of the stated periods, complaints shall no longer be handled and the Client’s rights are included in this. Unless the period should reasonably need extending in a given case.
- Subject to contrary evidence, the information from the administration of Value@Stake BV shall be decisive.
Article 15. Liability and third-party indemnity
- The liability for work done for the Client that has been assigned to third parties by Value@Stake BV is limited insofar as the third party effectively indemnifies Value@Stake BV. Value@Stake BV shall do everything, and the Client shall extend every cooperation that can be desired from him where necessary to obtain the highest possible compensation of damages from the involved third party.
- The Client indemnifies Value@Stake BV against all claims for damages from third parties regarding the correctness and the actual content of the material that Value@Stake BV has received from the Client to be used by Value@Stake BV for the creation of communications and obtaining editorial attention in the media and of all other materials that have been presented to him by the Client. This is of course without prejudice to the duty of care of Value@Stake BV ex Article 11 of these conditions.
Article 16. Liability for damages
- The total liability of Value@Stake BV due to imputable deficiencies in the observance of an agreement is limited to the compensation of direct damages up to a maximum of the amount of the price agreed for this agreement (excl. VAT) less the out-of-pocket costs for the delivered products. If the agreement is primarily a limited period agreement with a term of more than one year, the agreed price shall be set to the total of the compensations (excl. VAT) agreed for one year. In no case however shall the total compensation for direct damage exceed € 10,000 (ten thousand euros).
- Direct damage shall only be understood to mean:
a: The reasonable costs that the Client should have to incur to answer the performance of Value@Stake BV in the agreement; this damage shall however not be compensated if the Client has dissolved the agreement.
b: Reasonable costs incurred to establish the cause and extent of the damage, insofar as the assessment refers to direct damage in the sense of these conditions;
c: Reasonable costs incurred to prevent or limit damages, insofar as the Client demonstrates that these costs have led to limitation of the direct damage in the sense of these conditions.
- Value@Stake BV shall not be liable for damages, loss or destruction of objects, materials or information that were made available to him for, by or on behalf of the Client. The total liability of Value@Stake BV for damages due to death or bodily injury or for material damages of items shall in no case exceed the amount for which the Client is insured, and in the absence of coverage shall be limited to a maximum of € 10,000 (ten thousand euros) per event, where a series of connected events counts as a single event.
- The above is also applicable if the Client states that the damage was suffered as a result of an unlawful act for which Value@Stake BV is liable, without prejudice to the possibility that there is no liability due to the fact that the unlawful act was committed by a subordinate or auxiliary person of whom Value@Stake BV has made use for the execution of an agreement as referred to in the articles 6:170, 6:171 or 6:172 of the Dutch Civil Code and the respective act was committed under such circumstances that Value@Stake BV is not liable due to the stipulations in these sections of the law.
- Value@Stake BV shall in no case be held liable for indirect damages, including consequential damages, lost profits, missed savings and damages due to business interruption.
- Outside the cases mentioned in paragraphs 1, 3 and 4, Value@Stake BV shall in no way be liable to compensation of damages, regardless of the grounds upon which a claim for compensation of damages is based.
- The maximum amounts stated in paragraphs 1 and 3 shall however be invalid if and insofar the damage is the result of intent or gross negligence of Value@Stake BV, unless the intent or gross negligence involves non-managerial subordinates and other non-managerial auxiliary persons as referred to above in paragraph 4. In the last stated case, the limitations of liability remain in full force, which are agreed for this in Article 14.
- The liability of Value@Stake BV due to imputable deficiencies in the fulfillment of an agreement occurs only if the Client immediately and soundly declares Value@Stake BV to be in default in writing, setting a reasonable period for rectification of the deficiency and Value@Stake BV remains imputably deficient in the fulfillment of its obligations after this period. The statement of default must include as detailed as possible a description of the deficiencies in order to enable Value@Stake BV to respond adequately.
- A condition for any right to compensation of damages is always that the Client reports the damage to Value@Stake BV as quickly as possible after it arises.
Article 17. Responsibility
- The final responsibility for the content of the communications in the framework of the order lies with the Client.
- If the user is involved is directly involved, he has the right to independently – possibly as well as the client – to make a defense.
Article 18. Force majeure
- In the event that Value@Stake BV is impeded from fully or partially performing the agreed work due to force majeure, he has the right to suspend the execution of the agreement without legal intervention or to fully or partially consider the agreement dissolved, as he sees fit, without being liable for any compensation of damages or guarantee.
- Force majeure is understood to mean: strike, lockout, fire, machine failure or other operational disruptions, either with Value@Stake BV or with his contractor for goods or services, transport disruptions and other events outside his control, such as war, blockades, riots, epidemics, devaluation, flooding and storms, as well as sudden cancellation of certain media, delay or failure of delivery by Value@Stake BV, the failure to obtain the necessary permits and other governmental decisions.
Article 19. Intellectual property
- By giving an order for publication or reproduction of objects protected by the Copyright Act or any other legal stipulation in the area of intellectual property that has been made available by or on behalf of the Client, the Client declares that no transgression is made on legal requirements and on protected rights of third parties and he indemnifies Value@Stake BV against claims in this regard from third parties and/or against the direct and indirect consequences, both financial and otherwise, resulting from the publication or reproduction.
- Intellectual property rights and materials, resulting from the work, shall belong to Value@Stake BV at the moment that the respective agreement between the Client and Value@Stake BV ends, insofar as Value@Stake BV is the maker of these materials or has the position of copyright holder resulting from this creation. These rights and materials can be used freely by Value@Stake BV, without prejudice to the possibility that, resulting from the agreement with the Client, the Client also has the right to further use of these rights or materials. If desired by Value@Stake BV, these rights and materials shall be taken over by the Client, after everything – including the purchase of any development costs and intellectual property rights – the client owes to Value@Stake BV has been paid. Insofar as the intellectual property rights of third parties are at issue, Value@Stake BV shall, upon request of the Client, consult with these third parties prior to involving them as to whether full transfer is desired and/or possible, taking into account the associated costs.
- Value@Stake BV shall, unless there is an order as referred to in the first paragraph and otherwise in accordance with the liability clause of Article 14 of these conditions, indemnify the Client against claims from third parties, if and insofar as the Client should transgress any rights to industrial or intellectual property through the use of the delivered products. In case of a claim by a third party, the Client shall be required to inform Value@Stake BV in writing within 48 hours and if requested to provide all the information and to provide cooperation as is necessary for conducting a defense and/or settlement negotiations.
- During the term of the agreement, the Client is not entitled to any further or other use of the product of the order other than the use expressly agreed upon in advance. If no agreement has been made about this, then the first use shall be considered the agreed use.
- Use by third parties is therefore not permitted without written permission of Value@Stake Communicatie. Insofar as Value@Stake Communicatie is authorized for this, it shall in accordance with the conditions above issue the license with regard to the work produced, in the framework of the execution of the order by third parties for the counter party.
- In case of failure to meet the obligations stipulated in Article 17, the client shall owe a fine of € 30,000 (thirty thousand euros) for every transgression, payable immediately, regardless of any other rights of Value@Stake, including but not limited to fulfillment of dissolution and compensation of damages.
Article 20. The nature and duration of the agreement
- Unless otherwise expressly agreed in writing, or this results from the nature of the order, the order agreement shall apply for an indefinite period of time, with the understanding that from the moment that the agreement has lasted three months, both parties can cancel the agreement by registered letter, taking into account one month’s notice.
- During the one month’s notice stated in the above paragraph, the Client shall be required to fulfill the applicable payment agreement with Value@Stake BV as if no cancellation had been given.
Article 21. Transfer of rights and obligations
- Neither of the parties is entitled to transfer the rights and obligations resulting from agreements made under these conditions, in full or in part, to third parties, without prior written permission of the other party.
- In the event that the (relevant activities of the) company of the Client, for whatever reason, in whatever way and in whatever form, are combined with or continued in a different company, then with regard to the obligations of the Client referred to in 1, the original and subsequent companies shall be severally liable.
Article 22. Consequences of termination of the agreement
- All points of view, designs, reproduction materials, texts, descriptions, artistic performances, films and other publicity materials that are held by Value@Stake BV at the end of the agreement as a result of the existing relationship, shall be transferred to the Client upon first request at no charge, after all that is owing by the Client to him, for whatever reason, has been settled, without prejudice to the stipulations of Art. 16 on the materials and rights of which Value@Stake BV is the maker, or of which the intellectual property rights belong to Value@Stake BV or the third parties referred to in Art. 16.
- In all cases in which an agreement between the Client and Value@Stake BV ends, as a result of any stipulation of these conditions or by intervention of the court, these conditions shall continue to govern the legal relationship between the parties, insofar as this is necessary for the fulfillment of the relationship.
Article 23. Authorized court
All agreements made under these conditions and agreements that are the result of these are governed exclusively by Dutch law. All disputes resulting from the agreements made under these conditions and on agreements that are the result of these can only be brought before the courts at the authorized court in the district in which Value@Stake BV is based, including obtaining interim provisions.