The Dutch version of these general conditions prevails at all times in case of disputes with regard to the interpretation and purpose of these general conditions.
Version reference: TC-11-2020
Shock Inbound, a company registered in The Netherlands, whose office is in (5616 LZ) Eindhoven at the address Kastanjelaan 400 registered in the Trade Registry of the Dutch Chamber of Commerce with the number: 67154832.
the party – a legal entity or a natural person – who concludes an Agreement with Shock Inbound, to whom Shock Inbound has submitted a quotation or who has any other legal relationship with Shock Inbound.
any verbal or written agreement concluded between Shock Inbound and the Other Party, any change or supplement thereto, and all (legal) acts in preparation and execution of that agreement.
Shock Inbound and the Other Party together.
1.1 These general terms and conditions apply to all offers, tenders and quotations of Shock Inbound, and to all Agreements concluded between Shock Inbound and the Other Party.
1.2 The applicability of any general conditions of the Other Party is hereby expressly rejected. Deviations from or additions to these general conditions will only be binding if expressly confirmed in writing by Shock Inbound and relate only to (the part of) the Agreement in respect of which such acceptance has taken place.
1.3 If at any time one or more provisions of these general conditions become void or voidable, whether in part or in full, the rest of these general conditions remain in place. In this event, Shock Inbound and the Other Party will agree on the replacement of the void or voidable provisions by new provisions, while retaining the purpose and scope of the original provisions as much as possible.
1.4 If Shock Inbound does not insist on the strict observance of these general conditions at all times, this does not mean that the provisions concerned have become inapplicable or that, in other cases, Shock Inbound has in any way relinquished the right to insist on the strict observance of the provisions of these general conditions.
1.5 The titles of the articles of these general terms and conditions serve only to facilitate reading of these general terms and conditions and cannot be used for the interpretation of these general terms and conditions.
2.1 The nature and scope of the Agreement is determined by the description of the work included in the offer.
2.2 All offers of Shock Inbound are without obligation, unless an acceptance period has been stipulated in the quotation. An offer shall be null and void if the products or services to which the offer pertains is no longer available in the meantime.
2.3 Shock Inbound cannot be held to an offer, if that offer, or a part of it, contains an obvious mistake or clerical error.
2.4 A composite price statement does not oblige Shock Inbound to perform part of the activities at a corresponding proportion of the stated price.
2.5 Previously submitted offers do not automatically apply to future orders or Agreements.
2.6 Unless expressly stated otherwise, all quoted amounts are exclusive VAT.
3.1 An Agreement between Parties is only concluded if the Other Party unconditionally accepts an offer from Shock Inbound, or if Shock Inbound confirms the Agreement in writing, or has fully or partially executed the Agreement. The provisions of article 7:404 of the Dutch Civil Code is hereby expressly excluded.
3.2 All agreements, amendments and/or other commitments made after the formation of the Agreement shall be binding on Shock Inbound only if confirmed in writing by Shock Inbound or if Shock Inbound has fully or partially executed the Agreement.
3.3 Unless otherwise agreed, Shock Inbound is not a party to the provision of services of third parties, even if Shock Inbound purchased these services for the benefit of the Other Party.
3.4 Shock Inbound is entitled – upon or after entering into the Agreement and before (further) execution of the Agreement – to demand sufficient security from the Other Party that both the payment obligation and any other obligations will be complied with. Shock Inbound can therefore request a down payment on the invoice amount before it starts the execution of the Agreement. Refusal by the Other Party to provide the required security gives Shock Inbound the right to refuse the execution of the Agreement.
4.1 The Other Party must ensure that all data and documents, of which Shock Inbound has indicated that these are necessary for the correct and timely execution of the agreed work, or of which the Other Party should understand that these are necessary, will be made available to Shock Inbound in time.
4.2 The Other Party is responsible for the correctness, completeness and reliability of the data and documents made available to Shock Inbound, even if these come from or via third parties. The Other Party shall immediately inform Shock Inbound of any changes which materially affects the performance of its obligations under the Agreement.
4.3 The Other Party grants Shock Inbound free access and/or passage to the (physical or digital) location where the Agreement is executed. This includes, among other things, the Other Party’s obligation to provide Shock Inbound with any necessary passwords or access for or to the digital location where the Agreement is being executed.
4.4 The Other Party will obtain all permits, licenses, consents, approvals or assignments in a timely manner which are required for the execution of this Agreement.
4.5 If the Other Party has not, not timely or not adequately fulfilled its obligations as referred to in this article, then Shock Inbound is entitled to suspend the performance of the Agreement until the moment the Other Party fulfils its obligations. If Shock Inbound has to incur costs as a result, these costs will be borne by the Other Party. In that case, these costs will be charged by Shock Inbound to the Other Party on the basis of actual costs.
5.1 All work performed by Shock Inbound in the execution of the Agreement is performed to the best of its knowledge and ability. Shock Inbound obligation relates to a best efforts obligation.
5.2 Shock Inbound determines the manner in which the Agreement is executed, while taking into account the requirements that the Other Party has made to this. Shock Inbound has the right to engage (and have work done by) third parties and reserves the right to replace persons and/or employees involved in the execution of the Agreement.
5.3 Specified deadlines for the execution of the Agreement or for the delivery of certain items are indicative and are never strict deadlines. If a term is exceeded, the Other Party must declare Shock Inbound in default in writing.
5.4 Budgets for costs of third parties, indicated by Shock Inbound, are always indicative.
5.5 Unless agreed otherwise, the work of Shock Inbound never includes:
− assessing whether the Other Party's instructions comply with legal standards;
− applying for permits;
− conducting research into the existence of intellectual property rights, including patent rights, trademark rights, drawing or design rights, copyrights or portrait rights of third parties;
− investigating the possibility of the possible forms of protection referred to in the previous point for the Other Party;
− checking the correctness, completeness and reliability of the data and information provided to Shock Inbound by the Other Party.
5.6 Shock Inbound is entitled to execute the Agreement in different phases (partial deliveries) and to invoice the already executed partial deliveries to the Other Party.
5.7 If during the execution of the Agreement it appears that the work to be done must be amended or supplemented in order to ensure the proper execution of the Agreement, Parties will timely and in mutual consultation amend the Agreement accordingly.
5.8 If the Parties agree that the Agreement will be amended or supplemented, the time of delivery may be affected. Shock Inbound will inform the Other Party as soon as possible. An amendment and/or supplement to the Agreement may have financial and/or qualitative consequences.
6.1 Shock Inbound is authorized to suspend its obligations or to dissolve the Agreement without any obligation to pay any damages, loss or costs, if:
− the Other Party does not, not fully or not timely fulfil its obligations under the Agreement; or
− Shock Inbound becomes, after the conclusion of the Agreement, aware of circumstances that give good ground to fear that the Other Party will not fulfil its obligations; or
− a delay on the part of the Other Party is of such nature that Shock Inbound can no longer be expected to fulfil its originally agreed obligations under the Agreement; or
− the Other Party refuses to provide the required security.
By virtue of default, the Other Party shall be held to pay damages or compensation to Shock Inbound and is liable for any damages (including costs) arising directly or indirectly on the part of Shock Inbound as a result.
6.2 Shock Inbound is always entitled to refuse or terminate an Agreement, or an amendment therein, if the Agreement is in conflict with a statutory provision or regulation. Shock Inbound may also refuse or terminate an Agreement if, in its opinion, the Agreement could damage the interests or reputation of its business.
6.3 In case of dissolution, any outstanding invoices or claims in the name of the Other Party shall be immediately due and payable.
6.4 In case of liquidation, (application for) suspension of payment or bankruptcy, seizure on behalf of the Other Party, debt restructuring or any other circumstances that prevents the Other Party to freely dispose of his/her capital, Shock Inbound is entitled to terminate or cancel the Agreement with immediate effect, without any obligation for Shock Inbound to pay any damages or compensation. Any outstanding invoices or claims in the name of the Other Party shall be immediately due and payable in that case.
7.1 Full or partial cancellation of the Agreement by the Other Party is only possible by mutual consent.
7.2 If the Other Party (fully or partially) cancels any Agreement with the consent of Shock Inbound, Shock Inbound has the right to charge the total costs for the hours Shock Inbound spent on the performance of the Agreement against its hourly rate from conclusion of the Agreement until the cancellation date, plus the total costs for products/services ordered in the performance of the Agreement, at all times with a minimum reimbursement of 50% of the total agreed total costs. All this without prejudice to Shock Inbound’s right to claim compensation insofar as the cancellation costs are insufficient.
7.3 The cancellation date is the date on which Shock Inbound received the written cancellation and gave its consent. Shock Inbound is entitled to refuse consent at any time and for any reason whatsoever.
7.4 The administration of Shock Inbound is leading for the determination of the costs incurred and the associated cancellation date.
8.1 Shock Inbound is not obliged to fulfil any obligation to the Other Party in case there is a force majeure (article 6:75 of the Dutch Civil Code).
8.2 In addition to what is included in law and jurisprudence, force majeure shall mean all external causes either foreseen or unforeseen, which Shock Inbound cannot influence however which prevents Shock Inbound to meet its obligations under the Agreement. Such situations include any strikes within Shock Inbound or third parties, as well as the situation that a performance of a supplier of Shock Inbound is not, not timely or not sufficient delivered to Shock Inbound by the supplier or the Other Party. Shock Inbound is also entitled to invoke force majeure if the circumstance preventing (further) compliance occurs after Shock Inbound should have met its obligations.
8.3 Shock Inbound is entitled to suspend its contractual obligations during the period of force majeure. If the period of force majeure lasts for longer than six (6) months, either party shall be entitled to dissolve the Agreement without being obliged to pay any compensation for damages to the other party.
8.4 Insofar Shock Inbound, at the time the force majeure commences, has meanwhile partly fulfilled its obligations by virtue of the Agreement, or shall be able to do so, and the fulfilled part and/or the part to be fulfilled represents independent value, Shock Inbound is entitled to separately invoice the part that has already been fulfilled and/or is yet to be fulfilled. The Other Party is obliged to pay that invoice as though it were for a separate agreement.
9.1 Unless otherwise expressly agreed in writing, payment must be made within 14 days from the date of invoice, in a manner indicated by Shock Inbound and in the currency stated in the invoice.
9.2 In the event of additional costs, such as allowances or additional work, these costs will be charged on the basis of subsequent calculation.
9.3 If the Other Party fails to make (timely) payment, the Other Party shall be immediately in default as from due date without prior notice or summons from Shock Inbound. Without prejudice to its other obligations, the Other Party owes interest on the outstanding amount (including collection costs) as from due date of the invoice until the date of payment in full on an annual basis equal to the statutory commercial interest rate ex Section 6:119a of the Dutch Civil Code. All reasonable judicial and extrajudicial costs made by Shock Inbound to obtain payment shall be borne by the Other Party.
9.4 Shock Inbound shall be entitled to use the payments made by the Other Party first to cover the costs, then to cover any interest that has fallen due and finally to cover the principal sum and accrued interest. Payments made by the Other Party will be used by Shock Inbound in settlement of the oldest due claims.
9.5 The Other Party is never entitled to set off the amount owed by it to Shock Inbound.
9.6 Objections to the invoiced amount or any other objection(s) shall never suspend the payment obligation of the Other Party.
10.1 Any liability of Shock Inbound remains at all times limited to the provisions as stated in these general conditions.
10.2 Shock Inbound and third parties engaged by Shock Inbound are not liable for damage (of whatever nature) as a result of:
- incorrect or incomplete information provided by or on behalf of the Other Party.
- the purchase of replacement services or technology;
- changes made to the product/services by the Other Party or third parties;
- circumstances beyond the control of Shock Inbound.
10.3 Shock Inbound offers no guarantee with regard to the results of the work it has performed. Shock Inbound therefore accepts no liability.
10.4 The liability of Shock Inbound is always limited to the amount that its insurer pays in that case, or if no payment of the insurance takes place, up to a maximum of the invoiced amount related to the fee to the Other Party over the last three (3) calendar months in respect of the part of the Agreement to which the liability relates.
10.5 In the event that liability is assumed, Shock Inbound is only liable for direct damage. This includes: (1) the reasonable costs to determine the cause and extent of the damage; (2) if applicable, the reasonable costs incurred to resolve the defective performance of Shock Inbound, insofar as this is attributable to Shock Inbound, and (3) the reasonable costs incurred to prevent or limit the damage. The Other Party must then be able to demonstrate that these costs have actually led to a limitation of the direct damage.
10.6 Shock Inbound is never liable for indirect damage. This includes, among other things: consequential damage or loss, lost profit and damage or loss as a result of business stagnation.
10.7 The limitation of liability as set out in these general conditions shall not apply if the damage is due to intent or gross negligence on the part of Shock Inbound.
11.1 The Other Party indemnifies Shock Inbound, and third parties engaged by Shock Inbound, from any liability towards third parties who suffer damage as a result of the performance of the Agreement. This indemnification also applies in respect of intellectual property to the materials and data provided by the Other Party that are used in the performance of the Agreement.
11.2 The Other Party guarantees to Shock Inbound that the information carriers, electronic files, software and other similar files are free of viruses and defects, and indemnifies Shock Inbound for any liability for damage resulting from the use of these information carriers, electronic files, software and other similar files.
11.3 If the Other Party uses or applies any result obtained from Shock Inbound, or gives third parties the opportunity to use or apply these, the Other Party indemnifies Shock Inbound for any liability as a result of damage claimed by the Other Party and/or third parties.
12.1 Shock Inbound reserves the rights and powers that belong to Shock Inbound on the basis of the Dutch Copyright Act and the Neighboring Rights Act (“Auteurswet en de Wet op de naburige rechten”) and other intellectual property rights. Shock Inbound therefore reserves at all times all rights including but not limited to its plans, documents, images, ideas, concepts, literary works, drawings, illustration and photographs even if costs have been charged. Insofar as such an intellectual property right can only be obtained by deposit or registration, only Shock Inbound is authorized to do so, unless otherwise agreed.
12.2 All intellectual property rights that arise during the performance of the Agreement belong to Shock Inbound and may not be used or reproduced without prior permission from Shock Inbound, unless expressly otherwise agreed. The Other Party is also not allowed to make it available other than for the purpose for which it was provided to it by Shock Inbound.
12.3 If nothing has been determined with regard to the scope of the use, the Other Party only has the revocable right to use the delivered work in unmodified form for own internal use, for the purpose, edition and manner such as Parties has meant at the conclusion of the Agreement.
12.4 The Other Party is not permitted to remove or change any designation concerning copyrights, brands, trade names or other intellectual property rights from the materials supplied.
12.5 Shock Inbound reserves the right to use the design – originated in the performance of the Agreement – for other purposes, insofar as no confidential information is brought to the notice of third parties.
13.1 Shock Inbound attaches great importance to the successful execution of the Agreement. If the Other Party nevertheless finds a shortcoming or improvement point, this must be reported 7 days after execution of that part of the Agreement. The Other Party needs to provide Shock Inbound with the opportunity to investigate a complaint.
13.2 For the application of this article, each partial delivery must be regarded as a separate delivery.
13.3 If it is determined that the delivered service is deficient, and the complaint was timely filed, Shock Inbound will repair or replace the deficient service(s) within reasonable time after receiving a written notification of the defect by the Other Party.
13.4 The submission of complaints will never release the Other Party from its purchase and payment obligation towards Shock Inbound.
13.5 In the event of late notification of the complaint, the Other Party will no longer be entitled to repair, replacement or any other compensation.
13.6 The limitation period for all claims and defenses against Shock Inbound and third parties engaged by Shock Inbound in the execution of an Agreement, that do not fall within the scope of the duty to complain, is one year.
Shock Inbound is familiar with the General Data Protection Regulation (GDPR) and takes this into account when processing the (personal) data of the Other Party. No (personal) data is shared with third parties, unless (i) this is necessary for the proper execution of the Agreement; or (ii) Shock Inbound has a legal obligation to share the (personal) data; or (iii) Shock Inbound has received explicit permission from the Other Party for this; or (iv) if one of the other legal grounds for the processing of personal data applies. If the Other Party decides to provide third-party personal data to Shock Inbound, the Other Party must ensure an appropriate processor agreement that meets the requirements set in the GDPR.
15.1 Dutch law is applicable to each and every Agreement and any other legal relationships with Shock Inbound.
15.2 Any dispute about these general conditions and/or the Agreement is subject to the judgment of the competent Dutch court in the residence of Shock Inbound, unless otherwise prescribed by mandatory law.
15.3 The Parties initiate court proceedings only if they have done their utmost to resolve the dispute by mutual consultation.