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Terms & conditions

Article 1 – Definitions

“ Service Provider” means Codesignmv, established in Amsterdam, Chamber of Commerce number 81675917, with registered address at Leeuwarden.

”Customer”  means an entity or an individual to whom the services are provided as specified in the Agreement.
” Parties” mean the Service Provider and the Customer jointly.
” Agreement “ mean an agreement, order form, quotation, or other document concluded between the Parties based on which the services shall be provided by Service Provider to the Customer.

Article 2 – Applicability of general terms and conditions

  1. These terms and conditions apply to all quotations, offers, activities, agreements and deliveries of services by or on behalf of the Service Provider.
    2. Deviation from these terms and conditions is only possible if this has been expressly agreed in writing by the parties.
    3. The Agreement always contains best efforts obligations for the Service Provider, not obligations for results.

Article 3 – Payment

  1. The Customer shall pay for the services the fee as agreed in the Agreement. Invoices must be paid within 7 days of the invoice date, unless the parties have made other agreements about this in writing or a different payment term is stated on the invoice.
    2. Payments are made without any recourse to suspension or settlement by transferring the amount due to the bank account number specified by the Service Provider.
    3. If the Customer does not pay within the agreed term, he will be in default by operation of law, without any reminder being required. From that moment on, the Service Provider is entitled to suspend the obligations until the Customer has fulfilled its payment obligations.
    4. If the Customer remains in default, the Service Provider may proceed to collection. The costs related to that collection will be borne by the Customer. If the Customer is in default, he also owes the Service Provider statutory (commercial) interest, extrajudicial collection costs and other damage in addition to the principal sum. The collection costs are calculated on the basis of the Decree on compensation for extrajudicial collection costs.
    5. In the event of liquidation, bankruptcy, seizure or suspension of payment of the Customer, the claims of the Service Provider on the Customer are immediately due and payable.
    6. The Customer understands that the performance of the Agreement depends on the timely cooperation of the Customer. If the Customer refuses to cooperate with the performance of the Agreement by the Service Provider, the Customer is still obliged to pay the agreed price to the Service Provider.
  2. In the event of liquidation, insolvency or suspension of payment of the Customer, the obligations of the Customer are immediately due and payable.

Article 4 – Offers and quotations

  1. The offers from the Service Provider are valid for a maximum of 1 month, unless a different term of acceptance is stated in the offer. If the offer is not accepted within that period, the offer will lapse.
    2. Delivery times in quotations are indicative and do not entitle the Customer to dissolution or compensation if they are exceeded, unless the Parties have expressly agreed otherwise in writing.
    3. Offers and quotations do not automatically apply to repeat orders. Parties must agree on this explicitly and in writing.

Article 5 – Prices

  1. The prices stated in the Agreement, on offers, quotations and invoices from the Service Provider are exclusive of VAT and any other government levies, unless explicitly stated otherwise.
    2. Regarding the service, the Parties can agree on a fixed price when the Agreement is concluded.
    3. If no fixed price has been agreed, the rate for the service may be determined on the basis of the hours actually spent. The rate is calculated according to the usual hourly rates of the Service Provider, valid for the period in which he performs the services, unless a deviating hourly rate has been agreed.
    5. If no rate has been agreed on the basis of the hours actually spent, a target price will be agreed for the service, whereby the Service Provider is entitled to deviate from this up to 10%. If the target price is more than 10% higher, the Service Provider must inform the Customer in good time why a higher price is justified. In that case, the Customer has the right to cancel a part of the Agreement that exceeds the target price plus 10%.

 

Article 6 – Price indexation

  1. The prices and hourly fees agreed upon at the time of entering the Agreement are based on the price level applied at that time. The Service Provider has the right to adjust the fees to be charged to the Customer annually on 1 January or at the time of first anniversary of the Agreement.
    2. Adjusted prices, rates and hourly fees will be communicated to the Customer as soon as possible.

Article 7 – Provision of information by the Customer

  1. The Customer will make all information relevant to the performance of the Agreement available to the Service Provider.
    2. The Customer is obliged to make all information and documents that the Service Provider believes necessary for the correct execution of the Agreement available on time and in the desired form and in the desired manner.
    3. The Customer guarantees the correctness, completeness and reliability of the data and documents made available to the Service Provider, even if these originate from third parties, insofar as the nature of the services does not dictate otherwise.
    4. The Customer indemnifies the service provider against any damage in any form whatsoever arising from non-compliance with the provisions of the first paragraph of this article.
    5. If the Customer does not make the data and documents required by the service provider available, or not on time or properly, and the execution of the Agreement is delayed as a result, the resulting extra costs and extra fees will be borne by the Customer.

Article 8 – Performance of the Agreement and Warranty

  1. The Service Provider will perform the Agreement to the best of its knowledge and ability in a reasonable, professional manner in keeping with professional standards and practices.
    2. The Service Provider has the right to use the subcontractors to provide certain parts of the Services, if ordered by the Customer.
  2. The Customer is obliged to immediately report complaints about the services performed to the Service Provider in writing. The complaint contains a description of the shortcoming that is as detailed as possible, so that the Service Provider is able to respond adequately. A complaint cannot in any case lead to the Service Provider being obliged to perform other activities than those agreed in the Agreement.
  3. Unless stipulated otherwise in the Agreement, TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND CONTENT ARE PROVIDED “AS IS,” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, THE SERVICE PROVIDER EXPLICITLY DISCLAIMS ALL EXPRESS AND IMPLIED, STATUTORY, OR OTHERWISE CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE SERVICE PROVIDER MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SERVICES OR CONTENT. The Service Provider makes no warranty that the Services or any content will meet the Customer’s requirements or be available on an uninterrupted, secure, virus-free or error-free basis.

Article 9 – Duration of the Agreement

  1. The Agreement between the Customer and the Service Provider is entered into for an indefinite period of time, unless the nature of the agreement dictates otherwise or the parties have explicitly agreed otherwise in the Agreement.
    2. If the parties have agreed on a term for the completion of certain activities within the term of the Agreement, this is never a strict deadline. If this term is exceeded, the Customer must give the Service Provider written notice of default.
  2. The Parties may terminate the Agreement as follows: (a) if either Party breaches any material term or condition of the Agreement and fails to cure such breach within thirty (30) days after receiving notice of the breach, the non-breaching Party may terminate the Agreement on notice at any time following the end of such thirty (30) day period; (b) if either Party becomes insolvent on the basis of a respective court order, then the other Party may terminate the Agreement immediately upon notice.
  3. If the Customer terminates the Agreement (or a part thereof) pursuant to this section, the Customer shall pay to the Service Provider the full fee of services performed (including all other costs for which the Service Provider has the right to reimbursement) up to the effective date of the termination.

Article 10 – Force majeure

  1. In addition to the provisions of Article 6:75 Dutch Civil Code, a failure on the part of the Service Provider in the fulfillment of any obligation towards the Customer cannot be attributed to the Service Provider in the event of a circumstance independent of the will of the Service Provider, as a result of which the fulfillment of his obligations towards the Customer are wholly or partially prevented or as a result of which the fulfillment of his obligations cannot reasonably be expected of the Service Provider. These circumstances also include defaults on the part of suppliers or other third parties, power failures, computer viruses, strikes, and work interruptions.
    2. If a situation as referred to above arises as a result of which the Service Provider cannot meet its obligations towards the Customer, those obligations will be suspended as long as the Service Provider cannot meet its obligations. If the situation referred to in the previous sentence has lasted 30 calendar days, the Parties have the right to terminate the Agreement in writing in whole or in part, in which case the Customer shall pay a pro-rata fee for the services already provided.
    3. In the case referred to in the second paragraph of this article, the Service Provider is not obliged to pay compensation for any damage, not even if the Service Provider enjoys any advantage as a result of the force majeure situation.

Article 11 – Set-off

The Customer waives its right to set off a debt to the Service Provider with a claim against the Service Provider.

Article 12 – Suspension

The Customer waives the right to suspend the fulfillment of any obligation arising from this Agreement.

Article 13 – Transfer of rights

Rights of a Party under this Agreement cannot be transferred without the prior written consent of the other Party. This provision applies as a clause with property law effect as referred to in Article 3:83, second paragraph, of the Dutch Civil Code.

Article 14 – Expiry of the claim

Any right to compensation for damage caused by the Service Provider lapses in any case 12 months after the event from which the liability arises directly or indirectly. This does not exclude the provisions of Article 6:89 of the Dutch Civil Code.

Article 15 – Liability for damage

  1. The Service Provider is not liable for damage resulting from this Agreement, unless the Service Provider has caused the damage intentionally or through gross negligence.
    2. The liability of the Service Provider for damage that is the result of intent or willful recklessness on the part of the Service Provider is not excluded.
  2. UNLESS EXPLICITLY STIPULATED OTHERWISE IN THE AGREEMENT, NEITHER THE SERVICE PROVIDER CONTRACTORS, NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT COSTS OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOTLIMITED TO LOST PROFITS, LITIGATION COSTS, LOSS OF DATA OR GOODWILL OR PRODUCTION, OR BUSINESS OPPORTUNITIES, OR REPUTATION, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE SERVICE PROVIDER HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
  3. In no event, the Service Provider will be liable to the Customer in the aggregate with respect to any and all breaches, defaults, or claims of liability under these terms and conditions or under any Agreement or document for an amount of any actual direct damages greater than the fees actually paid by the Customer to the Service Provider for the respective Service(s) during the twelve month period preceding a claim giving rise to such liability. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages. The Customer agrees that in those jurisdictions, the liability of the Service Provider will be limited to the extent permitted by law and the Customers’ rights as a consumer (if applicable) will not be affected. The Parties agree that this clause represents a reasonable allocation of risks

Article 16- Indemnity

The Customer acknowledges and agrees to indemnify, defend and hold harmless the Service Provider from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorneys’ fees) threatened, asserted, or filed by a third party against the Service Provider arising out of or relatiing to: (i) Customer’s use of the services; (ii) any violation by the Customer of these terms and condtions, or any law; (iii) any breach of any of Cutomers’ representations, warranties or covenants contained in these terms and conditions; and/or (iv) any acts or omissions by the Customer. The terms of this section shall survive any termination of the Agreement.

 

Article 17 – Intellectual Property Rights

  1. Unless the parties have agreed otherwise in writing, the Service Provider, and its suppliers and/or licensors if applicable, shall retain all rights (including but not limited to all trademark rights, copyright, trade secrets and any other intellectual property rights) on all designs, drawings, writings, carriers with data or other information, quotations, images, sketches, models, etc. and in and to the services. The Customer agrees that only the Service Provider shall have the right to enhance or otherwise modify the Services. Unless specifically agreed otherwise in writing, the Service Provider reserves all rights and grants the Customer no licenses of any kind, whether by implication or otherwise. The Service Provider shall own and retain all right, title and interest in and to the services and all improvements, enhancements or modifications thereto.
    2. The mentioned intellectual property rights may not be copied, shown to third parties and / or made available or used in any other way without the written permission of the Service Provider.

Article 18 – Confidentiality

  1. Each party shall keep the information it receives (in whatever form) from the other party and all other information regarding the other party that it knows or can reasonably suspect to be secret, confidential, or information that it can disclose. expect that its dissemination could cause harm to the other party, and shall take all necessary measures to ensure that its personnel also keep the said information confidential.
    2. The duty of confidentiality referred to in the first paragraph of this article does not apply to information:
    a. Which at the time the recipient received this information was already public or has subsequently become public without a breach by the receiving party of an obligation of confidentiality incumbent on him ;
    b. of which the receiving party can prove that this information was already in its possession at the time of provision by the other party;
    c. that the receiving party has received from a third party whereby this third party was entitled to provide this information to the receiving party
    d. which is made public by the receiving party on the basis of a legal obligation.
  2. The duty of confidentiality described in this article applies for the duration of this Agreement and for a period of three years after its termination.

Article 19 – Penalty for breach of confidentiality obligation

  1. If the Customer violates the article of these general terms and conditions on confidentiality, the Customer will forfeit an immediately payable penalty on behalf of the service provider of € 5,000 for each violation and an additional amount of € 500 for each day that such violation continues. This is regardless of whether the violation can be attributed to the Customer. Moreover, no prior notice of default or legal proceedings is required for forfeiting this penalty. Nor does there need to be any form of damage.
    2. The forfeiture of the penalty referred to in the first paragraph of this article does not affect the other rights of the Service Provider, including his right to claim compensation in addition to the penalty.

Article 20 – Applicable law and competent court

  1. Dutch law is exclusively applicable to every Agreement between the Parties. 
  2. The Dutch court in the district where CodesignMV has its registered office has exclusive jurisdiction to hear any disputes between the Parties.


Article 21 – Final provisions.

  1. The provisions of this terms and conditions are severable, and if any part of them is held to be illegal or unenforceable, the validity or enforceability of the remainder of them will not be affected.
    2. The Service Provider may from time to time at its sole discretion issue new version of the terms and conditions. In such case, Service Provider shall notify the Customer on e-mail address identified in the Agreement.