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General Terms and Conditions Koekepeer

January 2024

GENERAL CONDITIONS OF: 

Koekepeer has its registered office in Amsterdam and has its principal place of business in postal code 1094 KP Amsterdam, at Eerste Atjehstraat 58-A, also trading under the names Koekepeer Producties, 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 other party of the user.
    Agreement: the agreement to provide services.

Article 2 General

  1. These conditions apply to every offer, quotation and agreement between the user and a client to which the user has declared these conditions applicable and to all resulting or related legal acts of the user, insofar as the parties have not expressly and in writing deviated from these conditions.
    2. These terms and conditions also apply to all agreements with the user, for the execution of which third parties must be involved.
    3. Any deviations from these general terms and conditions are only valid if they have been expressly agreed in writing.
    4. The applicability of any purchasing 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 annulled, the other provisions of these general terms and conditions remain fully applicable. The user and client will then enter into consultation in order to agree on new provisions to replace the void or annulled provisions, whereby the purpose and scope of the original provision will be taken into account as much as possible.

Article 3 Offers and quotations

  1. All offers, quotations and quotations are without obligation, unless expressly stated otherwise in writing in the offer.
    2. The quotations made by the user are without obligation; they are valid for 30 days, unless otherwise stated. The user is only bound to the quotations if the acceptance thereof is confirmed in writing by the other party within 30 days, unless otherwise stated.
    3. The prices in the mentioned 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 administration 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 carry out 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. The user will execute the agreement to the best of his knowledge and ability and in accordance with the requirements of good workmanship. This is based on the state of science known at that time.
    2. If and insofar as proper execution of the agreement requires this, the user has the right to have certain work carried out by third parties.
    3. The client ensures that all information that the user indicates is necessary or of which the client should reasonably understand that it is 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 a timely manner, the user has the right to suspend the execution of the agreement and/or to charge the client for the additional costs resulting from the delay according to the usual rates. .
    4. The user is not liable for damage of any nature whatsoever because the user relied on incorrect and/or incomplete information provided by the client, unless the user should have been aware of this incorrectness 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 a subsequent phase until the client has approved the results of the preceding phase in writing.
    6. If the user or third parties engaged by the user carry out work in the context of the assignment at the client's location or a location designated by the client, the client will provide the facilities reasonably desired by those employees free of charge.
    7. The client indemnifies the user against any claims from third parties who suffer damage in connection with the execution of the agreement and which is attributable to the client.

Article 5 Changes to the agreement

  1. If during the execution of the agreement it appears that it is necessary for proper execution to change or supplement the work to be 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 execution may be affected. The user will inform the client of this as soon as possible.
    3. If the change or addition to the agreement will have financial and/or qualitative consequences, the user will inform the client of this in advance.
    4. If a fixed fee has been agreed, the user will indicate to what extent the change or addition to the agreement will result in this fee being exceeded.
    5. Price increases resulting from additions and/or changes to the assignment are at the expense of the client.
    6. Notwithstanding 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 period

  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 within the term of the agreement for the completion of certain work, this is never a strict deadline. If the execution period is exceeded, the client must therefore give the user notice of default in writing.

Article 7 Fee

  1. Paragraphs 2, 5 and 6 to 11 of this article apply to offers and agreements in which a fixed fee is offered or has been agreed. If no fixed fee is agreed, paragraphs 3 to 11 of this article apply.
    2. Parties can agree on a fixed fee when concluding the agreement.
    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, applicable for the period in which the work is performed, unless a different hourly rate has been agreed.
    4. The fee and any cost estimates are exclusive of VAT.
    5. The costs due will be charged monthly.
    6. If the user agrees on 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 time 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 time of concluding the agreement, and this is not attributable to the user, which could not reasonably be expected to the user may be expected to carry out the agreed work for 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 this period has expired, the client is entitled to terminate the agreement if the increase is more than 10%. The Client is not entitled to dissolve if the increase in the fee or rate results from an authority under the law.
    10. The user will inform the client in writing of its intention to increase the fee or rate. The user will indicate the size and date on which the increase will take effect.
    11. If the client does not wish to accept the increase in the fee or rate communicated by the user, the client is entitled to terminate the agreement in writing within seven working days after the aforementioned notification, or to cancel the assignment at the price stated in the user's notification. date on which the price or rate adjustment would come into effect.

Article 8 Payment

  1. Payment must be made within 14 days after the invoice date, in a manner to be specified by the user in the currency in which the invoice was declared. Objections to the amount of the invoices do not suspend the payment obligation.
    2. If the client fails to make payment within the period of 14 days, the client is legally in default. The Client will then owe interest of 1% per month, unless the statutory commercial interest is higher, in which case the statutory commercial interest applies. The interest on the amount due will be calculated from the moment the client is in default until the moment the full amount is paid.
    3. In the event of liquidation, bankruptcy, attachment or suspension of payment of the client, the user's claims on the client are immediately due and payable.
    4. The user has the right to have payments made by the client firstly deducted from the costs, then from the accrued interest and finally from the principal sum and the current interest. The user can, without being in default, refuse an offer of payment if the client designates a different order for the allocation.
    The User may refuse full repayment of the principal amount if the accrued and current interest as well as the costs are not also paid.

Article 9 Retention of title

  1. All goods supplied by the user, including designs, sketches, drawings, films, software, (electronic) files, etc., remain the property of the user until the client has fulfilled all obligations under all agreements concluded with the user.
    2. The client is not authorized to pledge or encumber in any other way the items falling under the retention of title.
    3. If third parties seize the goods delivered under retention of title or wish to establish or enforce 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 the goods delivered under retention of title and to keep them insured against fire, explosion and water damage as well as against theft and to make the policy of this insurance available for inspection upon first request.
    5. Goods supplied by the user, which are subject to retention of title pursuant to 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 ownership rights referred to in this article, the client now 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 property is located and which to take things back.

Article 10 Collection costs

  1. If the client is in default or in default in the (timely) fulfillment of his obligations, all reasonable costs incurred in obtaining payment out of court will be borne by the client. In any case, the client owes collection costs in the event of a monetary claim. The collection costs are 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 that were reasonably necessary, these are also eligible for reimbursement.
    3. Any reasonable judicial and enforcement costs incurred will also be borne by the client.

Article 11 Research, complaints

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

Article 12 Termination

  1. Both parties can terminate the agreement in writing at any time.
    2. If the agreement is canceled by the client before the start of the work, the user is entitled to compensation for the resulting and demonstrable loss of occupancy. A minimum compensation of 50 % of the actual or estimated project costs is applied.
    3. If the agreement is terminated prematurely by the client, the user is entitled to compensation due to the resulting and demonstrable loss of occupancy as determined in paragraph 2 of this article, unless there are facts and circumstances underlying the termination that are the responsibility of the user to calculate. Furthermore, the client is then obliged to pay the invoices for work performed to date. The provisional results of the work carried out to date will therefore be made available to the client subject to conditions.
    4. If the agreement is terminated prematurely by the user, the user will, at the request of and in consultation with the client, transfer any work still to be performed to third parties, unless there are facts and circumstances underlying the termination that are attributable to the client.
    5. If the transfer of the work entails additional costs for the user, these will be charged to the client.

Article 13 Suspension and dissolution

  1. The User is entitled to suspend the fulfillment of the obligations or to dissolve the agreement, without prior written notice of default, if:
    – Client does not or does not fully fulfill the obligations under the agreement.
    – circumstances that come to the user's attention after concluding the agreement 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 improperly comply, suspension is only permitted to the extent that the shortcoming justifies it.
    – upon concluding the agreement, the client has been requested to provide security for the fulfillment of its obligations under the agreement and this security is not provided or is insufficient.
    The user is never liable for damages to the client as a result of a suspension or dissolution on the basis of this article.
    2. Furthermore, the user is entitled to dissolve the agreement without prior written notice of default and without becoming liable for damages to the client, if circumstances arise that are of such a nature that fulfillment of the agreement is impossible or not according to standards of reasonableness and fairness. longer can be required or if other circumstances arise which are of such a nature that unchanged maintenance of the agreement cannot reasonably be expected.
    3. If the agreement is dissolved, what the user has already delivered and/or performed will not be undone. Amounts that the user has invoiced before the termination in connection with what he has already properly performed or delivered in the execution of the agreement, remain due without prejudice to the provisions of the previous sentence and become immediately due and payable at the time of termination. If the user suspends compliance with the obligations, he retains his rights under the law and the agreement.
    4. User always reserves the right to claim damages.

Article 14 Return of items made available

  1. If the user has made items available to the client during the execution of the agreement, the client is obliged to return the delivered goods in their original condition, free of defects and in full within 14 days. If the client does not comply with this obligation, all resulting costs will be at his expense.
    2. If the client, for whatever reason, after a reminder to that effect, still fails to comply with the obligation mentioned 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 that this is apparent from this article.
    2. In the event of any claim of liability by the client towards the user, the burden of proof rests with the client and the client accepts this burden of proof.
    3. To the extent that the user could be liable for any reason whatsoever, this liability will at all times be limited to compensation for direct damage and a maximum of:
    a. The amount of one month's invoice, to be calculated as the rate laid down in the agreement multiplied by the commitment per period laid down 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, liability is limited to a maximum of the amount of the agreed price excluding sales 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 sales tax divided by the lead time specified in the agreement, from start of activities to delivery, calculated in months.
    4. Under no circumstances will the total liability of the user for direct damage, for whatever reason, exceed € 20,000.
    5. Direct damage is exclusively understood to mean:
    a. the reasonable costs that the client would have to incur to ensure that the user's performance complies with the agreement. However, this damage will not be compensated if the client has terminated the agreement;
    b. the costs that the client has incurred for being forced to keep its old systems or systems and related facilities operational for longer because the contractor has not delivered on a delivery date that is binding for him, 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 damage limitation, 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, lost profits, missed savings and damage due to business stagnation, is excluded.
    7. The limitations of the user's liability included in these conditions do not apply if the damage is due to intent or gross negligence on the part of the user or his subordinates.
    8. The liability of the user due to attributable shortcomings in the performance of an agreement only arises if the client immediately and properly gives notice of default to the user in writing, setting a reasonable period to remedy the shortcoming, and also attributable to the user after that period. continues to fail 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. The condition for the existence of any right to compensation is that the client reports the damage to the user in writing as soon as possible after it has occurred. Any claim for compensation against the user shall lapse upon the mere expiration of 12 months after the claim arose.
    10. The user is neither responsible nor 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 that was supplied by the client to a third party and that 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 result 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 can 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 insofar as this has been expressly agreed in writing between the parties.

Article 17 Indemnities

  1. The client indemnifies the user against claims from third parties with regard to intellectual property rights to materials or data provided by the client, which are used in the execution 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 of 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 is transferred to the client at the time when they are legally and/or actually delivered to the client and are therefore under the power of the client or a third party to be designated by the client. are being brought.

Article 19 Force majeure

  1. Parties are not obliged to fulfill any obligation if they are prevented from doing so as a result of a circumstance that is not attributable to their fault, and which is not their responsibility under the law, a legal act or generally accepted views.
    2. In these general terms and conditions, force majeure means, in addition to what is understood in law and case law, all external causes, foreseen or unforeseen, over which the user has no influence, but as a result of which the user is unable to fulfill the 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) compliance occurs after the user should have fulfilled his obligations.
    4. Parties may suspend the obligations under the agreement during the period that the force majeure continues. If this period lasts longer than two months, either party is entitled to terminate the agreement, without obligation to compensate the other party for damages.
    5. Insofar as the user has already partially fulfilled his obligations under the agreement or will be able to fulfill them at the time of the occurrence of force majeure, and independent value is attached to the part fulfilled or to be fulfilled, the user is entitled to fulfill the obligations already fulfilled or to be fulfilled. part to be declared 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 another source in the context of their agreement. Information is considered confidential if this has been communicated by the other party or if this arises from the nature of the information.
    2. If, on the basis of a legal provision or a judicial 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 court's right in this regard. If the right of non-disclosure is recognized or permitted by a court, the user is not obliged to pay compensation or indemnification and the other party is not entitled to terminate the agreement on the basis of any damage caused as a result.

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 - belong to the user. To the extent that such a right can only be obtained through a deposit or registration, only the user is authorized to do so.
    2. Unless the result of the agreement does not lend itself to this, the user is at all times entitled to mention or remove his/her name from the work and the client is not permitted to use the work without prior permission. to make public or reproduce the user's name.
    3. When the client fully complies with 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 purpose. 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 the agreement was concluded. These intentions must be demonstrably made known to the user before concluding the agreement.
    4. Without written permission from the user, the client is not entitled to use the result of the agreement more broadly or in a different manner than agreed. In the event of broader or different use not agreed upon, including modification, mutilation or impairment of 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, or at least compensation that is reasonable and fair in proportion to the infringement committed, without prejudice to the user's right to claim compensation for the damage actually suffered.
    5. The client is no longer permitted 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 his (payment) obligations under the agreement or is otherwise in default, unless the client's shortcoming is of minor importance in the light of the entire agreement;
    b. if the agreement is terminated prematurely for whatever reason, 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 the intellectual property rights to the works created by the user.
    7. The user reserves the right to use the knowledge gained through the performance of the work for other purposes, insofar as no confidential information is disclosed to third parties.
    8. Even after any transfer of the rights as referred to in the previous paragraph, the user remains entitled to use the result of the agreement for his own publicity or promotion (with due observance of the rights of third parties).

Article 22 Non-transfer of personnel

During the term of the agreement and for one year after termination thereof, the client will not in any way whatsoever, except after proper business consultation has taken place with the user, employees of the user or of companies that the user has relied on for the execution of this agreement and that are (have been) involved in the execution of the agreement, employ them or otherwise have them work for them, directly or indirectly.

Article 23 Acquisition

After concluding an agreement between the user and the client, the user is entitled to place the company name of the client on its customer list. The user is also entitled, subject to the provisions of 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 judge in the user's place of business has exclusive jurisdiction to hear disputes, unless the subdistrict court has jurisdiction. Nevertheless, the user has the right to submit the dispute to the competent court according to the law.
    2. The parties will only appeal to the court 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 Changes 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 always applies.