These are the General Terms and Conditions of Media Wise (hereinafter referred to as “MW”), a company with address Anna Paulownastraat 10, 2518 BE The Hague. MW is registered with the Chamber of Commerce under number 59581883. VAT ID NL003632238B95
In these General Terms and Conditions, the following terms have the following meaning, unless expressly stated otherwise:
General Terms and Conditions: These general terms and conditions as stated below.
Company: the Other Party acting in the course of a business or profession.
VAT ID NL003632238B95
Legal jurisdiction: the Netherlands’ Civil Code.
Assignment: All work, in whatever form, that MW performs for or for the benefit of the Other Party.
Distance services: an agreement concluded between MW and the Other Party in the context of an organised system for distance services, whereby exclusive or joint use is made of one or more techniques for distance communication up to, and including, the conclusion of the agreement;
Service: All work, in whatever form, that MW performs for or on behalf of the Other Party.
Agreement: Any agreement concluded between MW and the Other Party.
Other Party: the Company that has accepted these General Terms and Conditions and has commissioned the provision of a Service.
These General Terms and Conditions apply to every quotation and Agreement concluded between MW and the Other Party, unless the parties have expressly deviated from these General Terms and Conditions in writing.
These General Terms and Conditions also apply to agreements with MW, for the implementation in which third parties must be involved.
The applicability of general terms and conditions of the Other Party is expressly rejected.
Deviations from the Agreement and General Terms and Conditions are only valid if they have been expressly agreed in writing between the parties.
All quotations, where the contrary is not expressly stated, count as an offer without obligation and can always be revoked, even if they contain a term for acceptance. Quotations can also be revoked in writing by MW within seven days of receipt of acceptance, in which case no agreement has been concluded between the parties.
All quotations from MW are valid for 14 days, unless stated otherwise.
MW cannot be held to its quotations if the Other Party, on the basis of reasonableness and fairness and generally accepted views, should have understood that the quotation or a part thereof contains an obvious mistake or error.
If the acceptance, whether or not on minor points, deviates from the offer included in the quotation, MW is not bound by it. The Agreement will then not be concluded in accordance with this deviating acceptance, unless MW indicates otherwise.
Conclusion of agreement
The Agreement is concluded upon acceptance by the Other Party of MW’s offer.
Quotations can only be accepted in writing (including electronically). MW is nevertheless entitled to accept a verbal acceptance as if it had been made in writing.
The moment MW receives an order confirmation from the Other Party, an Agreement is concluded between the parties, or the moment MW actually starts the execution.
The Agreement supersedes and replaces all previous proposals, correspondence, agreements or other communications, whether written or oral.
Execution of the agreement
The Agreement will be performed by MW to the best of its knowledge and ability, in accordance with the requirements of good workmanship. The application of articles 7:404, 7:407 paragraph 2 and 7:409 of the Dutch Civil Code is expressly excluded.
MW determines the manner in which and by which person(s) the Assignment is performed. MW is entitled to have certain activities performed by third parties.
MW is entitled to execute the Agreement in phases. If the Agreement is performed in phases, MW is entitled to invoice each performed part separately. If and as long as this invoice is not paid by the Other Party, MW is not obliged to carry out the next phase and has the right to suspend the Agreement.
Changes and additional work
If during the execution of the Agreement it appears that it is necessary for proper execution to change or supplement the Agreement, MW will inform the Other Party of this as soon as possible. The parties will then proceed to amend the Agreement in good time and in mutual consultation.
If the parties agree that the Agreement will be amended/supplemented, the time of completion of the implementation may be affected as a result. MW will inform the Other Party of this as soon as possible.
If the amendment or supplement to the Agreement financial, quantitative and/or qualitative, should have consequences, MW will inform the Other Party about this in advance.
If a fixed rate or fixed price has been agreed, MW will indicate to what extent the amendment/addition to the Agreement affects the rate/price. MW will try – as far as possible – to provide a quotation in advance.
MW will not be able to charge additional costs if the change/addition is the result of circumstances that can be attributed to MW.
Changes to the originally concluded Agreement between the parties are only valid from the moment that these changes have been accepted by both parties by means of an additional or amended Agreement.
Obligations of the Other Party
The Other Party will ensure that all data, instructions, materials and/or equipment which MW indicates are necessary or which the Other Party should reasonably understand to be necessary for the performance of the Agreement are made available in a timely manner. The Other Party must also grant MW access and any powers and authorisations necessary to perform the Assignment properly.
If it has been agreed that the Other Party will make available software, materials or data on information carriers, these will meet the specifications necessary for the performance of the work.
MW is not liable for damage, of whatever nature, due to MW relying on incorrect and/or incomplete information provided by the Other Party, unless MW should have been aware of this inaccuracy or incompleteness.
If the materials provided by the Other Party are protected by intellectual property, the Other Party guarantees that it has the required licenses.
The Other Party must refrain from conduct that makes it impossible for MW to perform the Assignment properly.
If work is performed by MW or third parties engaged by MW in the context of the Assignment at the location of the Other Party or a location designated by the Other Party, the Other Party will provide the facilities required free of charge.
If the Other Party has not fulfilled its obligations, as included in this article, MW has the right to suspend performance of the Agreement and/or to charge the Other Party for the additional costs resulting from the delay in accordance with the usual rates.
Unless expressly agreed otherwise in writing, the prices and rates indicated by MW are always exclusive of VAT.
Prices and rates are also exclusive of any additional expenses such as travel, accommodation and other, unless agreed otherwise.
If a rate has not been expressly agreed, the rate will be determined on the basis of the hours actually spent and MW’s usual rates.
MW will provide the Other Party with a statement of all additional costs in good time before concluding the Agreement or provide information on the basis of which these costs can be passed on to the Other Party.
In the event that MW intends to change the price or rate, it will inform the Other Party as soon as possible.
If the increase in the price or rate takes place within three months after the conclusion of the Agreement, the Other Party may dissolve the Agreement by means of a written statement, unless:
the increase arises from a power or an obligation resting on MW pursuant to the law;
the increase is due to an increase in the price of raw materials, taxes, production costs, currency exchange rates, etc. or on other grounds that were not reasonably foreseeable when the Agreement was entered into; MW is still willing to perform the Agreement on the basis of what was originally agreed; or it is stipulated that the execution will be carried out longer than three months after the conclusion of the Agreement.
Payment is made by transfer to a bank account designated by MW, unless otherwise agreed.
MW will send an invoice for the amounts owed by the Other Party. The payment term of each invoice is 14 days after the date of the relevant invoice, unless otherwise indicated on the invoice or otherwise agreed. Invoicing takes place monthly, unless otherwise agreed.
MW and the Other Party can agree that payment will be made in instalments in proportion to the progress of the work. If payment in instalments has been agreed, the Other Party must pay in accordance with the instalments and percentages as laid down in the Agreement.
Objections to an invoice do not suspend the payment obligation of the Other Party.
The Other Party is not authorised to deduct any amount due from a counterclaim made by it.
In the event of non-payment or late payment, the Other Party is legally in default without notice of default. The Other Party shall then owe statutory commercial interest from the date on which payment became due until the day of full payment, whereby interest on part of the month is calculated over a whole month.
A payment made by the Other Party will in the first place be deducted from all interest and costs owed and finally from due and payable invoices that have been outstanding the longest, even if the Other Party states that the payment relates to later invoices.
If the Other Party is in default or in default in the (timely) fulfilment of its obligations, all reasonable costs incurred in obtaining payment out of court will be borne by the Other Party.
With regard to the extrajudicial (collection) costs, MW is entitled to compensation of 15% of the total outstanding principal sum with a minimum of €100 for every invoice that has not been paid in whole or in part.
In the event of bankruptcy, suspension of payments, liquidation, total seizure of assets, death or receivership, the claims of MW and the obligations of the Other Party towards MW are immediately due and payable.
Any reasonable judicial costs and execution costs incurred will also be borne by the Other Party.
The Other Party must examine the Assignment at the time of execution, but in any event within 7 days after execution, to see whether the Assignment performed complies with the Agreement.
Complaints must be reported to MW in writing within 7 days after execution of the Assignment.
The right to a (partial) refund of the price, replacement or compensation will lapse if the complaint is not reported within the set term, unless a longer term arises from the nature of the Assignment or circumstances of the case.
The payment obligation will not be suspended if the Other Party notifies MW of the complaint within the specified period.
If a term has been agreed or specified for the delivery, this term is only indicative and can never be regarded as a strict deadline, unless expressly agreed in writing.
MW is not liable in the event of harmful consequences for the Other Party as a result of exceeding delivery times, unless gross negligence on the part of MW is demonstrated.
If MW needs data, materials or instructions from the Other Party that are necessary for the delivery, the delivery time will commence after the Other Party has provided them to MW.
MW will not be in default by operation of law after the agreed delivery periods have expired. A further written notice of default is always required for this, whereby MW will be given a period of at least 14 days to fulfill its obligations.
A notice of default is not required if delivery has become permanently impossible or if it otherwise appears that MW will not fulfil its obligations under the Agreement. If MW still does not deliver within this term, the Other Party has the right to dissolve the Agreement in accordance with Article 265, Book 6 of the Dutch Civil Code.
Force majeure and unforeseen circumstances
In the event of force majeure, a shortcoming cannot be attributed to MW or the Other Party, as the shortcoming is not due to their fault. In this case, the parties are also not obliged to fulfil all obligations arising from the Agreement.
In the General Terms and Conditions, force majeure is understood to mean, in addition to what is understood in that area in law and jurisprudence, all external causes, foreseen or unforeseen, over which MW has no influence and as a result of which MW is unable to fulfil its obligations.
Force majeure on the part of MW is in any case understood to mean:
government measures that prevent MW from fulfilling its obligations on time or properly;
riots, riot, war;
lack of manpower;
extreme weather conditions;
import, export and/or transit bans; and/or
any circumstance as a result of which the normal course of business is hindered as a result of which the fulfilment of the Agreement by MW may not reasonably be required by the Other Party.
Parties may terminate the Agreement at any time by mutual consent.
Parties can terminate the Agreement in writing prematurely with a notice period of 1 month.
Parties may terminate the Agreement in writing with immediate effect, in the event of:
application by, or granting of, a legal suspension of payments to the other party;
application for bankruptcy by or declaration of bankruptcy by the other party; or
liquidation of the other party, or permanent cessation of the business of the other party.
If the Agreement is dissolved, MW’s claims against the Other Party are immediately due and payable. If MW suspends the fulfilment of its obligations, it will retain its rights under the law and the Agreement. MW always reserves the right to claim compensation.
MW is only liable for direct damage caused by gross negligence – or intent of – on the part of MW, and not for more than the amount that the insurer pays to MW, or up to a maximum of the invoice amount or an amount of €5,000, if the invoice amount is higher.
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 the General Terms and Conditions;
reasonable costs incurred in order for the defective performance of MW to comply with the Agreement, insofar as these can be attributed to MW; or
reasonable costs incurred to prevent or limit damage, insofar as the Other Party demonstrates that these costs have led to limitation of direct damage as referred to in the General Terms and Conditions.
MW is never liable for indirect damage, including consequential damage, loss of profit, lost savings, damage due to business interruption, damage as a result of the provision of inadequate cooperation and/or information from the Other Party, damage due to non-binding information or advice provided by MW, of which the content does not expressly form part of the Agreement, and all damage that does not fall under direct damage within the meaning of these general terms and conditions.
MW is never liable for errors in the material provided by the Other Party or for misunderstandings or errors with regard to the execution of the Agreement if these are caused by acts of the Other Party, such as late or non-delivery of complete, sound and clear data/materials.
MW is never liable for errors if the Other Party has previously given its approval or has been given the opportunity to carry out an inspection and has indicated that it has no need for such an inspection.
The liability limitations laid down in this article are also stipulated for the benefit of third parties engaged by MW for the execution of the Agreement, and MW is never liable for damage caused by shortcomings of these third parties engaged.
MW is not liable for damage to or destruction of documents during transport or during dispatch by post, regardless of whether the transport or dispatch is carried out on behalf of MW, the Other Party or third parties.
The Other Party indemnifies MW insofar as the law permits, with regard to liability towards one or more third parties that arose from and/or is related to the execution of the Agreement, regardless of whether the damage was caused by MW or its auxiliary persons (and), auxiliary items or (delivered) Products or Services.
In addition, the Other Party indemnifies MW, to the extent permitted by law, against all claims by third parties in connection with any infringement of intellectual property rights of these third parties.
The Other Party is always obliged to make every effort to limit the damage.
All intellectual property rights to all products, materials, analyses, designs, sketches, software, equipment, documentation, advice, reports, (electronic) information, as well as preparatory material thereof, made available by MW in the context of the implementation of the Agreement ( collectively the “IP Material“), are owned solely by MW or its licensors.
The Other Party only acquires any rights and powers with regard to the IP Material that arise from the Agreement and/or that are expressly granted in writing.
The Other Party has a duty of confidentiality and is obliged to treat it confidentially with regard to IP Material made available, as it contains confidential information and trade secrets of MW or its licensors.
The Other Party is not permitted to transfer any acquired right or authority with regard to the IP Material to third parties, without the prior written consent of MW.
The Other Party is not permitted to remove or change any designation regarding intellectual property rights such as copyrights, trademarks or trade names from the IP Material, unless otherwise agreed.
MW is allowed to take technical measures to protect the IP Material. If MW has secured the IP Material by means of technical protection, the Other Party is not permitted to remove or evade this protection.
Any exploitation, duplication, use or disclosure by the Other Party of the IP Material that falls outside the scope of the Agreement or the rights and powers granted is considered a violation of MW’s intellectual property rights.
For such a violation, the Other Party will pay an immediately due and payable fine of €2000 per infringing act and not subject to judicial mitigation, without prejudice to MW’s right to be compensated for its damage caused by the infringement or to take other legal measures in order to to end the infringement.
There will be no violation of intellectual property rights if the Other Party has received express written permission from MW for exploitation, duplication, use or disclosure of the IP Material that falls outside the scope of the Agreement or the rights and powers granted.
MW will provide backup copies of e-mails and materials used and produced under the Agreement, unless expressly stated otherwise and/or otherwise agreed. However, MW does not bear any responsibility for any loss of data and resulting damage. The backup copies are for the Other Party’s own use. The Other Party must also back up important information itself.
All IP Material developed by MW for the implementation of the Agreement can be used by MW for its own promotional purposes, unless otherwise agreed with the Other Party.
MW respects the privacy of the Other Party. MW handles and processes all personal data provided to it in accordance with applicable legislation, in particular the General Data Protection Regulation. The Other Party agrees to this processing. MW uses appropriate security measures to protect the personal data of the Other Party.
MW only uses the personal data of the Other Party in the context of the execution of the Agreement or the handling of a complaint.
For more information about privacy, reference is made to the MW Privacy Statement on its website.
Contrary to any statutory limitation periods, a limitation period of one year applies to all claims and/or powers that the Other Party has vis-à-vis MW and/or any third parties engaged by MW.
The Other Party is not permitted to transfer rights and obligations arising from the Agreement to third parties without obtaining written permission from MW.
MW is entitled to attach conditions to this permission.
The provisions of the General Terms and Conditions and the Agreement, which are expressly or by their nature intended to remain in force after termination of this Agreement, will remain in force thereafter and continue to bind both parties.
Any deviations from these General Terms and Conditions can only be agreed in writing. No rights can be derived from such deviations with regard to legal relationships entered into at a later date.
The administration of MW will serve as proof of the applications made by the Other Party, subject to proof to the contrary. The Other Party acknowledges that electronic communication can serve as proof.
If and insofar as any provision of the General Terms and Conditions and the Agreement is declared null and void or annulled, the other provisions of these General Terms and Conditions and the Agreement will remain in full force and effect. MW will then adopt a new provision to replace the void/nullified provision, whereby the purport of the void/nullified provision will be taken into account as much as possible.
The place of performance of the Agreement is deemed to be the place where MW is established.
Applicable law and choice of forum
All Agreements, the General Terms and Conditions, and all non-contractual rights and obligations arising therefrom are governed in all respects by Dutch law.
All disputes between MW and the Other Party, which may arise as a result of an Agreement and/or General Terms and Conditions, or of agreements resulting therefrom, will in the first instance be settled by the competent Court.