Article 1 General

These conditions apply to every offer, quotation and agreement between XplodeMedia, hereinafter referred to as: “Contractor”, and a Client to which Contractor has declared these conditions applicable, insofar as the parties have not deviated from these conditions * expressly and in writing.

* These terms and conditions also apply to actions by third parties engaged by the Contractor in the context of the / an assignment.

These general terms and conditions have also been written for the employees of the Contractor and its management.

The applicability of any purchase or other conditions of the Client is explicitly rejected.

If one or more provisions in these general terms and conditions are at any time wholly or partially null and void or destroyed, the other provisions in these general terms and conditions will remain fully applicable. The Contractor and the Client will then enter into consultation in order to agree on new provisions to replace the invalid or voided provisions, whereby the purpose and scope of the original provisions are taken into account as much as possible.

If there is uncertainty about the interpretation of one or more provisions of these general terms and conditions, the explanation must be "in the spirit" of these provisions.

If a situation arises between the parties that is not regulated in these general terms and conditions, then this situation must be assessed in the spirit of these general terms and conditions.

If the Contractor does not always require strict compliance with these terms and conditions, this does not mean that the provisions thereof do not apply, or that the Contractor would lose the right to require strict compliance with the provisions of these terms and conditions in other cases.

Article 2 Quotations, offers

All quotations and offers from the Contractor are without obligation, unless a term for acceptance is stated in the quotation. If no acceptance period has been set, the offer will always expire after 30 days.

The Contractor cannot be held to its quotations or offers if the Client can reasonably understand that the quotations or offers, or any part thereof, contain an obvious mistake or clerical error.

The prices stated in a quotation or offer are exclusive of VAT and other government levies, any costs to be incurred in the context of the agreement, including travel and accommodation, shipping and administration costs, unless stated otherwise.

If the acceptance deviates (whether or not on minor points) from the offer included in the quotation or offer, the Contractor is not bound by it. The agreement will then not be concluded in accordance with this deviating acceptance, unless the Contractor indicates otherwise.

A composite quotation does not oblige the Contractor to perform part of the assignment against a corresponding part of the stated price. Offers or quotations do not automatically apply to future orders.

Article 3 Contract duration, implementation periods, risk transfer, implementation and amendment of the agreement, price increase

The agreement between the Contractor and the Client is entered into for a definite period of time, unless the nature of the agreement dictates otherwise or if the parties explicitly agree otherwise in writing.

If a term has been agreed or stated for the performance of certain activities or for the delivery of certain goods, this is never a strict deadline. If a term is exceeded, the Client must therefore give the Contractor written notice of default. In doing so, the Contractor must be offered a reasonable term to still execute the agreement.

The contractor will execute the agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship. All this on the basis of the state of the art known at that time.

The contractor has the right to have certain activities performed by third parties. The applicability of article 7: 404, 7: 407 paragraph 2 and 7: 409 BW is expressly excluded.

If work is carried out by the Contractor or third parties engaged by the Contractor in the context of the assignment at the location of the Client or a location designated by the Client, the Client will provide the facilities reasonably desired by those employees free of charge.

The contractor is entitled to execute the agreement in different phases and to invoice the part thus executed separately.

If the agreement is performed in phases, the Contractor may suspend the performance of those parts that belong to a subsequent phase until the Client has approved the results of the preceding phase in writing.

The Client will ensure that all data, of which the Contractor indicates that they are necessary or of which the Client should reasonably understand that they are necessary for the performance of the agreement, are provided to the Contractor in a timely manner. If the information required for the implementation of the agreement is not provided to the Contractor in time, the Contractor has the right to suspend the implementation of the agreement and / or to charge the additional costs resulting from the delay to the Client at the then usual rates. The implementation period does not commence until after the Client has made the data available to the Contractor. The Contractor is not liable for damage, of whatever nature, because the Contractor has relied on incorrect and / or incomplete information provided by the Client.

If during the execution of the agreement it appears that it is necessary for a proper execution thereof to change or supplement it, then the parties will proceed to adapt the agreement in good time and in mutual consultation. If the nature, scope or content of the agreement, whether or not at the request or direction of the Client, of the competent authorities, et cetera, is changed and the agreement is amended in terms of quality and / or quantity as a result, this may have consequences for what was originally agreed. As a result, the originally agreed amount can also be increased or decreased. The Contractor will provide a quotation of this in advance as much as possible. The originally stated term of execution may also be changed by an amendment to the agreement. The Client accepts the possibility of changing the agreement, including the change in price and term of execution.

If the agreement is amended, including an addition, then the Contractor is entitled to implement it only after approval has been given by the person authorized within the Contractor and the Client has agreed to the price and other conditions stated for the implementation, including the then to be determined time when it will be implemented. Failure to perform or not immediately implement the amended agreement does not constitute a breach of contract on the part of the Contractor and is no ground for the Client to terminate or cancel the agreement.

Without being in default, the Contractor may refuse a request to amend the agreement if this could have consequences in terms of quality and / or quantity, for example for the work to be performed or goods to be delivered in that context.

If the Client should be in default in the proper fulfilment of what he is obliged to do towards the Contractor, the Client is liable for all damage on the part of the Contractor that arises directly or indirectly.

If the Contractor agrees a fixed fee or fixed price with the Client, the Contractor is nevertheless entitled at all times to increase this fee or this price without the Client in that case being entitled to dissolve the agreement for that reason, if the increase of the price arises from a power or obligation under the law or regulations or is caused by an increase in the price of raw materials, wages, etc. or on other grounds that were not reasonably foreseeable at the time of entering into the agreement.

If the price increase other than as a result of an amendment to the agreement amounts to more than 10% and takes place within three months after the conclusion of the agreement, only the Client who can rely on Title 5 Section 3 of Book 6 of the Dutch Civil Code is entitled to the to dissolve the agreement by means of a written statement, unless the Contractor is then still willing to execute the agreement on the basis of the originally agreed amount;

if the price increase arises from an authority or an obligation resting on the Contractor under the law;

if it is stipulated that the delivery will take place more than three months after the conclusion of the agreement;

or, in the case of delivery of an item, if it has been stipulated that the delivery will take place more than three months after the purchase.

Article 4 Suspension, dissolution and early termination of the agreement

The Contractor is authorized to suspend the fulfillment of the obligations or to dissolve the agreement if the Client does not, not fully or not timely fulfill the obligations under the agreement, after the conclusion of the agreement, the Contractor becomes aware of circumstances that give the Contractor good grounds to fear that the Client will not fulfill its obligations, if the Client is requested to provide security for the fulfillment of its obligations under the agreement when the agreement is concluded and this security is not provided or is insufficient or if due to the delay on the part of the Client can no longer be expected of the Contractor to fulfill the agreement under the originally agreed conditions.

Furthermore, the Contractor is authorized to dissolve the agreement if circumstances arise of such a nature that fulfillment of the agreement is impossible or if otherwise circumstances arise that are of such a nature that the unaltered maintenance of the agreement cannot reasonably be required of the Contractor.

If the agreement is dissolved, the claims of the Contractor on the Client are immediately due and payable. If the Contractor suspends the fulfillment of the obligations, it will retain its rights under the law and agreement.

If the Contractor proceeds to suspension or dissolution, it is in no way whatsoever obliged to pay compensation for damage and costs incurred in any way.

If the dissolution is attributable to the Client, the Contractor is entitled to compensation for the damage, including the costs, caused directly and indirectly.

If the Client does not fulfill its obligations arising from the agreement and this non-compliance justifies dissolution, the Contractor is entitled to dissolve the agreement immediately and with immediate effect without any obligation on its part to pay any compensation or compensation, while the Client, on account of non-performance, but is obliged to pay compensation or compensation.

If the agreement is terminated prematurely by the Contractor, the Contractor will, in consultation with the Client, arrange for the transfer of work still to be performed to third parties. This unless the cancellation is attributable to the Client. If the transfer of the work entails additional costs for the Contractor, these will be charged to the Client. The Client is obliged to pay these costs within the specified period, unless the Contractor indicates otherwise.

In the event of liquidation, of (application for) suspension of payments or bankruptcy, of attachment - if and insofar as the attachment is not lifted within three months - at the expense of the Client, of debt restructuring or any other circumstance whereby the Client is no longer free can dispose of its assets, the Contractor is free to terminate the agreement immediately and with immediate effect or to cancel the order or agreement, without any obligation on its part to pay any compensation or compensation.

The claims of the Contractor on the Client are in that case immediately due and payable.

If the Client cancels an order placed in whole or in part, the activities that were performed and the goods ordered or prepared for this, plus any supply and delivery costs thereof and the working time reserved for the execution of the agreement, will be paid in full by the Client.

Article 5 Force majeure

The Contractor is not obliged to fulfill any obligation towards the Client if he is prevented from doing so as a result of a circumstance that is not attributable to fault, and is not for his account under the law, a legal act or generally accepted beliefs.

In these general terms and conditions, force majeure is understood to mean, in addition to what is understood in this regard in law and jurisprudence, all external causes, foreseen or unforeseen, on which the Contractor cannot exert influence, but as a result of which the Contractor is unable to fulfill its obligations. . This includes strikes in the company of the Contractor or third parties. The Contractor also has the right to invoke force majeure if the circumstance that prevents (further) fulfillment of the agreement occurs after the Contractor should have fulfilled its obligation.

During the period that the force majeure continues, the Contractor can suspend the obligations under the agreement. If this period lasts longer than one month, then each of the parties is entitled to dissolve the agreement, without any obligation to pay compensation to the other party.

Insofar as the Contractor at the time of the commencement of force majeure has meanwhile partially fulfilled his obligations under the agreement or will be able to fulfill them, and the part that has been fulfilled or to be fulfilled respectively has independent value, the Contractor is entitled to revoke the part already fulfilled or to be fulfilled to be invoiced separately. The Client is obliged to pay this invoice as if it were a separate agreement.

Article 6 Payment and collection costs

Payment must always be made within 3 calendar days after the invoice date, in a manner to be indicated by the Contractor in the currency in which the invoice is made, unless stated otherwise by the Contractor in writing.

The Contractor is entitled to invoice periodically.

If the Client fails to pay an invoice in time, the Client is in default by operation of law. The Client then owes the statutory interest. The interest on the amount due will be calculated from the moment that the Client is in default until the moment the full amount owed is paid.

The Contractor has the right to have the payments made by the Client stretch in the first place to reduce the costs, then to reduce the interest that has become due and finally to reduce the principal sum and the current interest. The Contractor may, without being in default as a result, refuse an offer for payment if the Client indicates a different order for the allocation of the payment. The Contractor can refuse full payment of the principal sum, if the interest and collection costs that have become due and accrued and are not also paid.

The Client is never entitled to set off the amount due to the Contractor. Objections to the amount of an invoice do not suspend the payment obligation. The Client who is not entitled to invoke Section 6.5.3 (Articles 231 to 247 Book 6 of the Civil Code) is also not entitled to suspend payment of an invoice for any other reason.

If the Client is in default or omission in the (timely) fulfillment of its obligations, then all reasonable costs incurred in obtaining settlement out of court will be for the account of the Client. The extrajudicial costs are calculated on the basis of what is customary in Dutch collection practice, currently the calculation method according to Rapport Voorwerk II. However, if the Contractor has incurred higher costs for collection that were reasonably necessary, the costs actually incurred will be eligible for compensation. Any judicial and execution costs incurred will also be recovered from the Client. The Client also owes interest on the collection costs due.

Article 7 Retention of title

The services delivered by the Contractor under the agreement remain the property of the Contractor until the Client has properly fulfilled all obligations under the agreement (s) concluded with the Contractor.

The goods delivered by the Contractor that fall under the retention of title pursuant to paragraph 1, may not be resold and may never be used as a means of payment. The Client is not authorized to pledge or encumber in any other way that which falls under the retention of title.

The Client must always do everything that can reasonably be expected of him to safeguard the property rights of the Contractor.

If third parties seize the goods delivered under retention of title or wish to establish or assert rights thereon, the Client is obliged to immediately notify the Contractor thereof. Furthermore, the Client undertakes to insure the goods delivered subject to retention of title and to keep them insured against fire, explosion and water damage as well as against theft and to make the policy of this insurance available to the Contractor for inspection upon first request. In the event of any payment under the insurance, the Contractor is entitled to these tokens. Insofar as necessary, the Client undertakes to the Contractor in advance to cooperate with everything that may prove to be necessary or desirable in that context.

In the event that the Contractor wishes to exercise its property rights referred to in this article, the Client gives unconditional and irrevocable permission in advance to the Contractor and third parties to be designated by the Contractor to enter all those places where the Contractor's property is located and to take them back.

Article 8 Guarantees, research and complaints, limitation period

The services to be delivered by the Contractor meet the usual requirements and standards that can reasonably be set for them at the time of delivery. The guarantee referred to in this article applies to items intended for use within the Netherlands. When used outside the Netherlands, the Client must verify itself whether the use thereof is suitable for use there and meet the conditions set for it. In that case, the Contractor may impose other guarantee and other conditions with regard to the goods to be delivered or work to be performed.

The guarantee referred to in paragraph 1 of this article applies for a period of three months after delivery, unless the nature of the delivered goods dictates otherwise or the parties have agreed otherwise. If the guarantee provided by the Contractor concerns a good that was produced by a third party, then the guarantee is limited to that provided by the producer of the good, unless stated otherwise.

Any form of warranty will lapse if a defect has arisen as a result of or results from injudicious or improper use thereof or use after the expiry date, incorrect storage or maintenance thereof by the Client and / or by third parties if, without the written permission of the Contractor, the Client or third parties have made or attempted to make changes to the item, other items have been attached to it that do not need to be attached to it or if these have been processed or processed in a manner other than the prescribed manner.

The Client is also not entitled to a warranty if the defect has arisen due to or is the result of circumstances beyond the Contractor's control, including weather conditions (such as, but not limited to, extreme rainfall or temperatures) et cetera.

The Client is obliged to inspect the delivered goods or have them inspected immediately at the moment that the goods are made available to him or the relevant activities have been carried out. In doing so, the Client should investigate whether the quality and / or quantity of the delivered goods corresponds with what has been agreed and meets the requirements that the parties have agreed in this respect. Any visible defects must be reported to the Contractor in writing within seven days after delivery. Any non-visible defects must be reported to the Contractor in writing immediately, but in any case no later than fourteen days after discovery thereof. The report must contain a description of the defect that is as detailed as possible, so that the Contractor is able to respond adequately. The Client must give the Contractor the opportunity to investigate a complaint or have it investigated.

If the Client makes a timely complaint, this does not suspend its payment obligation. In that case, the Client also remains obliged to purchase and pay for the other items ordered and that which it has instructed the Contractor to do.

If a defect is reported later, the Client is no longer entitled to repair, replacement or compensation.

If it is established that an item is defective and a timely complaint has been made in this respect, the Contractor will notify the defective item within a reasonable period of time after receipt thereof or, if return is not reasonably possible, in writing by the Client, at the discretion of the Contractor, replace or arrange for repair thereof or pay a replacement fee for this to the Client. In the event of replacement, the Client is obliged to return the replaced good to the Contractor and to transfer ownership thereof to the Contractor, unless the Contractor indicates otherwise.

If it is established that a complaint is unfounded, the costs arising as a result, including the investigation costs, incurred by the Contractor as a result, will be fully borne by the Client.

After expiry of the warranty period, all costs for repair or replacement, including administration, shipping and call-out costs, will be charged to the Client.

Contrary to the statutory limitation periods, the limitation period for all claims and defenses against the Contractor and the third parties involved by the Contractor in the performance of an agreement is one month.

Article 9 Liability

If the Contractor should be liable, this liability is limited to what is regulated in this provision.

The Contractor is not liable for damage, of whatever nature, arising because the Contractor has relied on incorrect and / or incomplete information provided by or on behalf of the Client.

If the Contractor should be liable for any damage, the Contractor's liability is limited to a maximum of once the invoice value of the order, at least to that part of the order to which the liability relates.

The liability of the Contractor is in any case always limited to the amount paid out by his insurer, where appropriate.

Contractor is only liable for direct damage.

Direct damage is exclusively understood to mean the reasonable costs to determine the cause and extent of the damage, insofar as the determination relates to damage within the meaning of these terms and conditions, any reasonable costs incurred for the Contractor's defective performance of the agreement. answered, insofar as these can be attributed to the Contractor and reasonable costs incurred to prevent or limit damage, insofar as the Client demonstrates that these costs have led to a limitation of direct damage as referred to in these general terms and conditions. The contractor is never liable for indirect damage, including consequential damage, loss of profit, missed savings and damage due to business interruption.

The limitations of liability included in this article do not apply if the damage is due to intent or gross negligence on the part of the Contractor or his managerial subordinates.

Article 10 Indemnity

The Client indemnifies the Contractor against any claims from third parties who suffer damage in connection with the performance of the agreement and the cause of which is attributable to others than the Contractor. If the Contractor should be sued by third parties on that basis, the Client is obliged to assist the Contractor both in and out of court and to do everything that may be expected of him in that case without delay. Should the Client fail to take adequate measures, the Contractor is entitled to do so himself without notice of default. All costs and damage on the part of the Contractor and third parties that arise as a result, are fully for the account and risk of the Client.

Article 11 Intellectual property

The Contractor reserves the rights and powers that accrue to him under the Copyright Act and other intellectual laws and regulations. The Contractor has the right to use the knowledge gained through the performance of an agreement for other purposes, insofar as no strictly confidential information of the Client is disclosed to third parties.

Article 12 Applicable law and disputes

All legal relationships to which the Contractor is a party are exclusively governed by Dutch law, even if an obligation is fully or partially performed abroad or if the party involved in the legal relationship is domiciled there. The applicability of the Vienna Sales Convention is excluded.

The court in the Contractor's place of business has exclusive jurisdiction to hear disputes, unless the law prescribes otherwise. Nevertheless, the Contractor has the right to submit the dispute to the competent court according to the law.

The parties will only appeal to the courts after they have made every effort to settle a dispute in mutual consultation.

Article 13 Location and change of general terms and conditions

The most recent version or the version that applied at the time of the conclusion of the legal relationship with the Contractor is always applicable.

The text of the general terms and conditions is always decisive for the interpretation thereof.