Terms & conditions - XtrAct Communications

XtrAct Communications follows the principle that a client shall own the good, which he or she is purchasing.
As a result, I am passing the copyright for my work (as far as I am the owner) to my customers on receipt of their payment.
Please see article 9 for the legal description.

General terms and conditions regarding the offer, assignment and resulting services, work and/ or deliveries executed by XtrAct Communications, Houten,
the Netherlands.

Article 1. Definitions

Supplier: XtrAct Communications, Commercial Chamber registration (KvK Utrecht, the Netherlands) 56850913.
Principal: the natural person or legal entity commissioning services and/ or for who work is executed and/ or goods delivered.
Agreement: the agreement closed between XtrAct Communications and principal regarding the supply of services, execution of work and/ or delivery of goods.

Article 2. General

All offers, quotations and agreements between XtrAct Communications and the principal are exclusively subject to these general terms and conditions, insofar as both parties not explicitly deviate from these terms and conditions in writing.
The applicability of any purchasing terms and conditions and/or any other terms and conditions of the principal is expressly denied.

Article 3. Coming into effect of the agreement and quotations

Quotations by XtrAct Communications shall be based on the information supplied by the principal. The principal warrants that he has timely and truthfully supplied all information that is essential for the planning, execution and completion of the order.
All quotations and offers by XtrAct Communications shall be free of obligations, unless the quotation states an acceptance term. If no acceptance term is stated, no right in any manner whatsoever can be derived from the quotation or offer.
The agreement shall come into effect as per the day of signing by XtrAct Communications or the day of sending the written confirmation of order by XtrAct Communications to the principal respectively.
The agreement shall be entered into for an indefinite period, unless the content, nature or purpose of the order determines that it has been entered into for a fixed period.

Article 4. Execution by third parties

XtrAct Communications shall have the right, insofar as this is required for a proper execution of the agreement, to have the order partly carried out by third parties. XtrAct Communications shall only proceed thereto after consultation with the principal.
The applicability of the articles 7:404, 7:407 paragraph 2 and 7:409 of the Dutch Civil Code is hereby expressly excluded.

Article 5. Execution of the order

XtrAct Communications shall observe the care of a good supplier in the execution of her or his activities.
By force of the agreement, XtrAct Communications undertakes a best efforts obligation and therefore does not provide any guarantees concerning the results of the order, unless explicitly determined otherwise.

Article 6. Changes of the order

Changes in the order by the principal that could not have been foreseen by XtrAct Communications and that entail additional work, shall be paid by the principal to XtrAct Communications pursuant the rate agreed in the agreement. Additional work shall furthermore be the rescheduling of activities by XtrAct Communications if this is required as a result of supplying incorrect or incomplete data by the principal. XtrAct Communications shall invoice the costs for additional work to the principal on the basis of a subsequent calculation.
The principal shall inform XtrAct Communications in a timely manner in writing of any changes in the execution of the order requested at a later time by the principal after confirmation of the order. In the event that these changes are not supplied in writing, the risk of the execution of such changes shall be to the account of the principal.
Changes made in an order that has already come into effect, may result in the originally agreed delivery time to be exceeded by the supplier.

Article 7. Cooperation of the principal

The principal shall at all times, thereto requested and at his own initiative, supply all relevant information to XtrAct Communications that is required for a correct execution of the order granted.
If information required for the execution of the agreed order is not or not timely or not in agreement with the arrangements entered into made available, or if the principal has not met his (information) obligations, XtrAct Communications shall have the right to suspend the execution of the agreement.
In order to let the execution of the order proceed orderly and as far as possible according to the time schedule, the principal shall timely make staff from his own organisation available, unless the nature of the order determines otherwise. The principal shall ensure that his staff has the proper skills and experience to carry out the activities.
If supplier and principal agree that XtrAct Communications shall work at the premises of the principal, the principal shall supply XtrAct Communications a workspace with telephone and a data net connection free of charge, unless the nature of the order determines otherwise.
If there are ensuing costs to XtrAct Communications as a result of the fact that the principal has not, not timely or not properly made staff, requested data, documents and facilities available, such costs shall be to the account of the principal.

Article 8. Confidentiality

The principal and XtrAct Communications shall be held to secrecy of all confidential information that they have acquired from each other within the framework of the agreement or from any other source. Information shall be considered confidential when this has been indicated as such by the other party or when this ensues from the nature of the information.
If the supplier, on the grounds of a legal condition or a court order, is held to supply confidential information to a third party appointed thereto by law or the competent court and XtrAct Communications cannot appeal to any entitlement to refuse to give evidence, XtrAct Communications shall not be held to any compensation or redress for damages and the principal shall not have the right to annul the order on the grounds of any resulting damages.
The principal and XtrAct Communications shall impose their obligations on the grounds of this article to any other third parties to be commissioned by them.

Article 9. Copyright and intellectual property

As long as full payment has not been received or in case of cancellation, all rights remain with XtrAct Communications
All concepts, texts, drawings, designs, descriptions, calculations or presentations are the property of XtrAct Communications. XtrAct Communications is the holder of the copyright and reserves all the rights provided by copyright law.
All rights provided by the copyright law or other intellectual property rights are transferred to the principal as soon as full payment has been made. As far as intellectual property rights of third parties are concerned, XtrAct Communications shall contact these parties on request of the principal to discuss if transfer of the rights is possible and under which conditions this would be the case.
XtrAct Communications is entitled to sign completed work and make its source public.

Article 10. Rates

If, after the agreement has come into effect, but before the order has been completed, rate-determining factors (e.g. wages and/or prices) are subject to change, XtrAct Communications shall be entitled to change the previously agreed rate accordingly.
The fee of XtrAct Communications is exclusive of: expenses of the supplier, invoices by commissioned third parties, VAT and other levies that are or may be imposed by the authorities.

Article 11. Terms of payment

Payment shall be effected within fourteen days after date of invoice in a manner to be indicated by XtrAct Communications denominated in euro. Any objections against invoice amounts do not suspend the payment obligation by the principal.
If the principal fails to pay an invoice in a timely manner, the principal shall be legally in default and the legal interest is due by the principal. In such a case the principal shall pay interest on each month or any part thereof, whereby any part of a month is considered an entire month. The interest on the amount due shall be calculated from the time that the principal is in default until the time of payment of the entire amount that is due.
In the event of liquidation, bankruptcy (filing), attachment or (preliminary) suspension of payment of the principal or when the Debt Repayment Natural Persons Act (“WSNP) has been declared applicable to the principal, the claims of XtrAct Communications on the principal shall immediately become payable.
Payments shall in the first place serve to reduce the costs, secondly to reduce the arrear interest and finally to reduce the principal amount and the accrued interest.
If the principal assigns a different order for the attribution of the payment, XtrAct Communications shall have the right to refuse an offer to pay, and this shall not constitute an omission on his part. XtrAct Communications may refuse the full payment of the principal amount, if this payment does not include the arrear and accrued interest and collection costs.
The principal shall never be entitled to settlement of what he is due to the supplier.
If the principal is in default or fails to (timely) fulfill his obligations, all reasonable costs for the out of court collection shall be to the account of the principal. The out of court costs shall be calculated on the basis of what is customary in the Dutch collection practice, at this time the calculation method according to Dutch national directive for the courts of 2000 to calculate out of court collection costs (“Rapport Voorwerk II”).
XtrAct Communications may at all times require further security, in the absence whereof XtrAct Communications may suspend the execution of the agreement. If this requirement is not met to the satisfaction of the supplier, XtrAct Communications shall have the right to suspend the execution of, or to refuse all agreements with the principal, without being held to any compensation for damages and without prejudice to any other of his right in this agreement or by law.

Article 12. Complaints and investigations

XtrAct Communications has to be informed in writing of complaints with respect to activities carried out and/or with respect to the invoice amount within 48 hours after discovery or within 48 hours after the defect could have been discovered, after which any claim against XtrAct Communications shall become void.
Complaints as referred to in paragraph 1 of this article, do not suspend the payment obligations of the principal.
If and insofar as a complaint is accepted, XtrAct Communications may choose between adjusting the invoiced fee or improving or once again carrying out the rejected activities free of charge. If carrying out the activities has verifiably become useless, the principal is entitled to a pro rata restitution of the fee already paid by the principal.

Article 13. Time for performance

If within the duration of the order a term has been agreed for the completion of certain activities, this term shall never be final. When the performance time is exceeded, the principal shall declare XtrAct Communications in writing to be in default.

Article 14. Annulment

Both parties may prematurely terminate the agreement at all times in writing with due observance of a reasonable term.
If the principal prematurely terminates the agreement, XtrAct Communications shall be entitled to compensation in view of the resulting occupancy loss which has to be made plausible, whereby the average monthly invoice amount to date is taken as the starting point, unless the termination is based on facts and circumstances that may be attributed to the supplier. The preliminary results of the activities carried out up to that time, shall conditionally be made available to the principal.
In the event that one of the parties becomes bankrupt, requests suspension of payment or ceases its activities, the other party shall have the right to prematurely terminate the agreement without any requirement to observe a term of notice.
In the event of premature termination by the supplier, the principal shall be entitled to the cooperation of XtrAct Communications concerning the transfer of activities to be carried out to any third parties. When the transfer of the activities incurs additional costs to the supplier, the principal shall be charged for any such costs.

Article 15. Liability

XtrAct Communications shall not be liable for any damages of whatever nature that arise from the fact that XtrAct Communications has based herself on incorrect and/or incomplete data supplied by principal.
Should XtrAct Communications be liable for any damages whatsoever, the liability of XtrAct Communications shall be limited to the invoice amount, at least to that part of the amount to which the liability is related.
The liability of XtrAct Communications shall in each case always be limited to the amount paid up by her insurer in such an event.
XtrAct Communications shall exclusively be liable for direct damages.
Direct damages shall exclusively be the reasonable costs to establish the cause and the scope of the damage, insofar as the establishment relates to damages in the sense of these general terms and conditions, any reasonable costs incurred to bring the faulty performance by XtrAct Communications in line with this agreement, insofar as these may be attributed to the supplier, and reasonable costs, incurred to prevent or limit the damage insofar as the principal proves that these costs have resulted in a limitation of the direct damages as referred to in these general terms and conditions.
XtrAct Communications shall never be liable for indirect damages, including consequential damage, loss of profit, missed savings and damage through stagnation of work.

Article 16. Indemnification of third parties

The principal indemnifies XtrAct Communications against any possible claims by third parties who incur losses in relation to the execution of the agreement and the cause of which cannot be attributed to the supplier.
The principal shall be held to support XtrAct Communications in and out of court in the event that XtrAct Communications is addressed on the grounds of the first paragraph of this article and to immediately take all actions that may be expected from him in such a case. When the principal is in default with respect to taking adequate measures, the supplier, without any requirement for a notice of default, shall be entitled to proceed thereto herself. All costs and damages on the side of XtrAct Communications and third parties resulting thereof, shall fully be to the account and risk of the principal.

Article 17. Time limit

In deviation of the legal time limits, the time limit of all claims and defenses with respect to XtrAct Communications shall be one year.

Article 18. Contract transfer

The principal shall not have the right to transfer any obligation from the agreement to third parties without the written consent of the supplier. Insofar as XtrAct Communications may have given written permission for a contract transfer, the principal shall at all times be jointly liable with such third party for the obligations from the agreement of which these general terms and conditions constitute a part.
Furthermore, insofar as XtrAct Communications may have given written permission for a contract transfer, the principal shall inform XtrAct Communications in advance thereof and XtrAct Communications shall have the right to terminate the agreement as per the date on which the transfer comes into effect. XtrAct Communications shall not be held to pay any compensation for damages in such an event.

Article 19. Applicable law

This agreement shall be governed by the law of the Netherlands.
All disputes concerning the agreement at hand and the execution thereof arising between the parties, shall exclusively be submitted to the competent court of the place of residence of the supplier.

Houten, the Netherlands, April 2013