General Terms and Conditions for Services Essense Service Design B.V.
These General Terms and Conditions are largely equal to the DDA Terms and Conditions. DDA is the Dutch Digital Agencies, the trade association and knowledge organisation of internet agencies in the Netherlands of which Essense is a member.
Article 1 Definitions
1.1 In these Terms and Conditions, the capitalised terms below, both in the singular and in the plural, have the following meanings:
Agreement: The agreement between Essense and the Client regarding the provision of the Service;
Client: A natural person who or legal entity that has concluded, or will conclude, an Agreement with Essense;
IP Rights: All intellectual property rights and associated rights such as copyrights, trade mark rights, patent rights, design rights, trade name rights, database rights and related rights, as well as rights to know-how and performances on a par with these rights;
Parties: Essense and the Client;
Personal data: Any information relating to an identified or identifiable natural person within the meaning of Article 4(1) of the General Data Protection
Service: The services to be provided to the Client by Essense pursuant to the Agreement, including, if applicable, results of services.Terms and Conditions: These Terms and Conditions for Services of Essense;
Article 2 General
2.1 The Terms and Conditions apply to and form an integral part of all offers and quotations of Essense, Agreements and any other legal acts related thereto between Essense and the Client or its legal successor.
2.2 Any departures from the Terms and Conditions are only valid if they have been agreed explicitly in writing by Essense and the Client and they only apply to the specific agreement for which they were agreed.
2.3 The applicability of any purchase or other terms and conditions used by the Client is explicitly rejected.
2.4 Once these Terms and Conditions have been applied to a legal relationship between Essense and the Client, the Client is deemed to have agreed in advance to the applicability of these Terms and Conditions to any Agreements concluded or to be concluded thereafter.
2.5 If and to the extent that any provision in these Terms and Conditions is declared to be null and void or is annulled, the other provisions in the Terms and Conditions will remain in full force. In that case the Parties will consult to determine a new provision to replace the provision that is null and void or that has been annulled, thereby taking the purport of the void or annulled provision into account as far as possible.
2.6 In the event of a conflict between provisions in an Agreement and these Terms and Conditions, the provisions of the Agreement will prevail. In the event of a conflict between the provisions in the general part of these Terms and Conditions and the specific provisions for the Services like training and consultancy, the specific provisions will prevail.
2.7 In the event of a dispute about the explanation or interpretation, the Dutch version of these Terms and Conditions will prevail.2.8 Electronic communication between the Parties will be deemed to have been received on the day it was sent, unless proof to the contrary is furnished.
Article 3 Quotations and formation of the Agreement
3.1 Quotations and other offers made by Essense are without obligation and should be regarded as an invitation to make an offer to form an Agreement, unless Essense has indicated otherwise in writing.
3.2 Offers and quotations lose their validity four weeks after their date, unless otherwise indicated in writing.
3.3 The Client warrants that the details disclosed by it to Essense, on which Essense has based its offer, are correct and complete. If those details should prove not to be correct or complete, Essense is entitled to modify the offer.
3.4 An Agreement is formed by written confirmation from the Client of an unmodified valid quotation and/or offer made by Essense.
Article 4 Performance of the Agreement and delivery
4.1 Essense will perform the Agreement to the best of its knowledge and ability and in accordance with the standards of the profession and on the basis of the latest scientific and technical knowledge. The Agreement to be formed between Essense and the Client involves a best efforts obligation, unless and to the extent that Essense has explicitly promised a particular result in the written Agreement and the result concerned is also described in the Agreement in a sufficiently precise manner. Any arrangements about a service level (Service Level Agreement) will always be agreed in writing.
4.2 In the Agreement the Parties will determine the delivery term and delivery dates as well as the place and manner in which the Services will be delivered and/or provided. The duration of an assignment depends on various factors and circumstances, such as the quality of the data and information disclosed by the Client and the cooperation of the Client and relevant third parties. The aforementioned delivery terms are therefore not strict deadlines, unless the Parties have explicitly agreed otherwise in writing. In the event that a delivery term or other term is exceeded, or is likely to be exceeded, the Parties will consult with each other as soon as possible in order to take suitable measures.
4.3 If it has been agreed that the Agreement will be performed in phases, Essense is authorised to postpone the commencement of the Services that from part of a subsequent phase until the Client has approved the results of the prior phase in writing.
4.4 Essense is not obliged to follow instructions that alter or add to the content or scope of the agreed Services; if such instructions are followed, the activities concerned will be paid in accordance with Essense’s usual rates and Essense will notify the Client of this.
4.5 Essense is entitled to have the Agreement carried out by third parties wholly or in part, or to engage third parties for the performance of the Agreement.
4.6 Services will be deemed by the Parties to have been accepted if the Client has not substantiated in writing and in detail within five (5) working days after delivery of the Services concerned why the Services have not been accepted. If they are not accepted, Essense must replace the Services or make adjustments to them within a reasonable term. If the Client again does not accept the Services, the Parties will perform the acceptance procedure again. This procedure will be repeated if the Client again substantiates during the new acceptance test why the Services have not been accepted.
Article 5 Prices and terms of payment
5.1 All prices are exclusive of turnover tax (VAT) and other government levies.
5.2 The Parties will set down in the Agreement the date or dates on which Essense will charge the fee for Services to the Client. The Client will pay invoices in accordance with the terms of payment stated on the invoice. In the absence of a specific arrangement, the Client will pay within fourteen (14) days after the invoice date.
5.3 If the Client does not pay the amounts due on time, the Client will owe statutory interest on the outstanding amount without any demand or notice of default being required. If after a demand or notice of default the Client still fails to pay the claim, Essense may refer the debt for collection, in which case the Client will be obliged to pay, in addition to the total amount due, all judicial and extrajudicial costs, including costs of external experts.
5.4 Essense is entitled to retain Services that are still in its possession if the Client does not comply with its payment obligation, until the Client has settled its payment obligation, regardless of whether the arrears are related to the Services retained by Essense.
5.5 A composite quotation does not oblige Essense to perform part of the Service for a corresponding part of the stated price. Offers or quotations do not automatically apply to future orders.
5.6 Comments or complaints about invoices, bills and fee statements must be made known in writing within fourteen (14) days after receipt of the invoice, bill or fee statement concerned, failing which they will be deemed to have been accepted. Such complaints do not suspend the obligation to make payment.
5.7 Essense is entitled to send the Client interim invoices and/or to invoice on the basis of advance payments, to offset or to require security for compliance by the Client.5.8 The Client agrees to electronic invoicing by Essense.
Article 6 Changes to the assignment and/or extra work
6.1 The Client accepts that the time schedule of the Agreement may be affected if the scope of the Agreement is expanded and/or altered while the Agreement is still being performed. If the interim alteration affects the agreed remuneration, Essense will notify the Client of this as soon as possible.
6.2 If on the basis of an alteration to the Agreement as a result of extra requests or wishes on the part of the Client Essense must carry out extra work (additional work), this work will be charged to the Client on the basis of actual costs at the usual rates that apply at that time, unless explicitly agreed otherwise in writing.
6.3 Essense is entitled to carry out this additional work without the Client’s advance written permission to the extent that the costs entailed by this additional work are not more than ten percent (10%) of the originally agreed total payment.6.4 If the costs of extra work are more than ten percent (10%), Essense will inform the Client of this. In that case the Parties will consult to discuss the measures to be taken.
Article 7 Obligations of the Client
7.1 The Client will ensure that all data and/or information that Essense has indicated are necessary, or which the Client reasonably ought to understand will be necessary for the performance of the Agreement, including information about legislation or regulations to be complied with by Essense that applies specifically to the Client’s field of work, are disclosed to Essense in good time and will cooperate with Essense to the extent that the latter requires. Quotations and offers issued by Essense as well as the Agreement concluded afterwards are based on the information disclosed by the Client.
7.2 If data needed for the performance of the Agreement is not disclosed to Essense in good time, Essense is entitled to suspend performance of the Agreement and/or to charge to the Client the extra costs arising from the delay at the usual rates that apply at that time.
7.3 To the extent that in the context of the Agreement Essense discloses user names and/or passwords, the Client is responsible for these user names and/or passwords and is entirely and independently liable for any misuse made of the user names or passwords, unless such misuse is the result of intent or gross negligence on the part of Essense. the Client is prohibited from disclosing these user names and/or passwords to third parties without Essense’s consent.
7.4 If an agreed schedule is not achieved as a result of an act or omission on the part of the Client, Essense is entitled to charge the costs arising from the delay, such as but not limited to reserved and/or extra man hours. Essense will provide a substantiation of these costs to the Client.
Article 8 Termination, premature termination and the consequences of these
8.1 An Agreement takes effect on the date stated in article 3 for the period agreed in writing between the Parties and ends by operation of law on the date agreed by the Parties or when the provision of Services has been completed.
8.2 Unless explicitly agreed otherwise, the Parties may not terminate the Agreement prematurely.
8.3 Each of the Parties is entitled to dissolve the Agreement wholly or in part if the other Party is declared bankrupt/insolvent or is granted a suspension of payments.
8.4 Essense is entitled to dissolve the Agreement wholly or in part if the decisive control of the business of the Client changes.
8.5 The Agreement may only be dissolved on the basis of attributable failure after a written notice of default has been sent that is as detailed as possible, with a reasonable term being set within which the failure can be remedied, unless fulfilment is already permanently impossible.
8.6 If the Agreement is dissolved, anything that Essense has delivered and/or carried out as well as the related payment obligation will not be undone unless the Client proves that Essense is in default with regard to the material part of those services. Amounts invoiced by Essense before dissolution in connection with anything Essense has already properly performed or delivered in performing the Agreement will continue to be owed in full with due observance of the provision in the preceding sentence and will become immediately due and payable at the time of dissolution.
8.7 If the Agreement is dissolved, all rights granted to the Client will cease to have effect. The Client will no longer be authorised to make use of the Service.
8.8 Articles that, by their nature, are intended to continue to apply after the end of the Agreement will remain fully effective after the Agreement is terminated.
Article 9 IP Rights
9.1 Subject to the provisions set out below or insofar as a separate license agreement applies, Services, performances and work products in material form (“Deliverable”) – subject to the receipt of full payment of its invoices by Essense – will become the property of the Client and with due observance of the other provisions in these Terms and Conditions and Agreement may be used by the Client for the purpose for which the Deliverables were delivered. All (source)files and elaborations which are the basis for the (realisation) of the Deliverable remain the exclusive property of Essense and will not be transferred to the Client, unless agreed otherwise in writing.
9.2 The Client is not permitted to remove or alter any identifiers concerning IP Rights from the results of Services.
9.3 Essense explicitly does not relinquish its personality rights referred to in section 25 of the Dutch Copyright Act (Auteurswet).
9.4 In and on all techniques, principles and formats and in all proprietary materials, software, programs, macros, algorithms, modules, methodologies and all other items used or created by Essense for the preparation of the Proposal or the performance of the Services (“Essense Technology”) that are of a general nature or otherwise not produced exclusively for the Client (“Existing and General Intellectual Property Rights”) remain the exclusive property of Essense at all times and the Client does not acquire any rights, except as expressly stated in the following paragraph granted right of use.
9.5 Except insofar as a separate license agreement applies, Essense hereby grants the Client – subject to the receipt of full payment of its invoices – a perpetual, worldwide, non-exclusive and non-transferable right to use Essense Technology and General or Existing IP rights contained in or required for the use of the Deliverables exclusively for the purpose for which the Deliverables were delivered, all this with due observance of the other provisions in the Agreement. Unless otherwise agreed in writing, the fee for this right of use is deemed to be included in the fee for the Services.
9.6 Essense does not agree to any provisions that may be construed as prohibiting or limiting its right to (i) provide design, consultancy or other services of any kind or nature in its sole discretion to any other natural or legal entities, or to (ii) develop material for themselves or for third parties that is competitive or comparable to Deliverables developed in connection with the Agreement, regardless of its resemblance to those Deliverables, without prejudice to its confidentiality obligations under article 11 of these Terms and Conditions.
9.7 All intellectual property right and other property rights to the material and data provided by the Client to Essense for the performance of the Services remain the property of the Client.
9.8 Essense indemnifies the Client against legal action by third parties based on the allegation that the Services or parts thereof developed by Essense infringe any IP Right currently in force in the Netherlands on the condition that the Client informs Essense immediately in writing of the existence and the substance of the legal action and leaves the handling of the case, including effecting a settlement, entirely to Essense. The Client will give Essense any powers of attorney, information and cooperation necessary to defend itself against such legal action, if necessary in the name of the Client.
9.9 The above-mentioned obligation to indemnify will not apply if the claimed infringement is connected with:
- (i) materials made available to Essense by the Client; and/or
- (ii) changes the Client has made, or has had third parties make, to the Service.9.10 If according to a binding court decision the Services developed by Essense itself infringe any IP Right vested in a third party, or if in the opinion of Essense there is a reasonable chance that such an infringement has occurred, Essense will if possible ensure that the Client can continue to use the Service (or something functionally equivalent) without interruption. If in Essense’s sole opinion, it cannot ensure that the Client can continue to use the Service provided without interruption, or that it will only be able to do so in a way that is unreasonably onerous (including financially) for it, Essense will take back that which has been delivered and will credit the acquisition costs after deducting a reasonable usage fee. Any other or further liability or obligation to indemnify on the part of Essense on account of infringement of IP Rights of third parties is entirely excluded.
Article 10 Privacy
10.1 If in the context of performing the Services Essense must process Personal Data of customers of the Client, Essense must be deemed to be the “processor” within the meaning of the General Data Protection Regulation and the Client must be deemed to be the “controller”.
10.2 The Client and Essense will, pursuant to article 28(3) General Data Protection Regulation, conclude a processing agreement which governs the processing of Personal Data by Essense in accordance with relevant law.
Article 11 Confidentiality
11.1 The Parties will treat all information they obtain from one another in any form whatsoever – written, verbal, electronic or physical – including but not limited to software, code, source code, programs, applications, customer details, know-how, technical specifications, documentation (“Confidential Information”) as strictly confidential and will keep it secret.
11.2 The Parties will only use the Confidential Information for the purposes for which it was disclosed and in doing so, they will observe at least the same duty of care and safeguards that apply to their own internal confidential information. The Parties will only disclose the Confidential Information to employees to the extent necessary in the context of the Agreement and its implementation.
11.3 The obligations to maintain secrecy with regard to the Confidential Information will not apply to the extent that the Party that received the information can demonstrate that the information concerned:
- i) was already known to it when it was received;
- ii) was already publicly known when it was received;
- iii) became publicly known after receipt and this is not attributable to the receiving Party;
- iv) was received in a lawful manner from a third party along with the right to communicate it to the public, free of any obligation to maintain secrecy;
- v) must be disclosed pursuant to legislation or regulations or pursuant to a court order and the disclosing Party has informed the other Party of such an obligation to communicate it to the public;
- vi) was made public with the approval of the Party disclosing it.11.4 For the duration of the Agreement and 1 (one) year after it terminates, except with the advance consent of the other Party neither Party will employ employees of the other Party who are or were involved in the implementation of the Agreement, nor will it employ them or have them work for it in some other manner, directly or indirectly.
Article 12 Liability
12.1 Essense’s liability for attributable failure to perform its obligations and/or on the basis of an unlawful act is limited to the reimbursement of direct damage sustained by the Client up to a maximum of the amount paid out in the case concerned by Essense’s insurance, or up to a maximum of the amount of the fee stipulated for the performance of the Agreement, with the fee stipulated for one year applying in cases of continuing performance contracts.
12.2 Direct damage is exclusively taken to mean:
- i) reasonable costs the Client would have to incur so for Essense’s performance to conform with the Agreement; however, this alternative damage will not be reimbursed if the Agreement is dissolved by or on the demand of the Client;
- ii) reasonable costs incurred to determine the cause and the scope of the damage, to the extent that this relates to direct damage in the sense meant in this Agreement;
- iii) reasonable costs incurred to prevent or limit damage, to the extent that the Client demonstrates that these costs resulted in a limitation of direct damage in the sense meant in this Agreement.
12.3 Any liability of Essense for anything other than direct damage (“indirect damage”), including but not limited to consequential damage, loss and/or damage to data, loss of profits and loss of sales, is excluded.
12.4 The limitations referred to in the preceding paragraphs of this article will not apply if and to the extent that the damage is the result of intent or wilful recklessness on the part of Essense or its management (“own acts”).
12.5 In all cases, Essense is only liable on account of an attributable failure to perform the Agreement if the Client immediately and in the form of a proper written notice informs Essense that it is in default, stating a reasonable term in which the attributable failure can be remedied, and after this term Essense continues to fail attributably to perform its obligations, except in the event of permanent attributable failure. The notice of default must comprise a description of the failure that is as complete and detailed as possible, so that Essense is able to respond adequately.
12.6 The creation of any right to compensation is always conditional on the Client reporting the damage to Essense in writing a soon as possible after it has come about. Any claim for compensation against Essense will cease to exist simply by the passage of twelve (12) months after the claim arose.
12.7 The Client bears the full risk and responsibility for its use of the Services. Essense does not accept any liability for the use made by the Client of the Services. The Client indemnifies Essense against any claims of third parties arising from the Client’s use of the Services.
Article 13 Force majeure
13.1 In the event of force majeure there is no attributable failure in the performance of the Agreement by the Parties.
13.2 Force majeure includes, among other things, disruptions in the supply of electricity, strikes, riots, government measures, fire, natural disasters, floods, failure on the part of the Parties’ suppliers, failure on the part of third parties enlisted by the Parties, disruptions in the internet connection, hardware malfunctions, malfunctions in networks, including telecommunication networks, and other unforeseen circumstances.
13.3 If the force majeure lasts at least thirty (30) days, the Parties are entitled to dissolve the Agreement without being obliged to reimburse any damage, to undo any work or to pay any compensation for such dissolution.13.4 If Essense can still perform in part at the time of the force majeure, or if it has performed, it is authorised to perform this service and to invoice it separately, as if it concerned a separate Agreement.
Article 14 Transfer of rights and obligations
14.1 The Parties may only license, sublicense or transfer the rights and obligations arising from the Agreement to third parties if the other Party agrees to this in writing.
Article 15 Settlement and mediation
15.1 If a dispute between the Parties cannot be resolved to their satisfaction, before submitting the dispute to a court it will be submitted to the Parties’ authorised representatives to investigate the possibilities of a settlement, or to an independent mediator for mediation.
Article 16 Applicable law and competent court
16.1 These General Terms and Conditions are governed exclusively by Dutch law.
16.2 The applicability of the Vienna Sales Convention (CISG) is expressly excluded.
16.3 Any disputes that arise between Essense and the Client in the context of or in connection with this Agreement will exclusively be submitted to the competent court in the district of Amsterdam.
Additional terms and conditions for training and coaching services by Essense Academy
Article 17 Registration, invoicing and payment
17.1 Registration for a training or coaching session is done in writing via the website or by e-mail. A written registration counts as an irrevocable registration.
17.2 Payment of the participation fee takes place immediately per registration or so much later as agreed, but always prior to the date for the training / coaching.17.3 In case of cancellation within four (4) weeks before the start of the training of coaching session or a no show, the full participation fee is due. It is possible, however, to have replacement from the same company or institution participate on the same day at no additional costs. It is also possible to use the amount paid in the next 12 months as “credit” for a future training or coaching session on the condition that Essense is entitled to charge administration costs for eg. space rental, course materials, etc. After 12 months the “credit facility” will lapse, in which case there will be no refund of the place of participation or any administration costs.
Article 18 Changes and cancellation by Essense
18.1 We reserve the right to change program components and/or teachers or to cancel a training / coaching session. Information about a cancellation will be shared by email. On the event of a cancellation, you can choose (a) following the training / coaching on a different date if available, (b) refund the paid participation fees, or (c) use the paid participation fees as a “credit facility” for a future training / coaching.
18.2 Essense is in no way liable for damage in connection with the cancellation of or change in a training / coaching session.
Article 19 Use of (course)material and recordings
19.1 Course material made available by Essense may not be reproduced, made public or passed on, except as stated in the material. It is also not allowed to make audio and / or video recordings.
Article 20 Personal Data
Additional terms and conditions for consultancy
Article 21 Consultancy
Consultancy concerns the purchase the Services in the field of consultancy, or the hiring of professional on an hourly basis with a best effort obligation, hereinafter referred to as “Consultancy”.
Article 22 Execution
22.1 The choice of the professional who carries out the work within the framework of the Consultancy assignment takes place in close consultation between Essense and the Client. Essense reserves the right at any time to withdraw or replace a professional already nominated by another, equally qualified, professional.
22.2 The Client is not permitted, without the prior written consent of Essense, to have the professional perform other activities than those agreed in the Agreement or to have the activities performed outside the Netherlands. On-lending of the professional is also not permitted without the written permission from Essense.
Article 23 Safety and liability
23.1 Insofar as the work is carried out by the professional at the Client, the Client will ensure an adequate and safe workplace. Client will also inform the professional(s) about any local health and safety regulations.
23.2 The Client indemnifies Essense against any claims by a professional on the basis of 7:658BW or any other legal basis insofar as the claims relate to the working conditions at the Client.
Article 24 Fee
24.1 The fee is determined on the basis of the hours actually spent and on the basis of the hourly rate, as laid down in the Agreement.
24.2 The fee is exclusive of VAT, travel and expenses, unless explicitly agreed otherwise.
24.3 In the event of an increase in the wage costs of the professional as a result of (a change to) a government measure and / or other binding regulation and / or as a result of a change in social security contributions and / or tax legislation, and / or CAO, Essense is entitled adjust the fee accordingly.
24.4 Essense is also entitled to adjust the fee in connection with the increase in the professional’s remuneration as of 1 January of any calendar year (whether or not based on the CBS index figure for household consumption).
24.5 Essense will notify the Client in writing of any adjustment to the fee.
24.6 Essense is responsible for the deduction of employee insurance contributions and payroll tax for the professional.