Terms and conditions
of 3D configurator online, Amsterdam Trade name:
The Brink Agency
Article 1 General
1.1
These conditions apply to all offers, order confirmations, sales, deliveries, agreements, products, and services of The Brink (contractor) where The Brink acts as seller / contractor.
1.2
The applicability of any general or specific terms and conditions or stipulations of the buyer / Client are explicitly rejected by The Brink.
1.3
An agreement between The Brink and the Client, whether or not concluded through intermediaries of The Brink, only binds The Brink after The Brink has confirmed the agreement to the Client in writing.
1.4
The Brink will use its best endeavors to provide the services, where appropriate in accordance with the agreements and procedures laid down in writing with the Client. If it has been agreed that the services will take place in phases, The Brink is entitled to postpone the commencement of the services belonging to a subsequent phase until the Client has approved the results of the preceding phase in writing.
1.5
Where this agreement refers to written notification, this also includes notification via electronic messaging (e-mail) to the e-mail address Hello@thebrinkagency.com. In the event of a dispute over the receipt of such notice or message, The Brink’s records shall prevail.
Article 2 Quotations and offers
2.1
All offers and quotations are without obligation unless stated otherwise.
2.2
Offers and quotations are valid for 15 days unless stated otherwise
2.3
Changes to a previous agreement between the client and The Brink are only valid from the moment these changes have been accepted by both parties.
2.4
A composite quotation does not oblige Innovative Brands to perform part of the assignment for a proportional part of the stated price.
2.5
Offers and quotations do not automatically apply to future assignments.
Article 3 dissolution
3.1
Each party is authorized to dissolve an agreement with immediate effect, without further notice of default and without prior judicial intervention, in whole or in part for the future and / or to cancel a payment if:
3.2
the other party applies for suspension of payment;
3.3
the other party has been declared bankrupt or has come under the statutory regulation of debt rescheduling (Title Three Bankruptcy Act);
3.4
the goods made available by or on behalf of the other party within the framework of an agreement and / or associated Project Agreements, or annexes, are seized and this attachment is not lifted within a short period of time;
3.5
the other party is a legal person and it is dissolved.
3.6
Both parties can only terminate agreements through judicial intervention – with the exception of the cases stated in article 3.1. If the other party seriously fails to fulfill his / her obligations. The party considering such termination will always first have to give notice of default to the other party by a registered letter. He / she will also have to allow the other party a reasonable period of time to still fulfill his / her obligations. Premature termination does not affect the obligation to pay compensation.
Article 4 Price and payment
4.1
All prices are exclusive sales tax (VAT).
4.2
In the event of an agreement in which amounts are periodically due to be paid by the Client, The Brink is entitled to adjust the applicable prices and rates by means of written notification within a period of at least three months.
4.3
The Brink is at all times entitled to send advance invoices.
4.4
The Brink is in all cases entitled to adjust the agreed prices and rates by means of a written notification to the Client for performances that, according to the relevant planning or according to the agreement, will be delivered at a time that is at least three months after the date of this notice lies.
4.5
If the Client does not wish to agree to an adjustment of prices and rates made known by The Brink as referred to in Article 4.2 or 4.3, the Client is entitled to terminate the agreement in writing within seven working days after the notification referred to in those Articles against the notification of The Brink the date on which the price or rate adjustment would take effect or cancel the agreement.
4.6
All invoices will be paid by the Client in accordance with the payment conditions stated on the invoice. In the absence of specific conditions, the Client will pay within fourteen days of the invoice date.
4.7
If the Client does not pay the amounts due within the agreed term, the Client will, without any notice of default being required, owe the statutory interest on the outstanding amount. If, after notice of default, the Client continues to fail to pay the claim, the claim can be handed over, in which case, in addition to the total amount then owed, the Client will also be obliged to fully reimburse extrajudicial and judicial costs, including all costs calculated by external experts in addition to the costs established in court in connection with the collection of this claim or the exercise of law in any other way, the amount of which is set at a minimum of 15% of the total amount. Payment of a sum of money attributable to a particular obligation, first of all, serves to deduct the costs, then to deduct the interest that has arisen, and finally to deduct the longest outstanding principal and the current interest.
4.8
If amounts due are not paid in time, the Contractor is at all times entitled to suspend its performance. Suspension means that agreed delivery terms are suspended for the duration of the suspension.
4.9
Before the start of the work, 50% of the invoice amount must be paid. Unless otherwise agreed.
4.10
After completion of a new website, The Brink will send a final invoice, less the amount of the down payment.
4.11
All costs for payment are at the expense of the client.
4.12
Any dispute or complaint regarding invoices must be submitted in writing to The Brink within eight days of receipt of the invoice. After this date, complaints will not be processed, while the invoice is considered irrevocable and fully accepted.
Article 5 Beginning of the agreement
An agreement is concluded on the day that one of the following conditions is met:
the order confirmation has been completed, signed, and received by The Brink.
supply of required information from the client has been received by The Brink.
the down payment of 50% of the agreed invoice amount has been received by The Brink, unless agreed otherwise.
Article 6 Guarantee
After test and correction rounds mentioned in our quotations, no further guarantee applies, unless stated in the quotation.
Article 7 Intellectual property right Software
Intellectual property rights to all software, equipment or other materials developed or made available, such as analyzes, designs, documentation, reports, quotations, rest exclusively with The Brink, unless otherwise agreed in writing. The client only obtains the rights of use and powers that are explicitly granted to him / her in these conditions or otherwise.
Client is aware that the software, equipment and other materials made available contain confidential information and trade secrets of The Brink or its licensors. Without prejudice to the provisions of Article 7, the Client undertakes to keep this software, equipment, and materials secret, not to disclose or use it to third parties, and to use it only for the purpose of which they were made available to it. Third parties also include all persons working in the organization of the Client who does not necessarily need to use the software, equipment and / or other materials.
The Client is not permitted to remove or change any designation regarding copyrights, brands, trade names, or other intellectual or industrial property rights from the software, equipment, or materials, including indications regarding the confidential nature and secrecy of the software.
7.4. The Brink is allowed to take technical measures to protect the software. If The Brink has the software by means of technical protection secured, the Client is not permitted to remove or avoid this protection. If the security measures result in the Client not being able to make a backup copy of the software, The Brink will make a backup copy of the software available to the Client at the request of the Client.
Except in the event that The Brink makes a backup copy of the software available to the Client, the Client has the right to keep one backup copy of the software, which must also be understood to mean making it. In these general terms and conditions, a backup copy is understood to mean: a material object on which the software is recorded, exclusively to replace the original copy of the software in the event of involuntary loss of possession or damage. The backup copy must be an identical copy and always have the same labels and indications as to the original copy.
If the Client develops software or a third party develops software for him or if the Client intends to do so and in connection with the interoperability of the software to be developed and the software made available to him by The Brink, he needs information to ensure this interoperability. To achieve this, the Client will request The Brink in writing and in a specified manner for the necessary information. The Brink will then notify within a reasonable period whether the Client can obtain the required information and under what conditions, including financial terms and conditions regarding any third parties to be engaged by the Client. In these general terms and conditions, interoperability is understood to mean: the ability of software to exchange information with other components of a computer system and / or software and to communicate by means of this information.
With the observance of the other provisions in these terms and conditions, the Client is entitled to correct errors in the software made available to it, if this is necessary for the intended use resulting from the nature of the software. Where these general terms and conditions refer to rights or obligations with regard to errors, errors are understood to mean failure to comply with the functional specifications made known in writing by The Brink and, in the event of the development of custom software, the expressly agreed functional specifications. An error only exists if it can be demonstrated and reproduced. The client is obliged to immediately report errors to The Brink.
The Brink will indemnify the Client against any legal claim based on the allegation that software, equipment, or materials developed by The Brink infringe an intellectual or industrial property right in the Netherlands, on the condition that the Client immediately informs The Brink in writing about. Leaving the existence and content of the legal claim and the handling of the case, including reaching any settlements, entirely to The Brink.
To this end, the Client will provide The Brink with the necessary powers of attorney, information, and cooperation in order to defend itself against these legal claims, if necessary, on behalf of the Client.
After completion of a new website, The Brink will send a final invoice, less the amount of the down payment.
This indemnification obligation lapses if and insofar as the infringement in question is related to changes made by the Client to the software, equipment, or materials or to have them made by third parties.
If it is irrevocably established in law that the software, equipment, or materials developed by The Brink itself infringe any right of intellectual or industrial property belonging to a third party or if, in the opinion of The Brink, there is a reasonable chance that if such an infringement will occur The Brink will take back the delivered goods against crediting the acquisition costs after deduction of a reasonable user fee, or ensure that the Client can continue to use the delivered, or functionally equivalent of other software, equipment or materials, undisturbed.
Any other or further liability or indemnification obligation of The Brink due to violation of intellectual or industrial property rights of third parties are excluded, including liability and indemnification obligations of The Brink for infringements caused by the use of the supplied equipment, software and / or materials. In a form not modified by The Brink, in conjunction with goods or software not delivered or provided by The Brink, or in a manner other than that for which the equipment, software and / or materials were developed or intended.
The Client guarantees that no rights of third parties oppose the provision to The Brink of equipment, software, or materials for the purpose of use or processing and the Client will indemnify The Brink against any action based on the assertion that such publishing, making available, use or editing infringe any right of third parties.
The client remains the owner of information and content of websites made available by him and is liable for this. The Brink does not accept any liability for information provided by the Client that is included in applications, software or databases.
Article 8 Intellectual property rights designs
All intellectual property rights with regard to the concepts, designs, materials, and other works developed by The Brink remain with The Brink unless explicitly agreed otherwise in writing. Insofar as such a right can only be obtained through a deposit or registration, only The Brink is authorized to do so.
Unless the work does not lend itself to it, The Brink is at all times entitled to mention or remove his / her name on or near the work, and the client is not permitted to perform the work without prior permission without mentioning the name of The Brink.
When the client fully complies with his obligations under the agreement with The Brink, he obtains an exclusive license to use the work commissioned by The Brink, insofar as this concerns the right of publication and reproduction in accordance with the agreed destination.
An exclusive license to use work made by The Brink never entails the right to make changes to the work made by The Brink.
Without written permission from The Brink, the client is not entitled to use the design in a broader way or to use it in a different way than indicated when giving the assignment. In case of wider or different use, including modification, mutilation, or damage to the preliminary or final design by the client, The Brink is entitled to compensation of three times the sales value for each violation committed and € 500 for each day that the violation continues. These fines are payable immediately after discovery of the violation without further notice of default. These fines in no way diminish The Brink’s right to claim compensation for actual damage.
The client is no longer permitted to use the results of the assignment made available and any license granted to the client in the context of the assignment will lapse: a. From the moment the client discharges its (payment) obligations do not (fully) comply with the agreement or is otherwise in default unless the shortcoming of the client is of minor importance in the light of the entire assignment; b. if the assignment is terminated prematurely, for whatever reason, unless the consequences thereof are contrary to reasonableness and fairness.
The client indemnifies The Brink against claims regarding intellectual property rights on materials or data provided by the client that is used in the execution of the assignment.
The Brink has the freedom to use the design for its own publicity or promotion, taking into account the interests of the client.
Article 9 Third parties
The Brink will be able to use third parties to work in the context of the implementation of a Project Agreement after written permission from the Client. The client may only refuse this permission on compelling grounds.
The Brink ensures that the same confidentiality obligation is imposed on third parties as that applies to employees and other third parties of The Brink, described in Article 7.2.
Article 10 Additional work
If The Brink has performed work or other performances at the request of the Client that falls outside the content or scope of the agreed services / Project Agreement, these activities or performances will be reimbursed by the Client to The Brink according to the usual rates of The Brink. However, The Brink is not obliged to comply with a request for additional work and may require that a written request is made, which must then be accepted in writing. Oral orders for additional work are not binding on The Brink and are at (evidence) risk of the Client.
Paragraph 1 of this article also includes changes to the previously agreed final result.
The client accepts that the agreed or expected time of completion of the end result may be influenced by work or performances as referred to in paragraph 1 of this article.
Article 11 Cooperation and ending of service agreement
The parties realize that the creation of a product is a dynamic process. During a project, Project Agreements can be amended in writing. Amendments and changes to these agreements are approved and signed by both parties before they enter into force. The Brink reserves the right not to start the (follow-up) work before the desired adjustment in the Project Agreement has been approved and signed. If the Client does not respond within three working days of receipt of the document, it is assumed that the content of the document is correct.
If the legal relationship between the Client and The Brink ends, the Client is entitled to receive the data of which it owns. If and insofar as the information is closed or included in a database and / or data file and / or software of which the contractor is not the owner, The Brink will provide this information to the contractor in the form of a * .txt file. If the contractor wishes a different format, The Brink will cooperate with this but is entitled to charge costs for this.
A custody agreement (escrow agreement) can be entered into separately at the request of the Client. The conditions under which this agreement is entered into will be further agreed separately. The costs of the storage are for the account of the Client.
The client ensures timely delivery of the material (text, photos and / or access to the web host’s control panel).
Article 12 Delivery and delivery time
Exceeding the delivery time, however, never counts as a breach of contract. Under no circumstances is the client entitled to cancel the agreement, refuse payment, or claim compensation.
If the delivery time is exceeded by more than six months, the client can dissolve the agreement.
Final delivery of a website is as soon as possible after the completion of the development of the website and after payment of the full invoice amount has been received.
Article 13 Webhosting and Access
In the event The Brink hosts a website for the Client, The Brink can (temporarily) put this website out of use and / or limit it if: -The Client does not fulfill a contractual obligation or acts contrary to these general terms and conditions -the content or the use is contrary to (international) regulations / customs, infringes the rights of third parties, is offensive or discriminatory, or otherwise in violation of the Nettiquette.
The Brink is not liable for the content, security (for example in the event of a hack (attempt)), or the data processing of (Personal) data on the basis of the Personal Data Registration Act or the Personal Data Protection Act (WBP), unless explicitly agreed otherwise in writing.
If telecommunication facilities are used, the Client is responsible for the correct choice and the timely availability thereof. The Brink is not responsible for transmission errors that cannot be attributed to it. If The Brink provides remote internet services using electronic connections, it is therefore not responsible and liable for the undisturbed use and continuous availability of such a connection.
The Brink is not liable for (the undisturbed use and continuous availability of) the telecommunication structure and / or energy supplies and associated peripherals of parties other than the Brink unless otherwise agreed in writing. The Brink, therefore, has no “uptime” obligation, but only a best-efforts obligation. The Brink is not liable if the availability of the systems is not 100% due to malfunctions of hardware or software.
Article 14. Applicable law in disputes
Dutch law is applicable to these terms and conditions, as well as to all (Project) agreements. All disputes arising from these terms and conditions, as well as from all (Project) agreements, will be subject to the decision of the competent court in the District of Amsterdam (the Netherlands).
Article 15. Confidentiality
The parties acknowledge that the existence and content of the mutual relationship, as well as the data or information that become known to both parties in the context of the performance of activities stated in these and other agreements, are of a strictly confidential nature. The parties guarantee that all information of a confidential nature received from the other party before and after entering into the agreement will remain secret. The parties are obliged to also impose the confidentiality obligation referred to in paragraph 1 of this article on their employees and other third parties engaged by them.
Article 16. Liability
The Brink is never liable for any damage suffered by the Client or third parties.
The Brink is not liable for any damage that occurs as a result of instruction provided by the Client (or has provided) with regard to design, layout, etc. The Client is thus fully responsible for the information provided by him / her.
The Brink accepts no liability if it cannot perform or cannot perform on time as a result of force majeure.
Client will indemnify The Brink against all claims from third parties.
Article 17. Force Majeure
In the case of force majeure The Brink is entitled to consider the agreement as dissolved, without judicial intervention, and without being obliged to pay compensation.
Force majeure to comply with our obligations is any non-standard cause that cannot be attributed to The Brink and which prevents the fulfillment of the agreement or obstructs or makes it objectionable to such a serious extent that such fulfillment cannot reasonably be required. Do you have any questions about these terms and conditions? Please contact The Brink via Hello@thebrinkagency.com
Do you have any questions about these terms and conditions? Please contact The Brink via Hello@thebrinkagency.com
