General terms and conditions Naked Digital
v2.2 published on the 16th of April 2024
Article 1 Definitions
1.1 The following capitalised terms are used in these Terms and Conditions, both in the singular and in the plural:
Appendix: annex to the Terms and Conditions containing specific provisions on the Service to be provided;
Service: the services to be provided by Naked Digital to the Client under the Agreement, including, where applicable, the results of services;
Intellectual Property: all intellectual property rights and related rights, such as copyrights, trademark rights, patent rights, design rights, trade name rights, database rights and neighbouring rights, as well as rights to know-how and performances on a par with a patentable invention;
Client: the natural or legal person who has entered or will enter into an Agreement with Naked Digital;
Agreement: the agreement between Naked Digital and the Client on provision of the Service;
Parties: Naked Digital and the Client;
Personal Data: any information relating to an identified or identifiable natural person, as referred to in Article 4 paragraph 1 of the General Data Processing Regulation;
Terms and Conditions: these general terms and conditions of Naked Digital, including all applicable Appendices.
Naked Digital: the sole proprietorship company with trade names TP Marketing Consulting | Naked Digital, registered at the Dutch Chamber of Commerce (Kamer Van Koophandel) with KVK number 77908392, establishment number 000045571562 and address Nassaustraat 5 5616AG Eindhoven.
Article 2 General provisions and scope
2.1 These Terms and Conditions apply to all offers by Naked Digital to and/or all agreements entered into by Naked Digital with the Client, as well as implementation of the same.
2.2 In addition to these Terms and Conditions, the specific Appendices of the Terms and Conditions that have been agreed between Naked Digital and the Client also apply.
2.3 Deviations from the Terms and Conditions are only valid if they have been explicitly agreed in writing between Naked Digital and the Client and only apply to the specific agreement for which they have been agreed.
2.4 The Terms and Conditions apply to the exclusion of any terms and conditions of purchase or other terms and conditions applied by the Client.
2.5 Once the General Terms and Conditions have been applicable to a legal relationship between Naked Digital and the Client, the Client will be deemed to have agreed in advance to their applicability to Agreements concluded later and to be concluded in the future.
2.6 Naked Digital is entitled, at its own discretion, to engage one or more third parties in the performance of the assignment.
2.7 The rights and obligations under the Agreement may only be (sub)licensed and/or transferred to third parties with the other Party’s written consent.
2.8 If any of the provisions of these Terms and Conditions, or of agreements to which these Terms and Conditions apply, is void or voidable, this does not affect the validity of the remaining provisions. Naked Digital and the Client are obliged to replace void or voidable provisions with valid provisions with, where possible, the same purport as the void or voidable provision.
2.9 If the provisions of an Agreement and the General Terms and Conditions conflict, the provisions of the Agreement will prevail. If the General Terms and Conditions and a specific Appendix conflict, the provisions from the Appendix will prevail.
2.10 Electronic communication between the Parties will be deemed to be received on the day it is sent, unless proven otherwise.
2.11 For explanation and interpretation of these Terms and Conditions, the Dutch text will take precedence.
Article 3 Formation of the Agreement and details
3.1 All proposals and other offers by Naked Digital are subject to contract. Assignments and acceptance of offers by the Client are irrevocable.
3.2 Offers and proposals lose their validity after lapse of four weeks from the date they are made, unless otherwise indicated in writing.
3.3 An Agreement is concluded by written confirmation by the Client of an unchanged and valid proposal and/or offer by Naked Digital.
3.4 Descriptions, brochures, advertising material, price lists and information and offers on the website are not binding upon Naked Digital.
Article 4 Performance of the Agreement and delivery
4.1 The Agreement to be concluded between Naked Digital and the Client only represents a best-efforts obligation. Naked Digital will perform the Agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship, as well as on the basis of the latest scientific and technical knowledge available at that time.
4.2 The previous article also applies to advice given by Naked Digital. Such advice is only intended for the Client. Third parties cannot derive any rights from it. Subject to written permission from Naked Digital, the Client is not permitted to disclose the content of advice from Naked Digital or make it available to third parties in any other way.
4.3 In the Agreement, the Parties determine the terms and dates of delivery as well as the location at which and the means by which the Services will be provided or delivered. The completion time of an assignment depends on various factors and circumstances, such as the quality of the data and information provided by the Client and the cooperation of the Client and relevant third parties. Any delivery terms should not be considered deadlines. In the event that a term (of delivery) is exceeded or threatens to be exceeded, the Parties will consult as soon as possible in order to take appropriate measures.
4.4 If it has been agreed that the Agreement will be performed in phases, Naked Digital will be entitled to defer the start of work for a particular phase until the Client has approved the results of the previous phase in writing.
4.5 Naked Digital is not obliged to follow instructions that alter or supplement the substance or scope of the agreed Services; if such instructions are followed, the work in question will be reimbursed in accordance with Naked Digital’ usual rates and Naked Digital will inform the Client accordingly.
Article 5 Defects
5.1 Naked Digital guarantees the soundness of the Services provided, in accordance with what the Client can reasonably expect based on the Agreement, and will endeavour to realise any objectives agreed with the Client. Naked Digital cannot guarantee that such an objective will be achieved.
5.2 The Client must carefully inspect the Services immediately after delivery, but no later than eight (8) days, failing which any right to complaint, replacement and/or warranty will lapse.
5.3 The Client must report any complaints about the Services provided and/or the performance of the Agreement within fourteen (14) days after the Client has discovered or should reasonably have discovered the defect, in writing and in detail to Naked Digital, failing which any claim against Naked Digital expires.
5.4 If the Client has met the requirements of the previous two articles and there is a defect in the services provided by Naked Digital, the latter will repair these defects or have these repaired, provide the Service again or apply a reasonable price reduction, all this exclusively at the discretion of Naked Digital. The previous two articles apply each time the Service is repaired or provided again. After establishing a defect or other shortcoming in a Service of Naked Digital, the Client is obliged to do everything that prevents or limits damage.
5.5 The risk of loss, theft, misappropriation of or damage to items, products, information/data, documents or programs that are realised in the context of performance of the Agreement will pass to the Client when the Client or a servant or agent of the Client comes into actual possession of them.
Article 6 Prices and payment
6.1 All rates stated by Naked Digital or agreed with Naked Digital are exclusive of turnover tax (VAT) and other levies imposed by government authorities. The costs for third parties that have been engaged and other disbursements do not form part of the rates agreed with Naked Digital and must be paid separately to Naked Digital. Naked Digital has the right to charge these costs to the Client by way of an advance.
6.2 If Naked Digital undertakes additional Services without explicitly stipulating a rate for this in the Agreement, Naked Digital is entitled to charge a reasonable fee for this.
6.3 Price indications, budgets and/or cost estimates by Naked Digital are only indicative in nature. No rights or expectations can be derived from these. Only if the Parties have agreed so will Naked Digital be obliged to inform the Client if a cost estimate or budget is exceeded.
6.4 Invoices from Naked Digital must be paid within seven (7) days after the date of the invoice, in the currency stated on the invoice, and only in the manner indicated on the invoice. Naked Digital is at all times entitled to request full or partial payment in advance and/or to obtain any other form of security for payment.
6.5 If no timely payment is received, the Client will, without further notice of default being required, owe the statutory commercial interest on the invoice amount, calculated from the due date up to and including the day of payment, whereby part of a month is considered a full month, and without prejudice to Naked Digital' right to claim its full damage. All costs related to the collection of payment will be borne by the Client. The extrajudicial and judicial costs, including the costs of external experts, amount to at least 15% of the amount to be collected, with a minimum of EUR 500.
6.6 The Client waives any right of suspension and set-off. Naked Digital has the right to retain Services that are still held by Naked Digital if the Client fails to meet its payment obligation until the Client has fulfilled its payment obligation, regardless of whether the payment arrears relate to the Services that Naked Digital still holds.
6.7 Payments made by the Client will always first serve to settle the costs owed, subsequently to settle the interest due and subsequently to settle those invoices that have been outstanding for the longest time, even if the Client states that the payment relates to a later invoice.
6.8 The entire invoice amount is immediately and fully due and payable in the event of late payment of an agreed instalment on the due date, as well as if the Client is declared bankrupt, applies for (provisional) suspension of payment, the statutory debt rescheduling scheme (WSNP) is declared applicable to it and/or when any attachment is levied against the Client. The Client is obliged to immediately inform Naked Digital if any of the above situations occurs.
6.9 Naked Digital is entitled, during the term of an Agreement, to increase the prices for its Services annually, with effect from 1 January, in accordance with the price index of the previous calendar year as published by Statistics Netherlands (Consumer price index “All households”), plus a maximum of fifteen percent (15%). Naked Digital is entitled to implement the cost increase at a later date if it deems this desirable from an administrative point of view.
6.10 Comments or complaints about invoices, bills and expense claims sent must be made known in writing within fourteen (14) days after receipt of the relevant invoice, bill or expense claim, failing which they will be deemed to be accepted. Such complaints do not suspend the payment obligation.
Article 7 Modification of the assignment, or additional work
7.1 The Client accepts that the time schedule of the Agreement can be influenced if the scope of the Agreement is extended and/or altered in the interim. If the interim change affects the agreed rate, Naked Digital will report this to the Client as soon as possible.
7.2 If, due to a modification of the Agreement as a result of additional requests or wishes from the Client, Naked Digital has to perform extra work ( "additional work"), this work will be charged to the Client on the basis of subsequent costing at the rates applicable at that time.
Article 8 Obligations on the part of the Client
8.1 The Client ensures that all information that Naked Digital indicates to be necessary or that should reasonably be understood by the Client as being necessary for implementing the Agreement, including information on laws and regulations to be observed by Naked Digital and that is specific to the Client’s line of work, is provided to Naked Digital in a timely manner and will give Naked Digital any assistance it requires. The Client guarantees the correctness, completeness and reliability of these data and this information. Naked Digital is not obliged to investigate the correctness, completeness or reliability thereof. Any proposals and offers by Naked Digital as well as the subsequent Agreement are based on the information provided by the Client. If such information is not correct, complete or reliable, Naked Digital has the right to change the offer.
8.2 If information required for performance of the Agreement is not provided to Naked Digital, is not provided on time or not in accordance with the agreements, Naked Digital has the right to suspend performance of the Agreement and/or charge the extra costs arising from the delay to the Client in accordance with the customary rates applicable at that time.
8.3 In so far as user names and/or passwords are provided by Naked Digital in the context of the Agreement, the Client is responsible for these user names and/or passwords and is fully and independently liable for any misuse of the user names and passwords, unless such misuse is the result of intent or deliberate recklessness on the part of Naked Digital.
8.4 In so far as user names and/or passwords are provided by Naked Digital in the context of the Agreement, the Client is not permitted to provide these user names and/or passwords to third parties without permission from Naked Digital.
Article 9 (Premature) termination, cancellation and the consequences
9.1 The Client may only cancel an assignment given prior to its performance if the Client reimburses Naked Digital for all reasonably incurred costs for the work of Naked Digital with a view to performance of this assignment, plus VAT.
9.2 An Agreement commences on the date in accordance with the terms and conditions set out in Article 3 for the period agreed in writing between the Parties, and ends by operation of law on the date agreed between the Parties or the moment the provision of the Services is completed. Unless explicitly agreed otherwise, the Parties cannot terminate the Agreement prematurely.
9.3 Each Party is entitled to terminate the Agreement in whole or in part in the event of bankruptcy or suspension of payments of the other Party, as well as in the event of shut-down or winding up of the business of the other Party other than for the purpose of reconstruction or merger of companies, or if decisive control over the business of the other Party changes.
9.4 Termination of the Agreement on the basis of an attributable shortcoming is only permitted after as detailed a written notice of default as possible, setting a reasonable term for remedying the shortcoming, unless stipulated otherwise in these Terms and Conditions or prescribed otherwise by law.
9.5 Termination of the Agreement will not undo anything already delivered and/or performed by Naked Digital and the related payment obligation, unless the Client proves that Naked Digital is in default with regard to the essential part of those performances. Amounts Naked Digital has invoiced before the termination in connection with that which it has already properly performed or delivered in connection with performance of the Agreement, remain fully owed, with due regard for what is determined in the previous sentence, and are immediately due and payable at the time of termination.
9.6 In the event of termination of the Agreement, all rights granted to the Client will lapse. The Client is no longer entitled to use the Service.
9.7 Articles that by their nature are intended to continue to apply after the end of the Agreement remain in full force after termination of the Agreement.
Article 10 Intellectual property
10.1 All intellectual and industrial property rights with regard to the Service(s) and the names thereof, and to anything else Naked Digital develops, manufactures or provides, including packaging, user documentation, reports and illustrations, accrue to the Client.
10.2 If a dispute arises between Naked Digital and the Client regarding intellectual property, such rights will be assumed to belong to Naked Digital, save for evidence to the contrary provided by the Client.
10.3 Nothing in these Terms and Conditions and/or the Agreement implies a transfer of intellectual property rights. The Client exclusively obtains the non-exclusive and non-assignable right to use the Services for the purposes set out in the Agreement and on the conditions stipulated in the Agreement. If not determined otherwise in writing, the right of use granted only applies in the Netherlands.
10.4 The Client is not allowed to remove or modify any statement on intellectual property rights from the results of Services.
10.5 Naked Digital explicitly does not waive its personality rights as set out in Section 25 of the Dutch Copyright Act.
10.6 Naked Digital is permitted to use the Services and the materials used for implementation of the Agreement, such as designs, drawings, films, software, (electronic) files, reports, formats and interviews, for its own promotion and/or publicity, unless provided otherwise in the Agreement.
10.7 Naked Digital reserves the right to take technical protection measures regarding the Services. The Client is not permitted to bypass these technical protection measures or to offer the means to do so.
10.8 Upon completion of the services and full payment, ownership of all intellectual property rights and related rights created during the performance of the Agreement shall be transferred to the Client. However, Naked Digital retains the right to use the work produced for its own promotional purposes, in its portfolio, and as examples of past work for potential clients.
10.9 Naked Digital also retains the right to be consulted about any significant changes the Client may wish to make to the original concepts, to ensure that the integrity of the original work is maintained.
10.10 The Client agrees to provide appropriate credit to Naked Digital for the work performed when used in a public context, which may include, but is not limited to, public displays, distributions, or presentations, acknowledging Naked Digital's contribution to the work.
Article 11 Personal data
11.1 In the event that it is necessary to process Personal Data on customers of the Client for provision of the services by Naked Digital, Naked Digital must be considered the “processor” and the Client must be considered the “controller” within the meaning of the General Data Processing Regulation. In accordance with Article 28 paragraph 3 of the General Data Processing Regulation, the Client and Naked Digital enter into a data processing agreement stipulating the processing of Personal Data by Naked Digital in accordance with applicable legislation. This will be done in line with a model to be supplied by Naked Digital.
11.2 The Client indemnifies Naked Digital against all claims from third parties (including, in any case, users and government agencies), financial government sanctions and costs (including costs of legal assistance), resulting from a violation by the Client of any legal requirement with regard to the processing of personal data.
Article 12 Confidentiality
12.1 The Parties will keep all information they obtain from each other in whatever form, including - but not limited to - software, (source) code, programs, applications, customer data, know-how, (technical) specifications, (technical) drawings, documentation (“Confidential Information”) as strictly confidential and keep this secret.
12.2 The Parties will only use the Confidential Information for the purposes for which it was provided and will observe the same duty of care and guarantee that apply to their own internal confidential information. The Parties will only provide the Confidential Information to employees and third parties in so far as this is necessary in the context of (performance of) the Agreement.
12.3 The obligations to keep the Confidential Information confidential do not apply if the Party that received the information can demonstrate that the information in question: i) was already known to it at the time of receipt; (ii) was already publicly known at the time of receipt; iii) has become publicly known after receipt without this being attributable to the receiving Party; iv) is lawfully received from a third party together with the right to disclose it free from any obligation of confidentiality; v) is required by law, regulation or court order and the disclosing Party has notified the other Party of such mandatory disclosure; vi) has been made public with the approval of the disclosing Party.
12.4 The Parties agree to treat all Confidential Information received from each other in the course of the Agreement with strict confidence and not to disclose it to any third parties.
12.5 The obligations of confidentiality with respect to the Confidential Information shall survive the termination or expiration of this Agreement for a period of [Specify Duration, e.g., 5 years] post-contract termination, after which the information shall no longer be considered confidential unless the information remains a trade secret under applicable law.
12.6 This obligation does not apply to information that is publicly known through no fault of the receiving party, is rightfully received from a third party without a duty of confidentiality, or is independently developed without access to the Confidential Information.
Article 13 Liability
13.1 Subject to the provisions of Articles 4.1 and 4.2, the Client has no claim whatsoever against Naked Digital due to defects in or with regard to the services provided by Naked Digital. Naked Digital is not liable for direct and/or indirect damage, including personal and property damage, immaterial damage, consequential damage (loss of income, business interruption loss, etc.) and any other damage arising from whatever cause, unless in the event of deliberate recklessness or intent on the part of Naked Digital employees in managerial positions.
13.2 Naked Digital is also not liable in the sense referred to above for actions by its employees or other persons within its responsibility, including (gross) negligence or intent on the part of these persons
13.3 The total liability of the supplier due to an attributable shortcoming in the fulfilment of the agreement or on any legal basis whatsoever, expressly including any shortcoming in the fulfilment of a warranty obligation agreed with the customer, is limited to compensation for direct damage up to a maximum of the amount of the price stipulated for that agreement (excl. VAT). If the agreement is mainly a continuing performance agreement with a term of more than one year, the price stipulated for that agreement is set at the total of the fees (excl. VAT) stipulated for one year. Moreover, if the damage is covered by Naked Digital' corporate liability insurance, the compensation will never exceed the amount actually paid out by the insurer in the case in question.
13.4 Any claim against Naked Digital, unless recognised by Naked Digital, will lapse at the end of twelve (12) months after the claim arose.
13.5 The Client indemnifies Naked Digital, its employees and the servants or agents it has engaged for performance of the agreement against any claim from third parties, including claims based on product liability, in connection with Naked Digital' performance of the Agreement, regardless of the cause, as well as against the resulting costs.
13.6 If the Client acts on behalf of one or more others, it is, without prejudice to the liability of those others, liable to Naked Digital as if it were the Client.
13.7 If Naked Digital concludes an agreement with one or more natural persons or legal entities, all clients are always jointly and severally liable to Naked Digital for the whole.
13.8 If Naked Digital concludes an agreement with a company in formation, the founders remain jointly and severally liable for the whole, even after ratification of the agreement.
Article 14 Force majeure
14.1 If Naked Digital is prevented from performing the Agreement due to force majeure, it is entitled to suspend performance of the Agreement. In that case, the Client is not entitled to reimbursement of damage, costs or interest.
14.2 Force majeure includes, among others: interruptions in the power supply, strikes, riots, government measures, fire, extreme weather conditions, natural disasters, floods, shortcomings of suppliers of the Parties, shortcomings of third parties engaged by the Parties, internet connection malfunctions, hardware malfunctions, disruptions in (telecommunication) networks, cyber terrorism or other types of cyber attacks, security incidents, deliberate or unintentional corruption or loss of data, epidemic or pandemic and other unforeseen circumstances.
14.3 If the force majeure lasts at least six (6) weeks, the Parties are entitled to dissolve the Agreement without being bound to any damages, reversal or compensation in connection with this dissolution.
14.4 If Naked Digital has already met or can only meet part of its obligations on commencement of the force majeure, Naked Digital will be entitled to separately invoice the part already delivered and/or deliverable and the Client will be obliged to pay this invoice as if it were a separate agreement.
14.5 In the event of force majeure, Naked Digital may suspend its obligations under the Agreement without being liable for any compensation to the Client.
14.6 If a force majeure situation persists for more than [Specify Duration, e.g., 90 days], either Party may request a renegotiation of the Agreement terms to reflect the changed circumstances without being considered in breach of the Agreement. If the Parties cannot agree on modified terms within [Specify Duration, e.g., 30 days] of initiating renegotiation, either Party may terminate the Agreement without liability.
Article 15 Applicable law and competent court
15.1 These Terms and Conditions are governed by Dutch law.
15.2 Mediation: For the purposes of resolution of each and any dispute that has arisen or might arise further to the present agreement, or any further agreements resulting from the same, the parties shall - or a party shall - file a request for mediation with the NAI secretariat in accordance with the NAI Mediation Rules. The mediator shall be appointed according to the list procedure. The mediation shall be conducted in the English language.
15.3 Arbitration: Should mediation not resolve the dispute, All disputes arising in connection with the present agreement, or further agreements resulting therefrom, shall be settled in accordance with the Arbitration Rules of the Netherlands Arbitration Institute. The place of arbitration shall be Amsterdam. The arbitral tribunal shall be composed of one arbitrator. The arbitral tribunal shall be appointed directly by the NAI. The proceedings shall be conducted in the English language. Any court proceedings in the Netherlands before, during or after the arbitration will - to the extent allowed by law - exclusively be dealt with by the Amsterdam District Court or the Amsterdam Court of Appeal, whichever has jurisdiction, following proceedings in English before the Chambers for International Commercial Matters (Netherlands Commercial Court, which consists of the NCC District Court, the NCC Court in Summary Proceedings and the NCC Court of Appeal). The NCC Rules of Procedure (see www.ncc.gov.nl) apply to these proceedings. This clause is not intended to exclude Supreme Court appeal.