Terms of Service

Makkie. Media Terms of Service

Last updated: 13th of September 2021

ARTICLE 1: GENERAL

1.1 These terms of service are also accessible via https://makkie.media/policies/tos ("Terms of Service").

1.2 In these Terms of Service the following definitions apply:

1.2a "Client": every natural person or legal entity that has concluded on an agreement, respectively wishes to conclude an agreement, as well as its representative(s), authorized person(s), assignee(s) and heirs;

1.2b "Contractor": the legal entity Makkie. Media registered in the Trade Register of the Dutch Chamber of Commerce under registration number 80589103.

1.3 In all cases where "in writing" is stated in these Terms of Service it is understood that this includes e-mail, fax or other messages sent by analog or digital means that have reached the Client, respectively the Contractor.

ARTICLE 2: APPLICABILITY

2.1 These Terms of Service apply to all offers and agreements relating to services offered by the Contractor, as well as to all legal relationships between the Contractor and the Client, except insofar as laws or regulations exclude or restrict the application of these Terms of Service and are subject to change which must be confirmed expressly and in writing by the participating parties.

2.2 If and insofar as one of more provisions of these Terms of Service are deviated from in writing, the provisions from which no express derogation has been made will remain in full effect.

2.3 Amendments to these Terms of Service agreed to in writing only apply to the cases specified in that specific agreement, unless the deviations are confirmed in writing in a subsequent agreement.

2.4 The Client is presumed to also accept these Terms of Service with regard to later offers, deliveries and services from the Contractor, subsequent assignments issued by the Client to the Contractor and subsequent agreements concluded between the Contractor and the Client.

2.5 The present Terms of Service also apply to all agreements for the execution of which the Contractor engages third parties.

2.6 The applicability of the terms of service used by the Client is expressly rejected.

ARTICLE 3: OFFER

3.1 All offers and/or quotations from the Contractor are without obligation, unless – and then only insofar – the Contractor has stated otherwise in writing.

3.2 The prices in the said offers and/or quotations are exclusive of VAT, unless indicated otherwise. The prices used are periodically (in principle as of 1 January) revised on the basis of wage and price developments.

3.3 An agreement is only concluded after an authorized officer of the Contractor has accepted an order in writing. For activities for which, due to their nature and/or scope, no quotation or order confirmation is sent, the start of the execution of the activities is considered to be the order confirmation.

ARTICLE 4: EXECUTION OF THE ASSIGNMENT AND SERVICES

4.1 The Contractor will perform the agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship. The Contractor will make every effort to perform the work properly and carefully, as well as to represent the interests of the Client to the best of its knowledge and to strive for a result that is useful to the Client. However, the Contractor cannot guarantee that the work will always achieve the result desired by the Client.

4.2 The Contractor has the right to have certain activities performed by third parties.

4.3 The Client shall ensure that all data, which the Contractor indicates are necessary, or which the Client should reasonably understand to be necessary for the performance of the agreement, are provided to the Contractor in a timely manner. If the information required for the execution of the agreement has not been provided to the Contractor in time, the Contractor has the right to suspend the execution of the agreement and/or to charge the Client for the additional costs resulting from the delay in accordance with the usual rates.

4.4 If it has been agreed that the agreement will be executed in phases, the Contractor may suspend the execution of those parts that belong to a following phase until the Client has approved in writing and/or paid for the results of the preceding phase.

ARTICLE 5: ADDITIONAL WORK

5.1 The Contractor has the right to adjust the price for the services it provides in the event of changes in the agreed project proposal or quotation, including with regard to the design, functionality, implementation, method, scope, analysis and/or the reporting that takes place in consultation with or at the request of the Client.

5.2 The Contractor has the right to charge the Client for supplementary additions, tests, discussions and/or configurations that take place at the request of the Client.

ARTICLE 6: COMPLETION OF THE ASSIGNMENT

6.1 If a certain time path has been agreed upon for the completion of certain activities it is only an indicative term and never a strict deadline.

6.2 The Contractor will only be in default after the Client has given the Contractor notice of default in writing and the reasonable term specified in the notice of default is not fulfilled.

6.3 If the Contractor does not expect to meet a deadline, the Contractor will inform the Client of this as soon as possible.

ARTICLE 7: REPORTING

7.1 Reporting by the Contractor to the Client takes place in accordance with the project proposal, quotation or agreement.

7.2 If no method of reporting is specified, reporting will be in English and in accordance with the standards of good workmanship. If no reporting medium has been agreed, the Contractor will determine the medium that will be used for this.

ARTICLE 8: CHANGES

8.1 If during the execution of the agreement it appears that it is necessary for a proper execution to change or supplement the work to be performed, the parties will adjust the agreement accordingly in time and in consultation.

8.2 Not withstanding the provisions of Article 8 Paragraph 1, the Contractor has the right, in the interest of the service and in order to try to optimize the result for the client, to change the titles and descriptions at its own discretion and without the prior consent of the Client.

8.3 If the parties agree that the agreement will be amended or supplemented, the time of completion of the execution may be affected as a result. The Contractor will inform the Client of this as soon as possible.

8.4 If the changes or additions to the agreement have financial and/or qualitative consequences, the Contractor is entitled to charge the costs thereof to the Client. The Contractor will inform the Client of this in advance.

8.5 If a fixed fee has been agreed upon, the Contractor will indicate to what extent the amendment or supplement to the agreement will result in this fee being exceeded.

8.6 Contrary to Article 8 Paragraph 3, the Contractor will not be able to charge additional costs if the change or addition is the result of circumstances that can be attributed to itself.

ARTICLE 9: RESPONSIBILITY OF THE CLIENT

9.1 The Client must itself and at its own risk ensure proper equipment and proper other facilities that provide access to a network on which it can receive the services provided by the Contractor.

9.2 The Client is responsible for the reimbursement of the communication costs incurred.

9.3 The Client is fully responsible for the correctness of the data, texts, images or other data supplied by it to the Contractor.

9.4 Where appropriate, the Client guarantees the correctness of the proofs and/or drafts accepted by him, respectively for proofs and/or concepts for which he has not sent corrections or corrections to the Contractor in time.

9.5 Texts, images or other data compiled by the Contractor for the benefit of the Client are deemed to have been accepted by the Client, unless desired changes are notified in writing within a period of seven (7) days after publication by electronic means.

9.6 The Client guarantees its power of attorney if it concerns an assignment for the benefit of third parties.

9.7 The Client guarantees at all times that the material supplied by it to the Contractor does not infringe any rights of third parties, including intellectual property rights.

9.8 The Client guarantees at all times that the material supplied by it to the Contractor does not infringe any rights of third parties, including intellectual property rights.

ARTICLE 10: CONFIDENTIALITY

10.1 The parties are obliged to keep confidential all information that they have obtained from each other or from another source in the context of the agreement, regardless of whether it is of a written or oral nature and from whomever. Information is considered confidential if this has been communicated by the other party or if this is clear from the nature of the information.

10.2 The Contractor reserves the right to use the Client's name as a reference and to make it public as such, unless – and then only insofar – the Client has stated otherwise in writing.

10.3 The (personal) data provided to the Contractor will be treated confidentially. The information provided is recorded in a file. This data is not made available to third parties.

ARTICLE 11: EXCLUSIVITY AND NON COMPETE

11.1 For the duration of the agreement and for a period of one (1) year after its termination, the Client is not permitted to directly or indirectly employ an employee of the Contractor, or to enter into a contractual relationship with a employee of the Contractor, unless the Contractor has granted written approval for this.

11.2 For any infringement of the provision included in Article 11 Paragraph 1, the Client forfeits an immediately due and payable fine of EUR 50,000 per violation or EUR 1,000 per day for each day that the infringement continues, without prejudice to the Contractor's right to claim full compensation. This compensation explicitly includes any costs to uphold the Contractor's rights both in and out of court – in the first case these costs will not be limited to the established court order to pay costs – as well as any costs to establish the violation or have it established and establish liability.

11.3 The Client grants the Contractor the exclusive right to fulfill the assigned assignment for the duration of the agreement and with due observance of the provisions of the agreement.

ARTICLE 12: INTELLECTUAL PROPERTY

12.1 All copyrights and other intellectual property rights with regard to the services provided by the Contractor are vested in the Contractor. The Client acknowledges these rights and will refrain from any infringement thereof.

12.2 All documents provided by the Contractor including, but not limited to, (digital) reports, monitors, checklists, advice, templates, sales guides, illustrations, photos, designs, sketches, software, applications and introduction pages are exclusively intended to be used by the Client.

12.3 The Client is not permitted to disclose and/or reproduce information obtained from the Contractor in any form whatsoever, including, but not limited to selling, processing, making available, distributing and integrating it into networks, unless such disclosure and/or duplication is permitted in writing by the Contractor and/or such disclosure and/or duplication results from the nature or purpose of the agreement with the Contractor.

12.4 All documents supplied by the Contractor for the fulfillment of the assignment, includign, but not limited to documents, reports and optimized pages, remain the property of the Contractor. After termination or termination of the contract, the Contractor may request the Client to return or remove from its website the documents, including, but not limited to, reports, delivered optimized pages and advice.

12.5 The Contractor reserves the right to use the knowledge acquired for the execution of the work for other purposes, insofar as no confidential information of the Client is disclosed to third parties.

12.6 The Client indemnifies the Contractor against all claims by third parties with regard to intellectual property rights with regard to the publication of texts, images or other data provided to it by or on behalf of the Client. In this regard, it will apply between the parties that digital images of third-party networks do not belong to the Client, unless the Client proves otherwise.

ARTICLE 13: CONTRACT DURATION AND TERMINATION

13.1 The agreement is entered into for a period of one year, unless a different period is included in the order confirmation. Agreements for an indefinite period are deemed to be agreements of one year, which are extended by one year each time.

13.2 The agreement ends by cancellation with due observance of a notice period of two (2) months towards the end of the term of the agreement, whereby the campaign is terminated on the last day of the calendar month.

13.3 If no timely notice is received, the agreement will be extended for a period of one year, unless a different period was agreed in the original agreement.

13.4 An agreement for a definite period cannot be terminated prematurely.

13.5 The Contractor also has the right to cancel or terminate the agreement with immediate effect or to suspend its obligations under the agreement, whereby it retains the right to the compensation as agreed in the agreement if:

13.5a the Client has been declared bankrupt, the Client has been granted a moratorium, as well as in the event of the Client's dissolution and liquidation, or if a prejudgment or enforcement attachment has been made on movable and/or immovable property of the Client;

13.5b the Client is in default in the fulfillment of its obligations under the agreement.

ARTICLE 14: FEE/REIMBURSEMENTS

14.1 The Contractor's fee does not depend on the outcome or result of the services rendered.

14.2 All prices and cost estimates are exclusive of VAT, unless stated otherwise.

14.3 If no fixed fee is agreed, the fee will be determined on the basis of hours actually spent. The fee is calculated in accordance with the Contractor's usual hourly rates applicable in the period in which the work is performed, unless a deviating hourly rate has been agreed.

14.4 For all assignments, the costs will be charged monthly or quarterly.

14.5 Prices are based, among other things, on factors applicable at the time of the statement or conclusion of the agreement or quotation, including wages, social security and tax charges, levies, insurance premiums, etc. If, after the statement or conclusion of the agreement and before the completion of the services or delivery, changes in these or other price-determining factors should occur, the Contractor has the right to adjust the prices it uses and to invoice the Client.

14.6 The Contractor owes the Client a fee as agreed in the agreement.

ARTICLE 15: PAYMENTS

15.1 Payment must be made within fourteen (14) days of the invoice date, in a manner to be indicated by the Contractor in the currency in which the invoice is made.

15.2 After the expiry of this strict payment term of fourteen (14) days after the invoice date, the Client is in default without further summons or notice of default being required; From the moment of default until the moment of payment in full, the Client is subject to an interest of 1.5% per fourteen (14) days on the amount due, unless the statutory interest is higher, in which case the statutory interest applies.

15.3 When entering into the agreement, the Contractor can stipulate an advance. The advance will be stated in the offer and/or the contract. The Client is obliged to pay the advance, unless otherwise agreed in writing.

15.4 If the Client has been declared bankrupt, if the Client has been granted a suspension of payments, as well as in the event of dissolution and liquidation of the Client, or if a prejudgment or enforcement attachment has been made on movable and/or immovable property of the Client, all Amounts owed by the Client to the Contractor are fully and immediately due and payable, without any summons or notice of default being required.

15.5 Payments made by the Client always serve in the first place to settle all interest and costs owed, in the second place for payable invoices that have been outstanding the longest, even if the Client states that the payment relates to a later invoice.

15.6 The Client is not permitted to invoke settlement on any grounds whatsoever. If the Client believes that it can assert claims under the agreement with the Contractor, this does not release it from its obligation to pay in the agreed manner and it is not entitled to suspend its payment obligation.

ARTICLE 16: COLLECTION COSTS

16.1 All costs, both judicial and extrajudicial, including costs for legal assistance, related to the collection of amounts owed, are for the account of the Client.

16.2 In connection with the provisions of Article 16 Paragraph 1, the Contractor and the Client agree that the extrajudicial collection costs will be calculated in accordance with the collection rate of the Dutch Bar Association, with a minimum of EUR 250.

ARTICLE 17: COMPLAINTS

17.1 Any complaint with regard to the execution or omission of the execution of any assignment must be submitted in writing by the Client to the Contractor within seven (7) days after the appearance and/or publication, upon forfeiture of any claim.

17.2 The Contractor will make every effort to deal with a complaint submitted in accordance with Article 17 Paragraph 2 as well as possible.

17.3 Submitting a complaint does not affect the Client's other obligations.

ARTICLE 18: LIABILITY

18.1 The Contractor is only liable for non, incorrect or partially incorrect execution of the assignment if and insofar as this is the direct result of intent or gross negligence on the part of the Contractor.

18.2 The Contractor is in no way liable for consequential damage, indirect damage, trading loss, loss of profit or damage caused by auxiliary persons and/or third parties engaged by the Contractor in the execution of the agreement.

18.3 In the event of defects in the performance on the part of the Contractor, no liability is accepted for defects that have arisen through the fault or actions of the Client or third parties for which the latter is responsible or which the Client uses.

18.4 The Contractor does not accept any liability towards the Client or third parties for the texts, images or other data provided to it by or on behalf of the Client or for the unlawful use thereof by the Client.

18.5 The parties expressly exclude liability for damage caused by malfunctions in the electronic services of the Contractor and of third parties, such as providers, network operators or other telecommunications networks. This also applies if this has only led to a delay in the execution of the assignment.

18.6 If – with due observance of the previous paragraphs – the Contractor is at any time liable for damage suffered by the Client as a result of an attributable shortcoming in the fulfilment of the obligations under this agreement by the Contractor, this liability is in all cases limited to a maximum of the invoice value of that specific part of the agreement to which the liability relates.

18.7 Damage for which the Contractor is liable on the basis of Article 18 Paragraph 6 is only eligible for compensation if the Client has notified the Contractor of this within seven (7) days of its occurrence, unless the Client can demonstrate that it could not reasonably have reported earlier.

18.8 The Client indemnifies the Contractor against liability of third parties with regard to damage of any nature whatsoever, caused by or in connection with the execution of the agreement.

ARTICLE 19: FORCE MAJEURE

19.1 The Contractor is not liable in the event of force majeure. In these Terms of Service, force majeure is understood to mean, in addition to what is understood in this regard in law and jurisprudence, all external causes, foreseen or unforeseen, over which the Contractor has no influence, but as a result of which the Contractor is unable to fulfill its obligations. Force majeure includes in any case: strike, excessive absenteeism of the staff, a (temporary) shortage of staff, fire, business and technical failures within the office or at external parties engaged by the Contractor, about sufficient data or the provision of incorrect data, or the lack of sufficient cooperation by the Client.

19.2 In the event of force majeure, the Contractor is entitled to consider the agreement wholly or partially dissolved or to dissolve it, or to cancel the assignment without being obliged to pay any compensation to the Client. In this case, the Contractor is obliged to inform the Client of this immediately.

19.3 If the Contractor is able to partially fulfill its obligations at the commencement of the force majeure, it is entitled to separately invoice the part already performed or executable and the Client is obliged to pay this invoice as if it concerned a separate agreement.

ARTICLE 20: FINAL PROVISIONS

20.1 Neither of the Parties is entitled to transfer the rights and obligations under this agreement without the written consent of the other party.

20.2 Changes and additions to the agreement between the Contractor and the Client are only valid if agreed in writing between the parties.

20.3 Notwithstanding Article 20 Paragraph 2, the Contractor has the right to unilaterally change these Terms of Service. Changes also apply to agreements already concluded. Changes will be announced to the Client in writing or by e-mail and will take effect thirty (30) days after the announcement, unless a different date is indicated in the announcement.

20.4 If a provision of the agreement or the General Terms and Conditions turns out to be invalid, this does not affect the validity of the entire agreement. In that case, the Contractor has the right to substitute a provision – not unreasonably onerous for the Client – that comes as close as possible to the invalid one.

20.5 In the event that these Terms of Service and the order confirmation or the written agreement contain conflicting provisions, the provisions included in the order confirmation or the written agreement shall apply.

ARTICLE 21: GOVERNING LAW AND JURISDICTION

21.1 All agreements between the parties and obligations arising therefrom or in connection therewith are exclusively governed by Dutch law.

21.2 All disputes arising from or related to the agreements and obligations referred to in Article 21 Paragraph 1 and which do not fall under the jurisdiction of the subdistrict court, will be brought before the Court of Arnhem in the first instance. Nevertheless, the Contractor has the right to submit disputes to the competent court in the place of residence of the Client.

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