General Terms & Conditions
GENERAL TERMS & CONDITIONS of MarketingCounsellors
Article 1: Definitions
1.1. In these general terms and conditions, the following terms have the meanings given below, unless explicitly stated otherwise.
1.2 Client: The party [person, company or authority] commissioning the performed activities.
1.3 Services: All services performed by MarketingCounsellors for the client. These include, amongst others, websites, social media advice, coaching and all other services which are performed in support of the client.
1.5 The general terms and conditions can be found on the website and they can be requested at MarketingCounsellors.
1.6 The general terms and conditions apply to all services which are concluded by MarketingCounsellors.
Article 2: General
2.1. The present conditions apply to all offers, tenders and agreements between MarketingCounsellors and a Client to which MarketingCounsellors has declared these conditions to apply, insofar as parties have not explicitly stated otherwise in writing [or email].
2.2. The present conditions also apply to all agreements with MarketingCounsellors, the execution of which involves engagement of third parties.
2.3. Possible deviations from the present general terms and conditions shall only be valid provided they have explicitly agreed upon in writing [or email].
2.4. The applicability of Client’s possible purchase or other conditions is hereby specifically rejected.
2.5. If one or more provision of these general terms and conditions or in the accompanying agreement is null and void or is voided, the other provisions of these general terms and conditions and agreement will remain fully in effect. MarketingCounsellors and Client will then consult with each other to agree new provisions to replace the void or voided ones, while doing so the purpose and meaning of the original provision will be taken into account as far as possible.
Article 3: Offers and tenders
3.1. All offers are subject to contract, unless explicitly stated otherwise in writing in the offer [or by email]
3.2. The prices given in the mentioned offers and tenders include VAT and other government levies, and also the costs made in the scope of the agreement, including costs for postage and administration, unless specified otherwise.
3.3. In case the acceptance deviates (on secondary terms) from the offer given in the tender MarketingCounsellorsis not bound by it. The agreement shall in such event not be concluded in accordance with the said deviating acceptance, unless MarketingCounsellors indicates otherwise.
3.4. A compound quotation does not oblige MarketingCounsellors to execute part of the assignment against a corresponding part of the given quotation.
3.5. Offers and tenders shall not apply automatically to future assignments.
Article 3a – The client’s right of withdrawal from provided services
In case of provision of services the client has the option to terminate the agreement, without giving reasons, within a period of seven workdays commencing on the day the agreement is entered into.
In order to exert the right of withdrawal, the client shall be guided with the reasonable and clear instructions provided by the company at the offer and/or not later than the delivery.
Article 3b – Costs in case of client’s withdrawal
In case the Client exerts his right of withdrawal, then the highest costs of return will come to his account.
In case the Client has already paid an amount, then the company shall return this amount as soon as possible, yet not later than within 30 days after the return, withdrawal or repayment.
Article 3c – Exclusion withdrawal right of Client
In case the Client does not have the right to withdraw,then this can only be excluded by the company provided that this has been stipulated clearly by the company in the offer or at least timely before the agreement was entered into.
Exclusion of the right of withdrawal is only possible for products;
which have been created by the company in accordance with the specifications of the Client;
which evidently are of a personal nature;
which cannot be returned because of their nature;
which quickly deteriorate of expire;
of which the price is bound to fluctuations on the financial market which cannot be influenced by the company;
for separate newspapers and magazines;
for audio and video recordings, and computer software of which the Client has broken the seal.
Exclusion of the withdrawal right is only possible for services which were started with explicit approval of the Client before the period for contemplation has expired.
Article 4: Execution of the agreement, information and resources
4.1 MarketingCounsellors shall execute the agreement to the best of its knowledge and ability and in accordance with high standards, one and another based on the expertise that the Client can reasonably expect from MarketingCounsellors. Nevertheless MarketingCounsellors cannot warrant achieving any envisaged (by Client and/or Client) result.
4.2. MarketingCounsellors determines the manner in which and by which person(s) the agreement is executed, yet will take account of the wishes of the Clients as far as possible. If and in so far as a proper execution of the agreement requires, MarketingCounsellors has the right to let thirds carry out specific work activities.
4.3. The Client shall see to it that Save Haven Coaching shall be provided properly and in due time with all data, as well as any alterations to it, which Save Haven Coaching has expressed to be necessary for the execution of the agreement or which the Client should reasonably understand to be necessary at the beginning as well as during (for) the execution of the agreement. In case MarketingCounsellors has not been provided properly or in due time with the data necessary for the agreement, then MarketingCounsellors will have the right to suspend the execution of the agreement and / or to charge the client with the extra costs resulting from the delay at the generally accepted rates.
4.4. Client warrants the correctness, completeness and reliability of data, means and provisions provided to Safe Have Coaching by him or on behalf of him. MarketingCounsellors is not liable for damage of whatever nature and / or incomplete data provided by the Client, unless MarketingCounsellors should have been aware of said incorrectness or incompleteness.
4.5. Client is obliged to inform MarketingCounsellors immediately in case of changes of the provided data and such, as well as on other facts and circumstances which may be of importance in relation to the execution.
4.7. If parties have agreed that the agreement will be executed in stages, MarketingCounsellors can suspend the execution of the parts belonging to a following stage until the Client has approved in writing [or email] the results of the stage prior to it.
Article 5: Changes to the agreement
5.1. If it is shown during the execution of the agreement that the work to be done needs to be changed and supplemented in order to ensure its proper execution, parties shall adapt the agreement accordingly in due time and in mutual consultation.
5.2. If parties agree that the agreement is changed or supplemented, this may influence the time of completion of the performance. MarketingCounsellors shall inform the Client thereof as soon as possible. The change or supplement to the agreement as referred to does not give the client any right to compensation.
5.3. Should the change or supplement to the agreement have any financial and / or qualitative consequences, MarketingCounsellors shall inform Client of this in advance. MarketingCounsellors is entitled to charge the Client for additional costs.
5.4. If a fixed fee has been agreed upon then MarketingCounsellors shall indicate the degree to which the change or settlement to the agreement will result in an increase of said fee.
Article 6: Duration of the contract; term of execution
6.1. The agreement between MarketingCounsellors and a Client shall be entered into for an indefinite period of time, unless the nature of the agreement dictates otherwise or if parties have explicitly agreed on in writing [or email].
6.2. If a term has been agreed to complete certain work within the term of the agreement, then this term shall never be observed on penalty or forfeiture of rights. If the term of execution is exceeded, the Client must consequently declare MarketingCounsellors in default in writing [or by email].
6.3. The agreement can – unless it is determined that execution is permanently impossible – not be terminated by the Client on the basis that the term is exceeded, unless MarketingCounsellors does also not or not completely execute the agreement within a reasonable period as notified in writing [or by email] after the agreed delivery period.
Article 7: Termination
7.1. Each party is entitled to terminate the agreement, taking into account a reasonable period considering the circumstances by giving notice at the end of a calendar month, unless parties have agreed otherwise. Such notification should be given in writing [or per email].
7.2. If the agreement is terminated prematurely (in case the agreement has been entered into for a definite period of time) by the Client, then MarketingCounsellors holds the right to compensation of damages because of the resulting and proven loss of occupancy rate, unless the grounds of the termination is formed by facts and circumstances which can be accounted to MarketingCounsellors. Subsequently the Client is obliged to pay the invoices for the activities performed until that moment.
7.3. If the agreement is terminated prematurely by MarketingCounsellors, then MarketingCounsellors shall in consultation the Client see to the transfer to thirds of activities still to be performed, unless the grounds of the termination is formed by facts and circumstances which can be accounted to the Client.
7.4. If the transfer of work activities by MarketingCounsellors results in extra costs, Client is obligated to pay those costs to MarketingCounsellors, while taking into account the stipulations in Article 8 and 9 of these general terms and conditions.
Article 8: Fee
8.1. Parties can agree upon a fixed fee the moment the agreement is concluded.
8.2. If no fixed fee has been agreed upon, the fee shall be determined on the basis of the number of hours actually spent. The fee shall be calculated according to the usual hourly rates of MarketingCounsellors, valid for the period in which the work is being done, unless a deviating rate has been agreed upon.
8.3. The fee and a possible cost estimate shall be exclusive VAT for companies and agencies and inclusive VAT for persons.
8.4. If MarketingCounsellors and the Client agree upon a fixed fee or hourly rate, MarketingCounsellors shall nevertheless be entitled to increase this fee or rate, for instance in case of a change of or addition to the agreement.
8.6. Furthermore MarketingCounsellors is allowed to charge on price increases if changes have occurred between the time of the offer and the time of delivery with respect to e.g., an increase of salaries and wages.
Article 9: Payment
9.1. Payment must be made for online services prior to the starting date of the service and for services on location after these services have been conlcuded. For companies and agencies, payment must be made within 14 days after the invoice date, without any deductions, discount or settlement by deposit or transfer to the bank or giro account as indicated by MarketingCounsellors. Contestation of the amount stated in the invoices does not suspend the payment obligation.
9.2. If the Client fails to fulfil his payment obligation within the term of 14 days, then Client shall be in default by operation of law. In that event, Client shall owe interest equal to the current statutory commercial interest. The interest on the amount due and payable shall be calculated as from the day the client is in default until the moment he has paid the amount in full, while a part of a month counts as a full month.
9.3. In case of liquidation, bankruptcy, attachment or moratorium of the Client, the claims that MarketingCounsellors holds towards Client are immediately due and payable.
Article 10: Collection charges
10.1. All reasonable judicial and extrajudicial (collection) costs made by MarketingCounsellors in relation with untimely payment or noncompliance with payment obligations by the Client are all for the account of the Client.
10.2. The Client shall owe interest over the collection charges.
Article 11: Inspection & complaints
11.1. The Client must notify MarketingCounsellors in writing [or per email] of complaints about the work activities within 30 days after they are discovered, yet no later than 60 days after the completion of the concerned work activities. The notice of default must give as detailed a description as possible of the shortcoming, so that MarketingCounsellors is in a position to respond adequately. A complaint does not suspend the payment obligation of the Client, in as far as MarketingCounsellors has notified Client in writing [or email] that it regards this complaint as (partially) justified.
11.2. In case a complaint is justified, MarketingCounsellorsshall as yet perform the work activities as agreed, unless this has proven pointless for the Client. The Client shall then give written notification [or email] of this.
11.3. In case it is no longer possible or useful to perform the agreed activities as yet, Save Haven Coaching can repay a part of the already paid fee without further execution of the order and MarketingCounsellors may be liable only within the boundaries set in Article 15.
Article 12: Vervaltermijn
12.1 Subject to the stipulations in Article 11 Client is obliged, in case he is or remains of the opinion that MarketingCounsellors has executed the agreement untimely or incompletely or improperly, to notify Safe Have Coaching unless this has already been done under Article 11.1, immediately in writing [or email] and to validate the rights based on it within one single year after the date of the abovementioned notification, or within one single year after this notification should have been made, while failing that all his rights and claims in this case forfeit due to the expiration of the aforementioned period of time
Article 13: Suspension and dissolution
13.1. MarketingCounsellors is authorized to suspend the fulfilment of the obligations or to dissolve the agreement in the event that:
– Client does not fulfil or does not fully fulfil the obligations resulting from the agreement.
-After the agreement has been concluded, MarketingCounsellors learns of circumstances giving good ground to fear that the client will not fully fulfil his obligations. If good grounds exist to fear that the client will only partially or improperly fulfil his obligations, suspension shall only be allowed in so far the shortcoming justifies such action.
– Client was asked to furnish security to guarantee the fulfilment of his obligations resulting from the agreement when the contract was concluded and that this security is not provided or insufficient.
13.2. MarketingCounsellors shall furthermore be authorized to dissolve the agreement (have the agreement dissolved) if circumstances arise of such a nature that fulfilment of the obligations becomes impossible or can no longer be demanded in accordance with the requirements of reasonableness and fairness, or if other circumstances arise of such a nature that the unaltered maintenance of the agreement can no longer be demanded in all reasonableness.
13.3. If the agreement is dissolved, the claims of MarketingCounsellors against the Client shall be forthwith due and
payable. If MarketingCounsellors suspends fulfilment of his obligations, he shall retain his rights under the law and the agreement.
13.4. MarketingCounsellors shall always retain the right to claim damages.
Article 14: Return of Goods Put at Client’s Disposal
14.1. If MarketingCounsellors has put goods at client’s disposal during and in connection with the execution of the agreement, Client shall be held to return the delivered goods within 14 days in their original state, free of defects and in their entirety.
14.2. If Client is at default with the obligation mentioned under 1 to return goods, then Client is obligated to pay for all resulting damages, costs, including the costs of replacement.
Article 15: Liability
15.1 MarketingCounsellors is liable only for damages suffered by Client/Client, which is directly and solely the result of a shortcoming attributed to MarketingCounsellors in the execution of the order, for as far as this is the result of not exercising due care, expertise and high standard which may be expected in the scope of the order. In addition the following limitation must be taken into account:
15.2a MarketingCounsellors is not liable for company damage, loss of income and such, created by whatever cause.
15.2b MarketingCounsellors is never liable for damages caused by wilful misconduct or gross negligence caused by thirds.
15.2c The damage compensation to be paid by MarketingCounsellors shall be moderated in case the price paid by the Client is too small in relation to the size of the damages suffered.
15.2d At all times the liability of MarketingCounsellors shall be limited to the maximum of the sum agreed upon in the concerned agreement. In case the agreement is primarily a continuing performance contract with a running time of
more than six months, then the stipulated price will be determined at the total of the payment for three months.
Article 16: Safeguarding
16.1. The Client shall safeguard MarketingCounsellors against claims files by third parties concerning the intellectual property rights on material or data provided by the Client, which shall be used for and during the execution of the agreement.
16.2. If the Client provides MarketingCounsellors with information carriers, electronic files or software etc., the former shall guarantee that these information carriers, electronic files or software are free of viruses and defects.
16.3 Client safeguards MarketingCounsellors against claims made by thirds related to damages which are related to or resulting from the order executed by Save Haven Coaching, in case and for so far MarketingCounsellors is not liable towards the Client according to the stipulations in Article 15.
Article 17: Force Majeure
17.1. Parties shall not be held to fulfil any of their obligations if they are hindered to do so due to a circumstance through no fault of their own and which cannot be attributed to them by virtue of law, a Legal action or generally accepted practice.
17.2. In addition to the provisions of the law and the judge-made law in this aspect, force majeure shall in the present general terms and conditions furthermore be understood to be any external circumstance, be it envisaged or not, on which MarketingCounsellors cannot have any influence but which prevents MarketingCounsellorsCaoching from fulfilling his obligations.
17.3. MarketingCounsellors shall also be entitled to invoke force majeure if the circumstance rendering (further) fulfilment of the obligation(s) occurs after MarketingCounsellors should have fulfilled its obligations.
17.4. Throughout the duration of the circumstances of force majeure, parties shall be entitled to suspend the fulfilment of their obligations. If this period lasts for more than two months, either of the parties shall be entitled to dissolve the agreement without any obligation to pay the opposite party damages.
17.5. Insofar MarketingCounsellors has already partially fulfilled his obligations resulting from the agreement at the moment the circumstance of force majeure commenced of shall be able to fulfil them and insofar separate value can be attributed to the part already fulfilled or still to be fulfilled respectively, MarketingCounsellors shall be entitled to submit a separate statement of expenses of the part already fulfilled or still to be fulfilled respectively. The client shall be held to pay this statement of expenses as if it were a separate agreement.
Article 18: Secrecy
18.1. Both parties shall be bound to secrecy of all confidential information they have received within the scope of the agreement from each other or from another source. Information shall be considered to be confidential if the other party has indicated so or if the confidential character results from the nature of the information.
18.2. If a statutory provision or a judicial decision compels MarketingCounsellors to convey confidential information to third parties designated by law or by the court and MarketingCounsellors cannot for that purpose invoke a Legal right to refuse to give evidence or such a right acknowledged or allowed by the competent court, MarketingCounsellors shall not be held to pay damages or compensation and the opposite party shall not be entitled to demand the dissolution of the agreement on the ground of any damage resulting from said circumstance.
Article 19: Intellectual Property and Copyrights
19.1. Without prejudice to the other stipulations of the present general terms and conditions, MarketingCounsellors shall reserve the rights and authorities to which MarketingCounsellors is entitled under the Copyright Act.
19.2. All documents, such as reports, advice, agreements, designs, sketches, drawings, software, etc., provided by MarketingCounsellors, shall be destined to be used by Client exclusively and must not be reproduced, made public or brought to the notice of third parties by Client without prior consent from MarketingCounsellors, unless the nature of the provided documents dictates otherwise.
19.3. MarketingCounsellors shall reserve the right to use the knowledge gained due to the execution of the work for other purposes, in so far no confidential information shall be brought to the notice of third parties when doing so.
Article 20: Disputes
20.1. The Court in the place of business of MarketingCounsellors has exclusive jurisdiction to hear disputes, unless stipulations of mandatory law indicate otherwise.
20.2. Parties shall only refer the matter to the court if they have done their utmost to solve the dispute in mutual consultations.
Article 21: Applicable Law
21.1. All Legal relationships between MarketingCounsellors and the Client, to which these general terms and conditions apply, are governed by Dutch law. The Vienna Sales Convention is explicitly excluded.