General Terms & Conditions
These are the General Terms and Conditions of MAKE and Partners B.V. (hereinafter referred to as “MAKE and Partners”), a company with an address at Van Nelleweg 1, Rotterdam. MAKE and Partners is registered with the Chamber of Commerce under number 94128855.
Definitions
In these General Terms and Conditions, the following terms have the following meanings unless expressly stated otherwise:
General Terms and Conditions: these general terms and conditions as stated below.
Company: the Counterparty acting in the exercise of a business or profession.
BW: the Dutch Civil Code.
Assignment: All activities in any form that MAKE and Partners carries out for or on behalf of the Counterparty.
Agreement: Any agreement entered into between MAKE and Partners and the Counterparty.
Counterparty: the Company that has accepted these General Terms and Conditions and has assigned the execution of an Assignment.
Unless the General Terms and Conditions expressly state otherwise, singular references shall be deemed to include the plural and vice versa, and any reference to a male form shall also be deemed to include a reference to the female form and vice versa.
Applicability
These General Terms and Conditions apply to every offer, quotation, and Agreement entered into between MAKE and Partners and the Counterparty unless parties have expressly deviated from these General Terms and Conditions in writing.
These General Terms and Conditions also apply to agreements with MAKE and Partners for the execution of which third parties must be involved.
The applicability of the general terms and conditions of the Counterparty is expressly rejected.
Deviations from the Agreement and General Terms and Conditions are only valid if expressly agreed in writing between the parties.
Offers and/or Proposals
All offers and/or proposals, unless explicitly stated otherwise, are considered non-binding offers and may be revoked at any time, even if they contain a term for acceptance. Offers/proposals may also be revoked by MAKE and Partners promptly upon receipt of acceptance, but no later than within two working days, in which case no Agreement will have been formed between the parties.
All offers and/or proposals from MAKE and Partners are valid for 4 weeks unless stated otherwise.
MAKE and Partners cannot be bound by its offers and/or proposals if the Counterparty, based on reasonableness and fairness and generally accepted views in social traffic,
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mistake.
If the acceptance deviates, whether or not on minor points, from the offer and/or proposal, MAKE and Partners is not bound by it. The Agreement will not be concluded in accordance with this deviating acceptance unless MAKE and Partners indicates otherwise.
Formation of the Agreement
The Agreement is concluded by the acceptance by the Counterparty of the offer and/or proposal from MAKE and Partners.
Offers and/or proposals can only be accepted in writing (including electronically). MAKE and Partners is nonetheless entitled to accept an oral acceptance as if it had been made in writing.
An Agreement between the parties is concluded when an assignment confirmation is signed by both the Counterparty and MAKE and Partners or when MAKE and Partners actually starts performing.
The Agreement replaces and supersedes all previous proposals, correspondence, agreements, or other communication, whether written or oral.
Execution of the Agreement
The Agreement will be executed by MAKE and Partners to the best of its knowledge and ability in accordance with the requirements of good craftsmanship. The intended work represents a best efforts obligation on the part of MAKE and Partners. The application of articles 7:404, 7:407 paragraph 2, and 7:409 of the BW is expressly excluded.
MAKE and Partners determines how and by whom the Assignment will be executed. MAKE and Partners is entitled to have certain work performed by third parties.
MAKE and Partners is entitled to execute the Agreement in stages. If the Agreement is carried out in stages, MAKE and Partners is entitled to invoice each completed part separately. As long as the invoice for a completed part is not paid, MAKE and Partners is not obliged to perform the next stage and is entitled to suspend the Agreement.
MAKE and Partners is entitled to the pre-notified public holidays, despite the minimum number of hours that may be stipulated in the Agreement.
Changes and Additional Work
If during the execution of the Agreement it becomes apparent that it is necessary to modify or supplement the Agreement for proper execution, MAKE and Partners will inform the Counterparty as soon as possible. The parties will then proceed to modify the Agreement in a timely manner by mutual consent.
If the parties agree to modify or supplement the Agreement, the completion time of the execution may be affected. MAKE and Partners will inform the Counterparty of this as soon as possible.
If the modification of or addition to the Agreement has financial, quantitative, or qualitative consequences, MAKE and Partners will inform the Counterparty in advance.
If a fixed fee or price has been agreed upon, MAKE and Partners will indicate to what extent the modification or addition to the Agreement will affect the fee/price. MAKE and Partners will, where possible, attempt to provide a price estimate in advance.
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MAKE and Partners cannot charge additional costs if the modification/addition results from circumstances attributable to MAKE and Partners.
Modifications to the originally concluded Agreement between the parties are only valid from the moment they are accepted by both parties through a supplementary or amended Agreement.
Obligations of the Counterparty
The Counterparty must ensure that all data, equipment, or spaces that MAKE and Partners indicate are necessary or that the Counterparty should reasonably understand to be necessary for the execution of the Agreement, are made available in a timely manner. The Counterparty must also grant MAKE and Partners all necessary authorities and authorizations required to properly execute the Assignment.
MAKE and Partners is not liable for any damage of any kind caused by MAKE and Partners relying on incorrect and/or incomplete data provided by the Counterparty unless the incorrectness or incompleteness should have been known to MAKE and Partners.
The Counterparty must ensure that the employees of the Counterparty's organization involved in the work are available in a timely manner.
The Counterparty must refrain from any conduct that makes it impossible for MAKE and Partners to properly execute the Assignment.
If MAKE and Partners or third parties engaged by MAKE and Partners carry out work at the Counterparty’s location or at a location designated by the Counterparty in connection with the Assignment, the Counterparty must provide the necessary facilities free of charge.
If the Counterparty does not fulfill its obligations as set out in this article, MAKE and Partners has the right to suspend the execution of the Agreement and/or charge the extra costs incurred due to the delay to the Counterparty at the usual rates or fees.
Prices
Unless explicitly agreed otherwise in writing, the prices and rates indicated by MAKE and Partners are always exclusive of VAT.
The prices and rates are exclusive of shipping, travel, accommodation, and other expenses unless otherwise agreed.
If no price or rate has been explicitly agreed upon, the price or rate will be determined based on the actual time spent and the usual rates of MAKE and Partners.
MAKE and Partners will timely inform the Counterparty of all additional costs before the Agreement is concluded, or provide data on the basis of which these costs may be charged to the Counterparty.
If MAKE and Partners agrees on a fixed price or rate when concluding the Agreement, MAKE and Partners is entitled to increase it even if the price or rate was originally given without reservation.
In the event that MAKE and Partners intends to change the price or rate, it will notify the Counterparty as soon as possible.
If the price or rate increase occurs within three months after the conclusion of the Agreement, the Counterparty may dissolve the Agreement by written declaration unless: The increase results from a legal authority or obligation imposed on MAKE and Partners under the law;
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The increase is due to a rise in the price of raw materials, taxes, production costs, exchange rates, wages, etc., or for other reasons that were not reasonably foreseeable at the time of entering into the Agreement;
MAKE and Partners is still willing to execute the Agreement on the originally agreed terms; or
It was stipulated that execution would take place more than three months after the conclusion of the Agreement.
Payment
Payment must be made by transfer to a bank account designated by MAKE and Partners unless otherwise agreed.
MAKE and Partners will send an invoice for the amounts due by the Counterparty. The payment term of each invoice is 30 days after the date of the invoice unless otherwise stated on the invoice or agreed.
Invoices are issued monthly unless otherwise agreed.
MAKE and Partners and the Counterparty may agree that payment will be made in installments proportional to the progress of the work. If payment in installments has been agreed upon, the Counterparty must pay according to the terms and percentages set out in the Agreement.
Objections to the amount of the invoice do not suspend the payment obligation of the Counterparty.
The Counterparty is not entitled to set off any amount against the amount owed due to a counterclaim.
In the event of non-payment or late payment, the Counterparty is in default by operation of law without the need for a notice of default. From the date the payment becomes due, the Counterparty owes statutory commercial interest until the day of full payment, with interest being calculated for a part of a month as for a full month.
A payment made by the Counterparty will first be deducted from all interest and costs owed, and finally from the longest outstanding invoices, even if the Counterparty states that the payment relates to later invoices.
If the Counterparty is in default or in breach of its obligations (timely or otherwise), all reasonable extrajudicial costs incurred to obtain payment will be borne by the Counterparty.
With respect to extrajudicial (collection) costs, MAKE and Partners is entitled to compensation of 15% of the total outstanding principal amount, with a minimum of €100 for each invoice that is wholly or partially unpaid.
In the event of bankruptcy, suspension of payments, liquidation, general seizure of assets, death, or guardianship, the claims of MAKE and Partners and the obligations of the Counterparty towards MAKE and Partners will become immediately due and payable.
Any judicial costs and execution costs reasonably incurred will also be borne by the Counterparty.
Complaints
The Counterparty must examine the Assignment at the time of execution or, in any case, within 7 days after the execution to determine whether the executed Assignment conforms to the Agreement.
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Complaints must be reported in writing to MAKE and Partners within 7 days after the execution of the Assignment.
The right to (partial) reimbursement of the price, replacement, or compensation will expire if the complaint is not reported within the specified period, unless the nature of the Assignment or the circumstances justify a longer period.
The payment obligation is not suspended if the Counterparty notifies MAKE and Partners of a complaint within the specified period.
Force Majeure and Unforeseen Circumstances
A failure cannot be attributed to MAKE and Partners or the Counterparty if the failure is not due to their fault, nor should it be borne by them under the law, a legal act, or prevailing social views. In such a case, neither party is obliged to fulfill the obligations arising from the Agreement.
In these General Terms and Conditions, force majeure refers to, in addition to what is understood in law and jurisprudence, all external causes, whether foreseen or unforeseen, over which MAKE and Partners has no control, and as a result of which MAKE and Partners is unable to fulfill its obligations.
Force majeure on the part of MAKE and Partners includes, in any case: Strikes;
Transportation disruptions;
Government measures that prevent MAKE and Partners from fulfilling its obligations on time or properly;
Riots, insurrections, war;
Traffic obstructions;
Lack of labor;
Extreme weather conditions;
Fire;
Import, export, and/or transit bans; and/or
Any circumstance that hinders the normal course of business, as a result of which MAKE and Partners cannot reasonably be expected to fulfill the Agreement.
Termination of the Agreement
Parties may terminate the Agreement at any time by mutual consent.
Parties may terminate the Agreement in writing with a notice period of 14 days.
Parties may terminate the Agreement with immediate effect in writing in the event of: An application by or granting of a suspension of payments to the other party;
An application for bankruptcy by or a declaration of bankruptcy of the other party; or
Liquidation of the other party or permanent cessation of the other party's business.
If the Agreement is dissolved, the claims of MAKE and Partners against the Counterparty become immediately due and payable. If MAKE and Partners suspends the fulfillment of obligations, it retains its rights under the law and the Agreement. MAKE and Partners always retains the right to claim compensation for damages.
Liability
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MAKE and Partners is only liable for direct damage caused by gross negligence or willful misconduct on the part of MAKE and Partners and is not liable for more than the amount paid out by the insurer to MAKE and Partners or at most once the amount stated on the invoice.
Direct damage is exclusively understood to mean: Reasonable costs to determine the cause and extent of the damage, insofar as the determination relates to damage within the meaning of these General Terms and Conditions;
Reasonable costs incurred to have the defective performance of MAKE and Partners meet the Agreement, insofar as these can be attributed to MAKE and Partners; or
Reasonable costs incurred to prevent or limit damage, insofar as the Counterparty demonstrates that these costs have led to a limitation of direct damage as referred to in these General Terms and Conditions.
MAKE and Partners is never liable for indirect damage, including but not limited to consequential damage, lost profits, missed savings, damage due to business interruption, damage resulting from the provision of incorrect cooperation and/or information by the Counterparty, damage due to non-binding information or advice provided by MAKE and Partners, or any damage that does not fall under direct damage as defined in these General Terms and Conditions.
MAKE and Partners is never liable for errors in the material provided by the Counterparty or for misunderstandings or errors regarding the execution of the Agreement if these are caused by actions of the Counterparty, such as not providing complete, reliable, and clear data/materials in a timely manner.
MAKE and Partners is never liable for errors if the Counterparty has previously given approval or has been given the opportunity to perform a check and has indicated no desire to do so.
The liability limitations set forth in this article also apply in favor of third parties engaged by MAKE and Partners in the execution of the Agreement.
MAKE and Partners is not liable for damage or loss of documents during transport or mailing, regardless of whether the transport or mailing is carried out by or on behalf of MAKE and Partners, the Counterparty, or third parties.
Confidentiality
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 the Agreement. Information is considered confidential if it has been communicated as such by the other party or if it arises from the nature of the information. The party receiving confidential information will only use it for the purpose for which it was provided.
If, on the basis of a legal provision or a court ruling, MAKE and Partners is required to disclose confidential information to third parties designated by law or the competent court, and MAKE and Partners cannot invoke a legal or court-recognized right of non-disclosure, MAKE and Partners is not obliged to pay compensation or damages, and the Counterparty is not entitled to dissolve the Agreement on the grounds of any damage caused by this.
Notwithstanding the foregoing, MAKE and Partners is authorized to include the name of the Counterparty on a list of clients published on the website or through other expressions to third parties unless otherwise agreed.
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Indemnification
To the extent permitted by law, the Counterparty indemnifies MAKE and Partners against any liability towards third parties arising from or related to the execution of the Agreement, regardless of whether the damage was caused by MAKE and Partners or its auxiliaries or assistance tools, or the executed Assignment.
Furthermore, the Counterparty indemnifies MAKE and Partners, to the extent permitted by law, against any third-party claims in connection with any infringement of intellectual property rights by these third parties.
The Counterparty is always obliged to take all measures necessary to limit the damage.
Intellectual Property
All intellectual property rights to all products, materials, analyses, designs, software, documentation, advice, reports, quotations, (electronic) information, and preparatory materials developed or provided in the context of the execution of the Agreement (collectively the “IE Material”) are vested solely in MAKE and Partners or its licensors.
The Counterparty only acquires any rights and powers regarding the IE Material that arise from the Agreement and/or that are expressly granted in writing.
The Counterparty is not permitted to transfer any obtained right or authority regarding the IE Material to third parties without prior written consent from MAKE and Partners.
The Counterparty is not permitted to remove or alter any indication of intellectual property rights such as copyrights, trademarks, or trade names from the IE Material.
Any exploitation, reproduction, use, or disclosure by the Counterparty of the IE Material that falls outside the scope of the Agreement or granted rights and powers will be considered an infringement of the intellectual property rights of MAKE and Partners.
The Counterparty will pay a penalty of €10,000 per infringing action to MAKE and Partners, which is immediately payable and not subject to judicial moderation, without prejudice to MAKE and Partners’ right to claim damages or take other legal measures to stop the infringement.
No infringement of intellectual property rights occurs if the Counterparty has received express written permission from MAKE and Partners to exploit, reproduce, use, or disclose the IE Material that falls outside the scope of the Agreement or granted rights and powers.
Privacy
MAKE and Partners respects the privacy of the Counterparty. MAKE and Partners processes and treats all personal data provided to it in accordance with the applicable laws, particularly the General Data Protection Regulation (GDPR). The Counterparty consents to this processing. To protect the Counterparty’s personal data, MAKE and Partners employs appropriate security measures.
MAKE and Partners uses the Counterparty's personal data exclusively in the context of the execution of the Agreement or for handling a complaint.
For more information on privacy, refer to the MAKE and Partners website.
Expiry Period
For all claims and/or powers that the Counterparty may have against MAKE and Partners and/or any third parties engaged by MAKE and Partners, a limitation period of one year applies, Algemene Voorwaarden - MAKE and Partners B.V. 8
differing from the statutory limitation periods, from the moment an event occurs that allows the Counterparty to exercise these rights and/or powers against MAKE and Partners and/or the third parties engaged by MAKE and Partners.
Transfer
The Counterparty is not permitted to transfer any rights and obligations arising from the Agreement to third parties without obtaining prior written consent from MAKE and Partners.
MAKE and Partners is entitled to attach conditions to this consent.
Survival
The provisions of these General Terms and Conditions and the Agreement that are intended to remain in effect after the termination of the Agreement will remain binding after the termination and continue to bind the parties.
Miscellaneous
Any deviations from these General Terms and Conditions can only be agreed upon in writing. Such deviations cannot be derived for future legal relationships.
The administration of MAKE and Partners is considered proof of the applications made by the Counterparty, unless proven otherwise. The Counterparty acknowledges that electronic communications can serve as evidence.
If and to the extent that any provision of these General Terms and Conditions or the Agreement is declared void or annulled, the remaining provisions will remain in force. MAKE and Partners will establish a new provision to replace the void/annulled provision, taking into account the intent of the void/annulled provision as much as possible.
The place of execution of the Agreement is considered to be the location where MAKE and Partners is established.
Applicable Law and Forum Selection
All Agreements, the General Terms and Conditions, and all non-contractual rights and obligations arising from them are governed in all respects by Dutch law.
All disputes between MAKE and Partners and the Counterparty that may arise in connection with an Agreement and/or the General Terms and Conditions, or from agreements resulting from them, will initially be settled by the competent court of the Rotterdam District Court.
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