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Requirements

General terms and conditions Koekepeer

January 2024

GENERAL CONDITIONS OF: 

Koekepeer has its registered office in Amsterdam and has offices at zip code 1094 KP Amsterdam, at Eerste Atjehstraat 58-A, also trading under the names Koekepeer Productions, Koekepeer Productions and Koekepeer Media. Koekepeer is registered in the trade register under number 69392307.

Article 1 Definitions

  1. In these general terms and conditions, the following terms are used in the following meaning, unless expressly stated otherwise.
    User: the user of the general terms and conditions.
    Client: the user's counterparty.
    Agreement: the agreement for the provision of services.

Article 2 General

  1. These terms and conditions apply to every offer, quotation and agreement between the user and a client to which the user has declared these terms and conditions applicable and to all legal acts of the user arising from or related to them, insofar as the parties have not expressly deviated from these terms and conditions in writing.
    2. These terms and conditions also apply to all agreements with the user, for the implementation of which third parties must be involved.
    3. Any deviations from these general terms and conditions are only valid if expressly agreed in writing.
    4. The applicability of any purchase or other conditions of the client is expressly rejected.
    5. If one or more of the provisions in these general terms and conditions are void or should be nullified, the other provisions of these general terms and conditions will remain fully applicable. The user and the client will then enter into consultations in order to agree new provisions to replace the invalid or nullified provisions, whereby if and for as far as possible the purpose and purport of the original provision will be observed.

Article 3 Offers and quotations

  1. All offers, quotations and price estimates are without obligation, unless expressly stated otherwise in writing in the offer.
    2. The offers made by the user are without obligation; they are valid for 30 days unless otherwise indicated. The user is only bound by the offers if the acceptance thereof is confirmed in writing by the other party within 30 days, unless stated otherwise.
    3. The prices in the aforementioned offers and quotations are exclusive of VAT and other government levies, as well as any costs to be incurred in the context of the agreement, including shipping and handling costs, unless stated otherwise.
    4. If the acceptance deviates (on minor points) from the offer included in the quotation, the user is not bound by it. The agreement will then not be concluded in accordance with this deviating acceptance, unless the user indicates otherwise.
    5. A composite quotation does not oblige the user to perform part of the assignment for a corresponding part of the stated price.
    6. Offers or quotations do not automatically apply to future assignments.

Article 4 Execution of the agreement

  1. User will execute the agreement to the best of his knowledge and ability and in accordance with the requirements of good workmanship. All this on the basis of the state of science known at that time.
    2. If and insofar as required for the proper execution of the agreement, the user has the right to have certain work performed by third parties.
    3. The client shall ensure that all data, which the user indicates is necessary or which the client should reasonably understand to be necessary for the execution of the agreement, is provided to the user in a timely manner. If the information required for the execution of the agreement has not been provided to the user in time, the user has the right to suspend the execution of the agreement and / or to charge the extra costs resulting from the delay to the client at the usual rates. .
    4. The user is not liable for damage, of whatever nature, because the user relied on incorrect and / or incomplete information provided by the client, unless the user should have been aware of this inaccuracy or incompleteness.
    5. If it has been agreed that the agreement will be executed in phases, the user can suspend the execution of those parts that belong to the next phase until the client has approved the results of the preceding phase in writing.
    6. If work is carried out by the user or third parties engaged by the user in the context of the assignment at the location of the client or a location designated by the client, the client shall provide the facilities reasonably required by those employees free of charge.
    7. The client indemnifies the user against any claims by third parties who suffer damage in connection with the execution of the agreement and which is attributable to the client.

Article 5 Amendments to the agreement

  1. If during the execution of the agreement it appears that it is necessary to change or supplement the work to be carried out for proper execution, 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 changed or supplemented, the time of completion of the execution may be influenced by this. The user will inform the client of this as soon as possible.
    3. If the amendment or addition to the agreement will have financial and / or qualitative consequences, the user will inform the client in advance.
    4. If a fixed fee has been agreed, the user will indicate to what extent the change or supplement to the agreement will result in this fee being exceeded.
    5. Price increases resulting from additions and / or changes to the assignment are for the account of the client.
    6. Contrary to paragraph 3, the user will not be able to charge additional costs if the change or addition is the result of circumstances that can be attributed to the user.

Article 6 Contract duration; execution time

  1. The agreement between the user and a client is entered into for an indefinite period, unless the nature of the agreement dictates otherwise or the parties expressly agree otherwise in writing.
    2. If a term has been agreed for the completion of certain activities within the term of the agreement, this is never a strict deadline. If the implementation period is exceeded, the client must therefore give the user written notice of default.

Article 7 Fee

  1. For offers and agreements in which a fixed fee is offered or agreed, paragraphs 2, 5 and 6 to 11 of this article apply. If no fixed fee is agreed, paragraphs 3 to 11 of this article apply.
    2. Parties can agree a fixed fee when the agreement is concluded.
    3. If no fixed fee is agreed, the fee will be determined on the basis of hours actually spent. The fee is calculated according to the user's usual hourly rates, valid for the period in which the work is performed, unless a different hourly rate has been agreed.
    4. The fee is and any cost estimates are exclusive of VAT.
    5. The costs due will be charged monthly.
    6. If the user agrees a fixed fee or hourly rate with the client, the user is nevertheless entitled to increase this fee or rate.
    7. The user is entitled to pass on price increases if the user can demonstrate that between the moment of offer and delivery, the rates with regard to, for example, wages have increased significantly.
    8. In addition, the user may increase the fee if during the execution of the work it appears that the originally agreed or expected amount of work was insufficiently estimated at the conclusion of the agreement, and this is not attributable to the user, which cannot reasonably be expected. the user may be expected to perform the agreed work at the originally agreed fee.
    9. In the event of a price increase, the client is entitled to terminate the agreement if the fee or rate is increased within three months after entering into the agreement. After expiry of this period, the client is entitled to terminate the agreement if the increase exceeds 10%. Client is not entitled to dissolve if the increase of the fee or rate results from a power under the law.
    10. The user will notify the client in writing of the intention to increase the fee or rate. The user will state the size of and the date on which the increase will take effect.
    11. If the client does not wish to accept the increase in the fee or rate announced by the user, the client is entitled to terminate the agreement in writing within seven working days after the notification referred to, or to cancel the assignment against the amount stated in the user's notification. the date on which the price or rate adjustment would take effect.

Article 8 Payment

  1. Payment must be made within 14 days of the invoice date, in a manner to be specified by the user and in the currency in which the invoice is issued. Objections to the amount of the invoices do not suspend the payment obligation.
    2. If the client fails to pay within the period of 14 days, the client will be in default by operation of law. The client then owes an interest of 1% per month, unless the statutory commercial interest is higher, in which case the statutory commercial interest applies. 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.
    3. In the event of liquidation, bankruptcy, attachment or suspension of payment of the client, the user's claims against the client are immediately due and payable.
    4. The user has the right to have the payments made by the client go first of all to reduce the costs, then to reduce the interest still due and finally to reduce the principal and accrued interest. The user can, without being in default, refuse an offer for payment if the client designates a different sequence for the allocation.
    User can refuse full repayment of the principal, if the outstanding and accrued interest as well as the costs are not also paid.

Article 9 Retention of title

  1. All items supplied by the user, including any designs, sketches, drawings, films, software, (electronic) files, etc., shall remain the property of the user until the client has fulfilled all obligations arising from all agreements concluded with the user.
    2. The client is not authorized to pledge the goods falling under the retention of title or to encumber them in any other way.
    3. If third parties seize the goods delivered under retention of title or wish to establish or assert rights thereon, the client is obliged to inform the user of this as soon as can reasonably be expected.
    4. The client undertakes to insure and keep insured the goods delivered under retention of title against fire, explosion and water damage as well as against theft and to make the policy of this insurance available for inspection on first request.
    5. Goods delivered by the user that fall under the retention of title under the provisions of 1. of this article may only be resold in the context of normal business operations and may never be used as a means of payment.
    6. In the event that the user wishes to exercise his property rights referred to in this article, the client already gives unconditional and irrevocable permission to the user or third parties to be designated by him to enter all those places where the user's properties are located and which take things back.

Article 10 Collection costs

  1. If the client is in default or in breach of his obligations (in a timely manner), all reasonable costs incurred to obtain satisfaction out of court shall be borne by the client. In any case, in the event of a monetary claim, the client shall owe collection costs. The collection costs shall be calculated in accordance with the collection rate as advised by the Dutch Bar Association in collection cases.
    2. If the user has incurred higher costs, which were reasonably necessary, these will also be eligible for reimbursement.
    3. Any reasonable judicial and execution costs incurred are also for the account of the client.

Article 11 Investigation, complaints

  1. Complaints about the work performed must be reported in writing to the user by the client within 8 days of discovery, but no later than 14 days after completion of the work in question. The notice of default must contain a description of the shortcoming that is as detailed as possible, so that the user is able to respond adequately.
    2. If a complaint is well-founded, the user will still carry out the work as agreed, unless this has become demonstrably useless for the client. The latter must be made known in writing by the client.
    3. If it is no longer possible or useful to perform the agreed work, the user will only be liable within the limits of Article 15.

Article 12 Cancellation

  1. Either party may terminate the agreement at any time in writing.
    2. If the agreement is terminated by the client before the start of the work, the user is entitled to compensation for the loss of capacity utilization that can be made and can be made plausible. A minimum compensation of 50 % is used for the actual or estimated project costs.
    3. If the agreement is terminated prematurely by the client, the user is entitled to compensation due to the loss of occupation that can be made and can be made plausible, as provided for in paragraph 2 of this article, unless facts and circumstances underlie the cancellation that are due to the user. to calculate. Furthermore, the client is then obliged to pay the invoices for work performed up to that time. The provisional results of the work performed up to that time will therefore be made available to the client subject to change.
    4. If the agreement is terminated prematurely by the user, the user will, at the request of and in consultation with the client, ensure the transfer of work still to be performed to third parties, unless there are facts and circumstances underlying the cancellation that are attributable to the client.
    5. If the transfer of the work involves additional costs for the user, these will be charged to the client.

Article 13 Suspension and dissolution

  1. User is authorized to suspend the fulfillment of the obligations or to terminate the agreement, without prior written notice of default, if:
    - The Client does not or not fully comply with the obligations under the agreement.
    - after the conclusion of the agreement, the circumstances brought to the user's attention give good reason to fear that the client will not fulfill the obligations. If there is good reason to fear that the client will only partially or not properly perform, the suspension is only permitted insofar as the shortcoming justifies it.
    - the client was asked to furnish security to guarantee the fulfillment of his obligations under the agreement when the contract was concluded and that this security is not provided or is insufficient.
    The user is never liable to pay damages to the client as a result of a suspension or dissolution on the basis of this article.
    2. Furthermore, the user is authorized to dissolve the contract or have it dissolved without prior written notice of default and without becoming liable to pay damages to the client if circumstances arise of such a nature that fulfillment of the contract is impossible or cannot be done according to the criteria of reasonableness and fairness. longer may be required or if other circumstances arise which are of such a nature that unaltered maintenance of the agreement cannot reasonably be expected.
    3. If the agreement is dissolved, there will be no reversal of what the user has already delivered and / or performed. Amounts that the user has invoiced before the dissolution in connection with what he has already properly performed or delivered for the execution of the agreement, remain due in full, with due observance of the provisions in the previous sentence, and become immediately due and payable at the time of the dissolution. If the user suspends fulfillment of the obligations, he retains his rights under the law and the agreement.
    4. The user always reserves the right to claim compensation.

Article 14 Return of goods made available

  1. If the user has made items available to the client in the performance of the agreement, the client is obliged to return the delivered items within 14 days in their original condition, free of defects and complete. If the client fails to comply with this obligation, all costs arising from this will be for his account.
    2. If, for whatever reason, after a reminder to that effect, the client still fails to fulfill the obligation referred to under 1., the user has the right to recover the resulting damage and costs, including the costs of replacement, from the client.

Article 15 Liability

  1. The user only accepts liability to the extent stated in this article.
    2. In the event of any liability on the part of the client towards the user, the burden of proof rests with the client and the client accepts this burden of proof.
    3. Insofar as the user could be liable, for whatever reason, this liability will at all times be limited to compensation for direct damage and maximum to:
    a. The amount of one month's invoice, to be calculated as the rate laid down in the agreement multiplied by the stake per period specified in the agreement, allocated to one month; or
    b. If the agreement is mainly a continuing performance agreement with a term of more than three months, the liability is limited to a maximum of the amount of the agreed price excluding turnover tax for three months; or
    c. If the agreement is an agreement with a fixed price, liability is limited to a maximum of the amount of this agreed price excluding turnover tax divided by the lead time laid down in the agreement, from activities to completion, calculated in months.
    4. Under no circumstances will the user's total liability for direct damage, for whatever reason, exceed € 20,000.
    5. Direct damage exclusively means:
    a. the reasonable costs that the client should incur to have the performance of the user meet the agreement. However, this damage will not be compensated if the client has dissolved the agreement;
    b. the costs incurred by the client for the necessity of keeping its old systems or systems operational for a longer period because the contractor has not delivered on a binding delivery date, less any savings resulting from the delayed delivery;
    c. reasonable costs incurred to determine the cause and extent of the damage, insofar as the determination relates to direct damage within the meaning of these conditions;
    d. reasonable costs incurred to prevent limitation of damage, insofar as the client demonstrates that these costs have led to limitation of direct damage within the meaning of these conditions.
    6. Liability of the user for indirect damage, including consequential damage, loss of profit, missed savings and damage due to business interruption, is excluded.
    7. The limitations of the liability of the user included in these conditions do not apply if the damage is due to intent or gross negligence of the user or his subordinates.
    8. The liability of the user due to an attributable shortcoming in the fulfillment of an agreement only arises if the client immediately and properly declares the user in default in writing, thereby setting a reasonable period for remedying the shortcoming, and the user also attributable after that period. continues to fall short in the fulfillment of its obligation. The notice of default must contain as detailed a description as possible of the shortcoming, so that the user is able to respond adequately.
    9. A condition for the creation of any right to compensation is always that the client reports the damage to the user in writing as soon as possible after it arises. Any claim for compensation against the user lapses by the mere lapse of 12 months after the claim arose.
    10. The user is not responsible or liable for the consequences of data or instructions from the client or from third parties acting on behalf of or on behalf of the client. This also applies to acts or omissions of the user's suppliers, their subordinates, and other persons employed by or on behalf of the user.
    11. The client indemnifies the user against all claims from third parties due to product liability as a result of a defect in a product or system supplied by the client to a third party, which also consisted of equipment, software or other materials supplied by the user, except if and insofar as the client proves that the damage was caused by that equipment, software or other materials.
    12. The user is never liable for costs, damages and interests that may arise as a direct or indirect consequence of violation of patents, licenses, other industrial property rights or other rights of third parties. The client indemnifies the user against all claims from third parties arising from violation of the rights referred to above.

Article 16 Insurance

  1. The client may request the user to take out insurance at the client's expense, which covers the risks for which the user is not liable. However, the user is only obliged to take out insurance, as referred to above, if and to the extent that this has been expressly agreed in writing between the parties.

Article 17 Indemnities

  1. The client indemnifies the user against claims by third parties with regard to intellectual property rights on materials or data provided by the client, which are used in the performance of the agreement.
    2. If the client provides the user with information carriers, electronic files or software, etc., he guarantees that the information carriers, electronic files or software are free from viruses and defects.

Article 18 Transfer of risk

  1. The risk of loss or damage to the items that are the subject of the agreement shall pass to the client at the time when they are legally and/or actually delivered to the client and thus come under the control of the client or of a third party to be designated by the client.

Article 19 Force majeure

  1. The parties shall not be obliged to fulfil any obligation if they are prevented from doing so as a result of a circumstance that is not attributable to fault and for which they are not responsible under the law, a legal act or generally accepted views.
    2. Force majeure in these general terms and conditions means, in addition to what is understood in this respect in law and jurisprudence, all external causes, foreseen or not foreseen, on which the user cannot exert influence, but as a result of which the user is unable to fulfill its obligations. come. This includes strikes in the user's company.
    3. The user also has the right to invoke force majeure if the circumstance that prevents (further) fulfillment occurs after the user should have fulfilled his obligations.
    4. Parties can suspend the obligations under the agreement during the period that the force majeure continues. If this period lasts longer than two months, each of the parties is entitled to dissolve the agreement, without obligation to pay compensation to the other party.
    5. Insofar as at the time of the occurrence of force majeure, the user has partially fulfilled his obligations under the agreement or will be able to fulfill them, and the part fulfilled or to be fulfilled has independent value, the user is entitled to fulfill or already fulfill to declare the part separately. The client is obliged to pay this invoice as if it were a separate agreement.

Article 20 Confidentiality

  1. Both parties are obliged to maintain confidentiality of all confidential information that they have obtained from each other or from other sources in the context of their agreement. Information is considered confidential if this has been communicated by the other party or if this follows from the nature of the information.
    2. If, on the basis of a statutory provision or a court decision, the user is obliged to provide confidential information to third parties designated by law or the competent court, and the user cannot rely on a legal or competent authority judge acknowledged or permitted right of refusal, then user is not obliged to pay compensation or compensation and the other party is not entitled to dissolve the agreement on the basis of any damage resulting from this.

Article 21 Intellectual property and copyrights

  1. Unless otherwise agreed, all intellectual property rights arising from the agreement – including, but not limited to, patent rights, design rights and copyright – shall belong to the user. Insofar as such a right can only be obtained by filing or registering, only the user shall be authorised to do so.
    2. Unless the result of the agreement does not lend itself, the user is at all times entitled to have his / her name mentioned on the work or to have it removed or to have it removed, and the client is not permitted to use the work without prior permission without prior permission. to make public or multiply the name of the user.
    3. When the client fully fulfills his obligations under the agreement with the user, he obtains an exclusive license to use the result of the agreement insofar as this concerns the right of use in accordance with the agreed destination. If no agreements have been made about the destination, the licensing will be limited to that use of the result of the agreement, for which there were firm intentions at the time of the conclusion of the agreement. These intentions must be demonstrably made known to the user before concluding the agreement.
    4. Without the written permission of the user, the client is not entitled to use the result of the agreement more widely or in any other way than agreed. In the event of non-agreed broader or other use, including change, mutilation or damage to the provisional or final result of the Assignment, the user is entitled to compensation for infringement of his / her rights of at least twice the agreed fee, at least a compensation that is reasonable and fair in proportion to the infringement committed, without prejudice to the user's right to claim compensation for the actual damage suffered.
    5. The client is no longer allowed to use the results made available and any license granted to the client will lapse:
    a. from the moment that the client does not (fully) fulfill its (payment) obligations under the agreement or is otherwise in default, unless the shortcoming of the client is of minor importance in light of the entire agreement;
    b. if the agreement, for whatever reason, is terminated prematurely, unless the consequences of this are contrary to reasonableness and fairness.
    6. Parties can at any time make further agreements about the (partial) transfer of intellectual property rights to the works created by the user.
    7. User reserves the right to use the knowledge gained through the execution of the work for other purposes, insofar as no confidential information is brought to the notice of third parties.
    8. Even after a possible transfer of the rights as referred to in the previous paragraph, the user remains entitled (with due observance of the rights of third parties) to use the result of the agreement for its own publicity or promotion.

Article 22 Non-takeover of personnel

During the term of the agreement as well as one year after its termination, the client will in no way, except after good business consultations have taken place with the user, employees of the user or of companies that the user has invoked for the implementation of this agreement and that are (have been) involved in the execution of the agreement, employ or otherwise let it work for itself, directly or indirectly.

Article 23 Acquisition

After conclusion of an agreement between the user and the client, the user is entitled to place the client's company name on its customer list. In addition, the user is entitled, subject to the provisions in Article 20, to make a brief description of the executed project and may use this description when acquiring new customers.

Article 24 Disputes

  1. The court in the place of establishment of the user has exclusive jurisdiction to hear disputes, unless the subdistrict court has jurisdiction. Nevertheless, the user has the right to submit the dispute to the court that has jurisdiction according to the law.
    2. Parties will only appeal to the courts after they have made every effort to settle a dispute by mutual agreement.

Article 25 Applicable law

  1. Dutch law applies to every agreement between the user and the client.

Article 26 Change and location of the conditions

  1. These conditions have been filed at the office of the Chamber of Commerce in Amsterdam. The most recently filed version or the version that applied at the time the agreement was concluded shall always apply.

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