Allgemeine Geschäftsbedingungen

Article 1 General

These terms and conditions apply to every offer, quotation and agreement between Score Media ®, hereinafter referred to as the “Contractor”, and a Client to whom the Contractor has declared these terms and conditions applicable, insofar as the parties have not expressly and in writing deviated from these terms and conditions.

These terms and conditions also apply to acts performed by third parties engaged by the Contractor in the context of the assignment. These general terms and conditions are also written for the employees of the Contractor and its management.

The applicability of any purchase or other conditions of the Client is expressly rejected, except for external purchase or other conditions signed by an authorised representative of Score Media.

If one or more provisions in these general terms and conditions are at any time wholly or partially null and void or are annulled, the remaining provisions of these general terms and conditions shall remain fully applicable. The Contractor and the Client shall then consult in order to agree on new provisions to replace the null or annulled provisions, observing as far as possible the purpose and intent of the original provisions.

If there is uncertainty regarding the interpretation of one or more provisions of these general terms and conditions, the interpretation shall take place in accordance with the spirit of these provisions.

If a situation arises between the parties that is not governed by these general terms and conditions, that situation shall be assessed in accordance with the spirit of these general terms and conditions.

If the Contractor does not always demand strict compliance with these terms and conditions, this does not mean that the provisions thereof are not applicable, or that the Contractor would in any way lose the right to demand strict compliance with the provisions of these terms and conditions in other cases.

Article 2 Quotations and offers

All quotations and offers made by the Contractor are without obligation, unless a period for acceptance is stated in the quotation. If no acceptance period is stated, the offer shall always lapse after 30 days.

The Contractor cannot be held to its quotations or offers if the Client can reasonably understand that the quotations or offers, or any part thereof, contain an obvious mistake or typographical error.

The prices stated in a quotation or offer are exclusive of VAT and other government levies, as well as any costs to be incurred in the context of the agreement, including travel and accommodation, shipping and administration costs, unless stated otherwise.

If the acceptance (whether or not on minor points) deviates from the offer included in the quotation or the offer, the Contractor shall not be bound thereby. The agreement shall then not be concluded in accordance with this deviating acceptance, unless the Contractor indicates otherwise.

A composite price quotation does not oblige the Contractor to perform part of the assignment for a corresponding part of the stated price. Offers or quotations do not automatically apply to future orders.

Article 3 Term of contract, performance periods, transfer of risk, performance and amendment of the agreement, price increase

1. The agreement between the Contractor and the Client is entered into for a fixed period, unless the nature of the agreement implies otherwise or the parties expressly and in writing agree otherwise.
2. If a period has been agreed or specified for the performance of certain activities or for the delivery of certain goods, this shall never be a strict deadline. In the event of exceeding such a period, the Client must therefore give the Contractor written notice of default. The Contractor must be offered a reasonable period to still perform the agreement.
3. The Contractor shall perform the agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship, based on the state of knowledge available at that time.
4. The Contractor is entitled to have certain activities performed by third parties. The applicability of Articles 7:404, 7:407 paragraph 2 and 7:409 of the Dutch Civil Code is expressly excluded.
5. If, in the context of the assignment, work is performed by the Contractor or by third parties engaged by the Contractor at the Client’s location or at a location designated by the Client, the Client shall, free of charge, provide the facilities reasonably required by those employees.
6. The Contractor is entitled to perform the agreement in phases and to invoice the portion performed separately.
7. If the agreement is performed in phases, the Contractor may suspend the performance of those parts belonging to a next phase until the Client has approved in writing the results of the preceding phase.
8. The Client shall ensure that all data which the Contractor indicates are necessary, or which the Client should reasonably understand are necessary for the performance of the agreement, are provided to the Contractor in a timely manner. If the data required for the performance of the agreement are not provided in time, the Contractor is entitled to suspend the performance of the agreement and or charge the Client the additional costs resulting from the delay at the then customary rates. The performance period shall not commence until the Client has made the data available to the Contractor. The Contractor is not liable for damage of any nature whatsoever caused by the Contractor having relied on incorrect and or incomplete data provided by the Client.
9. If during the performance of the agreement it appears that proper performance requires amendment or supplementation, the parties shall in good time and in mutual consultation proceed to adjust the agreement. If the nature, scope or content of the agreement is changed, whether or not at the request or instruction of the Client, competent authorities, etc, and the agreement is thereby changed in qualitative and or quantitative terms, this may have consequences for what was originally agreed. This may also increase or decrease the originally agreed amount. The Contractor shall, as far as possible, provide a quotation in advance. An amendment of the agreement may also change the originally stated performance period. The Client accepts the possibility of amendment of the agreement, including changes in price and performance period. If the agreement is amended, including a supplement, the Contractor is entitled to first perform it after approval has been given by the competent person within the Contractor and the Client has agreed to the price and other conditions stated for the performance, including the time at which performance will take place. Failure to perform the amended agreement, or not immediately performing it, does not constitute a breach by the Contractor and is not a ground for the Client to terminate or cancel the agreement.
10. Without being in default, the Contractor may refuse a request to amend the agreement if this could have qualitative and or quantitative consequences, for example for the work to be performed or goods to be delivered in that context.
11. If the Client fails to properly fulfil what it is obliged to do towards the Contractor, the Client shall be liable for all damage on the part of the Contractor arising directly or indirectly as a result thereof.
12. If the Contractor and the Client agree a fixed fee or fixed price, the Contractor is nevertheless entitled at all times to increase this fee or price, without the Client being entitled to dissolve the agreement on that ground, if the increase results from a power or obligation under laws or regulations, or is caused by an increase in the price of raw materials, wages, etc, or on other grounds that were not reasonably foreseeable when the agreement was concluded.
13. If the price increase, other than as a result of an amendment of the agreement, exceeds 10 percent and occurs within three months after concluding the agreement, only the Client who is entitled to invoke Title 5 Section 3 of Book 6 of the Dutch Civil Code is entitled to dissolve the agreement by written statement, unless the Contractor is then still willing to perform the agreement on the basis of the originally agreed amount.
14. This does not apply if the price increase results from a power or an obligation resting on the Contractor under the law.
15. This also does not apply if it has been agreed that delivery will take place more than three months after the agreement has been concluded.
16. Or, in the case of delivery of a good, if it has been agreed that delivery will take place more than three months after the purchase.

 Article 4 Suspension, dissolution and interim termination of the agreement

1. The Contractor is authorised to suspend performance of its obligations or dissolve the agreement if the Client does not, not fully or not timely fulfil its obligations under the agreement, if circumstances that have come to the Contractor’s attention after conclusion of the agreement give good reason to fear that the Client will not fulfil its obligations, if the Client was requested upon conclusion of the agreement to provide security for the fulfilment of its obligations under the agreement and such security is not provided or is insufficient, or if, due to delay on the part of the Client, the Contractor can no longer reasonably be required to fulfil the agreement under the originally agreed conditions.
2. Furthermore, the Contractor is authorised to dissolve the agreement if circumstances arise of such a nature that performance of the agreement is impossible, or if other circumstances arise of such a nature that unchanged continuation of the agreement cannot reasonably be required of the Contractor.
3. If the agreement is dissolved, the Contractor’s claims against the Client become immediately due and payable. If the Contractor suspends performance of its obligations, it retains its claims under the law and the agreement.
4. If the Contractor proceeds to suspension or dissolution, it is in no way obliged to compensate any damage and costs arising therefrom in any manner whatsoever.
5. If the dissolution is attributable to the Client, the Contractor is entitled to compensation for the damage, including costs, arising directly and indirectly as a result thereof.
6. If the Client does not fulfil its obligations arising from the agreement and this non fulfilment justifies dissolution, the Contractor is entitled to dissolve the agreement immediately and with immediate effect, without any obligation on its part to pay any compensation or indemnification, while the Client, due to breach of contract, is obliged to pay compensation or indemnification.
7. If the agreement is terminated prematurely by the Contractor, the Contractor shall, in consultation with the Client, arrange for the transfer of work still to be performed to third parties, unless the termination is attributable to the Client. If the transfer of the work entails additional costs for the Contractor, these shall be charged to the Client. The Client is obliged to pay these costs within the stated period, unless the Contractor indicates otherwise.
8. In the event of liquidation, (an application for) suspension of payments or bankruptcy, attachment, insofar as the attachment has not been lifted within three months, on the part of the Client, debt restructuring or any other circumstance as a result of which the Client can no longer freely dispose of its assets, the Contractor is entitled to terminate the agreement immediately and with immediate effect or to cancel the order or agreement, without any obligation on its part to pay any compensation or indemnification. The Contractor’s claims against the Client are in that case immediately due and payable.
9. If the Client cancels an order in whole or in part, the work performed and the goods ordered or prepared for that purpose, increased by any transport and delivery costs thereof and the labour time reserved for the performance of the agreement, shall be charged in full to the Client.

 

Article 5 Force majeure

1. The Contractor is not obliged to fulfil any obligation towards the Client if it is prevented from doing so as a result of a circumstance that is not due to fault, and for which it is not accountable under the law, a legal act or generally accepted standards.
2. Force majeure in these general terms and conditions means, in addition to what is understood in law and case law, all external causes, foreseen or unforeseen, over which the Contractor has no influence, but as a result of which the Contractor is unable to fulfil its obligations. Strikes in the company of the Contractor or of third parties are included. The Contractor also has the right to invoke force majeure if the circumstance that prevents further performance of the agreement arises after the Contractor should have performed its obligation.
3. The Contractor may suspend the obligations under the agreement for the duration of the force majeure. If this period lasts longer than three months, either party is entitled to dissolve the agreement without any obligation to compensate the other party for any damage.
4. Insofar as the Contractor has already partially fulfilled its obligations under the agreement at the time force majeure occurs, or will be able to fulfil them, and the fulfilled or to be fulfilled part has independent value, the Contractor is entitled to invoice the already fulfilled or to be fulfilled part separately. The Client is obliged to pay this invoice as if it concerned a separate agreement.

 

Article 6 Payment and collection costs

1. Payment must always be made within 15 days after the invoice date, in a manner indicated by the Contractor and in the currency invoiced, unless the Contractor indicates otherwise in writing. The Contractor is entitled to invoice periodically.
2. If the Client fails to pay an invoice on time, the Client is legally in default. The Client then owes statutory interest. Interest on the due amount will be calculated from the moment the Client is in default until the moment full payment of the amount due has been made.
3. The Contractor has the right to apply payments made by the Client first to costs, then to accrued interest and finally to the principal sum and ongoing interest. The Contractor may, without thereby being in default, refuse an offer of payment if the Client designates a different order for allocation of payment. The Contractor may refuse full repayment of the principal sum if accrued and ongoing interest and collection costs are not also paid.
4. The Client is never entitled to set off what it owes the Contractor. Objections to the amount of an invoice do not suspend the payment obligation. The Client who is not entitled to invoke Section 6.5.3, Articles 231 through 247 of Book 6 of the Dutch Civil Code, is likewise not entitled to suspend payment of an invoice for any other reason.
5. If the Client is in default or in arrears in the timely fulfilment of its obligations, all reasonable costs to obtain payment out of court shall be borne by the Client. The extrajudicial costs are calculated on the basis of what is customary in Dutch collection practice, currently the calculation method according to Rapport Voorwerk II. If the Contractor has incurred higher collection costs that were reasonably necessary, the actual costs incurred are eligible for reimbursement. Any judicial and enforcement costs incurred will also be recovered from the Client. The Client also owes interest on the collection costs due.

Article 7 Retention of title

1. What is delivered by the Contractor in the context of the agreement remains the property of the Contractor until the Client has properly fulfilled all obligations under the agreement or agreements concluded with the Contractor.
2. The goods delivered by the Contractor that fall under the retention of title pursuant to paragraph 1 may not be resold and may never be used as a means of payment. The Client is not authorised to pledge the goods subject to retention of title or to encumber them in any other way.
3. The Client must always do everything that may reasonably be expected of it to safeguard the Contractor’s ownership rights. If third parties levy attachment on goods delivered under retention of title or wish to establish or assert rights thereon, the Client is obliged to inform the Contractor immediately. The Client also undertakes to insure and keep insured the goods delivered under retention of title against fire, explosion and water damage as well as theft, and to provide the policy of this insurance to the Contractor for inspection upon first request. In the event of any insurance payout, the Contractor is entitled to these funds. To the extent necessary, the Client undertakes in advance towards the Contractor to cooperate with everything that may be necessary or desirable in that context.
4. In the event that the Contractor wishes to exercise its ownership rights referred to in this article, the Client hereby grants the Contractor and third parties designated by the Contractor unconditional and irrevocable permission to enter all places where the Contractor’s property is located and to take it back.

Article 8 Warranties, inspection and complaints, limitation period

1. The goods to be delivered by the Contractor meet the usual requirements and standards that can reasonably be set for them at the time of delivery and for which they are intended for normal use in the Netherlands. The warranty referred to in this article applies to goods intended for use within the Netherlands. In the event of use outside the Netherlands, the Client must verify itself whether such use is suitable there and meets the applicable conditions. In that case, the Contractor may set other warranty terms and other conditions with regard to the goods to be delivered or work to be performed.
2. The warranty referred to in paragraph 1 applies for a period of two months after delivery, unless the nature of what is delivered implies otherwise or the parties have agreed otherwise. If the warranty provided by the Contractor concerns an item produced by a third party, the warranty is limited to that provided by the manufacturer, unless stated otherwise.
3. Any form of warranty lapses if a defect has arisen as a result of or follows from improper or incorrect use, use after the expiry date, incorrect storage or maintenance by the Client and or by third parties, if without the Contractor’s written permission the Client or third parties have made or attempted to make changes to the item, attached other items that should not be attached, or processed it in a way other than prescribed. The Client is also not entitled to warranty if the defect has arisen due to or is the result of circumstances beyond the Contractor’s control, including weather conditions, such as extreme rainfall or temperatures.
4. The Client is obliged to inspect, or have inspected, what has been delivered immediately at the moment the goods are made available to it or the relevant work has been performed. In doing so, the Client must examine whether the quality and or quantity of what has been delivered corresponds with what has been agreed and meets the requirements agreed by the parties. Any visible defects must be reported to the Contractor in writing within 14 days after delivery. Any non visible defects must be reported to the Contractor in writing immediately, but in any event no later than 14 days after discovery. The report must contain as detailed a description as possible of the defect so that the Contractor is able to respond adequately. The Client must give the Contractor the opportunity to investigate a complaint.
5. If the Client makes a complaint in time, this does not suspend its payment obligation. In that case, the Client remains obliged to accept and pay for the other ordered goods and for what it has instructed the Contractor to do.
6. If a defect is reported later, the Client is no longer entitled to repair, replacement or compensation.
7. If it is established that an item is defective and a complaint has been made in time, the Contractor shall, within a reasonable period after receipt of the returned item or, if return is not reasonably possible, after written notification of the defect by the Client, at the Contractor’s discretion, replace the defective item or arrange for its repair or pay compensatory compensation to the Client. In the event of replacement, the Client is obliged to return the replaced item to the Contractor and transfer ownership thereof to the Contractor, unless the Contractor indicates otherwise.
8. If it is established that a complaint is unfounded, the costs thereby incurred, including investigation costs, on the part of the Contractor, shall be borne in full by the Client.
9. After expiry of the warranty period, all costs for repair or replacement, including administration, shipping and call out costs, will be charged to the Client.
10. In deviation from the statutory limitation periods, the limitation period for all claims and defences against the Contractor and third parties involved by the Contractor in the performance of an agreement is six months.

Article 9 Liability

1. If the Contractor is liable, such liability is limited to what is provided in this provision.
2. The Contractor is not liable for damage of any nature whatsoever arising because the Contractor relied on incorrect and or incomplete data provided by or on behalf of the Client.
3. If the Contractor is liable for any damage, the liability of the Contractor is limited to a maximum of once the invoice value of the order, or at least to that part of the order to which the liability relates.
4. The liability of the Contractor is in any event always limited to the amount paid out by its insurer, if applicable.
5. The Contractor is only liable for direct damage.
6. Direct damage means only the reasonable costs to determine the cause and extent of the damage, insofar as the determination relates to damage within the meaning of these terms and conditions, any reasonable costs incurred to have the defective performance of the Contractor comply with the agreement, insofar as these can be attributed to the Contractor, and reasonable costs incurred to prevent or limit damage, insofar as the Client demonstrates that these costs have led to limitation of direct damage as referred to in these general terms and conditions. The Contractor is never liable for indirect damage, including consequential loss, loss of profit, missed savings and damage due to business interruption.
7. The limitations of liability included in this article do not apply if the damage is due to intent or gross negligence of the Contractor or its managerial subordinates.

Article 10 Indemnification

The Client indemnifies the Contractor against any claims from third parties who suffer damage in connection with the performance of the agreement and whose cause is attributable to parties other than the Contractor. If the Contractor is held liable by third parties on that basis, the Client is obliged to assist the Contractor both out of court and in court and to do without delay everything that may be expected of it in that case. If the Client fails to take adequate measures, the Contractor is entitled, without notice of default, to take such measures itself. All costs and damage incurred on the part of the Contractor and third parties as a result thereof shall be borne in full by the Client.

Article 11 Intellectual property

The Contractor reserves the rights and powers to which it is entitled under the Dutch Copyright Act and other intellectual property laws and regulations. The Contractor is entitled to use the knowledge gained through the performance of an agreement for other purposes as well, provided that no strictly confidential information of the Client is disclosed to third parties.

Article 12 Applicable law and disputes

1. All legal relationships to which the Contractor is a party are exclusively governed by Dutch law, even if an obligation is performed wholly or partly abroad or if a party involved in the legal relationship is domiciled there. The applicability of the Vienna Convention on the International Sale of Goods is excluded.
2. The court in the place of establishment of the Contractor has exclusive jurisdiction to hear disputes, unless mandatory law provides otherwise. Nevertheless, the Contractor has the right to submit the dispute to the court competent under the law.
3. The parties will only resort to the courts after they have made every effort to resolve a dispute by mutual consultation.

Article 13 Filing and amendment of the general terms and conditions

1. These terms and conditions have been filed with the Chamber of Commerce Enschede.
2. The most recently filed version always applies, or the version that applied at the time the legal relationship with the Contractor was formed.
3. The Dutch text of the general terms and conditions is always decisive for their interpretation.