General terms and conditions (Terms of Service) B2B

Last updated: 01 November 2023

These terms and conditions apply when you visit our website (https://www.tdmsignage.com), place an order, enter into an agreement or use TDM4 and/or TDM5.

Article 1 – Definitions

Blue and Red BV, located in Leeuwarden, KvK number 57407622, is referred to in these general terms and conditions as service provider.
The service provider’s counterparty is referred to in these general terms and conditions as the client.
The parties are the service provider and client together.
Agreement means the agreement to provide services between the parties.

Article 2 – Applicability of general conditions

These terms and conditions apply to all quotations, offers, work, agreements and deliveries of services or goods by or on behalf of the service provider.
Deviation from these terms and conditions is possible only if expressly agreed upon by the parties in writing.
The agreement always contains effort obligations for the service provider, not result obligations.

Article 3 – Payment

Invoices must be paid within 30 days of the invoice date, unless the parties have agreed otherwise in writing or the invoice specifies a different payment period.
Payments shall be made without any recourse to suspension or set-off by transferring the amount due to the bank account number specified by the service provider.
If the principal fails to pay an invoice within the agreed period, he shall be in default by operation of law, without the need for any reminder. From that moment, the service provider is entitled to suspend the obligations until the client has fulfilled his payment obligations.
If the principal remains in default, the service provider shall proceed to collection. The costs related to such collection shall be borne by the principal.
When the client is in default, he owes the service provider, in addition to the principal sum, statutory (commercial) interest, extrajudicial collection costs and other damages. The collection costs are calculated according to the Decree on compensation for extrajudicial collection costs.
In case of liquidation, bankruptcy, attachment or suspension of payment of the principal, the claims of the service provider against the principal are immediately due and payable.
If the client refuses to cooperate with the execution of the order by the service provider, he is still obliged to pay the agreed price to the service provider.

Article 4 – Offers and tenders

The offers of the service provider are valid for at most 1 month, unless a different period of acceptance is specified in the offer. If the offer is not accepted within that specified period, the offer expires.
Delivery times in quotations are indicative and if exceeded do not entitle the client to dissolution or damages, unless the parties have expressly agreed otherwise in writing.
Offers and quotations do not automatically apply to repeat orders. The parties must agree this expressly and in writing.

Article 5 – Prices

The prices mentioned on offers, quotations and invoices of the service provider are exclusive of VAT and any other government taxes, unless explicitly stated otherwise.
The prices of goods are based on the cost prices known at that time. Increases thereof, which could not be foreseen by the service provider at the time of making the offer or entering into the agreement, may result in price increases.
With regard to the provision of services, the parties may agree on a fixed price when the agreement is concluded.
If no fixed price has been agreed upon, the rate relating to the provision of services may be determined on the basis of hours actually spent. The rate shall be calculated according to the service provider’s usual hourly rates, valid for the period in which he performs the work, unless a different hourly rate has been agreed upon.
If no rate based on the actual hours spent has been agreed upon, a guide price for the services shall be agreed upon, from which the service provider shall be entitled to deviate up to 10%. If the guide price will be more than 10% higher, the service provider shall inform the client in due time why a higher price is justified. In that case, the client is entitled to cancel a part of the order that exceeds the guide price plus 10%.

Article 6 – Price Indexation

The prices and hourly wages agreed upon when entering into the agreement are based on the price level applied at that time. The service provider has the right to adjust the fees to be charged to the client annually as of January 1.
Adjusted prices, rates and hourly wages will be communicated to the client as soon as possible.

Article 7 – Provision of information by client

The client shall make all information relevant to the performance of the assignment available to the service provider.
The principal is obliged to provide all data and documents, which the service provider considers necessary for the correct execution of the order, in due time and in the desired form and manner
The principal guarantees the accuracy, completeness and reliability of the data and documents made available to the service provider, even if they originate from third parties, insofar as the nature of the order does not dictate otherwise.
The client shall indemnify the service provider for any damage in any form resulting from failure to comply with the provisions of the first paragraph of this article.
If and to the extent requested by the client, the service provider shall return the relevant documents.
If the client fails to make available the data and documents required by the service provider, or fails to do so on time or properly, and the execution of the order is delayed as a result, the resulting additional costs and additional fees shall be borne by the client.

Article 8 – Withdrawal of assignment

The client is free to terminate the assignment to the service provider at any time.
If the client withdraws the assignment, the client is obliged to pay the service provider’s due wages and expenses incurred.

Article 9 – Execution of the agreement

The service provider shall perform the agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship.
The service provider has the right to have work performed by third parties.
Performance shall be by mutual agreement and after written agreement and payment of any agreed advance.
It is the client’s responsibility that the service provider can begin the assignment in a timely manner.

Article 10 – Contract duration of assignment

The agreement between the client and the service provider is entered into for an indefinite period of time, unless the nature of the agreement dictates otherwise or the parties have expressly agreed otherwise in writing.
If, within the term of the agreement, the parties have agreed on a deadline for the completion of certain work, this is never a deadline. If this deadline is exceeded, the client must give the service provider written notice of default.

Article 11 – Modification of the agreement

If, during the execution of the agreement, it appears that for a proper execution of the assignment it is necessary to modify or supplement the work to be performed, the parties shall adjust the agreement accordingly in a timely manner and by mutual agreement.
If the parties agree that the agreement is amended or supplemented, the time of completion of performance may be affected as a result. The service provider shall inform the client of this as soon as possible.
If the change or supplement to the agreement has financial and/or qualitative consequences, the service provider shall inform the client in writing as soon as possible.
If the parties have agreed on a fixed fee, the service provider shall indicate the extent to which the change or supplement to the agreement will result in an overrun of this fee.

Article 12 – Force majeure

In addition to the provisions of section 6:75 of the Civil Code, a service provider’s failure to meet any obligation to the principal shall not be attributable to the service provider in the event of a circumstance independent of the service provider’s will, as a result of which the performance of its obligations to the principal is prevented in whole or in part or as a result of which the service provider cannot reasonably be required to meet its obligations. Such circumstances shall include non-performance by suppliers or other third parties, power failures, computer viruses, strikes, adverse weather conditions and work stoppages.
If a situation as referred to above occurs as a result of which the service provider cannot fulfill its obligations to the principal, such obligations shall be suspended for as long as the service provider cannot fulfill its obligations. If the situation referred to in the previous sentence has lasted for 30 calendar days, the parties shall have the right to rescind the agreement in whole or in part in writing.
In the case referred to in the second paragraph of this article, the service provider shall not be liable to compensate any damage, even if the service provider enjoys any advantage as a result of the force majeure condition.

Article 13 – Offset

The client waives its right to set off a debt to the service provider against a claim against the service provider.

Article 14 – Suspension

The client waives the right to suspend performance of any obligation arising from this agreement.

Article 15 – Transfer of rights

Rights of a party under this agreement cannot be transferred without the prior written consent of the other party. This provision counts as a clause with effect under property law as referred to in Article 3:83 paragraph 2 of the Dutch Civil Code.

Article 16 – Forfeiture of the claim

Any right to compensation for damage caused by the service provider shall in any case lapse 12 months after the event from which the liability arises directly or indirectly. This does not exclude the provisions of Article 6:89 of the Dutch Civil Code.

Article 17 – Warranty

The parties have entered into an agreement of a service nature, which contains for the service provider only an obligation of effort and thus no obligation of result.

Article 18 – Insurance

The client undertakes to adequately insure and keep insured delivered goods that are necessary for the execution of the underlying agreement, as well as goods of the service provider present at the client’s premises and goods delivered under retention of title against, among other things, fire, explosion and water damage as well as theft.
The client shall make the policy of such insurance available for inspection upon first request.

Article 19 – Liability for damages

The service provider shall not be liable for damages arising under this agreement unless the service provider caused the damages intentionally or with gross negligence.
In the event that the service provider owes damages to the client, the damages shall not exceed the fee.
Any liability for damages arising from or related to the performance of an agreement shall always be limited to the amount paid out in the case in question by the (professional) liability insurance(s) taken out. This amount will be increased by the amount of the excess according to the relevant policy.
The limitation of liability also applies if the service provider is held liable for damages resulting directly or indirectly from the malfunctioning of the equipment, software, data files, registers or other items used by the service provider in the execution of the order.
Not excluded is the liability of the service provider for damages resulting from intentional or deliberate recklessness of the service provider, its manager or subordinates.

Article 20 – Principal’s liability

In case an order is given by more than one person, each of them shall be jointly and severally liable for the amounts due to the service provider under that order.
If an assignment is given directly or indirectly by a natural person on behalf of a legal entity, this natural person can also be the private principal. This requires that this natural person can be regarded as the (co)policymaker of the legal entity.
Thus, in the event of non-payment by the legal entity, the natural person is personally liable for payment of the bill, regardless of whether it is made out in the name of a legal entity or in the name of the client as a natural person or both of them, whether at the client’s request or not.

Article 21 – Indemnification

The client shall indemnify the service provider against all third party claims, which are related to the goods and/or services provided by the service provider.

Article 22 – Duty to complain

The client is obliged to immediately report complaints about the work performed in writing to the service provider. The complaint shall contain as detailed a description of the shortcoming as possible, so that the service provider is able to respond to it adequately.
In any case, a complaint cannot lead to the service provider being obliged to perform other work than that agreed upon.

Article 23 – Retention of title, right of suspension and right of retention

The goods present at the principal’s premises and delivered goods and parts shall remain the property of the service provider until the principal has paid the entire agreed price. Until that time, the service provider may invoke its retention of title and repossess the goods.
If the agreed amounts to be paid in advance are not paid or not paid on time, the service provider has the right to suspend the work until the agreed part is still paid. There is then creditor default. A delayed delivery in this case cannot be held against the service provider.
The service provider is not authorized to pledge or otherwise encumber the goods subject to its retention of title.
If goods have not yet been delivered, but the agreed advance payment or price has not been paid in accordance with the agreement, the service provider has the right of retention. The item will then not be delivered until the client has paid in full and in accordance with the agreement.
In the event of liquidation, insolvency or suspension of payments of the client, the client’s obligations shall be immediately due and payable.

Article 24 – Intellectual property

Unless the parties have agreed otherwise in writing, the service provider retains all intellectual absolute rights (including copyright, patent, trademark, drawing and model rights, etc.) in all designs, drawings, writings, carriers containing data or other information, quotations, illustrations, sketches, models, models, etc.
The said intellectual absolute rights may not be copied, shown and/or made available to third parties or otherwise used without the written consent of the service provider.
The client undertakes to keep confidential any confidential information made available to him by the service provider.
Confidential information shall in any case mean that to which this article relates, as well as company data.
The client undertakes to impose on its personnel and/or third parties involved in the execution of this agreement a written duty of confidentiality of the scope of this provision.

Article 25 – Secrecy

The client shall keep secret the information (in any form) received from service provider and all other information concerning service provider which it knows or can reasonably suspect to be secret or confidential, or information whose dissemination can be expected to harm the service provider, and shall take all necessary measures to ensure that the client also keeps the said information secret.
The obligation of confidentiality mentioned in the first paragraph of this article does not apply to information:

that was already in the public domain at the time the client received it or has subsequently become public without a breach of a duty of confidentiality imposed upon it
of which the principal can prove that this information was already in his possession at the time of provision by service provider
received by the principal from a third party where that third party was entitled to provide that information to the principal
disclosed by the principal pursuant to a legal duty

The obligation of confidentiality described in this Article shall apply for the duration of this Agreement and for a period of three years after its termination.

Article 26 – Penalty for breach of confidentiality obligation

If the client violates the article of these general terms and conditions on confidentiality, the client forfeits to the service provider an immediately payable fine of €5,000 for each violation and in addition an amount of €500 for each day that the violation continues. This is regardless of whether the violation can be attributed to the principal. Moreover, no prior notice of default or court proceedings are necessary for the forfeiture of this penalty. Nor does it require any form of damages.
The forfeiture of the fine referred to in the first paragraph of this article does not affect the service provider’s other rights including its right to claim damages in addition to the fine.

Article 27 – Non-acquisition of personnel

The principal shall not employ employees of the service provider (or of companies called upon by the service provider for the performance of this agreement and who are or have been involved in the performance of the agreement). Nor shall he otherwise have them work for him directly or indirectly.
The prohibition in paragraph 1 applies during the term of the agreement until one year after its termination. There is one exception to this prohibition: the parties may make other agreements in good business consultation. These agreements apply insofar as they are recorded in writing.

Article 28 – Modification of general conditions

The service provider may modify or add to these terms and conditions at any time.
Changes of minor importance may be made at any time.
Major substantive changes will be discussed by the service provider with the client in advance whenever possible.

Article 29 – Applicable law and competent court

Any agreement between the parties shall be governed exclusively by the laws of the Netherlands.
The Dutch court in the district where the service provider is established/practicing/offices shall have exclusive jurisdiction to hear any disputes between the parties, unless otherwise required by mandatory law.

These general conditions are applicable from: 01 November 2023