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Terms & Conditions

Terms & Conditions

These are the General Terms and Conditions of MAKE and Partners B.V. (hereinafter referredto as “MAKE and Partners”), a company with an address at Van Nelleweg 1, Rotterdam. MAKEand Partners is registered with the Chamber of Commerce under number 94128855.

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Definitions

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In these General Terms and Conditions, the following terms have the following meaningsunless expressly stated otherwise:

  • General Terms and Conditions: these general terms and conditions as stated below.
  • Company: the Counterparty acting in the exercise of a business or profession.
  • BW: the Dutch Civil Code.Assignment: All activities in any form that MAKE and Partners carries out for or on behalf ofthe Counterparty.
  • Agreement: Any agreement entered into between MAKE and Partners and the Counterparty.
  • Counterparty: the Company that has accepted these General Terms and Conditions and hasassigned the execution of an Assignment.

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Unless the General Terms and Conditions expressly state otherwise, singular references shallbe deemed to include the plural and vice versa, and any reference to a male form shall also bedeemed to include a reference to the female form and vice versa.

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1. Applicability
  1. These General Terms and Conditions apply to every offer, quotation, and Agreemententered into between MAKE and Partners and the Counterparty unless parties haveexpressly deviated from these General Terms and Conditions in writing.
  2. These General Terms and Conditions also apply to agreements with MAKE andPartners for the execution of which third parties must be involved.
  3. The applicability of the general terms and conditions of the Counterparty is expresslyrejected.
  4. Deviations from the Agreement and General Terms and Conditions are only valid ifexpressly agreed in writing between the parties.

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2. Offers and/or Proposals
  1. All offers and/or proposals, unless explicitly stated otherwise, are considered nonbinding offers and may be revoked at any time, even if they contain a term foracceptance. Offers/proposals may also be revoked by MAKE and Partners promptlyupon receipt of acceptance, but no later than within two working days, in which case noAgreement will have been formed between the parties.
  2. All offers and/or proposals from MAKE and Partners are valid for 4 weeks unless statedotherwise.
  3. MAKE and Partners cannot be bound by its offers and/or proposals if the Counterparty,based on reasonableness and fairness and generally accepted views in social traffic, should have understood that the offer or part thereof contains an obvious error or mistake.
  4. If the acceptance deviates, whether or not on minor points, from the offer and/orproposal, MAKE and Partners is not bound by it. The Agreement will not be concludedin accordance with this deviating acceptance unless MAKE and Partners indicatesotherwise.

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3. Formation of the Agreement
  1. The Agreement will be executed by MAKE and Partners to the best of its knowledgeand ability in accordance with the requirements of good craftsmanship. The intendedwork represents a best efforts obligation on the part of MAKE and Partners. Theapplication of articles 7:404, 7:407 paragraph 2, and 7:409 of the BW is expresslyexcluded.
  2. MAKE and Partners determines how and by whom the Assignment will be executed.MAKE and Partners is entitled to have certain work performed by third parties.
  3. MAKE and Partners is entitled to execute the Agreement in stages. If the Agreement iscarried out in stages, MAKE and Partners is entitled to invoice each completed partseparately. As long as the invoice for a completed part is not paid, MAKE and Partnersis not obliged to perform the next stage and is entitled to suspend the Agreement.
  4. MAKE and Partners is entitled to the pre-notified public holidays, despite the minimumnumber of hours that may be stipulated in the Agreement.

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4. Execution of the Agreement
  1. The Agreement will be executed by MAKE and Partners to the best of its knowledgeand ability in accordance with the requirements of good craftsmanship. The intendedwork represents a best efforts obligation on the part of MAKE and Partners. Theapplication of articles 7:404, 7:407 paragraph 2, and 7:409 of the BW is expresslyexcluded.
  2. MAKE and Partners determines how and by whom the Assignment will be executed.MAKE and Partners is entitled to have certain work performed by third parties.
  3. MAKE and Partners is entitled to execute the Agreement in stages. If the Agreement iscarried out in stages, MAKE and Partners is entitled to invoice each completed partseparately. As long as the invoice for a completed part is not paid, MAKE and Partnersis not obliged to perform the next stage and is entitled to suspend the Agreement.
  4. MAKE and Partners is entitled to the pre-notified public holidays, despite the minimumnumber of hours that may be stipulated in the Agreement.

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5. Changes and Additional Work
  1. If during the execution of the Agreement it becomes apparent that it is necessary tomodify or supplement the Agreement for proper execution, MAKE and Partners willinform the Counterparty as soon as possible. The parties will then proceed to modifythe Agreement in a timely manner by mutual consent.
  2. If the parties agree to modify or supplement the Agreement, the completion time of theexecution may be affected. MAKE and Partners will inform the Counterparty of this assoon as possible.
  3. If the modification of or addition to the Agreement has financial, quantitative, orqualitative consequences, MAKE and Partners will inform the Counterparty in advance.
  4. If a fixed fee or price has been agreed upon, MAKE and Partners will indicate to whatextent the modification or addition to the Agreement will affect the fee/price. MAKEand Partners will, where possible, attempt to provide a price estimate in advance.
  5. MAKE and Partners cannot charge additional costs if the modification/addition resultsfrom circumstances attributable to MAKE and Partners.
  6. Modifications to the originally concluded Agreement between the parties are only validfrom the moment they are accepted by both parties through a supplementary or amendedAgreement.

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6. Obligations of the Counterparty
  1. The Counterparty must ensure that all data, equipment, or spaces that MAKE andPartners indicate are necessary or that the Counterparty should reasonably understandto be necessary for the execution of the Agreement, are made available in a timelymanner. The Counterparty must also grant MAKE and Partners all necessary authoritiesand authorizations required to properly execute the Assignment.
  2. MAKE and Partners is not liable for any damage of any kind caused by MAKE andPartners relying on incorrect and/or incomplete data provided by the Counterpartyunless the incorrectness or incompleteness should have been known to MAKE andPartners.
  3. The Counterparty must ensure that the employees of the Counterparty's organizationinvolved in the work are available in a timely manner.
  4. The Counterparty must refrain from any conduct that makes it impossible for MAKEand Partners to properly execute the Assignment.
  5. If MAKE and Partners or third parties engaged by MAKE and Partners carry out workat the Counterparty’s location or at a location designated by the Counterparty inconnection with the Assignment, the Counterparty must provide the necessary facilitiesfree of charge.
  6. If the Counterparty does not fulfill its obligations as set out in this article, MAKE andPartners has the right to suspend the execution of the Agreement and/or charge the extracosts incurred due to the delay to the Counterparty at the usual rates or fees.

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7. Prices
  1. Unless explicitly agreed otherwise in writing, the prices and rates indicated by MAKEand Partners are always exclusive of VAT.
  2. The prices and rates are exclusive of shipping, travel, accommodation, and otherexpenses unless otherwise agreed.
  3. If no price or rate has been explicitly agreed upon, the price or rate will be determinedbased on the actual time spent and the usual rates of MAKE and Partners.
  4. MAKE and Partners will timely inform the Counterparty of all additional costs beforethe Agreement is concluded, or provide data on the basis of which these costs may becharged to the Counterparty.
  5. If MAKE and Partners agrees on a fixed price or rate when concluding the Agreement,MAKE and Partners is entitled to increase it even if the price or rate was originallygiven without reservation.
  6. In the event that MAKE and Partners intends to change the price or rate, it will notifythe Counterparty as soon as possible.
  7. If the price or rate increase occurs within three months after the conclusion of theAgreement, the Counterparty may dissolve the Agreement by written declarationunless:
    • The increase results from a legal authority or obligation imposed on MAKE andPartners under the law;
    • The increase is due to a rise in the price of raw materials, taxes, production costs,exchange rates, wages, etc., or for other reasons that were not reasonablyforeseeable at the time of entering into the Agreement;
    • MAKE and Partners is still willing to execute the Agreement on the originallyagreed terms; or
    • It was stipulated that execution would take place more than three months afterthe conclusion of the Agreement.

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8. Payment
  1. Payment must be made by transfer to a bank account designated by MAKE and Partnersunless otherwise agreed.
  2. MAKE and Partners will send an invoice for the amounts due by the Counterparty. The payment term of each invoice is 30 days after the date of the invoice unless otherwisestated on the invoice or agreed.
  3. Invoices are issued monthly unless otherwise agreed.
  4. MAKE and Partners and the Counterparty may agree that payment will be made ininstallments proportional to the progress of the work. If payment in installments hasbeen agreed upon, the Counterparty must pay according to the terms and percentagesset out in the Agreement.
  5. Objections to the amount of the invoice do not suspend the payment obligation of theCounterparty.
  6. The Counterparty is not entitled to set off any amount against the amount owed due toa counterclaim.
  7. In the event of non-payment or late payment, the Counterparty is in default by operationof law without the need for a notice of default. From the date the payment becomes due,the Counterparty owes statutory commercial interest until the day of full payment, withinterest being calculated for a part of a month as for a full month.
  8. A payment made by the Counterparty will first be deducted from all interest and costsowed, and finally from the longest outstanding invoices, even if the Counterparty statesthat the payment relates to later invoices.
  9. If the Counterparty is in default or in breach of its obligations (timely or otherwise), allreasonable extrajudicial costs incurred to obtain payment will be borne by theCounterparty.
  10. With respect to extrajudicial (collection) costs, MAKE and Partners is entitled tocompensation of 15% of the total outstanding principal amount, with a minimum of€100 for each invoice that is wholly or partially unpaid.
  11. In the event of bankruptcy, suspension of payments, liquidation, general seizure ofassets, death, or guardianship, the claims of MAKE and Partners and the obligations ofthe Counterparty towards MAKE and Partners will become immediately due andpayable.
  12. Any judicial costs and execution costs reasonably incurred will also be borne by theCounterparty.

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9. Compliants
  1. The Counterparty must examine the Assignment at the time of execution or, in any case,within 7 days after the execution to determine whether the executed Assignmentconforms to the Agreement.
  2. Complaints must be reported in writing to MAKE and Partners within 7 days after theexecution of the Assignment.
  3. The right to (partial) reimbursement of the price, replacement, or compensation willexpire if the complaint is not reported within the specified period, unless the nature ofthe Assignment or the circumstances justify a longer period.
  4. The payment obligation is not suspended if the Counterparty notifies MAKE andPartners of a complaint within the specified period.

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10. Force Majeure and Unforeseen Circumstances
  1. A failure cannot be attributed to MAKE and Partners or the Counterparty if the failureis not due to their fault, nor should it be borne by them under the law, a legal act, orprevailing social views. In such a case, neither party is obliged to fulfill the obligationsarising from the Agreement.
  2. In these General Terms and Conditions, force majeure refers to, in addition to what isunderstood in law and jurisprudence, all external causes, whether foreseen orunforeseen, over which MAKE and Partners has no control, and as a result of whichMAKE and Partners is unable to fulfill its obligations.
  3. Force majeure on the part of MAKE and Partners includes, in any case:
    • Strikes;
    • Transportation disruptions;
    • Government measures that prevent MAKE and Partners from fulfilling itsobligations on time or properly;
    • Riots, insurrections, war;e. Traffic obstructions;
    • Lack of labor;
    • Extreme weather conditions;
    • Fire;
    • Import, export, and/or transit bans; and/orj
    • Any circumstance that hinders the normal course of business, as a result ofwhich MAKE and Partners cannot reasonably be expected to fulfill theAgreement.

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11. Termination of the Agreement
  1. Parties may terminate the Agreement at any time by mutual consent.
  2. Parties may terminate the Agreement in writing with a notice period of 14 days.
  3. Parties may terminate the Agreement with immediate effect in writing in the event of:
    • An application by or granting of a suspension of payments to the other party;
    • An application for bankruptcy by or a declaration of bankruptcy of the otherparty; or
    • Liquidation of the other party or permanent cessation of the other party'sbusiness.
  4. If the Agreement is dissolved, the claims of MAKE and Partners against theCounterparty become immediately due and payable. If MAKE and Partners suspendsthe fulfillment of obligations, it retains its rights under the law and the Agreement.MAKE and Partners always retains the right to claim compensation for damages.

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12. Liability
  1. MAKE and Partners is only liable for direct damage caused by gross negligence orwillful misconduct on the part of MAKE and Partners and is not liable for more thanthe amount paid out by the insurer to MAKE and Partners or at most once the amountstated on the invoice.
  2. Direct damage is exclusively understood to mean:
    • Reasonable costs to determine the cause and extent of the damage, insofar as thedetermination relates to damage within the meaning of these General Terms andConditions;
    • Reasonable costs incurred to have the defective performance of MAKE andPartners meet the Agreement, insofar as these can be attributed to MAKE andPartners; or
    • Reasonable costs incurred to prevent or limit damage, insofar as theCounterparty demonstrates that these costs have led to a limitation of directdamage as referred to in these General Terms and Conditions
  3. MAKE and Partners is never liable for indirect damage, including but not limited toconsequential damage, lost profits, missed savings, damage due to business interruption,damage resulting from the provision of incorrect cooperation and/or information by theCounterparty, damage due to non-binding information or advice provided by MAKEand Partners, or any damage that does not fall under direct damage as defined in theseGeneral Terms and Conditions.
  4. MAKE and Partners is never liable for errors in the material provided by theCounterparty or for misunderstandings or errors regarding the execution of theAgreement if these are caused by actions of the Counterparty, such as not providingcomplete, reliable, and clear data/materials in a timely manner.
  5. MAKE and Partners is never liable for errors if the Counterparty has previously givenapproval or has been given the opportunity to perform a check and has indicated nodesire to do so.
  6. The liability limitations set forth in this article also apply in favor of third partiesengaged by MAKE and Partners in the execution of the Agreement.
  7. MAKE and Partners is not liable for damage or loss of documents during transport ormailing, regardless of whether the transport or mailing is carried out by or on behalf ofMAKE and Partners, the Counterparty, or third parties
13. Confidentiality
  1. Both parties are obliged to maintain confidentiality of all confidential information thatthey have obtained from each other or from another source in the context of theAgreement. Information is considered confidential if it has been communicated as suchby the other party or if it arises from the nature of the information. The party receivingconfidential information will only use it for the purpose for which it was provided.
  2. If, on the basis of a legal provision or a court ruling, MAKE and Partners is required todisclose confidential information to third parties designated by law or the competentcourt, and MAKE and Partners cannot invoke a legal or court-recognized right of nondisclosure, MAKE and Partners is not obliged to pay compensation or damages, and theCounterparty is not entitled to dissolve the Agreement on the grounds of any damagecaused by this.
  3. Notwithstanding the foregoing, MAKE and Partners is authorized to include the nameof the Counterparty on a list of clients published on the website or through otherexpressions to third parties unless otherwise agreed.

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14. Indemnification
  1. To the extent permitted by law, the Counterparty indemnifies MAKE and Partnersagainst any liability towards third parties arising from or related to the execution of theAgreement, regardless of whether the damage was caused by MAKE and Partners or itsauxiliaries or assistance tools, or the executed Assignment.
  2. Furthermore, the Counterparty indemnifies MAKE and Partners, to the extent permittedby law, against any third-party claims in connection with any infringement ofintellectual property rights by these third parties.
  3. The Counterparty is always obliged to take all measures necessary to limit the damage.

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15. Intellectual Property
  1. All intellectual property rights to all products, materials, analyses, designs, software,documentation, advice, reports, quotations, (electronic) information, and preparatorymaterials developed or provided in the context of the execution of the Agreement(collectively the “IE Material”) are vested solely in MAKE and Partners or its licensors.
  2. The Counterparty only acquires any rights and powers regarding the IE Material thatarise from the Agreement and/or that are expressly granted in writing.
  3. The Counterparty is not permitted to transfer any obtained right or authority regardingthe IE Material to third parties without prior written consent from MAKE and Partners.
  4. The Counterparty is not permitted to remove or alter any indication of intellectualproperty rights such as copyrights, trademarks, or trade names from the IE Material.
  5. Any exploitation, reproduction, use, or disclosure by the Counterparty of the IE Materialthat falls outside the scope of the Agreement or granted rights and powers will beconsidered an infringement of the intellectual property rights of MAKE and Partners.
  6. The Counterparty will pay a penalty of €10,000 per infringing action to MAKE andPartners, which is immediately payable and not subject to judicial moderation, withoutprejudice to MAKE and Partners’ right to claim damages or take other legal measuresto stop the infringement.
  7. No infringement of intellectual property rights occurs if the Counterparty has receivedexpress written permission from MAKE and Partners to exploit, reproduce, use, ordisclose the IE Material that falls outside the scope of the Agreement or granted rightsand powers.

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16. Privacy
  1. MAKE and Partners respects the privacy of the Counterparty. MAKE and Partnersprocesses and treats all personal data provided to it in accordance with the applicablelaws, particularly the General Data Protection Regulation (GDPR). The Counterpartyconsents to this processing. To protect the Counterparty’s personal data, MAKE andPartners employs appropriate security measures.
  2. MAKE and Partners uses the Counterparty's personal data exclusively in the context ofthe execution of the Agreement or for handling a complaint.
  3. For more information on privacy, refer to the MAKE and Partners website.

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17. Expiry Period

For all claims and/or powers that the Counterparty may have against MAKE and Partners and/orany third parties engaged by MAKE and Partners, a limitation period of one year applies, differing from the statutory limitation periods, from the moment an event occurs that allows theCounterparty to exercise these rights and/or powers against MAKE and Partners and/or the thirdparties engaged by MAKE and Partners

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18. Transfer
  1. The Counterparty is not permitted to transfer any rights and obligations arising from theAgreement to third parties without obtaining prior written consent from MAKE andPartners.
  2. MAKE and Partners is entitled to attach conditions to this consent.

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19. Survival

The provisions of these General Terms and Conditions and the Agreement that are intended toremain in effect after the termination of the Agreement will remain binding after the terminationand continue to bind the parties.

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20. Miscellaneous
  1. Any deviations from these General Terms and Conditions can only be agreed upon inwriting. Such deviations cannot be derived for future legal relationships.
  2. The administration of MAKE and Partners is considered proof of the applications madeby the Counterparty, unless proven otherwise. The Counterparty acknowledges thatelectronic communications can serve as evidence.
  3. If and to the extent that any provision of these General Terms and Conditions or theAgreement is declared void or annulled, the remaining provisions will remain in force.MAKE and Partners will establish a new provision to replace the void/annulledprovision, taking into account the intent of the void/annulled provision as much aspossible.
  4. The place of execution of the Agreement is considered to be the location where MAKEand Partners is established.

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21. Applicable Law and Forum Selection
  1. All Agreements, the General Terms and Conditions, and all non-contractual rights andobligations arising from them are governed in all respects by Dutch law.
  2. All disputes between MAKE and Partners and the Counterparty that may arise inconnection with an Agreement and/or the General Terms and Conditions, or fromagreements resulting from them, will initially be settled by the competent court of theRotterdam District Court.

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If you have any questions about this Privacy Policy of the Service, please send an email to info@makeandpartners.com.

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