Terms and Conditions Sales In Motion B.V.
In these General Terms and Conditions, capitalized terms shall be used with the meanings set forth below: Sales In Motion: Sales In Motion B.V., having its registered office in Rotterdam; Customer: the person, natural or legal, with whom an agreement is entered into by Sales In Motion in respect of the Service, or who uses the Service; Service: the service to be operated by Sales In Motion whereby Sales In Motion offers sales activities on behalf of the Customer.
2.1 These General Terms and Conditions shall apply at all times to all legal relationships between Sales In Motion and the Customer, on whatever account or by whatever name, unless Sales In Motion and the Customer have expressly agreed otherwise in writing;
2.2 Terms which differ from these General Conditions shall apply only if and to the extent that they have been expressly accepted in writing by Sales In Motion;
2.3 Any terms and conditions used by the Customer shall not apply unless and to the extent that Sales In Motion has expressly accepted the applicability of the Customer’s terms and conditions.
- Formation of the Agreement
3.1 To the extent that an offer made by Sales In Motion in relation to the Service can be regarded as an offer, each offer made by Sales In Motion is a non-binding offer;
3.2 The Agreement shall come into existence when the Customer (1) completes and signs a proposal, quotation, order confirmation or agreement made available by or on behalf of Sales In Motion or; (2) orally registers for one or more Services from Sales In Motion and Sales In Motion accepts such registration;
3.3 Sales In Motion shall have the right to refuse any Customer without cause.
- Fees and Prices for Outbound Activities
4.1 Unless otherwise agreed and depending on the Service purchased by Customer from Sales In Motion, Sales In Motion shall base the fees to be charged, on a proposal made by Sales In Motion to Customer. Such proposal shall be in writing and shall, in any event, contain a project description, which may include but not be limited to the activities of the various project personnel, or depending on the type of project, the price per transaction, and an estimate of the required investment;
4.2. Sales In Motion will charge the Customer for the costs, depending on what is specified in the project description, as well as the costs of telecommunications, accommodation, equipment, and other fixed costs;
4.3. The aforementioned price is exclusive of VAT;
4.4. If the Customer does not confirm the project proposal made by Sales In Motion and Sales In Motion has already commenced execution of the order, the order shall apply in accordance with the provisions of the project proposal;
4.5 Sales In Motion reserves the right to change fees and prices unilaterally. Sales In Motion is entitled, with the exception of the first year of the contract, to change its rates up to a maximum of the CBS wage index figure for the Transport and Communications industry, CAO wages per month including special remuneration, applicable in any year. Such a change will only take effect one month after the Customer has been notified thereof. The Customer is entitled to terminate the Agreement in writing up to the effective date of the increase, taking into account the notice period applicable between the parties;
4.6. The costs associated with preparing a project proposal and related costs may be charged by Sales In Motion if the proposal does not lead to an order.
5.1 Sales In Motion offers services in respect of making outbound telephone calls; 5.2 Where outbound telephone calls are to be made by Sales In Motion, Sales In Motion shall: a. If desired, approach a number of addresses supplied by the Customer on a trial basis in order to be able to make an estimate of the total number of addresses to be called in order to fulfill the Customer’s desired purpose; b. approach the addresses provided by the Customer by telephone in the name of the Customer in order to mediate in the conclusion of agreements or to provide support in the conclusion of agreements between the Customer and the person approached by telephone;
- Execution of Agreement
6.1 Sales In Motion shall always endeavor to execute the order to the best of its ability and insight, in accordance with the agreements and procedures recorded in writing with the Customer;
6.2 If it has been agreed that the agreement will be carried out in phases, Sales In Motion shall be entitled to postpone commencement of the work belonging to the next phase until the Customer has given written approval of the previous phase;
6.3 Instructions or directions from the Customer need only be followed by Sales In Motion if they are given in good time and result in responsible consequences. If such instructions lead to additional work not agreed upon, additional charges shall be payable;
6.4 Sales In Motion reserves the right to engage third parties in order to execute the agreement.
7.1 Payment of the amounts owed by the Customer to Sales In Motion in connection with the Agreement must be made within 14 days of the invoice date;
7.2 Complaints about the amount of the invoice must be notified by the Customer to Sales In Motion in writing within 14 days of receipt of the invoice. Complaints about the invoice that reach Sales In Motion later are inadmissible;
7.3 Unless otherwise agreed, the amounts owed by the Customer, being all that which exceeds the advance invoices already paid, must be paid within 14 days of the date stated in the invoice. Sales In Motion will send specified invoices. If the Customer does not pay the invoice on time, the Customer will be in default without a notice of default being required;
7.4 If the amount of the advance invoice paid exceeds the actual costs, Sales In Motion shall pay the difference within 30 days of the date stated in the invoice to an account number to be specified by the Customer. Sales In Motion shall in no event be liable for interest on such difference;
7.5 In the event of late payment, the Customer shall owe interest at the rate of 1.5% per month or part thereof from the date of default until the date of payment of the entire amount due, as well as reasonable administrative costs incurred by Sales In Motion;
7.6 All costs incurred by Sales In Motion in obtaining payment out of court in the event of non-payment or late payment by the Customer shall be borne by the Customer in accordance with the rate applied by the Royal Association of Court Bailiffs, being 15% of the principal sum, with a minimum of EUR 50;
7.7 In addition to the aforementioned extrajudicial costs, all costs to be made, such as judicial costs and execution costs, relating to the collection of an outstanding claim shall be for the account of the Customer.
- Obligations of Customer
8.1 Where necessary, the Customer shall provide all cooperation to Sales In Motion or any third party engaged by it, and all necessary information. If necessary, the Customer shall itself arrange for any permits, exemptions, or authorizations required for use of the Service;
8.2 The Customer shall refrain from conduct contrary to the Agreement or the law. In particular, Customer shall refrain from infringing on any intellectual property rights of third parties and/or Sales In Motion;
8.3 . For the duration of the order and for a period of one year thereafter, Customer agrees to refrain from attracting, employing, or recruiting Sales In Motion personnel, whether indirectly or not, on pain of an immediately due and payable penalty of four times the last earned monthly salary of the Sales In Motion employee in question, as well as the training costs incurred by Sales In Motion for the benefit of such employee during the last 365 days of employment.
- Obligations of Sales In Motion
9.1 Sales In Moton is not authorized to do business directly with Customer without Sales In Motion’s intervention for 24 months after the formation of agreement with Customer.
9.2 Sales In Motion’s intervention is based on a financial fee that is agreed upon.
9.3 Violation of 9.1 carries a penalty of 24 months times the relevant Customer’s monthly fee.
- Obligations of Sales In Motion
10.1 Sales In Motion shall not be authorized to transact business directly with a Customer from another Sales In Motion via the Sales In Motion platform without Sales In Motion’s intervention for 24 months after the formation of the agreement.
10.2 Sales In Motion’s intervention is based on a financial fee that is agreed upon.
10.3 Violation of 9.1 carries a penalty of 24 months times the relevant Customer’s monthly fee.
- Intellectual and Industrial Property
11.1 Sales In Motion has the necessary intellectual property rights to supply the Service to the Customer;
- 2 Sales In Motion shall indemnify Customer against any third-party claims or demands relating to (alleged) infringement of any intellectual property right of such third party arising or caused by Customer’s use of the Service, provided that Customer promptly notifies Sales In Motion of any such claim or demand; Allows and enables Sales In Motion to exclusively defend against the claim or demand; provides Sales In Motion with the information and assistance necessary to enable Sales In Motion to adequately defend against the claim or demand; and grants Sales In Motion exclusive control in the defense against the claim, including reaching an amicable settlement. Sales In Motion shall not indemnify Customer if the breach or alleged breach arose out of, in connection with, or as a result of Customer’s actions;
11.3 Insofar as the Customer is entitled to the copyright in the files to be supplied by him, he shall surrender it to Sales In Motion upon entering into the agreement with Sales In Motion.
- Force Majeure
12.1 Sales In Motion shall not be deemed to be imputably deficient or otherwise liable to Customer by reason of any breach of contract or non-performance of any obligation under the Agreement, insofar as such breach of contract or non-performance is not attributable to the fault of Sales In Motion, nor is it attributable to Sales In Motion by virtue of law, legal act or generally accepted practice. Such circumstances include, but are not limited to, shortcomings in the employability of the persons involved in the work, for example as a result of illness, disability, personal indispensability, strikes, or termination of the employment contract or agreement; – Delays at or shortcomings by suppliers; – Other circumstances beyond Sales In Motion’s control, including the incorrect or untimely provision of information and/or cooperation by the customer, as a result of which fulfillment of its obligations is prevented, delayed, or made uneconomically, or as a result of which fulfillment of these obligations cannot reasonably be required of Sales In Motion.
- Liability (limitations)
13.1 Except in cases of intent or wilful recklessness, Sales In Motion’s total liability for an attributable failure in the performance of the Agreement, including loss of data, shall be limited to compensation for direct damage up to a maximum of the total amount paid by the Customer to Sales In Motion in the two months preceding the damaging event. Sales In Motion’s liability for indirect damage, including but not limited to consequential damage, loss of profit, lost savings, and damage due to business interruption, is excluded at all times. In no case shall Sales In Motion’s liability extend beyond the insurable sum, payable under the circumstances, of the business liability insurance taken out by Sales In Motion;
13.2 Apart from the case mentioned in Article 11.1, Sales In Motion shall not be liable for damages, irrespective of the ground on which an action for damages would be based;
13.3 Sales In Motion’s interest in reasonably defending itself against a claim for damages means that the Customer’s right to compensation lapses if the Customer does not assert his right to compensation in writing within two months of the damage occurring;
13.4 The Customer shall be liable for any damage or harm, including costs incurred, such as Sales In Motion’s labor costs incurred and to be incurred, and lost profit as a result of IT, telecommunications, or other disruptions to the Customer’s business, which is caused by the Customer to Sales In Motion. This liability on the part of the Customer shall also apply in respect of damage caused by third parties whose acts and conducts are attributable to the Customer;
13.5 The Customer shall indemnify Sales In Motion against all third-party claims connected with the use of the Service(s) by the Customer or by third parties whose acts and conduct can be attributed to the Customer. The Customer shall reimburse Sales In Motion for all damages and costs arising from such third party claims; 13.6 Sales In Motion shall not be liable for any loss incurred by the Customer as a result of acts or omissions of third parties with whom the Customer has entered into an agreement, including but not limited to agreements that are conducive, desirable or necessary to the use of the Service.
- Duration and termination of the Agreement
14.1 An Agreement shall be entered into for either a definite or an indefinite period and unless expressly agreed otherwise, shall commence at the time of delivery of the Service, with the exception of those agreements which shall terminate by the mere completion thereof;
14.2 If, after the expiry of the definite period for which it has been entered into, the Agreement is not terminated by Sales In Motion or the Customer in accordance with the provisions of Article 12.3, the Agreement shall continue by operation of law for an indefinite period, unless otherwise agreed;
14.3 An Agreement entered into for an indefinite period may be terminated by Sales In Motion and the Customer at any time subject to three months’ notice. Termination is possible only by the end of a calendar month;
14.4 Sales In Motion shall be entitled to amend the Agreement unilaterally at any time, provided that the intended amendment is not of a substantial nature. Sales In Motion shall notify the Customer of the intended change at least one month before the effective date of the change. Customer shall be entitled to terminate the Agreement in writing within one month of receipt of Sales In Motion’s notice except in the case of a price change for which, pursuant to Article
14.5, termination is not possible.
- Suspension and Termination
15.1 Sales In Motion shall be entitled with immediate effect to suspend in whole or in part the Service, as well as the provision or release of data obtained in the course of performance of the Service, or to terminate the Agreement without liability or otherwise liability for damages to the Customer if: – the Customer fails to meet its obligations under the Agreement or the law unless the failure does not justify suspension or termination in view of its special nature or minor importance; – the Customer has applied for or been granted a suspension of payments, it has been declared bankrupt or its bankruptcy has been applied for, or it has been placed under guardianship.
15.2 Suspension or termination of the Agreement pursuant to clause 13.1 shall not affect the Customer’s payment obligations under the Agreement.
16.1 Customer shall provide Sales In Motion with all information which Customer reasonably knows or can be expected to know is important to Sales In Motion’s proper performance of the order, as well as such information as is deemed necessary by Sales In Motion and requested by Sales In Motion for the purpose of Sales In Motion’s supplying and delivering the Service. Customer shall promptly notify Sales In Motion of any change in the information provided by it to Sales In Motion;
16.2 Customer consents to the inclusion of its personal data, as well as the personal data provided by it, in Sales In Motion’s customer register. Customer warrants that data subjects have given their consent to the disclosure of their data to third parties, such as Sales In Motion, for the purpose as defined by Sales In Motion in the project proposal. This customer record is accessible only to Sales In Motion and is for administrative purposes only or specific marketing activities to be conducted by Sales In Motion;
16.3 Sales In Motion and Customer warrant that all information of a confidential nature received from the other party before and after entering into the agreement shall remain confidential. Information shall be considered confidential if it is expressly designated as such by the parties;
16.4 The parties guarantee that all statutory regulations relating to the data to be processed, including in particular the regulations under or pursuant to the Personal Data Protection Act, or legislation replacing it, will be strictly observed and that all prescribed notifications have been made. The Customer shall provide Sales In Motion with all necessary information for this purpose on the first request. Sales In Motion shall ensure that the security of this data is adequate according to the state of the art. Insofar as the aforesaid law applies, the Customer, as the party responsible, shall arrange for the data processing to be reported to the Dutch Data Protection Authority, and shall indemnify Sales In Motion as the processor against any claims.
- Transfer of rights and obligations
17.1 The Customer shall not be entitled to assign its rights and obligations under the Agreement, in whole or in part, to any third party without the prior written consent of Sales In Motion.
When using telecommunications, Customer is responsible for their proper selection and availability. Sales In Motion shall provide support in this regard if required.
- Final Provisions
19.1 If any provision of this Agreement is found to be void, invalid, unenforceable, or illegal, the other provisions of the Agreement shall remain in full force and effect. Sales In Motion and the Customer shall in such case mutually agree to replace the void, invalid, unenforceable, or illegal provision, taking into account as far as possible the purpose and purport of the void, invalid, unenforceable, or illegal provision;
19.2 Unless otherwise stipulated in these General Terms and Conditions, addition or amendment to an agreement concluded between Sales In Motion and the Customer must always be agreed in writing; These General Terms and Conditions replace all previous versions and apply to all existing agreements from the moment they come into force.
- Applicable law and competent court
20.1 This Agreement and all disputes arising from it are governed by Dutch law;
20.2 Without prejudice to Sales In Motion’s right to bring a dispute before another court that is competent to judge on the basis of statutory provisions, the parties agree to bring disputes arising from and/or connected with this Agreement before the competent court in Rotterdam. If the Customer, an individual, is taken to court by Sales In Motion, he may, by means of a written statement within one month of being summoned, opt for the competent court in his place of residence.