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General conditions for service provision Southparc BV

Article 1 - Definitions

  1. Southparc BV established in Eindhoven, KvK number 84094931, is referred to in these general terms and conditions as Southparc or service provider.
  2. In these general conditions the other party to Southparc is referred to as the client.
  3. The parties are Southparc and the client together.
  4. The agreement means the service agreement between the parties.
  5. Southparc BV works among others for software vendors such as m19, AdScale and Longtail UX, direct commitments (through online signup) are covered by the terms and conditions of those vendors.

Article 2 - Applicability of General Terms and Conditions

  1. These conditions apply to all tenders, offers, work, agreements and deliveries of services or products by or on behalf of Southparc.
  2. Deviations from these terms and conditions are only possible if this has been explicitly agreed in writing by the parties.
  3. The agreement always contains obligations to perform to the best of Southparc's ability, not obligations to achieve a certain result.

Article 3 - Payment

  1. Invoices for services must be paid within 14 days of the invoice date, unless the parties have agreed otherwise in writing or the invoice specifies a different payment period.
  2. Online purchases, software, retainers and projects are prepaid and start upon receipt of payment.
  3. Payments are made without any appeal to suspension or settlement by transferring the amount due to the bank account number provided by Southparc.
  4. If the client does not pay within the agreed period, he is legally in default, without any reminder being required. From that moment on Southparc is entitled to suspend its obligations until the client has fulfilled his payment obligations.
  5. If the client remains in default, Southparc will proceed to collect the debt. The costs associated with such collection shall be borne by the client. When the client is in default, he owes Southparc, in addition to the principal sum, statutory (commercial) interest, extrajudicial collection costs and other damages. The collection costs are calculated in accordance with the Decree on compensation for extrajudicial collection costs (Besluit vergoeding voor buitengerechtelijke incassokosten).
  6. In the event of liquidation, bankruptcy, seizure or suspension of payment of the client, the claims of Southparc on the client are immediately due and payable.
  7. If the client refuses to cooperate with Southparc in the execution of the order, he is still obliged to pay the agreed price to Southparc.

Article 4 - Offers and tenders

  1. Southparc's offers are valid for a maximum of 1 month, unless a different period for acceptance is mentioned in the offer. If the offer is not accepted within this period, the offer expires.
  2. Delivery times in offers are indicative and, if exceeded, do not entitle the client to dissolution or compensation, unless the parties have expressly agreed otherwise in writing.
  3. Offers and quotations do not automatically apply to repeat orders. The parties must agree to this explicitly and in writing.

Article 5 - Prices

  1. Prices mentioned in offers, quotations and invoices from Southparc are exclusive of VAT and any other government levies, unless explicitly stated otherwise.
  2. The prices of products (such as software) are based on the The prices of products (such as software) are based on the cost prices known at that time. Increases in these prices, which Southparc could not have foreseen at the time the offer was made or the agreement concluded, will result in price increases.
  3. With regard to the provision of services, the parties may agree on a fixed price when concluding the agreement.
  4. If no fixed price has been agreed, the rate for the provision of services may be determined on the basis of hours actually worked. The rate is calculated according to Southparc's usual hourly rates, valid for the period in which the work is performed, unless a deviating hourly rate has been agreed.
  5. If no rate is agreed based on actual hours spent, a guide price will be agreed for the provision of services in which case Southparc is entitled to deviate by 10%. Should the guide price be more than 10% higher, Southparc will inform the client in good time as to why the higher price is justified. In this case the client has the right to cancel a part of the contract which exceeds the 10% increase.

Article 6 - Price Indexation

  1. The prices and hourly rates agreed upon at the time of entering into the agreement are based on the price level applied at that time. Southparc 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 published as soon as possible or included in the invoices for repeat assignments.

Article 7 - Provision of information by the client

  1. The client will make available to Southparc all information relevant to the execution of the assignment.
  2. The client is obliged to provide all information and documents which Southparc believes to be necessary for the proper execution of the order, in a timely manner and in the desired form and manner.
  3. The client guarantees the accuracy, completeness and reliability of the information and documents made available to Southparc, even if they originate from third parties, insofar as the nature of the assignment does not dictate otherwise.
  4. The client indemnifies Southparc against any damage in whatever form resulting from the failure to comply with the provisions of the first paragraph of this article.
  5. If and to the extent requested by the client, Southparc will return or destroy the records in question.
  6. If the client does not provide the information and documents required by Southparc, or does not do so correctly or in time, and the execution of the assignment is delayed as a result, the client will be charged for any additional costs and fees incurred as a result.

Article 8 - Withdrawal of assignment

  1. The client is free to terminate the assignment to Southparc at any time.
  2. When the client revokes the assignment, he is obliged to pay the wages due and the expenses incurred by Southparc.
  3. Repeating charges (such as hosting and retainers) for the current period will not be refunded.

Article 9 - Execution of the Agreement

  1. Southparc shall perform the agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship in which software and platform restrictions are not the responsibility of Southparc.
  2. Southparc has the right to have work carried out by third parties.
  3. Performance shall be by mutual agreement and after written agreement and payment of any agreed advance or prepayment.
  4. It is the client's responsibility to ensure that Southparc can start work on the assignment on time.

Article 10 - Term of contract

  1. The agreement between the client and Southparc is entered into for an indefinite period of time, unless the nature of the agreement dictates otherwise or if parties have explicitly agreed otherwise in writing.
  2. If within the term of the agreement the parties have agreed a deadline for the completion of certain activities, this is never a deadline. When this term is exceeded, the client must give Southparc written notice of default.

Article 11 - Amendment of the Agreement

  1. If, during the execution of the agreement, it appears that for a proper execution of the assignment it is necessary to change or supplement the activities to be performed, the parties shall adapt the agreement accordingly in good time and in mutual consultation.
  2. If the parties agree that the agreement is amended or supplemented, this may influence the time of completion of the execution. Southparc will inform the client as soon as possible.
  3. In the event that changes or additions to the agreement have financial and/or qualitative consequences, Southparc will inform the client in writing as soon as possible.
  4. If the parties have agreed a fixed fee, Southparc will indicate to what extent the change or addition to the agreement will result in an increase of this fee.

Article 12 - Force majeure

  1. In addition to the provisions in Article 6:75 of the Dutch Civil Code, Southparc cannot be held responsible for any shortcoming in the fulfilment of its obligations towards the client, in the event of circumstances beyond its control, which prevents Southparc from carrying out its obligations towards the client in full or in part or which means that Southparc cannot reasonably be expected to fulfil its obligations. Such circumstances include failures by suppliers or other third parties, power failures, computer viruses, strikes, adverse weather conditions and work stoppages.
  2. Should a situation as referred to above arise as a result of which Southparc is unable to meet its obligations towards the client, these obligations will be suspended for as long as Southparc is unable to meet them. When the situation referred to in the preceding sentence has lasted for 30 calendar days, the parties have the right to dissolve the agreement in whole or in part in writing.
  3. In the case referred to in the second paragraph of this Article, Southparc is not obliged to pay any compensation, even if Southparc gains any advantage as a result of the force majeure situation.

Article 13 - Set-off

The client waives his right to set off a debt to Southparc against a claim against Southparc.

Article 14 - Suspension

The Client waives the right to suspend the fulfilment of any obligation arising from this Agreement.

Article 15 - Transfer of rights

Rights of a party from this agreement cannot be transferred without the prior written consent of the other party. This provision shall be deemed to be a clause having effect under property law as referred to in Section 3:83(2) of the Dutch Civil Code.

Article 16 - Extinction of the claim

Any right to compensation for damage caused by Southparc expires in any case 12 months after the event from which the liability arose directly or indirectly. This does not exclude the provisions of Article 6:89 of the Civil Code.

Article 17 - Insurance

  1. The client is obliged to adequately insure goods delivered which are necessary for the execution of the underlying agreement, as well as goods of Southparc present at the client's premises and goods delivered under retention of title, and to keep them adequately insured against fire, explosion and water damage as well as theft.
  2. Upon first request, Client shall submit the policy of these insurances for inspection.

Article 18 - Liability for damages

  1. Southparc shall not be liable for any damage arising from this agreement unless Southparc has caused the damage intentionally or with gross negligence.
  2. In the event that Southparc owes the client damages, these will not exceed the fee.
  3. Any liability for damage 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 policy or policies taken out. This amount shall be increased by the amount of the excess under the relevant policy.
  4. The limitation of liability also applies when Southparc is held liable for damages resulting directly or indirectly from the malfunctioning of equipment, software, data files, registers or other items used by Southparc in carrying out the assignment.
  5. Not excluded is Southparc's liability for damage resulting from intentional or deliberate recklessness by Southparc, its management or subordinates.

Article 19 - Client's liability

  1. In the event that an order is given by more than one person, each of them is jointly and severally liable for the amounts owed to Southparc in respect of that order.
  2. If an assignment is directly or indirectly granted by a natural person on behalf of a legal person, this natural person can also be the principal in his or her private capacity. This requires that this natural person can be regarded as the (co)policy maker of the legal person. In the event of non-payment by the legal entity, the natural person will therefore be personally liable for the payment of the invoice, irrespective of whether this invoice has been drawn up in the name of a legal entity or in the name of the client as a natural person or both of them, at the client's request or otherwise.

Article 20 - Indemnification

The client indemnifies Southparc against any claims from third parties in connection with products and/or services provided by Southparc.

Article 21 - Duty to complain

  1. The client is required to immediately report complaints about the work carried out in writing to Southparc. The complaint should contain as detailed a description as possible of the shortcoming, so that Southparc is able to respond adequately.
  2. In any case, a complaint cannot lead to Southparc being obliged to carry out work other than that agreed.

Article 22 - Retention of title, right of suspension and right of retention

  1. The goods and components delivered to the client remain the property of Southparc until the client has paid the agreed price in full. Until that time Southparc can invoke its retention of title and take back the goods.
  2. If the agreed advance payment amounts are not paid or not paid on time, Southparc has the right to suspend work until the agreed part is paid. This is called a 'creditor's default'. In this case Southparc cannot be held responsible for late delivery.
  3. Southparc is not authorised to pledge or in any way encumber the goods falling under its retention of title.
  4. If goods have not yet been delivered, but the agreed advance payment or price has not been made in accordance with the agreement, Southparc has the right of retention. The goods will not be delivered until the client has paid in full and in accordance with the agreement.
  5. In the event of client's liquidation, insolvency or suspension of payment, the client's obligations shall become immediately due and payable.

Article 23 - Intellectual property

  1. Unless the parties have agreed otherwise in writing, Southparc retains all intellectual absolute rights (including copyright, patent rights, trademark rights, drawing and model rights, etc.) on all designs, drawings, writings, carriers with data or other information, quotations, images, sketches, models, etc.
  2. The mentioned intellectual absolute rights may not be copied, shown and/or made available to third parties or used in any other way without written permission from Southparc.
  3. The client is obliged to keep any confidential information provided by Southparc confidential. Confidential information is in any case understood to mean that which is covered by this article, as well as company details. The client obliges his personnel and/or third parties involved in the execution of this agreement, to observe a written obligation of confidentiality to the extent of this provision.

Article 24 - Confidentiality

  1. Each of the Parties shall keep confidential the information received from the other Party (in whatever form) and any other information concerning the other Party which it knows or may reasonably be expected to know is secret or confidential, or information the disclosure of which might be harmful to the other Party, and shall take all necessary steps to ensure that its staff also keeps the said information confidential.
  2. The secrecy obligation mentioned in the first paragraph of this article does not apply to information:
    1. which was already in the public domain at the time of receipt by the recipient or subsequently became public without breach by the recipient of an obligation of confidentiality;
    2. which the receiving Party can prove was already in its possession at the time of disclosure by the other Party;
    3. that the receiving party has received from a third party where that third party had the right to disclose this information to the receiving party
    4. disclosed by the receiving party pursuant to a legal obligation.

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

Article 25 - Penalty for breach of confidentiality

  1. If the client violates the article in these general conditions regarding confidentiality, the client will forfeit to Southparc an immediately payable fine of € 5.000 for each violation and an amount of € 500 for each day that the violation continues. This is regardless of whether the breach can be attributed to the client. Moreover, no prior notice of default or legal proceedings are required for the forfeiture of this penalty. It is also not necessary for there to be any question of damage.
  2. The forfeiture of the fine referred to in paragraph 1 of this Article is without prejudice to Southparc's other rights, including its right to claim damages in addition to the fine.

Article 26 - Non-acquisition of staff

  1. The client will not employ any employees of Southparc (or of companies engaged by Southparc in the execution of this agreement and who are (were) involved in the execution of the agreement). Nor will he let them work for him in any other way, directly or indirectly. This prohibition 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 arrangements in good commercial negotiations. These agreements apply insofar as they have been recorded in writing.

Article 27 - Applicable law and competent court

  1. Any agreement between the parties shall be governed exclusively by Dutch law.
  2. The Dutch court in the district where Southparc. has its registered office/practice is exclusively authorised to take cognisance of any disputes between the parties, unless the law imperatively dictates otherwise.

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