Terms & Conditions
Article 1 — General
1.1 Applicability These terms apply to all offers, quotations and agreements between The Green Surfer VOF (CoC 52692892), hereinafter referred to as 'TGS', and a Client to whom TGS has declared these terms applicable. Deviations are only valid if both parties have agreed to them in writing.
1.2 Third parties and staff These terms also apply to agreements in which TGS engages third parties for performance, and to all staff and the management of TGS.
1.3 Exclusion of purchasing terms TGS expressly rejects the applicability of any purchasing or other terms of the Client, unless both parties have confirmed otherwise in writing.
1.4 Partial nullity If one or more provisions in these terms are (partially) void or are annulled, the remaining provisions remain fully in force. The parties will then consult to replace the void provision with a new one that aligns as closely as possible with the original intention.
1.5 Interpretation In the event of ambiguity about the interpretation of one or more provisions, the spirit of these terms serves as a guideline. Situations not covered by these terms are assessed in the same way.
1.6 Lenient application If, in a specific situation, TGS does not require strict compliance with these terms, this does not mean that the terms do not apply or that TGS loses the right to require strict compliance later on.
Article 2 — Quotations and offers
2.1 Without obligation All quotations and offers from TGS are without obligation, unless the quotation states a validity period. If no period is stated, no rights can be derived from the quotation if the product or service is no longer available in the meantime.
2.2 Errors in the quotation TGS cannot be held to a quotation if the Client could reasonably have understood that it contained a mistake or a clerical error.
2.3 Prices All prices in quotations are exclusive of VAT and other government levies. Travel, accommodation, shipping and administrative costs are not included, unless expressly stated otherwise.
2.4 Deviating acceptance If the Client accepts the quotation with deviations, TGS is not bound by them. No agreement is then concluded on the basis of those deviations, unless TGS expressly agrees to this.
2.5 Combined quotation A combined quotation does not oblige TGS to perform part of the assignment for a proportionate part of the price. A quotation does not automatically apply to future assignments.
Article 3 — Term, performance and price increases
3.1 Term The agreement is entered into for an indefinite period, unless the nature of the assignment dictates otherwise or the parties have agreed a different term in writing.
3.2 Performance periods Stated periods are never strict deadlines. If a period is exceeded, the Client must give TGS written notice of default and a reasonable period to still perform the assignment.
3.3 Quality of performance TGS performs the assignment to the best of its insight and ability, in accordance with the requirements of good workmanship and the state of the art at that time.
3.4 Engaging third parties TGS has the right to have work carried out by third parties. Articles 7:404, 7:407 paragraph 2 and 7:409 of the Dutch Civil Code (BW) do not apply.
3.5 Facilities on site If work is carried out at the Client's location, the Client provides the necessary facilities free of charge.
3.6 Delivery and risk Delivery takes place from the premises of TGS. The risk of loss, damage or depreciation passes to the Client at the moment the goods are made available to them.
3.7 Phased performance TGS may perform the assignment in phases and invoice each phase separately. A subsequent phase may be suspended until the Client has approved the previous phase in writing.
3.8 Provision of information The Client ensures that all necessary information is provided to TGS in good time. If this does not happen, TGS has the right to suspend performance and charge additional costs. TGS is not liable for damage arising from incorrect or incomplete information from the Client.
3.9 Price increase Even in the case of a fixed price, TGS has the right to increase the price if the increase results from laws or regulations, or from circumstances such as rising wage or material costs that were not reasonably foreseeable when the agreement was concluded. The Client may not dissolve the agreement for this reason.
Article 4 — Additional work
4.1 Definition of additional work Additional work is all work that TGS performs outside the scope of the original assignment or quotation. This arises, for example, if the Client has additional wishes during performance, changes the brief, wants to reopen previously approved parts, or if the information provided turns out to differ from the actual situation.
4.2 Notification and approval TGS flags additional work as early as possible and submits it to the Client in writing, with an indication of the extra costs and any consequences for the planning. TGS only starts the additional work after the Client has given written approval. In urgent situations, TGS may carry out the additional work immediately and state the costs afterwards.
4.3 Compensation Additional work is charged on the basis of the hourly rates of TGS applicable at that time, unless the parties agree a different fee in writing. Additional work is invoiced separately.
4.4 No grounds for dissolution The fact that additional work proves necessary does not give the Client the right to dissolve or cancel the agreement.
Article 5 — Revisions and correction rounds
5.1 Included revision rounds The number of included revision rounds per phase or part of the assignment is laid down in the quotation or project description. Unless expressly agreed otherwise, a maximum of two revision rounds per delivered part applies to creative and digital productions.
5.2 What counts as a revision round A revision round is a bundled package of comments and change requests from the Client on a delivered concept or interim product. TGS processes these into a next version. Individual comments submitted in between are combined with the next revision round.
5.3 Additional revision rounds Revision rounds above the agreed number are considered additional work and charged separately at the applicable hourly rate of TGS.
5.4 Approval and tacit acceptance After each revision round, TGS asks the Client in writing to approve the delivered version. If the Client does not respond within 10 working days, the version is deemed approved. After approval of a phase, TGS may proceed to the next phase.
5.5 Changes after approval If the Client still wants to make changes after approval of a phase, the costs for this are charged as additional work, even if this affects previously delivered parts.
Article 6 — Suspension, dissolution and interim termination
6.1 Right to suspend and dissolve TGS has the right to suspend performance or dissolve the agreement if the Client fails to fulfil its obligations, does not fulfil them in full or on time, or if there is good reason to expect that this will happen.
6.2 Impossibility of performance TGS also has the right to dissolve the agreement if performance has become impossible, or if unchanged continuation cannot reasonably be required of TGS.
6.3 Consequences of dissolution Upon dissolution, all outstanding claims of TGS become immediately due and payable. TGS is not obliged to pay compensation in the event of suspension or dissolution. If the dissolution is attributable to the Client, TGS is entitled to compensation for all damage and costs arising from this.
6.4 Breach by the Client If the Client fails to fulfil its obligations and this justifies dissolution, TGS may dissolve the agreement with immediate effect without paying any compensation. In that case, the Client remains liable for the damage that TGS suffers.
6.5 Interim termination by TGS If TGS terminates the agreement prematurely, TGS arranges, in consultation with the Client, a proper handover of the work to a third party, unless the termination is attributable to the Client. Additional costs for the handover are charged to the Client.
6.6 Bankruptcy and insolvency In the event of bankruptcy, suspension of payment, liquidation, attachment lasting longer than three months, or debt restructuring affecting the Client, TGS may terminate or cancel the agreement with immediate effect without paying compensation. All outstanding claims then become immediately due and payable.
6.7 Cancellation by the Client If the Client cancels an assignment in whole or in part, all work already carried out, goods ordered or prepared and labour time reserved are charged in full.
Article 7 — Force majeure
7.1 Definition TGS does not have to fulfil its obligations if that is impossible due to a cause that cannot be attributed to TGS and that is not for its account under the law or principles of reasonableness.
7.2 What constitutes force majeure Force majeure includes, among other things: strikes at TGS or at third parties, disruptions in digital infrastructure, failure of external platforms, cloud or API services, pandemics, government measures and extreme weather conditions. TGS may also invoke force majeure if the impeding circumstance arises after TGS should already have performed.
7.3 Suspension and dissolution As long as the force majeure lasts, TGS may suspend performance. If the force majeure continues for longer than two months, both parties have the right to dissolve the agreement, without either party being entitled to compensation.
7.4 Partial performance If TGS had already partly performed the assignment before the force majeure occurred and that part has value in itself, TGS may invoice that part separately. The Client is obliged to pay that invoice as if it were a separate agreement.
Article 8 — Payment and collection costs
8.1 Payment term Invoices must be paid within 14 days of the invoice date, in the manner indicated by TGS and in the currency of the invoice, unless agreed otherwise in writing. TGS may invoice in interim stages.
8.2 Default and interest If the Client does not pay on time, it is in default by operation of law and owes interest of 1% per month on the outstanding amount, unless the statutory interest is higher. Interest runs from the due date until the day of full payment.
8.3 Order of allocation TGS may first allocate payments received to costs incurred, then to interest due and then to the principal sum. TGS may refuse a payment if the Client designates a different order.
8.4 No set-off or suspension The Client may not set off its payments against a counterclaim. Objections to the amount of an invoice do not suspend the payment obligation.
8.5 Collection costs If the Client does not pay or does not pay on time, all reasonable (extra)judicial collection costs are for its account, calculated in accordance with standard Dutch collection practice. Judicial and enforcement costs are also recovered from the Client. Interest is also due on the collection costs.
Article 9 — Retention of title
9.1 Retention of title Everything that TGS delivers remains the property of TGS until the Client has fully fulfilled all obligations under the agreement.
9.2 Restrictions for the Client As long as the retention of title is in force, the Client may not resell, use as a means of payment, pledge or otherwise encumber the delivered goods.
9.3 Insurance The Client is obliged to insure the delivered goods against fire, explosion, water damage and theft, and to show the policy to TGS on request. In the event of an insurance payout, TGS is entitled to the compensation paid out.
9.4 Repossession The Client grants TGS irrevocable permission in advance to enter all premises where property of TGS is located, so that TGS can repossess it if it wishes to exercise its right of ownership.
Article 10 — Intellectual property and creative work
10.1 Ownership of creations All works developed or realised by TGS always remain the property of TGS, unless agreed otherwise in writing. This includes, among other things: concepts, ideas, strategies, designs, wireframes, visual elaborations, texts, code, websites, campaigns, brand names, slogans, content, photography, video, animations and illustrations.
10.2 Copyright and other IP rights TGS retains all rights under the Dutch Copyright Act and other laws and regulations in the field of intellectual property, including trademark rights, database rights, design rights and patent rights. The Client only obtains usage rights if this has been expressly agreed in writing. Unless agreed otherwise, this concerns a non-exclusive, non-transferable licence for the agreed purpose of use and the agreed period.
10.3 Transfer of rights Intellectual property rights are only transferred after full payment of all amounts due and after signing a separate written deed of transfer. Without that deed, no transfer takes place, not even after delivery. For ongoing assignments or maintenance contracts, the rights granted apply only as long as the agreement is active and all payments have been made.
10.4 Exclusivity of creative concepts TGS cannot guarantee that a developed concept, design or creative expression is unique or that a third party has not made or will not make similar work. TGS may also use similar creative concepts, styles or solutions for other clients, unless the parties have expressly agreed exclusivity in writing. Such an exclusivity arrangement involves additional costs that are included in the quotation.
10.5 Protection of concepts and the creative process Ideas, concepts, strategic proposals and creative elaborations that TGS presents in the context of an offer, pitch or ongoing collaboration are the result of the specific expertise and creativity of TGS. The Client is not permitted to use, have elaborated or appropriate these, in any form whatsoever, without the prior written permission of TGS. This also applies if the agreement is ultimately not concluded or ends prematurely. If the Client has a concept or idea of TGS elaborated or implemented by a third party without permission, the Client is liable for damages. The minimum compensation is equal to the amount TGS would have charged for the work.
10.6 Material provided by the Client If the Client provides materials, images, texts or other content that TGS incorporates into the work, the Client warrants that it is entitled to do so and that its use does not infringe the rights of third parties. The Client fully indemnifies TGS against claims by third parties arising from this.
10.7 Open source and third-party licences If TGS uses open source software or third-party components in performing the work, it informs the Client of this. The associated licence terms apply alongside these general terms and take precedence in the event of conflict.
10.8 Use after termination After the end of the agreement, regardless of the reason, all usage rights to non-transferred works lapse, unless agreed otherwise in writing. The Client must cease use of such works with immediate effect.
Article 11 — Pitch, orientation and unpaid preliminary work
11.1 Pitches and presentations If, at the Client's request, TGS takes part in a pitch, orientation meeting or creative presentation without a confirmed assignment in return, all presented concepts, strategies, ideas and elaborations remain the full property of TGS. The Client may not use these, unless an assignment is concluded and all associated costs have been paid.
11.2 Pitch fee TGS is entitled to charge a fee for taking part in a pitch or developing an orientation concept. If a pitch fee has been agreed, it is invoiced regardless of whether the assignment is subsequently awarded. If the assignment is awarded, the pitch fee is offset against the project invoice, unless agreed otherwise.
11.3 No use if not awarded If the assignment is not awarded to TGS, the Client may not use or have elaborated the presented concepts, designs, strategies and other creative elaborations in any way. Breach of this entitles TGS to compensation, at least equal to the full project amount from the associated quotation.
11.4 Orientation meetings Information, recommendations or creative suggestions that TGS shares in an orientation meeting or introduction are intended as an initial exploration and may not be freely used as the basis for an assignment elsewhere. TGS reserves the right to charge a fee for this if the information is demonstrably used commercially without awarding TGS the assignment.
Article 12 — Branding, trademark research and naming rights
12.1 Creative freedom in branding For branding assignments, TGS works on the basis of the brief provided and the available market information. TGS delivers creative work that is, to the best of its ability, original and distinctive, but does not guarantee that names, logos, slogans or other brand elements are free from conflicts with existing rights of third parties.
12.2 Trademark research TGS does not carry out legal trademark research, unless this has been expressly agreed in writing and separately included in the quotation. If the Client wants to know whether a brand name, logo or slogan is freely available for registration, it is the Client's responsibility to engage a specialist for this, such as a trademark lawyer or patent agency.
12.3 Liability in the event of trademark conflicts TGS is not liable for damage arising from a conflict with existing trademark rights, trade names or other rights of third parties regarding the branding developed by TGS, unless TGS has demonstrably been negligent. The Client indemnifies TGS against all claims by third parties in connection with the brand elements chosen or approved by the Client.
12.4 Registration of trademarks If the Client wants to register the brand elements developed by TGS with the Benelux Office for Intellectual Property (BOIP) or another authority, this is the responsibility and risk of the Client. On request and for an additional charge, TGS can provide support in preparing a trademark file, but does not act as a legal adviser.
Article 13 — Digital productions: hosting, domains and licences
13.1 Hosting and domain registration If TGS arranges hosting or domain names on instruction, TGS does so on behalf of the Client with an external party. In that case, the contractual relationship with the hosting provider or domain name registrar is that of the Client, unless agreed otherwise in writing. TGS is not liable for disruptions, outages or policy changes at these external parties.
13.2 Ownership of domain names A domain name registered on the Client's instruction is the property of the Client. If TGS registers a domain name in its own name for the benefit of the Client, TGS transfers it once all outstanding amounts have been paid and the Client requests this.
13.3 Ownership of hosting accounts and environments Hosting accounts, server environments and associated access details that TGS sets up for a project are the property of the Client. TGS transfers these at the end of the assignment or on request, provided all payments have been made. TGS is entitled to charge a transfer fee for the necessary actions.
13.4 Software and plugin licences If TGS uses paid software licences, themes, plugins or other third-party components in developing a digital product, the costs of these are charged to the Client, unless agreed otherwise. It is the Client's responsibility to renew or manage these licences themselves after delivery, unless this is part of a maintenance agreement with TGS.
13.5 Login details and access TGS manages login details for digital environments carefully and provides these to the Client on delivery or on request. The Client is responsible for the secure management of the login details received after transfer. TGS is not liable for damage arising from unauthorised access after transfer of the login details.
13.6 Data loss TGS is not liable for loss of data or content stored in digital environments managed or set up by TGS, unless this is demonstrably the result of intent or gross negligence on the part of TGS. TGS advises the Client to make regular backups and can, on request, set up a backup policy as part of a maintenance agreement.
Article 14 — Maintenance, management and support after delivery
14.1 No maintenance without an agreement After delivery of a digital product or campaign, maintenance, management, updates and technical support do not automatically fall under the assignment. For ongoing management and maintenance, TGS enters into a separate maintenance agreement with the Client.
14.2 What maintenance covers Maintenance means: keeping software, plugins and security updates up to date, technical management of the hosting environment, monitoring availability and resolving technical malfunctions. Content changes, new functionalities and adjustments to the design do not fall under this and are regarded as additional work or a new assignment.
14.3 No guarantee of durability without maintenance After delivery, TGS is not responsible for the correct functioning of a digital product if the Client has not taken out a maintenance agreement. Updates of external software, browsers or platforms can affect the operation of a delivered product. TGS is not liable for malfunctions or security problems arising from the absence of maintenance.
14.4 Emergency repair outside an agreement If the Client calls on TGS for emergency support or repair of a malfunction without a maintenance agreement, TGS may carry this out on the basis of the hourly rate for emergency work applicable at that time. TGS is not obliged to honour this request.
Article 15 — Attribution, credits and portfolio
15.1 TGS's right to attribution TGS has the right to associate its name with all work it has realised, unless the parties have agreed otherwise in writing. This applies to both physical and digital expressions.
15.2 Attribution on publication by the Client If the Client publishes, promotes or otherwise uses work by TGS in public, the Client credits TGS as the creator or producer, unless the Client has objected to this in writing with reasons and TGS has agreed.
15.3 Portfolio use TGS may include all work realised for the Client in its portfolio and use it for its own promotion, including publication on the website, social media, in presentations and in new quotations. This right also applies after termination of the agreement. If the Client objects to specific portfolio use, it must make this known to TGS in writing with reasons. TGS assesses this request reasonably, but is not obliged to agree to it.
15.4 Confidential work If the Client indicates when concluding the agreement that the assignment or the result is confidential, TGS records this in writing and refrains from portfolio use for the agreed period or until the Client grants permission. After the confidentiality period ends, the right to portfolio use is automatically revived.
Article 16 — Warranties, inspection and complaints
16.1 Quality warranty The services and products that TGS delivers meet the usual requirements and standards that can reasonably be set at the time of delivery.
16.2 Warranty period The warranty applies for 12 months after delivery, unless the nature of the assignment dictates otherwise or the parties have agreed something else. For goods produced by third parties, the warranty of that manufacturer applies.
16.3 Lapse of warranty The warranty lapses if defects have arisen through incorrect or improper use, incorrect storage or maintenance, or if the Client or third parties have made or attempted to make changes without the written permission of TGS.
16.4 Duty to report Visible defects must be reported in writing within 7 days of delivery. Non-visible defects must be reported as soon as possible, but no later than 14 days after discovery. The report must contain as clear a description as possible so that TGS can respond adequately.
16.5 Complaint and payment obligation Submitting a complaint does not suspend the payment obligation. If a complaint proves unfounded, the investigation costs are charged in full to the Client.
16.6 Repair or replacement If a defect has been established and reported in good time, TGS will, within a reasonable period and at its own discretion, repair or replace the defective item or offer appropriate compensation.
16.7 Limitation period Notwithstanding the statutory limitation periods, a limitation period of one year applies to all claims and defences against TGS.
Article 17 — Liability
17.1 Limitation of liability If TGS is liable, that liability is limited to what is stipulated in this article.
17.2 Incorrect information TGS is not liable for damage arising because it relied on incorrect or incomplete information from the Client.
17.3 Maximum liability The liability of TGS is limited to a maximum of twice the invoice value of the relevant assignment or the relevant part thereof. In any case, the liability is never higher than the amount paid out by the insurer of TGS.
17.4 Direct damage TGS is only liable for direct damage. This includes exclusively: the reasonable costs of determining the cause and extent of the damage, the reasonable costs of bringing the defective performance into line with the agreement, and the reasonable costs of preventing or limiting direct damage.
17.5 No liability for indirect damage TGS is never liable for indirect damage, such as consequential damage, lost profit, missed savings or damage due to business interruption.
17.6 Intent and gross fault The limitations of liability in this article do not apply if the damage is the result of intent or gross fault on the part of TGS or its managerial staff.
Article 18 — Indemnification
18.1 Indemnification by the Client The Client indemnifies TGS against claims by third parties who suffer damage due to the performance of the assignment, if that damage is not attributable to TGS.
18.2 Assistance and costs If TGS is held liable by third parties, the Client must assist TGS, both out of court and in court, and immediately take the necessary measures. If the Client fails to do so, TGS may take action itself without notice of default being required. All costs and damage arising from this are fully for the account of the Client.
Article 19 — Confidentiality and data protection
19.1 Confidentiality Both parties are obliged to keep secret all confidential information they receive from each other or otherwise obtain in the context of the collaboration. Information is confidential if a party indicates this or if it follows from the nature of the information.
19.2 Use of acquired knowledge TGS may also use knowledge and experience gained in performing an assignment for other purposes, as long as no confidential information of the Client is disclosed.
19.3 Personal data (GDPR) TGS processes personal data in accordance with applicable privacy legislation (GDPR) and applies a separate privacy policy that can be found on the TGS website. If TGS processes personal data of third parties on behalf of the Client, the parties conclude a data processing agreement if necessary.
Article 20 — Applicable law and disputes
20.1 Dutch law Dutch law applies exclusively to all agreements to which TGS is a party. This also applies if the assignment is (partly) carried out abroad or if the Client is established abroad. The Vienna Sales Convention does not apply.
20.2 Competent court Disputes are submitted exclusively to the court in the place where TGS is established, unless the law mandatorily provides otherwise. TGS always has the right to submit the dispute to the legally competent court.
20.3 Amicable settlement The parties make every effort to resolve a dispute by mutual consultation before going to court.
Article 21 — Where to find and amendments to these terms
21.1 Publication These terms can be found at www.thegreensurfer.com/algemene-voorwaarden
21.2 Applicable version The most recent version of these terms always applies, or the version that applied at the time the agreement with TGS was concluded.
21.3 Language The Dutch text of these terms is authoritative for their interpretation.
The Green Surfer VOF | Noordwijkerhout, The Netherlands | www.thegreensurfer.com