General terms and conditions of Marketing Guys (part of Margu BV)
Article 1 / DEFINITIONS
“Marketing Guys”: Marketing Guys is an official trade name of Margu BV, registered with the Chamber of Commerce, established in Amersfoort.
“Margu”: Margu BV, established in Amersfoort, registered at the Chamber of Commerce in Gooi-, Eem- and Flevoland with number 54169054.
“Client”: The natural or legal person with whom Margu (or Marketing Guys) has concluded an Agreement.
“Terms and Conditions”: The terms and conditions of Marketing Guys (part of Margu) (Articles 1 to 12).
“Agreement”: The Agreement between Marketing Guys (Margu) and the client that is established with regard to the Service, in the manner as stipulated in article 3.
“Service”: The online marketing or training Service(s) to be provided by Marketing Guys (Margu).
Article 2 / APPLICABILITY
1. These general terms and conditions apply to all offers and acceptances on the part of Margu, including but not limited to Agreements, and/ or Agreements that result directly or indirectly from them.
2. Insofar as offers or acceptances addressed to Margu refer to other (general) terms and conditions, the applicability thereof is hereby explicitly rejected by Margu.
3. Deviations from these general terms and conditions are only possible if Margu has explicitly indicated this in writing prior to entering into any Agreement.
4. In the event that one or more of the articles from these general terms and conditions are null and void, the other articles will remain in full force.
Article 3 / OFFERS AND AGREEMENTS
1. Any offer made by Margu, both orally and in writing, is entirely non-committal. Written offers are valid for the duration of 30 days from the date of the offer.
2. Indication of dimensions and/ or weights, images or drawings, technical specifications, colour and type, quantity and composition, capacities and quality and the like in catalogues, brochures and or otherwise shall be as accurate as possible. However, these indications are only binding to the extent that Margu has explicitly confirmed them in writing.
3. The Agreement is concluded at the moment Margu has received the unaltered acceptance by the client of the offer made by Margu to the client, under the suspensory condition of approval by Margu.
4. In the event of a deviating acceptance by the client of an offer made by Margu to the client, the agreement will only be concluded if Margu explicitly and in writing informs the client that he agrees with this deviating acceptance, all this without prejudice to what is determined in the preceding paragraph of the article.
5. All offers made by Margu to the client, and agreements entered into between the client and Margu, are based on execution by Margu in normal working hours and under normal circumstances. If work is required during times that can be considered as overtime and/ or work needs to be done under deviating circumstances, the costs thereof will be regarded as additional work and Margu will charge the client such costs.
6. All prices stated by Margu are exclusive of VAT, unless explicitly stated otherwise in writing.
7. If the Client requests so in writing, the content of the Agreement can only be changed after it has been concluded, in such a way that Margu has indicated explicitly and in writing to the Client upon such a request. Insofar as the changes that were requested by the Client are not of a minor nature, the costs thereof will be regarded by Margu as additional work, and the Agreement will be continued in amended form as a result of what Margu has made known to the Client.
8. The client is obliged to provide Margu with all the cooperation that is necessary for the execution of the Agreement.
9. The Client will make all necessary provisions such as, but not limited to, electrical voltage, light, telecommunication facilities and auxiliary materials available to Margu for the execution of the Agreement, at her own expense.
10. If, on the part of Margu, any delay in the delivery and/ or execution of the Agreement should arise, which is directly or indirectly the result of the client not providing the required cooperation in accordance with this article, Margu will, in order to implement the Agreement, apply any necessary legal act, and charge the associated costs, namely the damage caused to Margu, to the client.
11. Margu is entitled to call in assistants, including subordinates, for the performance of the Agreement at its own expense. The costs as mentioned in this paragraph are only for the account of Margu insofar as the engagement of these assistants is not further specified in the Agreement.
12. In the event that the parties have agreed on a phased implementation of the Agreement, whereby each phase must be approved separately by the client, Margu is entitled to suspend the implementation of a subsequent phase if the client has not given approval for the completed phase and/ or refuses approval.
13. The starting date of the contract is the first day of the month for which the first invoice is sent by Margu.
14. The duration of the Agreement is one (1) year, unless otherwise agreed in the proposal.
15. The Agreement is automatically extended at the end of the term with the original contract term.
Article 4 / CONFIDENTIALITY
1. The parties are obliged to do everything in their power to prevent that confidential information of the other party that came to their knowledge in the context of the implementation of the Agreement comes to the knowledge or ends up in the hands of third parties. The foregoing does not apply if the disclosing party can prove that the information in question was already publicly known in any other way than by a breach of this confidentiality obligation.
2. The parties are not permitted to mention in ads, advertisements or otherwise, within the framework of their marketing activities, the fact that a business relationship exists or existed between them, unless the party concerned has given its express prior written permission.
3. Violation of the preceding paragraph means that the breaching party owes the other party a fine of € 5,000.00 (in words: five thousand euros and zero euro cents) that can be demanded for this party directly and without further notice of default, this without prejudice to the right of the parties to recover the full damage they have suffered from the breaching party.
4. In the event of termination of the Agreement for whatever reason, the provisions of this article remain in full force.
Article 5 / DELIVERY
1. The delivery time indicated by Margu commences at the moment that the Agreement has been concluded, at least at the moment that the client has provided Margu with the information required for delivery and/ or insofar as the client has fulfilled her obligations upon entering into the Agreement.
2. The client will grant Margu a reasonable period of time to meet its obligations if the agreed delivery time is exceeded other than due to force majeure. In any case, Margu will only be in default of its delivery obligation after this reasonable period has expired.
3. In a situation as described in Article 3, paragraph 12, the agreed delivery time is extended by the duration of the lack of approval by the client, all this insofar as the absence of this approval is not the direct result of any shortcoming in the fulfilment of the part of Margu.
4. If there is reasonable doubt on the part of Margu regarding the client’s compliance with his obligations under the Agreement, including, but not limited to his payment obligation, Margu is authorized, without being in default in this respect of its obligations under the Agreement, to suspend the Agreement.
Article 6 / PAYMENT
1. The client has to pay the invoices within 15 days after the invoice date stated on the relevant invoice, unless Margu has explicitly indicated a different payment term to the client in writing.
2. The payment of invoices by the client takes place without settlement, deduction, compensation and/ or suspension for whatever reason, unless Margu has given the client explicit permission in writing.
3. In the absence of payment by the client of the full invoice amount within the term as described in paragraph 1 of this article, the client is in default without further notice of default. If the client is in default, he will owe Margu a contractual interest of 1% per month on the outstanding invoice amount, or at least the statutory interest on the outstanding invoice amount insofar as the statutory interest should exceed the aforementioned contractual interest.
4. Payments made by the client will first be deducted from the interest and costs due to Margu as a result of the aforementioned paragraph and then from the longest outstanding invoice amounts.
5. Margu is not obliged to perform any work as long as the client is in default.
6. The client is responsible for all costs, judicial or extrajudicial, that are subject to the collection, at the rate of a percentage to be determined in accordance with the then applicable collection fee of the Dutch Order of Barristers (Nederlandse Orde van Advocaten), but with a minimum of € 75,00.
7. Within the framework of the relevant mandatory legal provisions, Margu is entitled to demand payment in advance before starting the execution of the assignment.
8. All claims by Margu on the client (whether or not as a result of the dissolution referred to in Article 9.1) become immediately due and payable if the client is declared bankrupt, applies for a provisional moratorium on payments, statutory debt restructuring is declared applicable to him, whether he loses the power to dispose of his assets or parts thereof as a result of seizure, injunction or otherwise, or because of any communication from and/ or circumstance on the part of the client, as a result of which Margu has well-founded doubts that the client will fall short in fulfilling his obligations. One of the aforementioned circumstances exists if, among others, Margu requests the client for additional security for the fulfilment of his obligations and this security is not provided or proves to be insufficient.
9. Margu’s rates are indexed annually in accordance with the Consumer Price Index (CPI) of the CBS.
Article 7 / RETENTION OF TITLE and INTELLECTUAL PROPERTY
1. Margu reserves the right of ownership of the goods delivered or to be delivered by her until Margu has been fully satisfied:
a. the amounts owed by the Client for all Services and/ or Goods delivered or to be delivered pursuant to the Agreement;
b. claims due to the Client’s failure to comply with the Agreement.
2. All current and future intellectual property rights and related rights to the results of the work performed by Margu on behalf of the Client are vested in Margu. Insofar as formalities are attached to the acquisition of the aforementioned intellectual property rights, only Margu will be able to perform them.
3. The Client guarantees that the materials, data, content and communications made available by him in the context of the execution of the assignment do not infringe statutory regulations, or the protective rights of third parties, or are otherwise unlawful in relation to third parties, and indemnifies Margu against the claims in respect of third parties or for the direct and indirect consequences, both financial and other, that arise from the use of those materials, data, etc, by Margu.
4. If any matter under paragraph 1 or 2 belongs to Margu, the Client may only dispose of it in the context of normal business operations. However, the Client may not transfer this property in ownership, or pledge it, or otherwise encumber it with a limited right.
5. The Client is not entitled to disclose the items, or the information contained therein or otherwise made known to him to third parties, unless Margu explicitly gives permission for this in writing.
6. In the event of a violation of the provisions of paragraphs 2 and 4, the Client will be liable for a penalty of € 5,000 for each violation, without prejudice to Margu’s right to full compensation.
Article 8 / DISSOLUTION
1. Without prejudice to the statutory powers of Margu in the event of default by the client, the Agreement will be dissolved without judicial intervention after a written statement when the client is declared bankrupt, applies for a provisional moratorium on payments, statutory debt restructuring is declared applicable to him, whether he loses the power to dispose of his assets or parts thereof through seizure, injunction or otherwise.
2. Due to the dissolution, existing claims will immediately become due and payable. The client is liable for the damage suffered by Margu, including, but not limited to, loss of profit.
3. The Agreement must be cancelled in writing at least two (2) months before the Agreement expires.
Article 9 / LIABILITY
1. Margu is only liable for damage that has arisen on the part of the client as a result of attributable failures in the performance of the Agreement by Margu, or by third parties and/ or subordinates engaged by Margu for the implementation of the Agreement, whereby the amount of the damage to be paid by Margu is limited to the monetary value of the Agreement in which third parties and/ or subordinates engaged by Margu for the implementation of the Agreement have culpably failed. In the case of long-standing Agreements, or Agreements with a duration of more than six months, the amount of the damage to be paid by Margu is limited to a monetary value with a maximum of six months of this Agreement.
2. Margu is not liable for any damage that may or may not be caused directly or indirectly by the actions of the client or third parties and/ or subordinates engaged by the client in the performance of the Agreement.
3. Insofar as the client has suffered damage caused by an unlawful act, intent and/ or gross negligence on the part of Margu, or by third parties and/ or subordinates engaged by Margu, the amount of the damage to be paid by Margu is limited to an amount of € 250,000 per damage-causing event, whereby a series of related facts is seen as one event.
4. In addition to liability as stated in this article, Margu is not liable for any other damage that might arise on the part of the client.
5. If and insofar as the abovementioned provisions cannot be invoked, the compensation per event, in which a series of related events counts as one event, will in no case amount to more than the price excluding sales tax stipulated in the Agreement between the parties in the context of which the event occurred.
Article 10 / FORCE MAJEURE
1. The delivery period agreed between Margu and the client is extended by the period during which Margu is prevented from fulfilling her obligations due to force majeure.
2. Force majeure on the part of Margu exists if, after the Agreement is concluded, Margu is prevented from fulfilling its obligations under this Agreement or the preparation thereof as a result of war, danger of war, civil war, terrorism, riot, molestation, fire, water damage, flood, strike, lock-out, exclusion, import and export restrictions, government measures, defects to machines, disruptions in the supply of energy, both within the company of Margu and with third parties from whom Margu must purchase the items required for the execution of the Agreement, as well as during storage or during transport, whether or not under her own management, and furthermore for all other causes, beyond fault or risk of Margu.
3. If the delivery is delayed by more than two months due to force majeure, both Margu and the client are entitled to consider the Agreement as terminated. In that case, Margu is only entitled to the costs it has incurred, including the reimbursement for the items already delivered to the client. Furthermore, the parties are not mutually bound to any obligation to annulment and/ or compensation.
Article 11 / DISPUTES
1. All disputes that may arise between the parties, as a result of their Agreement or of further Agreements that may result therefrom, or from any other existing or future legal relationship including but not limited to unlawful acts, undue payments and/ or unjust enrichments, will be settled by the Court of Arnhem, subject to and to the extent that mandatory rules of competence would prevent this.
2. All legal relationships existing between Margu and the client, including pre-contractual legal relationships, are governed by Dutch law.
3. A dispute is deemed to be present as soon as one of the parties declares so.