General Conditions – We Are Off The Record B.V
The proposals and contractual agreements between the client and We Are Off The Record B.V (WAOTR) are exclusively governed by the present general conditions, excluding the application of the general conditions of the client, and apply to all services provided by WAOTR. These general conditions also apply to agreements with WAOTR where a third-party is involved in it’s execution. By requesting the assignment, the client declares to understand and to agree to the present general conditions. Deviations from the present general conditions are not allowed, except if they are agreed upon in writing by the parties. The present general conditions complement the specific contractual provisions between WAOTR and the client, and form an integral part thereof.
2. The assignment
To be valid, each assignment has to be accepted by WAOTR. The assignment is accepted once WAOTR confirms receipt of a duly signed proposal by the prospective client. Save for prior written deviation, WAOTR is only obliged to commence working on the assignment once an advance payment of 30% of the total price of the assignment has been received from the client.
WAOTR may however execute the assignment without having received the advance payment, without prejudice to the validity of the assignment. WAOTR will use its best efforts to execute the assignment. This is an obligation of means, except if explicitly stipulated otherwise. WAOTR is only committed to what is explicitly foreseen in the assignment. Any modifications by the client to the accepted assignment will be at the sole and full expense of the client. Each modification has to be explicitly accepted by WAOTR in writing. Unless otherwise stated, all proposals by WAOTR are defined as non-binding and are able to be recalled at any moment, even if they include a period of validity. WAOTR can recall all proposals by written statement within seven days after acceptance. In case thereof there will be no contractual agreement between any party involved with the proposal. All proposals by WAOTR have a 14-day validity period unless stated otherwise.
WAOTR’s proposals are not binding if the other party, in all reasonableness and fairness, did not understand generally accepted definitions or descriptions that were mentioned in the proposal, even if the proposal contained any apparent errors or mistake. After receiving a signed proposal by the prospective client and the acceptance of the assignment by WAOTR, the contractual agreement between the client and WAOTR will be binding.
2.1 Obligations of the client
The client commits to provide all useful and required data, working space, tools, equipment and other resources needed for the assignment to WAOTR, and to fully enable the execution of the assignment, even in case of altered conditions. The client is solely responsible for the accuracy of the data provided to WAOTR. If the client fails to provide the said data, WAOTR is entitled to suspend the execution of the assignment and to terminate the agreement if the failure is not cured in due time. If the client renounces to the assignment, he will be fully liable for all costs of WAOTR caused by and deployed for the execution and the preparation of the assignment and the renunciation thereof. In case of failure to provide the necessary data or in case of renunciation, the client will pay a lump sum compensation of 20% of the price of the assignment. In addition, WAOTR has the right to claim its actual damage, including but not limited to the revenue loss caused by the renouncing of the assignment, and the revenue loss caused by other assignments that had to be refused, suspended or stopped.
3. The execution term of the assignment:
WAOTR will use its best efforts to execute the assignment in a reasonable term, or, if applicable, the term that is agreed upon. If the client impedes or slows the execution of the assignment, the term will automatically be extended. If the client makes the execution of the assignment impossible or more difficult than foreseen, WAOTR is entitled to terminate the agreement immediately, without prior letter of default and without respecting a notice period or paying an indemnity. In that case, the client will bear the costs caused by the assignment and the termination thereof. If the execution term is exceeded, WAOTR will not be liable for any damages of the client or a third person caused by the exceeding of the execution term. Exceeding the term will not give the client the right to terminate the agreement with WAOTR, nor to claim any compensation.
4. Price and payment:
The price of the assignment is described in the agreement between the parties (accepted quote, proposal, contract, specific conditions,…), and will be invoiced by WAOTR. In absence of an agreed price, WAOTR will invoice its performances transparently and in a reasonable way, in correspondence with its usual rates. The mentioned price only applies to the assignment as accepted by WAOTR and does not cover any additional work. The client will bear the full costs of a modification of the assignment. Save if agreed otherwise, the client will make an advance payment of 30% of the total price of the assignment before the start thereof. WAOTR will invoice the delivered services during or at the end of the assignment, at its discretion, unless if otherwise provided. All prices are excluding VAT, travel and subsistence costs, save if explicitly stipulated differently. WAOTR’s invoices are to be paid within the payment term of 14 days after the day of issuing. If an invoice is not paid within this term, automatically and without any notice, a lump sum compensation of 10% of the invoice amount will be due by the client, and in addition the invoice amount will increase with compensatory interests of 9% per month. Each dispute relating to the execution of the assignment or the invoices has to be sent at the official address of WAOTR by registered mail within 14 days after the sending of the invoice or after the facts that form the base of the dispute, on penalty of forfeiture of any further claim in this regard. In any event, the client is no longer entitled to claim any compensation one year after the termination of the assignment. Objections to the amount of the invoice do not suspend the other party to pay. The other party is not entitled to set-off any amount owed because of an alleged claim they may make.
5. Liability for the execution of the assignment
WAOTR provides advisory services and can never be held accountable for the implementation of this advice. The execution of the assignment is a best effort obligation. The liability of WAOTR is limited to the amount of the invoices for the assignment, and will not cover the client’s actual loss. In case the term of the assignment exceeds 6 months, the liability of WAOTR is limited to the amount corresponding to the work of the last 6 months. The liability of WAOTR is limited to cases of faulty behavior by or gross negligence of WAOTR. In any case, the client cannot claim compensation for damages other than immediate and direct consequences or losses (consequential damage, financial losses, failed achievement of desired results,…). WAOTR is only liable for direct damages caused by gross negligence or intent of WAOTR, and not for more than the amount paid by the insurer of WAOTR or up to the amount of the invoice, or an amount of €5000 if the invoice amount is higher than €5000.
5.1 Force majeure and unforeseen circumstances
A shortcoming can not be attributed to WAOTR or the other party, when the failure is not due to his fault or by law, legal act or generally accepted accounts in traffic. In this case, the parties are not obliged to fulfill the obligations that are stated as part of the agreement. In these general conditions force majeure is defined as, besides what is stated as such by the law and jurisprudence, all external causes, foreseen or unforeseen, outside of WAOTR’s control that leaves WAOTR unable to fulfill any obligations that are stated as part of the agreement. In any case, WAOTR sees the following as part of force majeure:
• disruptions in traffic;
• Government measures that prevent its obligations on time or properly fulfill;
• riots, uproar, war;
• traffic barriers;
• labor shortages;
• extreme weather conditions;
• import, export and / or transit; and / or
• any circumstance affecting the normal course of business in the company as a result of which the performance of the agreement by WAOTR can not reasonably be required by the other party.
The other party indemnifies WAOTR to the extent permitted by law in respect of liability to one or more third parties, which was created by and / or associated with the implementation of the agreement, regardless of whether the damage was caused or inflicted by WAOTR, or any associated people or tools or goods. In addition, the other party indemnifies WAOTR, to the extent permitted by law, all claims of third parties in connection with any infringement of intellectual property rights of these third parties. The other party is always obliged to make every effort to limit the damage. The limitations of liability contained in this article are also stipulated on behalf of by WAOTR for the implementation of the agreement involved third parties, and WAOTR is not liable for damages caused by shortcomings of any third parties engaged.
6. Intellectual property
Unless otherwise agreed, WAOTR retains all intellectual property rights related to the delivered services. The documents or goods provided by WAOTR in the context of the assignment (reports, advices, digital files,…) are only intended for the use of the client, and cannot be multiplied, made public or shared with third parties save for prior written approval of WAOTR. Any exploitation, reproduction, use, or disclosure by the other party of the IP Material which falls outside the scope of the Agreement or granted rights and powers, is considered a violation of the intellectual property rights of WAOTR. The other party will pay an immediate penalty fine that’s not subject to judicial mitigation of €5.000 per act of breach to WAOTR, without prejudice to WAOTR to be compensated for its loss by the offense and to obtain or take other legal measures in order to terminate the infringement.
Parties shall keep all information of any nature whatsoever coming into their possession in the framework of the assignment or the pre or postcontractual phase and regarding the other party, strictly confidential and will ensure that their respective employees, agents and subcontractors also maintain such confidentiality. Taking into account the client’s interests, WAOTR is entitled to use the works created or performed in the framework of the assignment for promotion and publication. Parties undertake not to disclose to third parties any confidential or sensitive information or to use such information for any purpose other than for the purpose of this agreement or correct execution thereof, except where (i) required by law or judicial instruction or ordered by a competent authority, (ii) disclosure is given to professional advisors bound by the same or a similar obligation of confidentiality, or (iii) the information in question is already “common knowledge” or in the public domain.
8. Termination of the agreement
Parties can terminate the agreement at all time by means of registered letter. If the agreement is terminated by the client, more than 7 days before it’s planned commencement, compensation will be due as foreseen in clause 2 (20% lump sum). If the agreement is terminated by the client within 7 days before it’s planned commencement, the client will pay a lump sum compensation of 40% of the price of the assignment. Moreover, the client will have to pay for the services already delivered by WAOTR at the time of termination. WAOTR will send an invoice for these services. Any goods or documents belonging to WAOTR that were put at the disposal of the client during the assignment have to be returned to WAOTR upon first request and at the latest within 14 days after the termination of the agreement.
9. Final provisions
The nullity or invalidity of a provision will not engender the cancellation or invalidity of the whole agreement, nor of any other provision thereof. The contractual relation, and all non-contractual rights and obligations arising thereto, between the client and WAOTR is governed by Dutch law. Any dispute arising between the Parties will be exclusively submitted to the jurisdiction of the Tribunals and Courts of MiddenNederland (Utrecht, The Netherlands).
We Are Off The Record B.V.
1013 EX Amsterdam, The Netherlands
Tel: +31 6 24271498
Chamber of Commerce (NL): 66480302
VAT number: NL856572512B01