General terms and conditions The Fully Bookers
ARTICLE 1. | DEFINITIONS
In these general terms and conditions, the following terms are used in the following sense, even if they have been conjugated in plural or singular form, unless the contrary results from the nature or tenor of the stipulations.
- The Fully Bookers: the user of these general terms and conditions, established at Binckhorstlaan 36 C233, 2516 BE in The Hague, registered in the Commercial Register under Chamber of Commerce number 75533138.
- Customer: the natural person, at least acting in the course of a profession or business, or legal entity with whom The Fully Bookers has concluded or intends to conclude an agreement.
- Parties: The Fully Bookers and the customer jointly.
- Agreement: any agreement entered into between The Fully Bookers and the customer by which The Fully Bookers undertakes to provide services to the customer for a price agreed in more detail.
- Services/services: all services to be provided under the agreement by or on behalf of The Fully Bookers, which includes, but is not limited to, and in the broadest sense of the word, consultancy in relation to online marketing, whether or not in the form of carrying out online marketing analyses, the design and implementation of online marketing campaigns, such as search engine optimisation (SEO), search engine advertising (SEA) and advertising in social media, website design, website management, managing social media accounts, marketing automation and lead nurturing.
- Subscription: the agreement as referred to in paragraph 4 whereby the parties have committed themselves to each other for a definite or indefinite period of time for ongoing, recurring or successive performances, such as in the case of setting up and implementing online marketing campaigns, website management, managing social media accounts and lead nurturing.
- Website: the website to be produced for the customer under the agreement, or the existing website of the customer to which the services of The Fully Bookers relate. For the purposes of these general terms and conditions, 'website' also includes a mobile application, web shop or similar application.
- Written: both traditional written communication and digital communication stored on a durable medium, such as e-mail communication.
ARTICLE 2. | GENERAL PROVISIONS
- These general terms and conditions apply to every offer made by The Fully Bookers and every agreement concluded.
- These general terms and conditions also apply to agreements for the execution of which third parties are involved.
- The applicability of any general terms and conditions of the client, by whatever name, is expressly rejected.
- Deviation from that which is stipulated in these general terms and conditions is only possible if done explicitly and in writing, such as by means of the quotation accepted by the customer from The Fully Bookers. If and to the extent that the provisions of these general terms and conditions deviate from what the parties have explicitly agreed upon in writing, that which has been explicitly agreed upon by the parties in writing applies.
- The nullity or invalidity of one or more provisions of these general terms and conditions shall not affect the validity of the remaining provisions. In such a case, the parties are obliged to enter into mutual consultation in order to reach a substitute arrangement with regard to the clause affected. In doing so, the purpose and purport of the original provision shall be taken into account as much as possible.
ARTICLE 3. | OFFERS AND CONCLUSION OF THE AGREEMENT
- Any quotation made by The Fully Bookers is without obligation, even if it stipulates a period for acceptance. An offer made by The Fully Bookers can be revoked by the customer until immediately after acceptance.
- The customer cannot derive any rights from an offer made by The Fully Bookers which contains an obvious mistake or error, or from an offer made by The Fully Bookers which is based on incorrect or incomplete data provided by the customer.
- Without prejudice to the provisions of paragraph 1, every agreement is concluded by the customer's written acceptance of the quotation made by The Fully Bookers. Offers made by The Fully Bookers can only be accepted by the customer in full, unless The Fully Bookers indicates otherwise.
- If the client concludes the agreement on behalf of another natural or legal person, he declares by entering into the agreement that he is authorised to do so. In addition to this (legal) person, the client is jointly and severally liable for the fulfilment of the obligations arising from that agreement.
ARTICLE 4. | CONTENT AND EXECUTION OF AGREEMENTS IN GENERAL
- The Fully Bookers only undertakes towards the customer to provide the services explicitly agreed upon by the parties in the quotation accepted by the customer. Without prejudice to the provisions in the next paragraph, The Fully Bookers is never obliged to provide services which go beyond the content or scope of the agreement.
- If parties agree that performances are carried out by or on behalf of The Fully Bookers which go beyond the content or scope of the agreement, these performances will be carried out at the usual hourly rate charged by The Fully Bookers.
- Insofar as nothing is explicitly stipulated in this respect, such as in the offer accepted by the customer, The Fully Bookers is entitled to execute the agreement according to its own (technical and creative) insight.
- The Fully Bookers will execute agreements to the best of its knowledge and ability and in accordance with the requirements of good craftsmanship. Insofar as the nature and/or purport of the agreement does not imperatively prevent it, The Fully Bookers does, however, only undertake an obligation of means. For example, The Fully Bookers cannot guarantee that the online marketing campaign(s), website and consultancy services set up and to be managed by The Fully Bookers for the customer will lead to the commercial results the customer intended to achieve by entering into the agreement.
- The Fully Bookers is at all times authorised to involve third parties in the execution of the agreement, which in the sense of the following paragraphs of this article are understood to mean independent auxiliary persons not subordinated to The Fully Bookers. The Fully Bookers is at all times at liberty to choose which third parties it wishes to involve in the execution of the agreement.
- The Fully Bookers is not liable for mistakes or shortcomings of third parties it has involved in the execution of the agreement, except to the extent that this is compulsorily prevented by law in the given circumstances of the case.
- The applicability of Sections 7:404 and 7:407(2) of the Dutch Civil Code is excluded.
- These general terms and conditions are also stipulated on behalf of third parties which The Fully Bookers may have engaged in the execution of the agreement. Therefore, to the extent that the rights or obligations under the agreement cannot, by their nature or purport, be exclusively reserved to The Fully Bookers, these third parties can invoke the provisions of these general terms and conditions against the Customer as if they themselves were a party to the agreement.
ARTICLE 5. | OBLIGATIONS OF THE CLIENT IN GENERAL
- The customer guarantees that he will provide The Fully Bookers, both on request and unsolicited, the latter to the extent that the customer should reasonably understand that such information is required, with all information which is reasonably relevant for the set-up and execution of the agreement, within a reasonable time.
- If The Fully Bookers provides delivery instructions regarding the provision of information and/or data files by the customer, for example for website design work, these instructions must be strictly observed.
- The customer must always provide The Fully Bookers with all the cooperation required for the execution of the agreement, including the granting of all powers and authorisations, such as providing log-in details, which are necessary for a proper execution of the agreement. The client shall take all reasonable measures to optimise the execution of the agreement.
- If the agreement is executed on the customer's premises or at another location designated by him and agreed upon by the parties, the customer shall ensure that the persons employed by The Fully Bookers can use all the items and facilities present and reasonably required by them at that location free of charge.
- In the case of online marketing campaigns, the client must ensure sufficient campaign budget. This concerns the costs to be paid to, for example, Google or Facebook. The campaign budget is not included in the agreed prices and must be paid directly by the client to the third parties concerned. To the extent necessary for the proper execution of the agreement, the client will always ensure the availability of a sufficient campaign budget.
ARTICLE 6. | DURATION, CANCELLATION AND TERMINATION OF AGREEMENTS
- The agreement shall end upon its completion, unless it is evident from the nature or tenor of the agreement that the parties have undertaken to each other to provide continuous, recurrent or successive services (hereinafter: subscription).
- A subscription is entered into for the expressly agreed term, unless the subscription states that it has been entered into for an indefinite period of time.
- A subscription entered into for a limited period of time shall be automatically renewed for an indefinite period of time upon its expiry, unless the subscription has been cancelled in time in accordance with the provisions of the following paragraph. In deviation from the previous sentence, a pay-per-result-formula will always be tacitly renewed for the term originally agreed.
- Subscriptions shall end by termination by e-mail (email@example.com), subject to a notice period of one month, but not before the agreed fixed term has expired. Termination shall take place by the end of the month. Contrary to the above a subscription with respect to marketing automation shall end on the last day of the month in which notice of termination was given, but also not before the agreed fixed period has expired.
- If no timely notice of termination is given, the subscription will end on the next possible termination date.
- In the event of early termination of the agreement by the customer, or failure by the customer to observe the applicable period of notice, the customer remains liable to pay the full agreed price, calculated on the basis that The Fully Bookers would have been able to fully perform the agreement until it would have been terminated in a regular manner.
ARTICLE 7. | DEADLINES AND FORCE MAJEURE
- The Fully Bookers does its utmost to meet the execution and delivery deadlines it has agreed upon with the customer, however, unless explicitly agreed otherwise, these deadlines are never firm deadlines. In the event of a non-fatal term, The Fully Bookers' default does not commence until the customer has given The Fully Bookers written notice of default, in which a reasonable term for compliance is stated, and The Fully Bookers is still in default after the expiry of the last-mentioned term.
- If The Fully Bookers is dependent on information provided by the customer for the execution of the agreement, the execution and delivery periods referred to in the previous paragraph do not commence until such time as The Fully Bookers has received such information.
- The Fully Bookers is not obliged to fulfil any obligation under the agreement if and for as long as he is prevented from doing so by a circumstance that cannot be attributed to him under the law, a legal act or socially accepted standards. Force majeure also includes the circumstance that The Fully Bookers is not able to fulfil the agreement (in time) due to the actions of third parties, including auxiliary persons hired by The Fully Bookers, or due to other unforeseen circumstances.
- If the situation of force majeure renders compliance with the agreement permanently impossible, the parties shall be entitled to dissolve the agreement with immediate effect for that part to which the situation of force majeure relates.
- If The Fully Bookers has already partially fulfilled its obligations when the force majeure occurs, or can only partially fulfil its obligations, it has the right, unless there is no independent value, to separately invoice the part of the agreement already fulfilled, or which can be fulfilled.
- Damage caused by force majeure shall never be eligible for compensation, without prejudice to the application of the previous paragraph.
ARTICLE 8. | DELIVERY AND COMPLAINTS FOR WEBSITE DESIGN
- Designs of websites are based on the proposals approved by the customer and any adjustments and/or additions agreed upon afterwards between the parties. Without prejudice to the provisions in paragraph 7, The Fully Bookers is only liable to repair the delivered design of a website free of charge if and to the extent that the delivered design deviates from what was approved by the customer or explicitly agreed between parties. The client can never claim further compensation than the repair of the deviations free of charge.
- Designs of websites produced by or on behalf of The Fully Bookers are considered to have been delivered at the moment The Fully Bookers has given the customer a notification to that effect or it is otherwise reasonably known to the customer that the design has been completed by or on behalf of The Fully Bookers.
- Upon delivery of the design, the customer should immediately check whether the delivery in question has been carried out properly by or on behalf of The Fully Bookers. The customer must immediately inform The Fully Bookers of any visible defects in the delivered goods.
- The customer must notify The Fully Bookers in writing within seven days of delivery of any defects in the delivered goods which were not reasonably visible at the time of delivery.
- If the customer does not complain in time, no obligation arises for The Fully Bookers from such a complaint by the customer.
- Even if the customer complains in time, the obligation of the customer to timely payment and further performance of the agreement remains.
- Deviations between, on the one hand, the delivered designs of websites and, on the other hand, what has been approved by the customer or explicitly agreed upon between parties, cannot be a reason for complaints, compensation, dissolution of the agreement or damages, if they are of minor importance. Deviations which, taking all circumstances into account, do not reasonably have any influence or only a minor influence on the user value of the delivered website, will always be considered as deviations of minor importance.
- Without prejudice to the provisions in the remainder of this article, the client may request The Fully Bookers to modify the delivered design at the usual hourly rate charged by The Fully Bookers or at a fixed price to be agreed.
ARTICLE 9. | COMPLAINTS REGARDING OTHER SERVICES AND INVOICES
- The provisions in this article apply to other services provided by The Fully Bookers than the design of websites referred to in the previous article.
- The customer is obliged to inform The Fully Bookers verbally of any complaint about the execution of the agreement immediately after it has been established, or at least when it could reasonably have been established that there was a defect, and to subsequently confirm this to The Fully Bookers in writing within two working days, failing which The Fully Bookers is deemed to have fulfilled its obligations and the customer can no longer appeal to any shortcoming on the part of The Fully Bookers in this regard.
- Complaints about the amount of the invoice must be submitted in writing to The Fully Bookers within seven days of the invoice date, failing which the customer's right to object is forfeited.
- If the customer does not complain in time, no obligation arises for The Fully Bookers from such a complaint by the customer.
- Even if the customer complains in time, the obligation of the customer to pay in full and on time, as well as the obligation to further fulfil the agreement shall remain in force.
ARTICLE 10. | SUSPENSION AND DISSOLUTION
- If and to the extent that the Customer does not, not timely or not fully meet his obligations under the agreement, or if after the conclusion of the agreement circumstances come to the knowledge of The Fully Bookers, The Fully Bookers is authorised to suspend the execution of the agreement or to dissolve the agreement in whole or in part with immediate effect, if and to the extent that the Customer does not, not timely or not fully meet his obligations under the agreement, or if and to the extent that the Customer has good reason to fear that the Customer will not meet his obligations under the agreement.
- If the customer is in a state of bankruptcy, has applied for a (temporary) moratorium of payments, has had his goods attached or is otherwise unable to freely dispose of his assets, The Fully Bookers is entitled to dissolve the agreement with immediate effect, unless the customer has already provided sufficient security for the amounts owed and still owed.
- In addition, The Fully Bookers is authorised to dissolve the agreement if and to the extent that circumstances arise which are of such a nature that fulfilment of the agreement is impossible or unaltered maintenance thereof cannot reasonably be required of it.
- The customer is never entitled to any form of compensation in connection with the right of suspension or dissolution exercised by The Fully Bookers pursuant to this article, on the understanding that if the circumstance leading to the dissolution of the agreement should reasonably be at The Fully Bookers' risk, the customer is entitled to restitution or remission of the price in proportion to the part of the agreement not executed due to the dissolution.
- As far as this can be attributed to him, the customer is obliged to compensate The Fully Bookers for the loss suffered as a result of the suspension or dissolution of the agreement.
- If The Fully Bookers dissolves the agreement pursuant to this article, all claims on the customer are immediately due and payable.
ARTICLE 11. | PRICES AND PAYMENTS
- The Fully Bookers' quotation lists price factors as accurately as possible, which may include, but is not limited to, a fixed price or periodic subscription rate. Unless proven otherwise, The Fully Bookers' records are decisive in determining the amounts owed by the customer.
- If and to the extent that services are provided at the customer's location or at another location designated by him and agreed upon by the parties, travel expenses amounting to €0.29 per kilometre are charged to the customer, calculated from and to the office address of The Fully Bookers.
- Unless explicitly stated otherwise, all prices quoted by The Fully Bookers are exclusive of VAT.
- Regarding subscriptions entered into or tacitly renewed for an indefinite period, The Fully Bookers is entitled to raise the subscription rate, on the understanding that The Fully Bookers notifies the customer of this in writing at least two months before the increase takes effect, so that the customer is still in a position to terminate the subscription if so desired before the price increase becomes effective.
- Prices for subscriptions are invoiced monthly in advance. For services other than subscription services, the following payment terms apply, unless explicitly agreed otherwise:
- Full payment in advance in case of purchase of strippenkaart;
- For other services, as in the case of website design: 50% of the agreed price at the conclusion of the agreement and the remainder before going live.
- The Fully Bookers is entitled to increase the monthly subscription fee, as well as the applicable hourly rate for additional work, annually per 1 January. In that case, an increase is determined by multiplying the last applicable rate by a fraction whose numerator is the index figure applicable to the month of October preceding the increase and whose denominator is the index figure applicable to the month of October of the preceding year. The index figures are the price index figures of family consumption (CPI), all households, published by Statistics Netherlands.
- Price changes resulting from changes in VAT rates may be passed on to the Other Party at any time and with immediate effect.
- The Fully Bookers is not obliged to (further) execute the agreement in case the client is in default of fulfilling any outstanding and already due payment obligation towards The Fully Bookers.
- Depending on what has been explicitly agreed in this respect, payments shall be made by means of bank transfer or direct debit. Payments by bank transfer must be made within 14 days of the invoice date, in the manner otherwise prescribed on the invoice.
- In case of direct debit, The Fully Bookers is entitled to charge reasonable administration fees if a payment is reversed or cannot be collected automatically for other reasons. In such cases, The Fully Bookers may claim the outstanding payments, including the administration fees referred to here, by bank transfer. In this case, payment must be made within the period specified by The Fully Bookers on the invoice.
- The other party shall make payments to The Fully Bookers without any recourse to suspension or set-off.
- The Fully Bookers is entitled to make invoices due to the client available to the client exclusively by e-mail.
- If payment is not made on time, the client shall be in default by operation of law. From the day the client's default commences, the client shall owe interest of 2% per month on the outstanding amount, with part of a month being considered a full month.
- All reasonable costs, both judicial, extrajudicial and execution costs, incurred to obtain the amounts due by the client, shall be borne by the client, always with a minimum of € 189.
- If desired, invoicing can be divided over several sales relations, above two sales relations there is a cost for this namely: €30 ex VAT per invoice, per location.
ARTICLE 12. | LIABILITY AND INDEMNIFICATION
- The Fully Bookers executes each agreement to the best of its knowledge and ability. Insofar as the nature or purport of the agreement does not compulsorily prevent it from doing so, The Fully Bookers only undertakes to perform to the best of its ability and can never offer any guarantee as to the realisation of the (turnover) results the customer intended to achieve by entering into the agreement.
- To the extent that an order provides for such services, the customer grants The Fully Bookers implicit permission to make changes to the CMS, and in the event of online marketing campaigns, changes to those campaigns. These changes are carried out at the customer's risk. The Fully Bookers never bears any liability for damage as a result of such changes.
- Without prejudice to the other provisions of these general terms and conditions, The Fully Bookers is not liable for any loss or damage in connection with or caused by any inaccuracy or incompleteness in the information provided by the customer, any other failure in the performance of the customer's obligations under the law or the agreement, or any other circumstance which cannot be attributed to The Fully Bookers.
- Except for intent and deliberate recklessness on its part, The Fully Bookers is never liable for damage as a result of loss, mislaying, substitution or damage of data and other information of the customer.
- The Fully Bookers is never liable for damage caused by insufficient technical maintenance of the website of the customer.
- The Fully Bookers is, except for intent and deliberate recklessness on its part, never liable for damage as a result of breaches by third parties of the website of the customer, whether or not as a result of insufficient security thereof.
- The Fully Bookers is not liable for damage as a result of failures or maintenance to be carried out on servers and other systems on which the service of The Fully Bookers depends.
- Liability of The Fully Bookers for repairable shortcomings does not exist until after the customer has given The Fully Bookers the opportunity to repair these shortcomings, failing which no liability whatsoever arises for The Fully Bookers in this regard.
- The Fully Bookers is not obliged to ascertain whether the content supplied by the customer for the execution of the agreement, such as photographs, videos, texts and other files for example for website design, is lawful, correct and complete. The Fully Bookers therefore accepts no liability whatsoever for the processing of this content during the execution of the agreement. The customer indemnifies The Fully Bookers of all claims by third parties based on the proposition that the content provided by the customer for the execution of the agreement is unlawful, inaccurate or incomplete.
- The Fully Bookers is not liable for infringement of (intellectual property) rights of the customer by third parties.
- The Fully Bookers is never liable for indirect loss or damage, including but not limited to loss incurred, loss of profit and loss caused by business interruption. Without prejudice to the provisions of the rest of these general terms and conditions, and in particular the provisions of the following paragraph, The Fully Bookers can only be held liable for direct damage suffered by the customer as a result of an attributable failure on the part of The Fully Bookers in the performance of its obligations under the agreement. A culpable shortcoming is understood to be one that a good and careful professional can and should avoid, all this in observance of normal vigilance and the professional knowledge and means required for the execution of the agreement.
- Liability of The Fully Bookers is, barring intent or deliberate recklessness on its part, in any event limited to a maximum of the invoice value of the agreement, or in any event to that part of the agreement to which The Fully Bookers' liability relates, with an absolute maximum of € 2,500 (excl. VAT) per damaging event, whereby a series of connected events is regarded as a single event. If the agreement has a term of more than three months, only the invoice value for the last three months of the agreement will be used as a basis for determining the invoice value as referred to in the previous sentence.
- A condition for the arising of any right to compensation is that the customer has reported the loss to The Fully Bookers in writing immediately after it has arisen.
- Without prejudice to the expiry periods as stated in articles 8 and 9, the limitation period for all claims and defences against The Fully Bookers is one year.
- The customer indemnifies The Fully Bookers against any claims by third parties, who suffer damage in connection with the execution of the agreement and whose cause is attributable to others than The Fully Bookers.
ARTICLE 13. | INTELLECTUAL PROPERTY
- The Fully Bookers, its licensors or other third parties engaged by it reserve all copyrights and all other intellectual property rights to the (graphic and digital) designs produced and delivered by it, as well as to its working methods and the files and other data produced and made available to the customer as part of its consultancy services, or in any other context whatsoever. The client is forbidden to duplicate these goods or have them duplicated or to reproduce them or to use them in any other way than provided for in the agreement.
- In the event of an infringement of the intellectual property rights referred to in the previous paragraph that can be attributed to the client, all legal rights are reserved, including the right to compensation for damages and undoing of the infringement.
ARTICLE 14. | FINAL PROVISIONS
- All agreements and all legal relationships arising therefrom between the parties shall be governed exclusively by Dutch law.
- Before resorting to the courts, the parties are obliged to make every effort to settle the dispute by mutual consultation.
- Only the competent court within the district of The Fully Bookers' place of business is appointed to take cognisance of any legal disputes.