SEEDERS GENERAL TERMS AND CONDITIONS
Article 1. Definitions
1. In these General Terms and Conditions Seeders is understood to mean Seeders internet & marketing, established and having its registered office in Zwolle, registered in the register of the Chamber of Commerce under number 83128344.
2. The client is understood to mean the natural or legal person, the joint ventures without legal personality, as well as his representative and authorized representative, who have concluded an agreement with Seeders or wish to conclude it.
Article 2. General
1. These General Terms and Conditions apply to the creation, content and performance of all agreements concluded between the client and Seeders.
2. The General Terms and Conditions apply to every offer, quotation and agreement between Seeders and the client to which Seeders has declared these terms and conditions applicable. The present terms and conditions also apply to all agreements with Seeders, for the implementation of which third parties must be involved.
3. Deviating clauses and agreements are only valid if they have been explicitly agreed upon in writing with Seeders.
Article 3. Offers and quotations
1. The offers made by Seeders are entire without obligation. Offers are valid for 30 days unless otherwise indicated. Seeders is only bound by the offers if the acceptance thereof is confirmed in writing by the other party within 30 days unless indicated otherwise.
2. Deviations from quotations made only bind Seeders if they have been confirmed in writing by Seeders.
3. An order or assignment is binding on the client. Seeders is first bound by sending the order confirmation. If the client has not made his objections known to Seeders within eight days after sending the order confirmation, the order confirmation is deemed to accurately and completely reflect the agreement.
4. A compound quotation does not oblige Seeders to perform part of the assignment against a corresponding part of the stated price.
5. Offers or quotations do not automatically apply to future assignments.
6. If the client wishes to give the same assignment simultaneously to others than Seeders, he must inform Seeders of this, stating the names of the others.
7. The prices in the aforementioned offers and quotations are exclusive of VAT unless stated otherwise.
Article 4. Execution of the agreement
1. Seeders will make every effort to carry out the assignment carefully and independently, to represent the interests of the client to the best of their ability and to strive for a result that is useful to the client. To the extent necessary, Seeders will keep the client informed of the progress of the work.
2. If, and in so far, required for the proper execution of the agreement, Seeders has the right to have certain work done by third parties.
3. The client ensures that all data, of which Seeders indicates that they are necessary or of which the client should reasonably understand that they are necessary for the execution of the agreement, is provided to Seeders in a timely manner.
4. If the information required for the execution of the agreement is not provided to Seeders in time, Seeders has the right to suspend the execution of the agreement and/or charge the additional costs resulting from the delay to the client in accordance with the usual rates.
5. Seeders is not liable for damage, of any nature whatsoever, because Seeders assumed incorrect and/or incomplete information provided by the client unless Seeders should have been aware of this inaccuracy or incompleteness.
6. If Seeders draws up a budget for costs of third parties at the request of the client, this budget will only have an indicative purpose. If desired, Seeders can request quotations on behalf of the client.
7. If it has been agreed that the agreement will be implemented in phases, Seeders can suspend the implementation of those parts that belong to a subsequent phase until the client has approved the results of the preceding phase in writing.
8. Seeders will, if deemed necessary, make a discussion report of all oral discussions with the client and send it to the client. If the client has not responded within two working days of receiving a discussion report, the parties are bound by the content of this discussion report. Seeders do not accept any liability for the correct execution of telephone / electronic (e-mail) discussions, assignments, changes or additions to assignments, unless these telephone / electronic (e-mail) contacts have been confirmed in writing.
9. Before proceeding with production, reproduction or publication, the parties must give each other the opportunity to check and approve the latest models, prototypes or tests of the subject. At Seeders’ request, the client must confirm his approval in writing or by e-mail.
10. A period specified by Seeders for the completion of the services/products to be delivered by it has an indicative purpose unless the nature or content of the agreement shows otherwise. Seeders are also in default even after a specified period for the completion of the services/products to be delivered by it after the client has given notice of default by registered letter and failure to comply within the reasonable period stated in the notice of default. If the parties agree that the agreement will be amended or 2 supplemented, the time of completion of the implementation may be affected. Seeders will inform the client of this as soon as possible.
11. In the event that Seeders sends (parts/parts of) the product to the in any way whatsoever, including, but not limited to, sending by post, courier or via electronic messaging, this shipment takes place at the expense and risk of the client.
12. If a client wishes to change the execution of an assignment, Seeders is only obliged to execute this if this is reasonably possible. In that case, the client is obliged to reimburse Seeders for the costs it has already incurred, even if these have been made unnecessary in the final form of the assignment.
13. The client indemnifies Seeders against any claims from third parties who suffer damage in connection with the execution of the agreement and which is attributable to the client.
14. If Seeders carries out an assignment under contract, it is (unless expressly agreed otherwise in writing) entitled to contact the contracting authority directly about the technical implementation of the assignment.
Article 5. Amendment of the agreement
1. If during the execution of the agreement it appears that for a proper execution it is necessary to change or supplement the work performed, the parties will adjust the agreement accordingly in a timely manner and in mutual consultation.
2. If the parties agree that the agreement will be amended or supplemented, the time of completion of the implementation may be affected. Seeders will inform the client of this as soon as possible.
3. If the change or supplement to the agreement has financial and/or qualitative consequences, Seeders will inform the client about this in advance. If a fixed fee has been agreed upon, Seeders will indicate to what extent the change or supplement to the agreement will result in this fee being exceeded.
4. Notwithstanding paragraph 3, Seeders will not be able to charge additional costs if the change or supplement is the result of circumstances that can be attributed to Seeders.
Article 6. Contract duration; execution time
1. The agreement between Seeders and a client is entered into for an indefinite period of time unless the nature of the agreement dictates otherwise or the parties expressly agree otherwise in writing.
2. If a period has been agreed for the completion of certain activities within the term of the agreement, this is never a strict deadline. If the execution period is exceeded, the client must therefore give Seeders written notice of default.
Article 7. Fee
1. Paragraphs 2 and 3 of this article apply to offers and agreements in which a fixed fee is offered or agreed. If no fixed fee is agreed upon, paragraphs 3 to 6 of this article apply.
2. The parties can agree on a fixed fee upon the conclusion of the agreement. The fixed fee does not include VAT, travel hours, travel and accommodation costs.
3. If Seeders is forced to perform more and/or other work due to a late or non-delivery of complete, sound and clear data/materials or due to a changed or incorrect assignment or briefing, these activities will be honored separately, based on the usual fee rates applied by Seeders.
4. If no fixed fee is agreed upon, the fee will be determined on the basis of the hours actually spent. The fee is calculated in accordance with the usual hourly rates of Seeders, applicable for the period in which the work is performed unless a different hourly rate has been agreed upon.
5. The fee is and any cost estimates are exclusive of VAT, travel hours, travel and accommodation costs.
6. For orders with a duration of more than three months, the costs due will be charged periodically.
Article 8. Payment
1. Payment must be made within 14 days of the invoice date. If after the expiry of this period Seeders has not yet received (full) payment, the client is in default and he owes an interest equal to the legal interest. The interest on the claimable amount will be calculated from the moment that the client is in default until the moment of payment of the full amount.
2. In the event of liquidation, bankruptcy, seizure or suspension of payment from the client, Seeders’ claims against the client are immediately claimable.
3. The client makes the payments due to Seeders without discount or compensation, subject to settlement with deductible advances related to the agreement, which he has provided to Seeders.
4. Payments made by the client are first and foremost to settle all interest and costs owed, and secondly, due and payable invoices that have been outstanding the longest, even if the client states that the payment relates to a later invoice.
5. Seeders shall be entitled to increase the fee during the term of the agreement. This increase will be announced to the client by letter or e-mail. The client is entitled to terminate the agreement within 14 days of this announcement if and insofar as (i) the increase amounts to 10% or more and (ii) the content of the agreement does not change otherwise. If there is an increase in the fee within 3 months of the conclusion of the agreement with the client, the client may dissolve the agreement. Termination must take place in writing and take effect on the date on which the increase takes effect. This right of termination does not apply if the increase is less than 10%.
Article 9. Retention of title and collection
1. All goods delivered by Seeders, including designs, sketches, drawings, software, (electronic) files, etc., remain the property of Seeders until the client has fulfilled all of the following obligations under all agreements concluded with Seeders.
2. In the 3 event that Seeders wishes to exercise its ownership rights referred to in this article, the client already gives seeders unconditional and irrevocable permission to enter all those places, both physical and non-physical, thereby thinking of server (space) and so on, where Seeders’ property is located and taking these things back with them or dismantling them.
3. If the client is in default or in default in the (timely) fulfilment of his obligations, then all reasonable costs for obtaining satisfaction out of court will be borne by the client.
4. In the case of a monetary claim, collection costs, additional costs reasonably required by Seeders and any reasonable legal and execution costs incurred will be borne by the client.
Article 10. Cancellation
1. Both parties can cancel the agreement at any time, provided that the cancellation is in writing and with reasons. In that case, the parties must observe a notice period of at least one month.
2. If the activities of Seeders are transferred to third parties and the transfer of the activities entails additional costs for Seeders, these will be charged to the client.
3. In the event of premature termination, in addition to reimbursement of the costs incurred, Seeders is entitled to a reasonably determined part of the fee, taking into account the work already performed, the benefit that the client has and the grounds for termination.
Article 11. Suspension and termination
1. Seeders is authorized to suspend compliance with the obligations or to terminate the agreement if: Client does not or not fully comply with the obligations under the agreement. After the agreement was concluded, Seeders came to the knowledge that circumstances give good reason to fear that the client will not fulfil the obligations. At the conclusion of the agreement, the client was requested to provide security for the fulfilment of its obligations under the agreement and this security is not provided or is insufficient.
2. If the agreement is dissolved, the claims of Seeders on the client are immediately claimable. If Seeders suspends compliance with the obligations, it retains its rights under the law and agreement.
3. If the assignment is terminated prematurely for whatever reason, the client is no longer allowed to use the designs made available to him and any license granted to the client within the scope of the assignment is cancelled.
4. If the activities of Seeders consist of the repetitive performance of similar activities, the applicable agreement will apply for an indefinite period of time, unless otherwise agreed in writing. This agreement can only be terminated by written cancellation, with due observance of a reasonable notice period of at least one month.
5. Seeders always reserves the right to claim compensation.
Article 12. Liability
1. Seeders cannot be held liable for:
1. errors in the material provided by the client;
2. misunderstandings and/or errors with regard to the implementation of the agreement if these are caused or caused by acts of the client, such as late or non-delivery of complete, sound and clear data/materials;
3. errors by third parties engaged by/on behalf of the client;
4. defects in quotations from suppliers or overruns of quotations from suppliers;
5. errors in the design or the text/data, if the client has given his approval in accordance with the provisions of articles 4.6, 4.7 and 4.8;
6. errors and/or problems that arise after delivery and through use or maintenance of the product by others than Seeders;
7. indirect damage, including consequential damage, lost profit, missed savings and damage due to business interruption;
8. consequences by placing links or having third parties place links. 2. Except in those cases where the exclusion or limitation of liability is not permitted by law, Seeders’ liability for any claim, whether contractual or unlawful or otherwise, per event or series of events, will always be limited to 1. the amount to which Seeders’ liability insurance gives entitlement in a specific case;
2. If there is no coverage and/or payment under the aforementioned insurance, any liability is limited to an amount corresponding to the invoice value of the assignment, at least that part of the assignment to which the liability relates, with a maximum of € 2,000. 00.
3. Contrary to what is stated above under 2 a and b, for an assignment with a duration of more than six months, the liability is further limited to the invoice value due over the last six months, with a maximum of € 4,000.00.
3. The limitations of liability included in these conditions do not apply if the damage is due to intent or gross negligence of Seeders or its subordinates.
4. Any liability expires after the lapse of one year from the moment the assignment is completed.
5. After completion of the assignment, neither the client nor Seeders have any obligation towards each other with regard to the materials, data and results used.
6. Seeders also provide no warranty, directly or indirectly, with regard to its services or goods, unless otherwise specified in writing, including through the maintenance contract.
7. The client shall indemnify Seeders against all possible claims of third parties with regard to the services and/or (parts/parts of) products and results delivered by Seeders to the client.
Article 13. Safeguards
1. The client indemnifies Seeders against claims from third parties with regard to intellectual property rights on materials or data provided by the client, which are used in the execution of the agreement.
2. If the client provides Seeders with 4 information carriers, electronic files or software, etc., the client guarantees that this will not infringe on the property or copyrights of third parties, as well as that the information carriers, electronic files or software are free of viruses and defects.
Article 14. Force majeure
1. Parties may suspend the obligations under the agreement during a period of force majeure. If the period in which fulfilment of the obligations by Seeders is not possible due to force majeure lasts longer than two months, both parties are entitled to terminate the agreement without there being any obligation to pay compensation in that case.
2. If upon the commencement of the force majeure, Seeders has already partially fulfilled its obligations, or can only partially meet its obligations, Seeders is entitled to separately invoice the already performed or executable part and the client is obliged to settle this invoice as it concerned it a separate contract. However, this does not apply if the already executed or executable part has no independent value.
Article 15. Intellectual property and property rights
1. Without prejudice to the other provisions of these general terms and conditions, Seeders reserves the rights and powers that Seeders are entitled to under the Copyright Act.
2. All documents provided by Seeders, such as reports, advice, agreements, designs, sketches, drawings, software, etc., are exclusively intended for use by the client and may not be reproduced, published, or made public without the prior consent of Seeders, or brought to the knowledge of third parties unless the nature of the documents provided indicates otherwise.
3. The working drawings, prototypes, design sketches, films and other materials or (electronic) files produced by Seeders in the context of the assignment remain the property of Seeders, regardless of whether these have been handed over to the client or to third parties.
4. Unless the work does not lend itself to it, Seeders is at all times entitled to have its name mentioned on or near the work or to have it removed or removed. Without prior permission, the client is not permitted to take the work into production, make it public or reproduce it without mentioning the name Seeders.
5. Seeders reserves the right to use the knowledge gained through the performance of the work for other purposes, provided that no confidential information is disclosed to third parties.
6. Seeders have the freedom to use the design for its own publicity or promotion.
Article 16. Defects; complaint periods
1. Complaints about the work performed must be reported to Seeders in writing by the client within eight days after discovery, but no later than thirty days after completion of the work concerned.
2. If a complaint is justified, Seeders will still perform the work as agreed, unless this has meanwhile become futile for the client. The latter must be made known by the client. If it is no longer possible or useful to provide the agreed services, Seeders will only be liable within the limits of Article 12.
Article 17. Disputes
1. Contrary to the legal rules for the jurisdiction of the civil court, any dispute between the client and Seeders, in case the court has jurisdiction, will be settled by the Court in Goes. Seeders, however, remains authorized to sue the client before the competent court according to the law or the applicable international treaty.
2. Parties will only appeal to the courts after they have made every effort to settle a dispute in mutual consultation.
Article 18. Other provisions
1. If a sample or model has been shown or provided to the client, then it is assumed that it has only been provided as an indication unless it is expressly agreed that the product to be delivered will correspond to this.
2. Both parties are obliged to maintain the confidentiality of all confidential information that they have received from each other or from another source in the context of their agreement. Information is considered confidential if this is stated by the other party or if this results from the nature of the information.
3. Dutch law applies to every agreement between Seeders and the client.
4. Seeders reserves the right to change or supplement these Terms and Conditions.
Article 19. Privacy
1. Seeders processes personal data within the meaning of the General Data Protection Regulation (“AVG”). Client is regarded as the controller of the personal data and Seeders as the processor. The conditions for this processing of personal data by Seeders for the benefit of the client are set out in the Attachment Processing Agreement of these General Terms and Conditions.
2. Seeders processes personal data for the client for customized online marketing activities and for analyses.
APPENDIX PROCESSING AGREEMENT
Article 1. General
This appendix is supplementary to the general terms and conditions of Seeders and only relates to the possible processing of personal data. The client is defined in the context of the privacy legislation as the data controller and Seeders as the processor of personal data.
Article 2. Obligations of Seeders
Seeders shall only process the personal data necessary to carry out online marketing activities and analyses on behalf of the principal. Seeders will handle this personal data with care. The principal guarantees that the instructions given by him are in accordance with the current privacy legislation.
Article 3. Security
Seeders will make every effort to take appropriate technical and organisational measures to secure personal data against loss and unlawful processing.
Article 4. Sub-processors and transfer of personal data
The client shall allow Seeders to make use of sub-processors or services of sub-processors. Seeders does not need to inform the client of this if these sub-processors take-up on the same obligations as Seeders concerning privacy legislation and they are located within the European Economic Area. Seeders will only work with sub-processors that (possibly) do not comply with this if the customer gives instructions to work with specific sub-processors or agrees that Seeders will work with specific sub-processors.
Article 5. Duty to report a data breach
Seeders will inform the principal as soon as possible, and at least within 48 hours after Seeders has learned of a data breach. Seeders will inform the principal as completely as possible and will, as far as possible, take the necessary measures to stop the leak. At the request of the ordering party, Seeders will transfer the necessary information that is available to the ordering party, insofar as this is necessary for the ordering party to comply with its legal obligations concerning the Personal Data Authority.
Article 6. Secrecy
Seeders guarantees that employees of Seeders who have access to personal data will keep the personal data secret and refrain from passing on, copying, or otherwise distributing these personal data to third parties unless Seeders is obliged to do so based on the law or court order.
Article 7. Liability
Seeders may be placed in default if Seeders fails to comply with any obligations under this processing agreement. Seeders will be granted a reasonable term to still comply with the obligations after it has been notified of the notice of default in writing. The liability is limited to the amount mentioned in article 12 of the General Terms and Conditions. Both Seeders and the ordering party indemnify each other against claims from third parties concerning actions in violation of the Privacy Law.
Article 8. Audits
The principal is entitled to carry out an audit at Seeders or have this done by a third party. The costs of this audit are to be borne by the client. The outcome will be assessed jointly by Seeders and the principal.