CLAUSE 1 DEFINITIONS
1.1 For the purposes of these general terms and conditions (hereinafter referred to as: “General Terms and Conditions”), the following terms are attributed to the following meaning:
Apps: every web and/or mobile application in the broadest sense of the word;
Client: any natural or legal persons with whom Penfield Digital enters into a frame agreement and/or Contract;
Contract: each contract to be concluded between Client and Penfield Digital in respect of Services or Products to be delivered by Penfield Digital;
Products: all matters that are the subject of a Contract, including software, hardware, databases, and licenses;
Services: all services that will be or that have been performed under the Contract, including advice concerning online marketing and communications, development of campaigns and strategy, development of software, data processing and implementation of campaign management solutions, creating designs, the provision of consultants, project management, designing, operating and maintaining databases and Apps, issuing licenses, maintaining developed software, website hosting, making bandwidth available, server maintenance, selecting and buying Media, this all in the broadest sense, and all materials and results produced that are intended for Client;
Penfield Digital: Penfield Digital B.V. in Amsterdam including other trade names.
CLAUSE 2 APPLICABILITY
2.1 These conditions are part of the Contract(s) between Client and Penfield Digital and set the framework conditions that are applicable to the Contracts whereby Client Penfield Digital commits to providing Services or Products. If specific conditions or other provisions in a Contract are in breach of these Terms, the terms of the Contract shall prevail.
2.2 Amendments or supplements to any provisions set out in the Contract(s) between Client and Penfield Digital and/or these Terms and Conditions only apply if they are agreed upon in writing between parties in either an appendix or an addendum to the Contract.
2.3 The applicability of the Client’s general purchase or other conditions is hereby explicitly excluded.
CLAUSE 3 CONCLUSION OF CONTRACTS
3.1 The engagement (comprising a Service and/or Product) that Penfield Digital will perform for Client will be described and set out in a Contract.
3.2 A Contract will only be considered to be concluded if and to the extent that Penfield Digital accepts a Contract in writing, or if Penfield Digital has started performing a Contract. An offer or fee quote does not bind Penfield Digital, is valid for thirty (30) days, and must be considered only as an invitation to conclude a contract.
3.3 Penfield Digital will take due care with respect to providing numbers, measurements, descriptions and/or indications concerning Products and/or Services. Penfield Digital cannot, however, guarantee that no deviations will occur.
CLAUSE 4 SERVICES
4.1 Penfield Digital is permitted to outsource part of the services to be performed to a subcontractor.
4.2 In performing the Contracts, Penfield Digital will comply and act in accordance with all applicable legislation and regulations that are mandatory in nature and the obligations applicable to Penfield Digital that arise from social security and tax law legislation concerning the persons Penfield Digital will use to perform services for Client.
4.3 Penfield Digital will be responsible for all licenses and discharges required by the government or otherwise, that are requisite to enable it to comply with its legal obligations arising from the Contract. Penfield Digital will bear all of the relevant costs in this respect.
4.4 Penfield Digital will notify Client in a timely fashion if any of the staff made available to Client for the performance of a Contract becomes ill or occupationally disabled, is fired and/or absent or in the case of dissatisfaction with the staff. In the absence of the staff member concerned or in the event that Client is dissatisfied with a staff member of Penfield Digital, Penfield Digital will - as far as reasonably may be required of Penfield Digital - arrange for a suitable replacement of the relevant staff member within such a term that the progress of the Contract, which the staff to be replaced was involved in, will not be jeopardized.
4.5 During the term of the Contract as well as during a period of one (1) year after termination of the Contract both parties will not, directly or indirectly, employ or seek to employ in any way each other’s employees in the execution of the Contract, unless with prior written approval of the other party.
CLAUSE 5 TERMS
5.1 The deadlines and/or time limits indicated by Penfield Digital only serve as an indication. Penfield Digital will use its best efforts to meet such deadlines and/or time limits. Penfield Digital will not be in default if it exceeds such agreed deadlines or time limits. In all circumstances, also if parties explicitly agreed upon an ultimate term in writing, Penfield Digital will not be in default until after the Client has given written notice of default.
5.2 If there is a risk of any term being exceeded, Penfield Digital and the Client will consult with each other as soon as possible.
5.3 The timelines indicated by Penfield Digital will commence at the earliest after the relevant Contract has been signed by the Client and Penfield Digital.
5.4 Penfield Digital is in all circumstances entitled to perform the Contract in parts.
CLAUSE 6 OBLIGATIONS OF CLIENT
6.1 Client will provide all data, materials, and/or resources required for the performance of a contract on time, correctly, complete, and in the format agreed upon with Penfield Digital. Penfield Digital cannot be held responsible for errors in Products or Services that can be attributed to the Client’s failure to provide the above on time, correctly, complete and/or in the format agreed upon. Penfield Digital cannot be held liable for the damages arising from mistakes in cartographic and other illustrations, databases, registration, and/or errors in the conversion hereof.
6.2 Client will give Penfield Digital access to the Client’s building to the extent that is reasonably necessary for connection with the performance of Contracts.
6.3 A Contract will be performed at the location(s) stated in the Contract. If services are performed onsite at Client, Client is obliged to make working space, work stations, office supplies, required equipment, and an accessible Internet connection available to Penfield Digital’s staff free of charge. On Client’s premises, Penfield Digital will adhere to the rules and instructions that have been or will be provided to Penfield Digital by or on behalf of Client, including Client’s safety rules and house rules.
6.4 Client will refrain from, and will also not permit third parties, to rearrange, disconnect, remove, repair, or otherwise adapt the Products and/or Services delivered and/or installed by Penfield Digital. The Products and/or Services and the appurtenant provisions may not be used for purposes other than those for which Penfield Digital delivered them.
6.5 Client indemnifies Penfield Digital for all Penfield Digital’s liability to third parties with respect to product liability resulting from defects in a product or system that Client delivered to a third party and that partly comprised Products or Services delivered by Penfield Digital unless Client proves that the damages were caused solely by the Products or Services delivered by Penfield Digital.
6.6 Client is responsible for the choice and availability of telecommunications and data communications facilities and the equipment required for the use of Products and/or the performance of Services by Penfield Digital. The client bears all costs related to acquiring and/or maintaining network connections and telecommunications or data communications facilities.
6.7 Client will at all times treat the access or identification codes to a telecommunications or data communications facility provided by Penfield Digital with strict confidence. The client bears the risk of loss or damage of information, files, and/or other data made available to the Client by means of telecommunications or data communications facilities.
6.8 The risk of loss or damage of Products that are the subject of a Contract will be transferred to the Client the moment the Client or a person engaged by the Client takes actual possession of them.
CLAUSE 7 OBLIGATIONS OF PENFIELD DIGITAL
7.1 Penfield Digital will put forth its best efforts in providing services, where appropriate, in accordance with the written agreements and procedures agreed upon with Client. All of Penfield Digital’s services will be performed based on an obligation to perform to the best of its ability, unless and insofar as Penfield Digital has expressly promised a result, and the details of this result have been sufficiently described. Any agreements concerning a service level will at all times be expressly agreed upon in writing.
7.2 If services will be performed in phases, Penfield Digital is entitled to defer the Services to be performed in a particular phase until the Client has approved the results of the previous phase in writing.
7.3 With respect to the Products to be delivered by Penfield Digital, Penfield Digital guarantees Client that a Product will satisfy the agreements reached between Penfield Digital and Client.
7.4 If Penfield Digital delivers products originating from a third party to Client, Penfield Digital can never be held liable for a longer guarantee with respect to Client than Penfield Digital can claim with respect to this third party.
CLAUSE 8 PRICES AND PAYMENT
8.1 All of Penfield Digital’s prices are quoted in euro. Prices exclude VAT, out-of-pocket expenses, travel and accommodation expenses, and government levies.
8.2 If the fee due for the Products or Services is rated by Penfield Digital in advance, this budget shall only act as an indicator for the final fee payable. If possible, Penfield Digital will inform the Client in advance of possible additional expenses.
8.3 Client will pay invoices within 30 days of the invoice dates unless explicitly agreed otherwise in the Contract. The client will not be entitled to a discount or to withhold any amount. The client will not be entitled to deduct and/or defer any payment obligations.
8.4 If Client fails to pay the amounts owed within the term agreed upon, Client will, as of that date and without any further notice of default, owe default interest equal to the Dutch statutory trade interest applicable at that time on the outstanding amount.
8.5 If the Client continues to be in default with respect to the payment of the outstanding amounts, Penfield Digital can pass on the claim for collection. The client will bear all costs – including the fees of external experts in addition to the costs established by the court – related to this collection.
8.6 If payment of the Products and/or Services to Penfield Digital is subject to the provision of a purchase order number by Client, clause 8.3 to 8.5 above nevertheless apply if Client has failed to provide a purchase order numbers before Penfield Digital has started providing the Products and/or Services.
8.7 All Products and the results of Services delivered to Client will remain the property of Penfield Digital until Client has fully paid Penfield Digital all amounts due in connection with such Products or Services or any other Products or Services.
CLAUSE 9 INSPECTIONS AND COMPLAINTS
9.1 Client is obliged to carefully inspect and test a Product, Service or part of a Service immediately following the delivery, including those on its computer system if they were delivered online, or to have them carefully inspected and tested. Penfield Digital must be notified in writing of any complaints as soon as possible as is necessary with respect to the execution of a Product, Service or part of a Service, which period will not under any circumstances exceed fifteen (15) working days from the delivery of the Product, Service or part of a Service concerned. If no complaint is filed within the above described period, Client forfeits it right to file a complaint.
9.2 A Product, Service or part of a Service will be deemed to have been delivered the moment Client has accepted it, or the moment Client started using it.
9.3 If the Client has a complaint regarding an issue that Penfield Digital agreed to perform under the Contract, Penfield Digital will remedy the complaint free of charge. In all other cases, Penfield Digital will invoice the Client for the services.
9.4 As soon as Client has established a defect in a Product, Service, or part of a Service, Client is obliged to immediately cease using, adapting, processing and/or installing the Product, Service or part of the Service and must do or cease doing, as the case may be, everything that is reasonably necessary to prevent damages.
CLAUSE 10 PENFIELD DIGITAL’S LIABILITY
10.1 Penfield Digital’s overall liability with respect to attributable failure to perform the contract or otherwise, is limited to compensation of the direct financial loss arising from that failure up to the amount paid by the liability insurance of Penfield Digital with a maximum per incident or series of related incidents of the lowest of (i) the amount invoiced by Penfield Digital and paid by Client during maximum twelve preceding months for the relevant performance or (ii) EUR 100,000.-
10.2 Direct financial loss is limited to the costs that Client reasonably incurred to remedy or cure Penfield Digital’s default in order to meet Penfield Digital’s performance under the Contract(s), the reasonable costs incurred to prevent or limit such damages and the reasonable costs incurred to determine the cause and extent of the default.
10.3 Penfield Digital is not liable for any indirect damages, such as consequential damage, lost turnover, lost profit, lost savings, damages caused by business stagnation, damages resulting from agreements reached with Client’s customers, reduced goodwill, reputation damage, loss or corruption of data and costs incurred to restore data that was either wholly or partially lost.
10.4 Penfield Digital’s liability or potential liability will lapse as soon as the complaint period referred to in clause 9.1, above, has lapsed and Client has not filed a complaint within this period.
10.5 Unless stated otherwise in this clause 10, Penfield Digital is not obliged to pay any damages, irrespective of the grounds based on which a claim for damages would be based.
10.6 The liability restrictions stated in this clause 10 do not apply if Client’s damages are the consequence of wilful misconduct or intentional recklessness (“opzet of bewuste roekeloosheid”) by Penfield Digital.
CLAUSE 11 FORCE MAJEURE
11.1 If, as a consequence of force majeure, Client or Penfield Digital is unable to comply with an obligation, the relevant party’s performance obligation will be suspended for the duration of the force majeure unless it concerns a payment obligation. Force majeure is also understood to include a non-attributable default of suppliers.
11.2 If the force majeure situation has persisted or will persist for more than thirty (30) days, both Client and Penfield Digital will be entitled to dissolve the relevant contract that cannot be fulfilled. In that situation, performances that have been delivered will be invoiced pro-rata. For the remainder, Client and Penfield Digital will owe each other nothing.
11.3 In the event of force majeure, neither party will be entitled to claim damages from the other in that respect.
CLAUSE 12 INTELLECTUAL PROPERTY RIGHTS
12.1 Penfield Digital or its licensors will continue to hold the intellectual property rights to all Products or Services that Penfield Digital makes available pursuant to the Contract. With respect to software and other qualifying Products and Services, Penfield Digital hereby grants Client – subject to the condition precedent that Client pays all amounts due under the Contract – a non-exclusive and non-transferable user right unless explicitly stated otherwise in the Contract.
12.2 Insofar as Penfield Digital supplies third-party software and/or database licenses to Client, the licensing conditions, guarantees, and obligations imposed by such third parties will apply to the agreement between Client and Penfield Digital as well.
CLAUSE 13 CONFIDENTIALITY
13.1 If and insofar Penfield Digital takes cognizance of confidential information of Client under the Contract, Penfield Digital will only use such information in relation to performing under the Contract, and Penfield Digital will limit the access to such information to the persons who must take cognizance of that information for such purpose. Penfield Digital guarantees that by signing an employment contract and/or a confidentiality agreement, these persons are obliged to keep this confidential information confidential.
b Confidential information does not include information that was available to the public the moment it was taken cognizance of, that became available later, or that the recipient received from a third party with respect to which no confidentiality agreement was imposed.
13.3 The provisions set out in this clause 13 will remain in effect after termination of the Contracts between parties.
13.4 Penfield Digital may make mention of the existence of a relationship with Client in publications and/or advertising, in new business cases, and on its website.
CLAUSE 14 PRIVACY
14.1 Penfield Digital satisfies the obligations imposed on it pursuant to the law concerning the processing of personal data. Penfield Digital will ensure that suitable technical and organizational measures are taken to safeguard personal data against loss or any form of unlawful processing.
14.2 Client guarantees that all statutory regulations concerning the processing of personal data, including regulations imposed by or pursuant to the General Data Protection Regulation, will be strictly adhered to, that all prescribed notifications have been carried out and that all requisite permissions concerning the processing of personal data have been obtained. The client will provide Penfield Digital with all relevant information requested in writing without delay.
14.3 Client indemnifies Penfield Digital for all third-party claims that might be brought against Penfield Digital in connection with a violation of the General Data Protection Regulation and/or other legislation regarding the processing of personal data that is not attributable to Penfield Digital.
CLAUSE 15 TERM AND TERMINATION
15.1 An agreement between parties will be concluded for the term stated in the Contract(s).
15.2 Each party is entitled to dissolve the contract(s) if the other party fails to perform any obligation under the Contract(s) after proper notice of default has been given, in which respect a reasonable period of a maximum of thirty (30) days has been set to cure the default provided that such default is attributable to the other party.
15.3 Without prejudice to Clause 15.2, one party can, without giving notice of default and without being liable for any damages, immediately and without requiring a court order dissolve the Contract(s) with the other party by notifying that party of same by registered mail, if:
a) the other party has applied for a suspension of payment or has filed for bankruptcy or is put into bankruptcy or proposes an out-of-court composition, or if an attachment is placed on any part of its equity;
b) the other party discontinues its activities, ceases to pursue its object pursuant to the articles of association, decides to wind up the company, or otherwise loses its legal personality.
15.4 Amounts that Penfield Digital invoiced prior to the dissolution in connection with the performance of the Contract(s), will remain payable and will become immediately payable at the moment the Contract(s) are dissolved.
15.5 Provisions which, based on their nature, are intended to survive the termination of the Contract(s) will remain in full force and effect after the termination.
CLAUSE 16 MISCELLANEOUS
16.1 The failure or delay of Penfield Digital to exercise a right or remedy provided by these terms or the Contract(s) does not constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
16.2 The Contract(s), including these terms and conditions, constitute the entire agreement and understanding of the parties and supersedes any previous agreement between the parties relating to the subject matter of the agreement.
16.3 If a court or any other competent authority finds that any provision (or part of any provision) of these terms and conditions is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the terms and conditions shall not be affected.
16.4 Client shall not without the prior written consent of Penfield Digital assign (including by operation of law) or otherwise dispose of the Contract(s) in whole or part or subcontract any duties or obligations under the Contract(s) to any third party. Penfield Digital may assign the Contract(s)in part or in full, in the event of an acquisition of Penfield Digital’s business to which the Contract(s) relates, to the purchaser of such business.
CLAUSE 17 APPLICABLE LAW, COMPETENT COURT
17.1 These Terms and Conditions and Contracts are subject to Dutch law.
17.2 The applicability of the Vienna Sales Convention 1980 (CISG) is excluded.
17.3 Any disputes arising from or related to the Contract(s) will exclusively be referred to the competent court in Amsterdam.