General terms & Conditions
Article 1. Applicability
1.1 These General Terms and Conditions apply to and form an integral part of all Perpetuum Marketing's orders, quotations, offers, agreements, and commitments, regardless of their name, unless Perpetuum Marketing expressly deviates from these Terms and Conditions in writing.1.2 The following definitions apply to Perpetuum Marketing: Perpetuum Marketing B.V., located at Danzigerbocht 39F, 1049JK, Amsterdam, and registered with the Chamber of Commerce under number 8383838, both in and outside its capacity as a consultancy firm for marketing.
Principal: any other party, legal entity or natural person, or a number of jointly acting persons, legal or otherwise, who enters into an Agreement with Perpetuum Marketing or requests Perpetuum Marketing to perform work or provide services.
Agreement: every agreement between Perpetuum Marketing and the Customer, any amendment or supplement thereto, as well as all (legal) acts in preparation for and implementation of that agreement.
1.3 Deviation from these terms and conditions is only possible in writing if signed by the management of Perpetuum Marketing. If the court declares one or more provisions inapplicable or invalid, for whatever reason, these terms and conditions will remain in force in all other respects.
1.4 General terms and conditions of the Client are expressly rejected, unless these terms and conditions have been accepted in writing by Perpetuum Marketing.
1.5 These terms and conditions also apply to all agreements with Perpetuum Marketing, for the implementation of which third parties must be engaged.
Article 2. Offers and Quotations
2.1 All offers, including quotations, information in any attached annexes, prices, and other conditions, are without engagement, unless the offer indicates a period for acceptance. They are valid for 30 days, unless otherwise indicated. Perpetuum Marketing is only bound by the offers if the acceptance thereof is confirmed in writing by the other party within 30 days, unless otherwise indicated.
2.2 The prices in the mentioned offers and quotations are exclusive of VAT, regular office costs, and any costs to be incurred in the context of the Agreement, unless otherwise indicated.
2.3 A composite quotation does not oblige Perpetuum Marketing to carry out part of the assignment at a corresponding part of the quoted price.
2.4 If the Agreement is not granted to Perpetuum Marketing, Perpetuum Marketing shall be entitled to charge the Client for all costs incurred by Perpetuum Marketing in preparing the offer.
Article 3. Conclusion of Agreements
3.1 Agreements are established in writing and when Perpetuum Marketing carries out the quoted work.
3.2 The Agreement replaces and cancels all previous proposals, correspondence, agreements, or other communications, whether written or oral.
3.3 The prices in the mentioned offers and quotations are exclusive of VAT, regular office costs, and any costs to be incurred in the context of the Agreement, unless otherwise indicated.
3.4 The content of presentations, printed matter, websites, etc. is not binding on Perpetuum Marketing, unless explicitly referred to in the Agreement.
3.5 Perpetuum Marketing reserves the right, without giving reasons, not to accept Agreements or to accept them only on the condition that the Client confirms the Agreement in writing in advance and/or that Perpetuum Marketing will only start work after payment in advance.
Article 4. Execution of the Agreement
4.1 Perpetuum Marketing shall represent the interests of the Client within the boundaries of the Agreement and subject to applicable laws and regulations. Perpetuum Marketing will execute the Agreement to the best of its knowledge and ability, according to the procedures agreed with the Client. Unless otherwise agreed in writing, Perpetuum Marketing is free to perform and shape the work as it sees fit. The intended work is expressly subject to a best efforts obligation on the part of Perpetuum Marketing.
4.2 Perpetuum Marketing shall determine how and by whom the granted assignment or the Agreement shall be performed, while observing the requirements made known by the Client as much as possible. If and insofar as the proper execution of the Agreement allows, Perpetuum Marketing has the right to have (parts of) the agreed work performed by third parties.
4.3 The Client shall ensure that all information which Perpetuum Marketing indicates is necessary, or which the Client should reasonably understand is necessary for the execution of the Agreement, is provided to Perpetuum Marketing correctly and in a timely manner.
4.4 If, in Perpetuum Marketing's opinion, the content of a telephone conversation with the Client warrants this, Perpetuum Marketing will draw up a discussion report. If the Client has not responded to the consultation report within 4 working days of receipt, the content of the consultation report shall be considered accurate and complete, and the Client and Perpetuum Marketing shall be bound by its content. If action is to be taken by Perpetuum Marketing within 4 working days of contact, prior approval will be sought from the Client by email.
4.5 If the information required for the execution of the Agreement is not provided to Perpetuum Marketing in a timely manner, Perpetuum Marketing 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.
4.6 If, in connection with an assignment, Perpetuum Marketing or third parties engaged by Perpetuum Marketing perform work at the Client's location or a location determined in consultation with the Client, the Client shall bear all costs of travel time, transportation, and accommodation. The Client shall also cooperate in providing facilities deemed necessary by Perpetuum Marketing or third parties engaged by Perpetuum Marketing for the performance of their work. The Client acknowledges that any costs in this context cannot always be estimated in advance. If Perpetuum Marketing pre-funds said costs, the provisions of Article 6 shall apply.
4.7 Perpetuum Marketing is not liable for damages of any kind arising from the fact that Perpetuum Marketing relied on incorrect and/or incomplete information provided by the Client, unless this incorrectness or incompleteness should have been known by Perpetuum Marketing.
4.8 If the Client provides Perpetuum Marketing with information carriers, electronic files, or software, etc., the Client guarantees that these information carriers, electronic files, or software are free of viruses and defects.
4.9 The Client shall not give similar assignments to another agency unless Perpetuum Marketing has agreed to this in writing.Article
5. Amendments to the Agreement
5.1 Any amendments and additions to the Agreement are valid only if confirmed in writing by Perpetuum Marketing or if given effect by Perpetuum Marketing. If the changes are made verbally, the risk is borne by the Client.
5.2 If the parties agree that the Agreement will be amended or supplemented, this may affect the time of completion of the execution.
5.3 If a fixed fee has been agreed, Perpetuum Marketing will indicate to what extent the amendment or supplement to the Agreement will result in an increase of this fee.
Article 6. Fee (Rates)
6.1 All rates are exclusive of VAT, advertising costs, and costs of tools that may need to be purchased in order to perform work according to the Agreement.
6.2 Unless otherwise agreed in writing, the agreed work shall be performed by Perpetuum Marketing against payment for the actual hours spent.
6.3 Notwithstanding Article 6.2, the parties may also agree a fixed fee or price per service rendered. If the Client reduces the scope of the assignment in the interim, the provisions of Article 8 shall apply.
6.4 The parties may make part of the fee dependent on a specific result to be achieved, if they agree to this in writing.
6.5 Perpetuum Marketing is entitled to pass on price increases if Perpetuum Marketing can demonstrate that, between the time of the offer and the execution of the Agreement, the rates that determine the fee, such as wages and other prices, have increased significantly.
6.6 Additionally, Perpetuum Marketing may increase the fee if, during the course of the work, it becomes apparent that the originally agreed or expected amount of work was underestimated to such an extent at the time of closing of the Agreement, and this is not attributable to Perpetuum Marketing, that Perpetuum Marketing cannot reasonably be expected to perform the agreed work for the originally agreed fee.
6.7 Excesses of up to 15% of the quotations are accepted by the Client as a budgetary risk and do not need to be reported as such.
6.8 Perpetuum Marketing may charge the costs due under the Agreement periodically from the conclusion of the Agreement.
Article 7. Payment and Security
7.1 At the conclusion of the Agreement or the commencement of the work, an advance payment of 50% of the total quoted amount shall be made. This is to bridge the time and costs between the commencement and the final completion of the assignment. Payment by the Client of the remainder of the amount must be made, without suspension or setoff, within 30 days of the invoice date, in a manner indicated by Perpetuum Marketing. Any objections to the amount of the invoices do not suspend the payment obligation.
7.2 Perpetuum Marketing has the right to demand the provision of security for the execution of the Agreement, or to set different payment conditions in other respects, such as payment (in advance) of the agreed fee.
7.3 Costs of creative/film production and (social) media buying must always be paid by the Client before the time at which Perpetuum Marketing is obliged to pay these costs.
7.4 If the Client defaults on payment, the Client shall automatically owe, from that moment on, interest of 1% per month until the full amount has been paid.
7.5 All extrajudicial costs related to the collection of debts - including collection costs and any reasonable judicial and execution costs incurred - will also be borne by the Customer. The extrajudicial costs will amount to at least 15% of the principal sum due. The mere recourse to a third party by Perpetuum Marketing causes the principal to become due.
7.6 In the event of liquidation, bankruptcy, attachment, or suspension of payment of the Client, Perpetuum Marketing's claims against the Client shall be immediately due and payable.
7.7 Complaints against invoices must be submitted to Perpetuum Marketing in writing within 14 days.
Article 8. Contract term, termination, term of execution
8.1 The Agreement is entered into for an indefinite period, unless otherwise agreed.
8.2 Both parties may terminate the Agreement in writing, subject to a notice period of one month, unless otherwise agreed. During the notice period, the Client is obliged to pay the amount equal to the determined billable amount for the month in question.
8.3 In the event of premature termination, Perpetuum Marketing shall, in consultation with the Client, arrange for the transfer of work still to be performed to (a) third party (parties). If the transfer of the work involves additional costs for Perpetuum Marketing, these will be charged to the Client.
8.4 If a term has been agreed within the term of the Agreement for performing certain activities, this shall never be a deadline, and the Agreement may not be terminated on the grounds of failure to meet the deadline. If the deadline is exceeded, the Client should therefore give Perpetuum Marketing first written notice of default.
8.5 The Client is required to inform Perpetuum Marketing at all times in a timely manner of circumstances that could have a materially adverse financial impact on the (amount of) work to be performed by Perpetuum Marketing for the Client, including, for example, reductions in the Client's budget for the benefit of the Client's marketing and communication interests. If the Client fails to do so, the Client shall forfeit to Perpetuum Marketing an immediately payable contractual penalty of an amount consistent with the regulation set out in the two preceding paragraphs, without prejudice to the Client's obligation to reimburse Perpetuum Marketing for any actual damages.
Article 9. Complaints about Work Performed
9.1 Complaints about the work performed must be notified in writing by the Client to Perpetuum Marketing within 14 days after completion of the relevant work. The notice of complaint must contain as detailed a description as possible of the shortcoming, so that Perpetuum Marketing is able to respond adequately.
9.2 Complaints as referred to in the first paragraph do not suspend the payment obligation.
9.3 If a complaint is well-founded, Perpetuum Marketing has the choice between adjusting the invoiced fees, correcting or redoing the rejected work free of charge, or not (or no longer) performing the Agreement in whole or in part against a proportional refund of the fees already paid by the Client.Article
10. Suspension and dissolution
10.1 If Principal wishes to terminate the Agreement in whole or in part, this must be done in writing by registered letter or e-mail.
10.2 If the Client suspends all or part of the Agreement, Perpetuum Marketing shall make an immediately payable claim for all work performed to that date plus the capacity reserved (with Perpetuum Marketing and third parties), with a minimum of 50% of the quoted costs.
10.3 Perpetuum Marketing is authorized to suspend fulfillment of the obligations or to dissolve the Agreement if:
- The Client fails to fulfill, or fails to fulfill in full, the obligations under the Agreement;
- After the conclusion of the Agreement, circumstances come to Perpetuum Marketing's knowledge that give reason to fear that the Client will not fulfill the obligations;
- The good reputation of Perpetuum Marketing is at such risk that Perpetuum Marketing can no longer be expected to commit itself to the Client, at Perpetuum Marketing's sole discretion. Perpetuum Marketing requested the Client, upon entering into the Agreement, to provide security for the fulfillment of its obligations under the Agreement, and this security is not provided or is insufficient;
- Circumstances arise which are of such nature that fulfillment of the Agreement is impossible or, according to standards of reasonableness and fairness, can no longer be demanded;
- bankruptcy, suspension of payments, full or partial cessation of business or operations, liquidation, transfer, death, in the event of receivership or if the statutory debt rescheduling scheme for natural persons is or has been declared applicable to the Customer and furthermore in the event that the Customer's goods are seized before judgement or in execution.
10.4 In the event that the Agreement is dissolved, Perpetuum Marketing's claims against the Client shall become immediately due and payable. If Perpetuum Marketing suspends fulfillment of the obligations, it shall retain its claims under the law and the Agreement, including the right to compensation.
Article 11. Non-attributable failure (force majeure)
11.1 The parties are not obliged to comply with any obligation if they are prevented from doing so as a result of a circumstance that is not due to negligence, and for which they cannot be held accountable by virtue of the law, a juristic act or generally accepted practice.
11.2 For the purposes of these General Terms and Conditions, force majeure is defined, in addition to the provisions of the law and case law, as all external causes, foreseen or unforeseen, over which Perpetuum Marketing has no control, but which prevent Perpetuum Marketing from fulfilling its obligations. Strikes in the business of Perpetuum Marketing are also included.
Article 12. Liability
12.1 If Perpetuum Marketing is liable, this liability will be limited to the provisions of this clause.
12.2 Perpetuum Marketing will be liable for failures in the execution of the agreed contract, insofar as these are the result of Perpetuum Marketing's failure to exercise the care, expertise, and professionalism which may be relied upon in the execution of these activities in the context of the relevant contract.
12.3 In the unlikely event that Perpetuum Marketing is held liable, such liability shall at all times be limited to a maximum of the amount to be paid by Perpetuum Marketing's insurer in the case concerned.
12.4 In the unlikely event that the insurer does not pay out and Perpetuum Marketing is held liable, liability will be limited to the direct damage suffered up to a maximum of the agreed fee for the Agreement, or at least that part of the assignment to which the liability relates. In the case of an assignment with a duration of more than six months, the liability shall be further limited to the part of the fee payable for the last three months. At all times, the liability shall never exceed €10,000 (in words: ten thousand euros).
12.5 Perpetuum Marketing is not liable for:
- The execution of the work that has been assigned to third parties or of which the result depends on third parties.
- Any damage, of whatever nature, due to Perpetuum Marketing having assumed incorrect and/or incomplete details provided by the client, unless such incorrectness or incompleteness should have been apparent to Perpetuum Marketing;
- for indirect damage, including consequential damage, loss of profit, brand or image damage, lost savings, damage due to business interruption, damage resulting from the provision of insufficient cooperation and/or information by the client, damage due to non-binding information or advice provided by Perpetuum Marketing, the content of which does not explicitly form part of the Agreement and all damage that does not fall under direct damage within the meaning of these General Terms and Conditions;
- for errors in the material made available by the client or for misunderstandings or errors in the execution of the Agreement if these have their origin or cause in actions of the client, such as the late or non-delivery of complete, sound, and clear data/materials.
- for errors, if the client has previously granted approval or has been given the opportunity to perform a check and has indicated that it has no need for such a check.
12.6 Any claims by the client in this sense must be submitted within three months of discovery of the damage and never later than three months after completion of the assignment, failing which the client shall have forfeited his rights.
12.7 The Client indemnifies Perpetuum Marketing against all damages and legal actions of third parties.
Article 13. Confidentiality
13.1 The Client, its employees, and third parties engaged by Perpetuum Marketing are obliged to maintain the confidentiality of all confidential information that they receive from Perpetuum Marketing or from another source, on pain of a penalty, which is not subject to reduction or settlement, or judicial mitigation, of € 50,000 (fifty thousand euros) for each violation, without prejudice to Perpetuum Marketing's right to claim full compensation and/or damages. Information is considered to be confidential if the other party has indicated this or if this follows from the nature of the information.
13.2 If, on the basis of a legal provision or a court judgment, Perpetuum Marketing is required to provide confidential information to third parties designated by law or the competent court, and Perpetuum Marketing cannot claim a legal right to refuse to provide information, acknowledged or permitted by the competent court, Perpetuum Marketing will not be required to pay damages or compensation, and the Client will not be entitled to terminate the Agreement on the basis of any damage resulting from this.
Article 14. Intellectual Property
14.1 Notwithstanding the other provisions of these General Terms and Conditions, Perpetuum Marketing reserves the rights and powers vested in Perpetuum Marketing under the Copyright Act or other intellectual property rights.
14.2 The Client is not entitled to modify the products produced under the Agreement without the prior written permission of Perpetuum Marketing.
14.3 If and insofar as materials are made available by the Client to Perpetuum Marketing in connection with the implementation of an Agreement, the Client warrants that they are not subject to (intellectual) property rights or other rights of third parties, or that the Client has obtained permission from the copyright owners for the use of these materials, etc. by Perpetuum Marketing. The Client also guarantees that the use of these materials, etc. will not infringe any (legal) regulations, rules, and/or guidelines.
14.4 The intellectual property rights to the works that Perpetuum Marketing develops for the Client under the Agreement are vested in Perpetuum Marketing. In order to obtain and maintain its legal position, Perpetuum Marketing is entitled to establish (related) intellectual property rights.
14.5 If and to the extent that the Client complies with all of his contractual obligations, Perpetuum Marketing grants the Client an exclusive license to use the approved results of the Assignment in accordance with the agreements on the purpose of use, period, area, and media as stated in the Agreement. If the Parties have not agreed anything further in this regard, the license shall be limited to the first use of the work envisaged by the Parties.
14.6 The Parties may at any time make further arrangements regarding any (partial) transfer of the intellectual property rights to the works created by Perpetuum Marketing for the Client. This shall include, where applicable, the source codes of software and websites developed by Perpetuum Marketing or by third parties engaged by Perpetuum Marketing.
14.7 If the Client acts in breach of his contractual obligations, Perpetuum Marketing shall be entitled to temporarily suspend or terminate the exclusive license to use the work as described in Article 14.5.
14.8 Even after any transfer of the rights as described in Article 14.5, Perpetuum Marketing remains entitled (subject to the rights of third parties) to use the result of the Agreement for submission to prize festivals, curricular, museum and editorial purposes, (non-) commercial internal use, and (historical) promotion of Perpetuum Marketing itself, for example in office presentations, on the website and social media of Perpetuum Marketing, in brochures, and/or other expressions.
14.9 All data (ideas, concepts, materials, images, and other digital content) related to the Assignment which is in the possession of Perpetuum Marketing shall be preserved and returned to the Client at the end of the Agreement.
Article 15. Transfer of rights and obligations
15.1 The Client is not entitled to transfer or pledge the rights or obligations under the Agreement or the General Terms and Conditions without the prior written consent of Perpetuum Marketing.
15.2 The Client agrees to the transfer of the Agreement, including the related rights and obligations, to Perpetuum Marketing's group companies and/or third parties engaged by Perpetuum Marketing.
15.3 Perpetuum Marketing is entitled to transfer the rights and obligations under the Agreement, as well as the related rights and obligations, to a group company or third party engaged by Perpetuum Marketing.Article 16. Applicable law and disputes
16.1 Dutch law applies to all Agreements between Perpetuum Marketing and the Client.
16.2 All disputes that may arise as a result of the Agreement shall be submitted to the competent Dutch court.
Article 17. Interpretation
17.1 The Dutch text of these General Terms and Conditions is always decisive for their interpretation.