General Terms and Conditions
dtpxpress BV acting under the name The Brand Floor
Article 1. Definitions
In these General Terms and Conditions the following terms shall have the meanings hereunder assigned to them unless expressly stated otherwise or unless the context otherwise requires:
- The Brand Floor: the User of these General Terms and Conditions: The Brand Floor, registered at Hilversum, the Netherlands, Vreelandseweg 7, registered with the Chamber of Commerce under “KvK” number 32093991;
- Agreement: the Agreement between The Brand Floor and Customer;
- Customer: the company that has ordered The Brand Floor to provide Services;
- Services: all Services to be provided by The Brand Floor for Customer;
- Work: all proposals, offers, price quotations, advice, drafts, content, information, files, designs, photos, videos, illustrations, texts, web designs and such produced by The Brand Floor under the Agreement;
- Employee: the natural person working for The Brand Floor who performs Services for Customer at the location of Customer.
- In these General Terms and Conditions the following terms shall have the meanings hereunder assigned to them unless expressly stated otherwise or unless the context otherwise requires:
Article 2. General
- These General Terms and Conditions apply to any offers and/or price quotations of The Brand Floor and any Agreements between The Brand Floor and Customer.
- Deviation of these General Terms and Conditions may be agreed only in writing or by email and will only apply to the Agreement to which they were expressly declared applicable.
- Any general (purchase) conditions of Customer’s are expressly rejected and are not applicable.
- In case one or more provisions of these General Terms and Conditions are invalid, in breach of the law or otherwise ineffective, that does not affect the validity of the remaining provisions. The invalid or ineffective provisions shall be replaced by The Brand Floor, taking into account the purpose and purport of the original provision(s) to the extent as possible.
- In case The Brand Floor does not always demand strict observance of these General Terms and Conditions that does not mean that the provisions thereof would not apply or that The Brand Floor would in any way forfeit the right to demand strict observance of the provisions of these General Terms and Conditions in any other cases.
- The Brand Floor has the right to modify these General Terms and Conditions.
- For the interpretation of the content matter of these General Terms and Conditions, the Dutch text shall at all times prevail.
Article 3. Offers and price quotations
- All offers and price quotations of The Brand Floor are free of engagement.
- Apparent mistakes or errors in offers, proposals, agreements or email messages of The Brand Floor or in its website shall not be binding on The Brand Floor.
- Anything that is provided by The Brand Floor under a proposal and/or offer will remain its inalienable property and shall be immediately returned by Customer upon request of The Brand Floor.
- In case, prior to the conclusion of the Agreement, designs, illustrations, texts, ideas and drafts have been provided and/or shown to a potential Customer by The Brand Floor and eventually no Agreement has been concluded, any use, reproduction or publication of the designs, illustrations, texts, ideas and drafts without the prior approval of The Brand Floor is prohibited. In case of violation of this provision The Brand Floor shall have the right to charge a normal market remuneration for the use thereof.
- All prices and rates expressed are exclusive of btw (VAT).
Article 4. Conclusion of the Agreement and termination
- The Agreement is concluded after the Agreement or offer of The Brand Floor has been signed and returned to The Brand Floor by Customer or after Customer has expressly accepted the offer of The Brand Floor in any other way.
- Customer may terminate the Agreement at any point in time. Termination must take place in writing or by email. After termination any Services that have already been provided shall be charged to Customer.
Article 5. Performance of the Agreement
- The Brand Floor will perform the Services to the best of its ability, acting as a conscientious professional.
- The Brand Floor will determine the way in which and by what Employees the Agreement is performed.
- The Brand Floor will never be obliged to perform any Services that are inconsistent with its professionalism, violate a right of any third party, a legal obligation or standards generally accepted in social and economic life.
- The Brand Floor cannot guarantee that performance of the Services will produce the result intended by Customer, such as increased turnover and/or increased brand awareness.
- Customer accepts that the time of provision of the Services may be influenced in case the parties agree to prematurely modify the approach, method or scope of the order and/or Services resulting from said order.
- The hardware used by The Brand Floor during the Services shall remain the property of The Brand Floor, unless expressly agreed otherwise by the parties.
Article 6. Publication and reproduction
- Before proceeding to publication or reproduction The Brand Floor will give Customer the opportunity to check and approve the design or text or test version. The Brand Floor is not responsible for errors in any published or reproduced texts and/or designs and/or printed matter, in case Customer has carried out a check, has given its approval and these errors were visible in the text and/or the design. The Brand Floor is not responsible for incorrect specification of drafts, texts and/or illustrations by Customer.
Article 7. Deviations
- Deviations between completed work on one hand and the original design on the other hand shall not be a reason for rejection, discount, cancellation of the Agreement or damages in case said deviations are of minor importance.
- Colours shown in the screen of Customer may differ from the actual colours of the completed Work. The Brand Floor is not liable for such colour deviations. A standard colour that has been determined objectively will apply only if such has been agreed in writing or by email.
Article 8. Times of delivery
- Times of delivery specified by The Brand Floor cannot be considered final deadlines.
- In case of non-observance of a time of delivery agreed with Customer by The Brand Floor, due to an event beyond the actual control of The Brand Floor, which event cannot be attributed to its acts and/or omissions such as, but not limited to those described in article 15 of these General Terms and Conditions, the time of delivery will be automatically extended by the time of non-observance caused by said event.
- Non-observance of a time of delivery does never give Customer a right to any damages or a different action towards The Brand Floor.
- In case The Brand Floor knows or suspects that it will not be able to deliver in time, The Brand Floor will inform Customer of that as soon as possible.
Article 9. Obligations of Customer
- Customer shall ensure that any information specified by The Brand Floor as necessary for the performance of the Agreement or which Customer should reasonably understand to be necessary for said performance, are made available in a timely manner. The information made available must meet the specifications provided by The Brand Floor.
- Customer shall always and in a timely manner give The Brand Floor any cooperation that is necessary for proper performance of the Agreement, and will make available any necessary materials and resources, such as a workplace equipped with desks and chairs for the Employees. The work place shall be equipped with an internet connection that performs properly, unless the parties have agreed that The Brand Floor itself will provide an internet connection.
- Customer shall give the Employees any authorizations that are necessary to be able to perform the Services.
- Customer guarantees the accuracy, completeness and reliability of the information provided by Customer, also in case said information is obtained from third parties. Customer indemnifies The Brand Floor from and against damage caused by inaccurate or incorrect information provided.
- Customer shall notify The Brand Floor of local legislation and regulations that may be relevant for the performance of the Services agreed.
- Customer shall ensure that the location(s) at which, the resources with which and the circumstances under which the Employees will have to perform the Services are safe and meet all legal requirements. Customer is obliged to take such precautions that the Employees are protected against danger to life or limb, honour and property.
- In case an Employee has sustained injury during the performance of his Services that is such that it has resulted in Employee’s death, Customer shall be obliged in accordance with section 6:108 BW (Netherlands Civil Code) towards the persons referred to in said section to compensate the damage caused to the persons referred to.
- Customer is obliged to immediately inform The Brand Floor of any facts and circumstances which may be relevant in connection with the performance of the Agreement.
- Customer itself is responsible for reproduction or publication of the content provided by Customer, the rights of which content are vested in third parties.
- Customer is not permitted to order The Brand Floor to produce Works that infringe rights of third parties such as but certainly not limited to trade mark rights, copyrights or other intellectual property rights of third parties. In case The Brand Floor establishes or suspects that the Work requested by Customer infringes said rights of third parties The Brand Floor shall have the right to cancel the order. The Brand Floor is not obliged to verify whether the Work requested by Customer infringes any rights of third parties or violates the law.
- Customer is obliged to see to an adequate liability insurance that offers comprehensive coverage for any direct and indirect damage as described in these General Terms and Conditions.
- In case of relocation of Customer, Customer is obliged to inform The Brand Floor of this in writing or by email as soon as possible.
- If Services are delayed due to an act and/or omission on the part of Customer, Customer will be informed of this and The Brand Floor can never be made liable for any damage (due to delay) resulting from this.
- In case Customer fails to comply with its obligations towards The Brand Floor, acts in violation of the law or commits a tort against The Brand Floor, Customer shall be liable for any damage caused to The Brand Floor due to that and The Brand Floor shall have the right to terminate the Agreement.
Article 10. Invoicing and payment
- Invoicing will take place after completion of the Work or after the end of the Agreement unless expressly agreed otherwise.
- Customer shall pay the invoices received from The Brand Floor within 4 weeks of invoice date unless expressly agreed otherwise.
- In case of non-observance of the term of payment Customer shall owe legal commercial interest in accordance with section 6:119a BW from the date at which the amount due has become payable until the time of payment. In addition to that, after Customer is in default, all costs of collection, both judicial and extrajudicial costs, shall be borne by Customer. The extrajudicial costs of collection are fixed at 15% of the principal amount with a minimum of € 150,-.
- Payment must take place without discount and setoff.
- In case of liquidation, bankruptcy or suspension of payment of Customer all claims of The Brand Floor on Customer shall become due and payable immediately.
- All payments by Customer shall first be applied to any interest(s) and costs of collection due. Any payments of Customer shall be applied to the oldest outstanding invoice only after payment of the amounts referred to above.
- The Brand Floor has the right to retain any goods, information, documents, data files received or produced under the Agreement despite any obligation to surrender said goods, until Customer has settled all amounts due to The Brand Floor.
Article 11. Intellectual property rights
- The copyright and any other intellectual property rights in offers and Works shall vest in The Brand Floor.
- After Customer has complied with its financial obligations towards The Brand Floor the intellectual property rights in the Works shall pass to Customer.
- By giving the order to publish or reproduce goods that have been made available by or on behalf of Customer itself, which goods are protected by the Auteurswet (Netherlands Copyright Act) or any other legal regulation in the field of intellectual property, Customer declares that said publication or reproduction does not violate any legal regulations and/or any protection rights vested in third parties, and Customer indemnifies and holds The Brand Floor harmless from and against any claims on account of that brought by any third parties and/or any direct and indirect consequences, both financial and otherwise, resulting from said publication or reproduction.
Article 12. Determination of the existence of rights
- Determining the existence of trade mark rights, protection of drawings or models, copyrights and rights of portrait is not part of the Agreement. The same applies to determination of the possibility of such forms of protection for Customer
- Customer itself is required to verify whether the materials made available to The Brand Floor by Customer for the purpose of performance of the Agreement do not infringe any trade mark rights, protection of drawings or models, copyrights or rights of portrait of any third parties
Article 13. Complaints
- Complaints about the Services must be reported to The Brand Floor by Customer as soon as possible. The notice of default must contain a description of the defect, stating details to the extent as possible, in order to enable The Brand Floor to respond adequately.
- After submitting a complaint Customer shall give The Brand Floor the opportunity to verify the validity of complaint and if necessary, the opportunity to subsequently perform the Services agreed. The fact that The Brand Floor looks into a complaint does not imply that The Brand Floor would acknowledge that the Services performed are defective.
- In case subsequent performance of the Services agreed is no longer possible or useful, The Brand Floor shall be liable only within the limits of article 14 of these General Terms and Conditions.
Article 14. Liability and limitation
The Brand Floor cannot be made liable for any damage directly or indirectly caused by:
- an event beyond the actual control of The Brand Floor, which therefore cannot be attributed to its acts and/or omissions such as described in for instance article 15 of these General Terms and Conditions;
- any acts or omissions of Customer’s, Customer’s subordinates or other persons engaged by or on behalf of Customer.
- Customer will under all circumstances be responsible for the accuracy and completeness of the documents and information provided by Customer. The Brand Floor is never liable for any damage which is (also) caused by the fact that information, documents, developed designs, content and such, are incorrect and/or incomplete. Customer indemnifies The Brand Floor from and against any claims in connection with that.
- Customer is obliged, to the extent as reasonably possible, to retain copies of materials and information provided by Customer, until the order has been completed. In case Customer fails to do so, The Brand Floor cannot be made liable for damage that would not have occurred if said copies had been retained.
- Customer itself is responsible for the decisions made by Customer in connection with a recommendation of The Brand Floor or otherwise.
- The Brand Floor is never liable for any damage of whatever kind caused to Customer in connection with the performance (or failure) of equipment, software or (internet) connections of Customer.
- The Brand Floor is not liable for distortion or loss of information as a result of transfer of information by telecommunication facilities.
- Any liability of The Brand Floor for consequential damage is excluded. Consequential damage in this connection will in any case include: loss of profit, loss of savings, loss of turnover, costs caused to prevent or assess consequential damage, loss or distortion of data, damage due to delay, reputational damage and imposed fines.
- In case The Brand Floor would be liable for any damage, the liability of The Brand Floor is limited to the amount of the payment made by the insurer of The Brand Floor. In case the insurer does not pay in any given case or the damage is not covered by the insurance, the liability of The Brand Floor shall be limited to the invoice amount, i.e. that part of the Agreement to which said liability applies.
- Customer indemnifies The Brand Floor from and against any claims brought against The Brand Floor by any third parties on account of events, acts or omissions for which The Brand Floor is not liable in accordance with the previous provisions. Customer is obliged to hold The Brand Floor harmless upon request for any costs, damage and interests caused to The Brand Floor as a direct or indirect consequence of a claim as referred to in this paragraph, instigated against The Brand Floor by any third party.
- Any claims and other powers of Customer for whatever reason against The Brand Floor shall in any case expire after the end of 1 year from that point in time at which a circumstance occurs on account of which Customer may exercise these rights and/or powers against The Brand Floor.
- The Brand Floor cannot be made liable for any damage directly or indirectly caused by:
Article 15. Force Majeure
- Force Majeure on the part of The Brand Floor includes any circumstances that prevent The Brand Floor from fulfilling its obligations under the Agreement or preparations thereof due to: malfunctions in connections of and with the internet, virus infections or computer hacking by third parties, interruptions of power supply, weather conditions, traffic disruptions, war, threat of war, terrorism, theft, fire, sickness of one or more Employees, defects of equipment, measures taken by the authorities and errors in software or online services of third parties.
- In case of Force Majeure The Brand Floor will be temporarily relieved of its obligation to perform the Services agreed. It will depend on the circumstances of the case whether that will be and remain the case for the all obligations or part thereof, or whether this will merely be a suspension of performance. In case of an opportunity to subsequently perform or perform in a different manner, both The Brand Floor and Customer will be obliged to use that opportunity.
Article 16. Suspension and termination of the Agreement
The Brand Floor has the right to suspend performance of the obligations or to terminate the Agreement in case:
- during performance of the Services Employees are exposed to a dangerous situation and/or in case of risk of a dangerous situation for Employees;
- customer does not or not fully fulfil its obligations and Customer has not complied with an issued notice of default. In case fulfilment is permanently impossible a notice of default is not required;
- after conclusion of the Agreement The Brand Floor learns of circumstances that are a justified reason to fear that Customer will not comply with its obligations. In case of justified reason for the fear that Customer will comply in part or will not properly comply, suspension is allowed only to the extent as justified by the default;
- customer has been granted suspension of payment;
- customer has been declared bankrupt;
- a legal debt restructuring regulation is declared applicable to Customer;
- customer’s enterprise is liquidated or discontinued.
- In case the Agreement is terminated the claims of The Brand Floor against Customer shall become due and payable immediately. In case The Brand Floor suspends fulfilment of its obligations it will retain its rights pursuant to the law and in accordance with the Agreement.
- The Brand Floor is not liable for any damage caused to Customer due to the fact that The Brand has terminated the Agreement prematurely or that The Brand Floor has suspended performance of the Agreement.
- The Brand Floor will at all times have the right to charge to Customer any damages caused to The Brand Floor on account of the fact that Customer has not, not in a timely manner or not properly complied with its obligations towards The Brand Floor. Damage is understood to include but is not limited to loss of turnover.
- The Brand Floor has the right to suspend performance of the obligations or to terminate the Agreement in case:
Article 17. Confidentiality
- Both parties are obliged to keep secret any confidential information which they have obtained from each other or other sources as part of their Agreement. Information is considered confidential if declared confidential by the other party or if it results from the nature of the information. The party receiving confidential information shall use this information only for the purpose for which it has been provided
- In cased The Brand Floor is obliged to disclose confidential information to third parties specified by law or by a competent court of law on the basis of a legal provision or a judgment by a court of law, and The Brand Floor cannot invoke a legal privilege that is acknowledged or granted by law or a competent court of law, The Brand Floor is not liable for damages or any compensation, and Customer does not have the right to terminate the Agreement on account of that.
Article 18. Applicable law and competent court of law
- All Agreements between The Brand Floor and Customer are governed by Netherlands law.
- Any disputes with respect to Agreements between Customer and The Brand Floor shall be submitted to jurisdiction of the competent court of law in the district in which The Brand Floor is registered.