General Terms & Conditions – Letterdesk
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Article 1. Definitions
- Third Party (or Parties): persons whom are not involved in the agreement;
- Event: every gathering organized by Letterdesk, including but not limited to: courses, trainings, workshops, and brainstorm sessions;
- Contractor: a person or company providing a service based on an assignment (Letterdesk);
- Agreement: every consensus between Letterdesk and Other Party aimed at the supply of texts;
- Parties: Other Party and Letterdesk jointly;
- Written: by email, by fax, by mail or by means of a physical document;
- Other Party: person whom by signing an agreement or otherwise, has accepted the applicability of these general terms and conditions;
Article 2. Identity
Company name: Letterdesk
Street name and number: Spoorstraat 30a
Zip Code and registered office: 6511 AH Nijmegen
KvK (chamber of commerce) number: 73437700
Article 3. General provisions
- These general terms and conditions apply to every offer by Letterdesk and to every agreement entered into between Letterdesk and Other Party. The text of these general terms and conditions is made available to Other Party before entering into the agreement. Should this not be reasonably possible before entering into the agreement, Letterdesk will point out the manner in which these general terms and conditions are made available at Letterdesk.
- When entering into the agreement electronically, it is allowed to deviate from the previous paragraph before entering into the agreement by providing the text of these general terms and conditions to Other Party in such a way that Other Party can easily store the information on a durable data carrier. If it is not reasonably possible to provide the text in such manner, then Other Party will be informed before entering into the agreement where the general terms and conditions can be electronically accessed, and also that Other Party can request them to be provided electronically or by other means free of charge.
- Unless specifically otherwise agreed in Writing, the applicability of other general terms and conditions is explicitly excluded.
- Deviations from, or additions to, these general terms and conditions only apply when explicitly agreed to in Writing.
- Letterdesk cannot guarantee that its executed work will always achieve the result desired by Other Party. The accepted assignment represents an obligation to provide services, not an obligation of result.
- Letterdesk has the right to call upon Third Parties for the execution of the agreement.
- All agreed upon dates are approximate only and are not strict deadlines, unless agreed otherwise.
- The application of articles 7:404, 7:407(2), and 7:409 of the Dutch Civil Code, is excluded.
Article 4. Offer
- If an offer is of limited duration or occurs under certain conditions, then this will be explicitly mentioned in that offer.
- The offer contains a full and detailed description of the offered products and/or services. The description is sufficiently detailed, allowing Other Party to make a good assessment of the offer. Whenever Letterdesk uses images, these will be a true representation of the offered products and/or services. Evident errors or evident mistakes are not binding upon Letterdesk.
Article 5. The Agreement
- The agreement comes into effect upon the Other Party accepting the offer and complying with the set conditions.
- If a provision of the general terms and conditions or a provision of an agreement appears to be void or is annulled, this will not affect the validity of the remaining general terms and provisions or the validity of the agreement. Parties will consult for the purpose of agreeing to a new provision to replace the one that was void or annulled, wherein keeping as closely as possible to the original purpose and intent of the void or annulled provision.
- Letterdesk reserves the right to refuse to execute a concluded agreement, for instance when it has reasonable doubt or information that Other Party will not (be able to) comply with its (financial) obligations. Should Letterdesk refuse, it will inform Other Party in Writing of this refusal within a reasonable period of concluding the agreement.
- If Other Party has electronically accepted the offer, Letterdesk will electronically confirm the receipt of this acceptance without delay.
- These general terms and conditions also apply to future, additional and/or follow-up assignments.
- Other Party is excluded from the right to suspend.
Article 6. Cancellation and termination
- Letterdesk reserves the right to cancel an Event up to no later than three days before the agreed upon date on which the Event was going to take place. Other Party will be informed of this decision without delay. In case a deposit was made by Other Party, Letterdesk will refund the paid sum to Other Party. If possible, Letterdesk will offer Other Party an alternative. Should Other Party make use of this alternative, the sum will not be refunded.
- Events may only be cancelled in Writing and before the start of the Event. In case of such a cancellation, Letterdesk has the right to charge the following costs to Other Party:
a. In case of cancellation between the moment the agreement was entered into until one month before the Event, 25 (twenty-five) % of the fee will be charged.
b. In case of cancellation within one month before the Event, 50 (fifty) % of the fee will be charged.
c. In case of cancellation within one week before the Event, 75 (seventy-five) % of the fee will be charged.
- Unless otherwise agreed in writing, the improving, editing or writing of a text cannot be cancelled. Should Other Party decide to cancel the assignment after all, payment for all the costs already made, including but not limited to the spent working hours, remains due.
- If there is a continuing performance agreement, this can only be terminated while taking the following notice periods into account: termination occurs while taking a notice period of 1 (one) month into account if the agreement is terminated within the first year, a notice period of two (2) months must be taken into account during the second year of the agreement, and as of the third year of the agreement, the notice period to be taken into account will be six (6) months.
Article 7. Liability
- Letterdesk is not liable for any indirect damage. Not excluded is the liability of Letterdesk for damage caused by intent or deliberate recklessness on the part of Letterdesk.
- Letterdesk is not liable for any direct damage. Not excluded is the liability of Letterdesk for damage caused by intent or deliberate recklessness on the part of Letterdesk.
- Should Letterdesk be liable for direct damage after all, the total liability of Letterdesk will be limited to compensating the maximum fee that was agreed for the agreement in question, excluding VAT. In case of a continuing performance agreement lasting more than 6 (six) months, the agreed fee will be established at the total of fees, excluding VAT, of the 6 (six) months prior to the event resulting in the damage.
- The compensation amount will never exceed the amount paid out by the liability insurance of Letterdesk.
- Direct damage should be taken to mean:
a. Reasonable costs that Other Party had to make to align the product of Letterdesk with the Agreement; this alternative damage will, however, not be compensated when the Agreement is dissolved by Other Party or is dissolved upon request of Other Party;
b. Reasonable costs that were made to establish the cause and scope of the damage to the extent that this establishing concerns damage within the meaning of these terms and conditions;
c. Reasonable costs that were made to prevent or limit the damage to the extent that Other Party can demonstrate that these costs resulted in a limitation of the damage within the meaning of these terms and conditions.
- A precondition for the arising of any right to compensation is always for Other Party to notify Letterdesk of this damage in Writing as soon as possible after it has arisen. Every claim for compensation against Letterdesk will expire by the mere lapse of 12 (twelve) months after the establishing of the claim.
- Letterdesk is not liable for any damage caused by auxiliary personnel as meant by article 6:76 of the Dutch Civil Code.
- Other Party indemnifies Letterdesk against any claim by Third Parties.
Article 8. Force majeure
- In addition to the provisions of article 6:75 of the Dutch Civil Code, a failure of Letterdesk in the fulfillment of any obligation towards Other Party cannot be attributed to Letterdesk in case of a circumstance that is beyond the control of Letterdesk, as a result of which the fulfillment of its obligations towards Other Party is wholly or partially prevented, or as a result of which the fulfillment of its obligations cannot be reasonably expected by Other Party. Among other things included in such circumstances are computer viruses, malfunctions, (public transportation) strikes, and (technical) vehicle problems.
- Should a situation arise as meant in paragraph 1 of this article, as a result of which Letterdesk is unable to fulfill its obligations towards Other Party, these obligations will be suspended so long as Letterdesk is unable to fulfill them.
Article 9. Fee
- All amounts are in euros and excluding turnover tax and other levies charged by the government, unless otherwise agreed.
- Letterdesk reserves the right to apply a correction for inflation once per year.
- The agreed amounts are based on cost-determining factors at the time the offer is made. Letterdesk reserves the right to pass on the arisen changes in cost-determining factors occurring outside the reasonable control of the contractor, such as the increase in excise, social premiums, insurance premiums or turnover tax, to the Other Party, up to a maximum of 20% of the original amount.
- A composite offer does not oblige Letterdesk to execute part of the assignment against a proportional part of the offered price.
- Discounts and offered prices do not automatically apply to future assignments.
Article 10. Payment and invoicing
- Unless otherwise agreed in the agreement or additional terms, the amounts owed by Other Party must be paid within 14 (fourteen) days of the invoice date.
- Other Party is obliged to inform Letterdesk of any errors in the provided or mentioned payment information without delay.
- If Other Party fails to timely meet its payment obligation(s), Letterdesk will point out this late payment and offer Other Party another 7 (seven) days to meet its payment obligations. If again, no payment is made within this seven-day period, Other Party will be in default and will, as a result, also owe the legal interest over the due amount. In addition, Letterdesk will have the right to charge the extrajudicial collection costs to Other Party.
- In case of (a reasonable prospect of) bankruptcy, liquidation, suspension of payment, or if the Act on Debt Consolidation for Natural Persons has become applicable, the claims of Letterdesk against Other Party and the obligations of Other Party towards Letterdesk become immediately due and payable in full.
- Payments made by Other Party will always be used to first settle all owed interest and costs, and secondly, to settle the claimable invoices that are longest overdue, even if Other Party states for a payment to relate to a later invoice.
Article 11. Complaints
- Other Party can no longer invoke a defective performance if he has not protested with Letterdesk to this regard within two months after finding out, or should have found out, about the defect. A period of 48 (forty-eight) hours applies in case of a visible defect at the time of delivery.
- Other Party must allow Letterdesk at least 4 (four) weeks to resolve the complaint in mutual consultation.
- In case a complaint is not reported to Letterdesk within the periods of time mentioned in the previous paragraphs, the product is considered to comply with the Agreement and to function in accordance with the Agreement.
Article 12. Transfer
- The rights of a party in this Agreement cannot be transferred without the previous Written consent of the other party. This provision acts as a property law stipulation as meant in article 3:83(2) of the Dutch Civil Code.
- This provision will be valid until no longer legally admissible.
Article 13. Additional work
- In case Letterdesk, with the prior Written permission of Other Party, has performed works or other services falling outside the content or scope of the agreement at the request of Other Party or at its own request, then these works or services will be payable by Other Party in accordance with the usual rates applied by Letterdesk. There is never any obligation for Other Party to comply with such a request and Other Party will be free to ask for a separate written agreement to that purpose.
- Other Party will accept that the works and services as meant in paragraph 1 of this article may affect the agreed upon objectives and expectations.
Article 14. Intellectual property
- All intellectual property rights pertaining to, or resulting from, the services provided by Letterdesk will rest with Letterdesk. Other Party will solely get the non-exclusive user rights awarded by these conditions and the law. This excludes any other or further right of Other Party.
- The documents provided to Other Party by Letterdesk are solely to be used by Other Party. Other Party is not allowed to make public and/or multiply the results of the work of Letterdesk for any other purposes than those for which they were intended. This includes but is not limited to the editing, selling, making public, distributing and, whether or not after editing, the including in networks, with the exception of such publication and/or multiplying occurring after the explicit Written permission of Letterdesk and/or should such publication and/or multiplying result from the nature of the agreement with Letterdesk.
- Letterdesk retains the right to use the knowledge acquired during the execution of the works for other purposes to the extent that this does not include the release of confidential information of Other Party to Third Parties.
- Unless otherwise agreed, Other Party is not allowed to grant sublicenses to Third Parties.
- Letterdesk does not waive any personality rights, including the right to be named, unless explicitly otherwise agreed in Writing.
- Letterdesk has the right to use the name and logo of Other Party as a reference or for purposes of promotion.
- If Other Party acts in violation of this article, Other Party will owe an immediately claimable penalty of three times the fee agreed upon in the agreement in question, without prejudice to the right of Letterdesk for compensation.
Article 15. Confidentiality
- Parties will have a pledge of secrecy regarding all confidential information that they have obtained from one another within the framework of the agreement. Information is confidential when thus pointed out by the other party or when this reasonably derives from the nature of the information.
- If Other Party violates paragraph 1 of this provision, Other Party will, regardless of whether the violation can be attributed to Other Party, and without previous notice of default or legal proceedings, owe Letterdesk an immediately claimable penalty of 20,000 (twenty thousand) euros for each violation, without there having to be any form of damage and without prejudice to the other rights of Letterdesk, including its right to claim compensation in addition to the penalty.
Article 16. Indemnification
- Other Party will ensure that all the provided information and materials are free of infringements on any third-party intellectual property rights.
- If Other Party provides Letterdesk with an image for the execution or result of the Agreement to which a portrait right applies, Other Party will state for Letterdesk to be allowed to use this portrait.
- Letterdesk has no research obligation regarding that which is referred to in the previous paragraph.
- Other Party indemnifies Letterdesk from any Third-Party claims arising from intellectual property right infringements.
- Other Party also indemnifies Letterdesk from any Third-Party claims, including at least all claims in relation to the execution of the Agreement which cannot be attributed to Letterdesk. All costs and damage on the side of Letterdesk in regard to such claims, will be at the expense and risk of Other Party.
Article 17. Employee clause
- For the duration of the agreement as well as for 1 (one) year after the end of the agreement, Other Party will only hire, or otherwise directly or indirectly employ a Letterdesk employee, after obtaining the prior written permission by Letterdesk.
- Letterdesk will not refrain from giving such permission in such a case Other Party has offered a suitable compensation. A suitable compensation is defined as a compensation of 10 (ten) months of salary.
Artikel 18. Applicable law and registration
- These general terms and conditions, assignments and/or other Agreements are subject to Dutch law.
- This document is a translation. In the event of any dispute to the interpretation of any of these conditions, the official Dutch language version will prevail.
- The Dutch version of these general terms and conditions are registered with the Dutch Chamber of Commerce.
Article 19. Survival
- The provisions from these general terms and conditions and the Agreement which have a scope to remain in effect after the Agreement has ended, including but not limited to article 7 (liability), article 14 (Intellectual property), article 15 (Confidentiality), article 17 (Employee clause), and this provision (Survival), will remain in full force and effect after the termination of the Agreement.
Article 20. Changing of General Terms and Conditions
- At all times, Letterdesk has the right to unilaterally change the general terms and conditions which apply to the Agreement.
- This change will take effect on the Agreement 1 (one) month after Other Party has been informed of said change.