1. General Terms and Conditions
1.1. These General Terms and Conditions apply to any legal relationship (such as offers, quotations, deliveries, and agreements) between, on the one hand, the private limited company Clarify Holding B.V. or one of its subsidiaries (Clarify B.V., Clarify Consultancy B.V., or Clarify Tech B.V.) (hereinafter: 'Clarify') and, on the other hand, the client (hereinafter: 'Client') and remain in full force and effect after termination of the relationship.
1.2. The applicability of any general terms and conditions of the Client is expressly rejected.
1.3. The provisions of these General Terms and Conditions also apply to any legal relationship between, on the one hand, the Client and, on the other hand, the persons working at Clarify and the third parties engaged by Clarify.
1.4. Deviations from these General Terms and Conditions shall only apply if they have been explicitly agreed upon in writing.
2. Formation of the Agreement
2.1. An agreement is formed when the Client has approved Clarify's offer in writing, by e-mail, or by fax, or, if such written approval has not taken place, if Clarify has confirmed the oral agreement of the Client by e-mail or by fax.
2.2. If an agreement as described in Article 3.1 has not been reached, the agreement shall be deemed to have been formed as soon as Clarify has commenced the execution of the agreement and this commencement of the execution is the result of actions by or on behalf of the Client from which Clarify could reasonably infer that the Client agreed to the commencement of the execution.
3. Execution of the Agreement
3.1. Unless otherwise agreed, Clarify is free to execute the agreement at its own discretion and to engage third parties designated by it for that purpose. Clarify has an obligation to make an effort and therefore not an obligation to achieve a result. Failure to meet the Client's expectations does not oblige Clarify to perform the work again.
3.2. In the event that an agreement consists of multiple parts, Clarify is not obliged to perform a part thereof for a corresponding part of the total price mentioned in the offer.
3.3. If the agreement consists of multiple parts, Clarify may suspend the execution of new parts until the Client has approved in writing the results of one or more of the preceding parts.
4. Fees and Payment Terms
4.1. Amounts are exclusive of value-added tax (VAT) and any administration fees, transport and shipping costs, and other levies.
4.2. Unless otherwise agreed, the fee to be charged by Clarify will consist of the number of hours worked for the Client, multiplied by Clarify's usual hourly rates.
4.3. Unless otherwise agreed, Clarify will always invoice 50% of the agreed fee immediately after the formation of the agreement and the remaining amount after its execution. Clarify is free to invoice fees for already completed parts of the agreement and costs incurred in the interim.
4.4. Payment must, notwithstanding what is determined in the following paragraphs, be made within the term stated in the invoice, and in the absence of such a term, within fourteen (14) days after the invoice date.
4.5. If Clarify engages third parties in its own name during the execution of the assignment, the costs for the goods and/or services provided by the third party will be charged to the Client, possibly increased by an agreed agency surcharge.
4.6. After the expiration of the term mentioned in Article 4.4, the Client is in default, and all of Clarify's claims on the Client are immediately due and payable. From the moment the default occurs until the day of full payment, the Client owes interest of 2% per month on the outstanding amount.
4.7. If the Client does not proceed with payment, Clarify is entitled to recover all extrajudicial and judicial costs incurred by it from the Client, which costs amount to at least 10% of the amount due, with a minimum of €250.
4.8. Clarify is entitled to suspend the execution of the agreement if one or more agreed payments have not taken place or have not taken place in full, and furthermore, it is entitled to terminate the agreement if the Client does not proceed with payment after Clarify has given the Client a reasonable period to still comply with the payment obligation, without prejudice to Clarify's right to full payment of the agreed fee.
4.9. If the Client does not proceed with payment within a reasonable period set by Clarify, the Client is no longer permitted to use the provided materials, and all granted (usage) rights to the Client are revoked.
4.10. Apart from the set-off with the already paid advances, the Client is not entitled to offset, suspend or withhold any payment owed by it.
4.11. If the Client terminates an assignment or agreement prematurely, in whole or in part, all agreed fees and other claims of Clarify on the Client are immediately due and payable, without any notice of default being required.
5. Delivery Terms
5.1. Unless otherwise agreed, terms are approximate and therefore not fatal.
5.2. In case of exceeding a delivery term, Clarify is not liable for any form of (damage) compensation to the Client. In that case, the Client also does not have the right to terminate the agreement, unless the exceeding of the delivery term is such that it cannot reasonably be expected of the Client to maintain the relevant part of the agreement.
5.3. If the delivery of any reference materials or the payment of stipulated advances or other fees takes place later than agreed, Clarify has the right to extend the delivery terms by at least the same period.
6. Changes to the Agreement and Additional Work
6.1. If it turns out that changes to the agreement are necessary, parties will enter into consultation. If a written agreement has been omitted, the change is deemed to have been made as soon as Clarify has started its execution, and this start of the execution is the result of actions by or on behalf of the Client from which Clarify could reasonably infer that the Client agreed to the change.
6.2. After a change, Clarify may proportionally increase the agreed fee and charge any additional costs to the Client. However, exceeding estimates up to 10% are accepted by the Client as budgetary risk and do not need to be reported as such.
6.3. If a change in the agreement results in an agreed deadline being exceeded, this deadline will, unless otherwise agreed, be extended indefinitely. The consequences of such an overrun are at the expense and risk of the Client.
7. Client Obligations
7.1. The Client will do everything reasonably necessary or desirable to enable timely and correct execution of the work by Clarify, particularly by providing the necessary cooperation and promptly supplying the necessary data and materials.
7.2. The verification of material provided by Clarify against regulations and the use of this material is at the expense and risk of the Client.
7.3. The Client is obliged to inform Clarify promptly at all times of circumstances as referred to in Article 13.3 and other circumstances that can have a substantial negative financial impact on the (amount of) work to be carried out by Clarify on behalf of the Client, including reducing the Client's budget for their communication interests.
8. Intellectual Property Rights and Usage Rights
8.1. All intellectual property rights, including copyrights, on the results of the work carried out by Clarify or by third parties engaged by her rest with Clarify or these third parties, respectively.
8.2. The Client may use the material delivered by Clarify and selected by the Client exclusively as agreed in writing. Insofar as nothing (else) has been agreed in writing about the use referred to in this article, the Client only acquires the right to use the material delivered by Clarify and selected by the Client in unaltered form, on a one-time and non-exclusive basis, solely for the medium and the country in which the work was first made public. Regarding websites, these will only be used on the domain as agreed, and if nothing is agreed, only on the domain where this website was first used. Furthermore, the limitation of one-time use does not apply to websites. The Client will not invoke Article 8 of the Copyright Act. Any extension of usage rights to a larger area, a longer period, or another type of use can only be agreed upon in writing.
8.3. If Clarify has granted permission to modify the material in any form, the final use is only allowed after written approval of the final modification by Clarify.
8.4. Unless otherwise agreed, the Client is not allowed to transfer (rights to) the materials delivered by Clarify to third parties, to encumber, to lend, or to make available to third parties in any other way.
8.5. Clarify is free to sign the work it has created. Clarify and the third parties whose materials Clarify has forwarded remain authorized under all circumstances, even in the event of a possible transfer of copyrights, to reproduce and disclose these materials for their own use.
8.6. If the Client or third parties on whose behalf Clarify has supplied the material use the material provided by Clarify in other ways than for which permission has been granted, the Client owes compensation according to Clarify's standard rates.
8.7. If Clarify has suggested ideas concerning an assignment to be fulfilled by them, the Client will not use these ideas if the relevant assignment, for whatever reason, is ultimately not carried out by Clarify.
8.8. Without prior written consent from Clarify, the Client will not register the materials provided by Clarify, including words, images, slogans, pay-offs, etc., as a trademark or otherwise.
8.9. If the Client acts in violation of their contractual obligations, Clarify is entitled to temporarily suspend or terminate the granted license to use the work.
9. Complaints
9.1. Complaints regarding the results of work and invoices from Clarify must be submitted to Clarify in writing within fourteen (14) days of delivery or invoice date. With regard to invoices, the payment term will not be suspended due to such a complaint.
9.2. After the expiration of the aforementioned period, complaints will no longer be considered, and the Client will have forfeited their rights in this regard.
9.3. If, in Clarify's opinion, a complaint is justified, the Client will give Clarify the opportunity to rectify the complaint within a reasonable period of time.
9.4. Unless proven otherwise, the data from Clarify's administration is decisive.
10. Liability and indemnification
10.1. The total liability of Clarify for direct damages is limited under all circumstances to the compensation Clarify received in the 30 days preceding the moment when Clarify's liability arose. Direct damage is understood to mean only material damage that is the direct result of an attributable failure or an unlawful act by Clarify. All claims for liability of Clarify will lapse after 12 months from the moment the liability arose.
10.2. Clarify's liability for damage to materials provided by the Client to Clarify and for damage other than direct damage, as defined in the previous paragraph, is excluded. Damage other than direct damage includes consequential damage, operational damage, lost profit, missed savings, damage due to business stagnation, and damage resulting from or related to the materials provided by Clarify.
10.3. The Client indemnifies Clarify against claims from third parties.
11. Duration and termination of the agreement
11.1. If no specific duration has been agreed upon regarding the collaboration and it has lasted longer than six months, a notice period of at least six months must be observed. Termination must be done by registered mail. During this notice period, the Client is obliged to fulfill their (payment) obligations towards Clarify as if no termination had occurred.
11.2. Clarify's remuneration during the notice period as described in the previous paragraph is at least equal to 1/12 of the amount Clarify invoiced the Client in the preceding consecutive period of twelve months. If the collaboration has lasted for a shorter period, the remuneration per month is equal to the amount invoiced on average per month during that period.
11.3. Clarify is authorized to terminate the agreement with the Client in whole or in part with immediate effect, without notice of default or obligation to pay compensation, or to suspend further execution of the agreement if and as soon as the Client becomes bankrupt, applies for bankruptcy, requests a suspension of payments, or fails to fulfill any obligation towards Clarify. If, at the time of termination, the Client has not fulfilled all obligations towards Clarify, all rights granted to the Client will automatically lapse, without any action being required.
12. Other provisions
12.1. If and to the extent that third-party terms and conditions apply and/or this third party is bound by terms and conditions or regulations applicable to the legal relationship between this third party and Clarify, the relevant terms and conditions and/or the relevant regulations also apply in the legal relationship between the parties. This does not affect the fact that these General Terms and Conditions remain fully applicable to the legal relationship between the parties.
12.2. Parties are not allowed to transfer rights or obligations to third parties without prior written consent.
12.3. If any passage or provision of these General Terms and Conditions or an agreement between Clarify and the Client is void or annulled at any time, the remaining provisions will remain in full force. For the void or annulled passage(s) or provision(s), an arrangement will be made that