HS Brands Europe
Article 1. Applicability and conclusion of agreement
1.1. These general terms and conditions apply to all agreements, legal relationships and quotations with or from the private limited liability company "HS Brands B.V." established in Hilversum, Netherlands, hereinafter referred to as "HS Brands".
1.2. The applicability of general or specific (purchase) conditions of the client is hereby expressly rejected by HS Brands and therefore those conditions shall not be applicable.
1.3. All quotations or offers issued by HS Brands are without obligation, unless stated otherwise. If a period is mentioned in the quotation or offer, this period only concerns the validity of the quotation or offer and does not affect the non-binding nature.
1.4. Unless expressly agreed otherwise, the agreement between HS Brands and the client shall be effected by full acceptance of the quotation by the client. Acceptance takes place by signing the order confirmation or signature page of the quotation by the client.
1.5. In case of a deviating acceptance of a quotation, HS Brands reserves the right to issue a new quotation which will replace the previous quotation, in the sense that the old quotation -if and as far as it was not already the case- loses its validity. The new quotation can be accepted by the client in the same way as mentioned above.
1.6. The actual start of the execution of the agreement on the part of the client, including, but not limited to, the payment of invoices as sent by HS Brands, shall be considered as acceptance of these conditions.
Article 2. Execution of the Agreement
2.1. The client shall provide HS Brands, on time and free of charge, with all information and data required for the execution of the contract. The client vouches for and guarantees the correctness of the aforementioned information and data. The client is also responsible for, and accepts the risk of, possible problems and/or claims resulting from the content, accuracy, completeness and consistency of all such data and information provided by the client. Furthermore the client is obliged to immediately inform HS Brands of facts and circumstances that might be relevant for the execution of the contract.
2.2. If information or data necessary for the execution of the agreement is not provided to HS Brands in a timely manner or not in accordance with what was agreed, or if the client and/or its suppliers fail to comply with its obligations in another way, including but not limited to, not co-operating adequately or deploying, HS Brands is entitled to suspend the execution of its obligations.
2.3. All delivery dates given or to be given at any time by HS Brands are always approximate and shall never be considered as strict deadlines.
2.4. HS Brands will perform its activities to the best of its knowledge and ability and will strive to achieve the best results for the client.
2.5. Work that is not part of the agreement shall only be performed after written consent has been obtained from the client.
Article 3. Prices and rates, invoicing and payment
3.1. All prices and rates are indicated in euros, exclusive of turnover VAT and exclusive of other government levies.
3.2. HS Brands is entitled to annually increase the prices and rates for its services. For long-term agreements, if the increase is more than three (3) percent above the previous year, the client has the right to cancel the agreement.
3.3. All invoices must be paid by client within 14 (fourteen) days after invoice date. In case of non-payment within the payment period the client - after being reminded by HS Brands and after allowing the client a reasonable period to pay - is in default, which results in all invoices that are not yet due becoming immediately payable. The client shall also, without any notice of default being required, pay to HS Brands the current legal commercial interest per month over the invoice amount. All this is without prejudice to the right of HS Brands to claim additional compensation(s) from the client. This shall also include the extra judicial costs reasonably incurred.
3.4. Any claims based on allegedly incorrect invoices or (allegedly) deficiencies in the execution of the agreement must be received in writing by HS Brands within seven (7) days of the invoice date or execution respectively, failing which the right to claim on the invoice concerned shall expire.
3.5. After executing the agreement, HS Brands shall charge the client 25% (twenty-five percent) of the fee stipulated for the agreement by means of an invoice, however, if the fee stipulated for the agreement does not exceed the amount of € 5.000 (five thousand euros) excluding VAT, the fee shall be charged to the client at once after executing the agreement by means of an invoice. HS Brands is not obliged to start the stipulated work any earlier than this until the amount charged in accordance with the previous sentence has been paid by the client.
3.6. If nobody is present at the location to be visited or the location is closed and HS Brands is not aware of this information in advance, HS Brands is entitled to invoice the agreed activities in accordance with the agreed prices and/or rates.
Article 4. Intellectual property rights
4.1. Any intellectual property rights on what HS Brands produces or makes available to the client as part of the execution of the agreement shall remain with HS Brands, unless explicitly agreed upon otherwise.
4.2. The client is expressly permitted to publish or present the results of a survey carried out by HS Brands on behalf of the client, provided that HS Brands is mentioned as follows: "HS Brands <month of survey> <year of survey>".
4.3. The reservation of intellectual property rights as referred to in paragraph 1 applies in particular to (online) questionnaires, therefore the client is not permitted to use or reuse the (online) questionnaires without the prior consent of HS Brands.
Article 5. Confidentiality
5.1. Information is confidential if it is either designated as such by one party or the other party otherwise knows or may suspect that information is confidential.
5.2. Parties, and the staff of parties, shall only use confidential information obtained or made available by the other party in accordance with the provisions of the Agreement and shall not directly or indirectly provide it to third parties, or give permission for it to be provided, without the prior written consent of the other party. The parties, including the staff of the parties, shall furthermore take all necessary precautions to protect such information from unauthorised use and disclosure.
5.3. HS Brands is entitled to use the trade name, logo and/or word mark of the client on its website or in commercial material to indicate that HS Brands has realised (a) solution(s) or performed work for the client. The client hereby grants its permission for this.
5.3. The provisions of this article shall not apply if a party is required to disclose confidential information by virtue of a court order or government decision.
5.4. The provisions of this article shall apply accordingly to the period prior to the formation of the agreement as well as to the period after the termination of the agreement, irrespective of the manner in which, and the reason for which, the agreement was terminated.
Article 6 Processing of personal data
6.1. HS Brands is entitled to include the personal data of the client in the personal registration of HS Brands which is required for its administration and management tasks.
6.2. For the purpose of processing personal data, the following roles are respectively distinguished and recognised by parties (including the associated responsibilities): Principal is the data controller, HS Brands is considered the data processor, any third party used by HS Brands to process personal data is a sub-processor.
6.3. HS Brands processes personal data within the framework of the agreed and provided service(s) in accordance with the General Data Protection Regulation (hereinafter: AVG).
6.4. HS Brands will process personal data on behalf of the client as part of the execution of the agreed activities, whereby HS Brands is not allowed to process the personal data obtained from the client for its own purposes, other than agreed, and/or to provide it to third parties.
6.5. Customer guarantees that the content, the use and the instruction to process the personal data are not unlawful and do not infringe any rights of third parties. The client shall in particular ensure that no special personal data is processed with the use of services. The client shall indemnify HS Brands against all claims that are related to this.
6.6. Customer guarantees that it will implement internally appropriate technical and organisational measures to secure personal data against loss or any form of unlawful processing, such as, for instance, timely patching of the hosting environment, an adequate password policy and an authorisation structure that is appropriate for the users' positions, whereby Customer is responsible for setting up this authorisation structure itself properly.
6.7. HS Brands shall implement appropriate technical and organisational measures to secure personal data against loss or any form of unlawful processing. These measures guarantee, taking into account the state of the technology and the costs of implementation, an appropriate security level in view of the risks that the processing and the nature of the personal data to be protected entail. The measures shall also aim to prevent unnecessary collection and further processing of personal data. These measures only relate to the Service, not to the environment in which the Service is used by the Customer.
6.8. HS Brands guarantees to cooperate with an audit at the first request of the client, if the client wants to establish to which extent HS Brands fulfils its obligations pursuant to the General Data Protection Regulation, as long as the costs of the audit and the costs related to the deployment of HS Brands employees are and remain at the expense of the client. HS Brands cannot guarantee that an audit can take place with a subcontractor of HS Brands which also processes personal data.
6.9. HS Brands may use a sub-contractor as part of the agreement. The client hereby gives general permission in advance to use sub-contractor. On first request of the client, HS Brands will provide the list of sub-contractors. This list can be extended by HS Brands at its own discretion. If HS Brands expands the list with new sub-contractors, the client will be informed of this in time, whereby the client is given the opportunity to object to the intended new sub-contractors.
6.11. If HS Brands suspects, or has found out, that the personal data of the client is or has been compromised (security breach or a data leak), HS Brands shall report this to the client without delay. As a result of this, the client will decide if it will inform those involved or not and if an incident needs to be reported to the competent authorities. The client remains responsible for all legal obligations in this respect. If necessary, HS Brands will cooperate on request of Principal in order to comply with these legal obligations.
6.12. In the case a data subject requests HS Brands for review, correction or deletion, or wishes to exercise any other right to which they are entitled, HS Brands will forward the request to Principal, and Principal will further process the request. HS Brands will inform the data subject of the forwarding of the request to Processor. If not in violation of any legal provision, HS Brands will cooperate with Principal in handling and processing the request.
6.13. After expiry of the term of the contract/assignment or the specified processing time of the personal data or termination of the contract/assignment, HS Brands shall give the Principal the opportunity to obtain the personal data before deleting the personal data.
6.14. Sections 6.1 to 6.13 apply as a basic processor agreement between parties. At the first request of the client, HS Brands shall cooperate in concluding a separate processor agreement as referred to in the AVG.
Article 7. Transfer of rights and obligations, subcontracting
7.1. The client is not entitled to transfer rights and obligations to a third party without the prior written consent of HS Brands. The consent as referred to above cannot be withheld by HS Brands on unreasonable grounds.
7.2. HS Brands is entitled to make use of third parties in the execution of the order, regardless of whether this takes place on the basis of subcontracting or hiring of personnel. HS Brands shall impose the confidentiality requirement as stipulated in the previous article on these third parties.
7.3. HS Brands is entitled to transfer all rights and obligations acquired within the framework of the contract to third parties without any additional restrictions. It shall inform the client of this as soon as possible.
Article 8. Culpable and non-attributable shortcomings
8.1. HS Brands shall only be liable for direct loss for attributable shortcomings in the execution of the agreement, or for any other reason, up to a maximum of the fee or price stipulated for the agreement, excluding VAT, or if the agreement is mainly a continuing performance agreement, the loss shall be limited to direct loss up to a maximum of half the annual stipulated fee for that continuing performance agreement. In no event shall liability exceed €40,000 (forty thousand euros).
8.2. The liability of HS Brands for indirect damage, consequential damage, loss of profit, missed savings, reduced goodwill, damage due to business stagnation, damage as a consequence of claims by clients of HS Brands, damage related to the use of goods, methods, materials or software of third parties prescribed by the client to HS Brands and damage related to the use of suppliers prescribed by the client to HS Brands is excluded. Also excluded is the liability of HS Brands for mutilation, destruction or loss of data or documents.
8.3. The aforementioned exclusions and limitations shall cease to apply if and to the extent that the damage is the consequence of intent or deliberate recklessness of the management of HS Brands.
8.4. Unless fulfilment by HS Brands is permanently impossible, the liability of HS Brands for an attributable failure of the fulfilment of a contract shall only arise if the client puts HS Brands in default immediately and in writing, whereby a reasonable period for the rectification of the failure is given, and HS Brands continues to fail attributably with regard to the fulfilment of its obligations after this period. The notice of default must contain a description of the shortcoming that is as complete and detailed as possible, so that HS Brands is given the opportunity to respond adequately.
8.5. The provisions in this article as well as all other limitations and exclusions of liability mentioned in these general conditions are also valid for the benefit of all (legal) persons whose services HS Brands uses in the execution of the agreement.
8.6. HS Brands is not obliged to comply with an obligation if it is prevented from doing so as a consequence of a circumstance which cannot be attributed to HS Brands and which cannot be attributed to HS Brands by law, legal act or generally accepted practice. If HS Brands claims a case of force majeure towards the client, HS Brands shall notify the client of this as soon as possible, but within a reasonable period.
8.7. A non-attributable shortcoming (force majeure) for HS Brands is understood to mean in any case the impossibility for HS Brands to comply with its obligations as a result of (long term) illness, strikes, traffic jams, loss of data and documents, power failures, delayed delivery of products and/or services, regardless of whether this circumstance is or occurs at HS Brands itself or at its supplier(s), unsuitability of materials or working methods of which the use has been prescribed to HS Brands by the client.
Article 9. Duration and termination
9.1. The agreement enters into force at the moment the parties have entered into an agreement pursuant to article 1, unless otherwise stipulated in the agreement. If the agreement does not concern a continuing performance contract, the agreement shall end as soon as the obligations of both parties have been fulfilled in the framework of the execution of the agreement. If the agreement is primarily a continuing performance agreement, articles 8.2 up to and including 8.4 apply.
9.2. An agreement is entered into for the term specified in the offer or order confirmation. If no term has been agreed, it shall be deemed to have been entered into for one (1) year.
9.3. After the expiry of the (initial) term of the agreement, the agreement shall be extended for a period equal to the initial term unless it is terminated by the client giving thirty (30) days' written notice at the end of the term.
9.4. Premature termination of a long-term agreement is not possible without the express consent of HS Brands. HS Brands may attach conditions to this permission.
9.5. Without prejudice to the provisions of the contract, HS Brands is entitled to dissolve the contract, in whole or in part, with immediate effect by means of a written statement and without prior notice of default or notification:
a. if Client fails imputably in respect of one or more of his obligations and/or compliance is impossible;
b. if HS Brands believes that the client is not able or willing to meet its obligations;
c. if the client has applied for a suspension of payments, is in a state of bankruptcy, proceeds to liquidate its business or ceases its activities or appears to be insolvent in any way;
d. if HS Brands suffers damage to its image as a result of working with a client, or if a further working relationship with a client will result in foreseeable damage to the image of HS Brands.
9.6. In case of dissolution as referred to above, HS Brands shall never be liable for any kind of compensation. The client shall indemnify HS Brands and hold it without fault against claims from third parties which are caused by or in connection with the dissolution as referred to in the previous paragraph.
9.7. In the case of dissolution as referred to in section 8.5, the client is obliged to immediately reimburse all costs already incurred by HS Brands, without prejudice to the right of HS Brands to claim full compensation.
9.8. If, at the time of dissolution of an agreement, parties have already performed and received results in execution thereof, these results and related payment obligations shall not be subject to cancellation.
9.9. Obligations which by their nature are intended to continue after the termination of the assignment shall continue. The termination of the agreement does not explicitly release the parties from the provisions regarding confidentiality, intellectual property rights, applicable law and competent court.
9.10. If and to the extent that HS Brands has given the client access to online environments, the access to these environments shall remain valid for three (3) months after termination.
Article 10. Applicable law, competent court and other provisions
10.1. All offers, agreements and contracts resulting from agreements to which these terms and conditions apply and all resulting legal relationships are governed exclusively by Dutch law.
10.2. Parties shall prefer to settle their disputes by mediation.
10.3. If parties cannot reach an agreement through mediation on a dispute resulting from or related to the contract, the dispute will be presented to a competent judge within the district where HS Brands has its registered office.
10.4. In the event of conflict between the provisions of these general terms and conditions, the order confirmation or the offer, the order confirmation shall prevail over these general terms and conditions and these general terms and conditions shall prevail over the offer.
10.5. If and insofar as any provision of these general terms and conditions is annulled or declared null and void, the other provisions shall remain in full force between the parties. In that case, the parties shall agree on a new provision which shall, as far as possible, take account of the purport of the void/cancelled provision.