General conditions 2DAYSMOOD
General terms and conditions
General terms and conditions of 2DAYSMOOD International B.V., Europalaan 100, 3526 KS Utrecht, the Netherlands. Hereinafter referred to as: 2DAYSMOOD. Version December 2019.
Article 1 – Definitions
In these general terms and conditions, the following terms used have the following meaning, unless explicitly stated otherwise.
2DAYSMOOD: 2DAYSMOOD International B.V., the issuer of the Conditions.
Agreement: the Agreement signed between 2DAYSMOOD and the Client.
Client: the counterparty to 2DAYSMOOD in the Agreement.
the Conditions: these general terms and conditions.
Article 2 – General
- The Conditions apply to every offer, quotation and Agreement between 2DAYSMOOD and the Client to which 2DAYSMOOD has declared the Conditions applicable, insofar as the parties have not explicitly deviated from the Conditions in writing.
- The Conditions also apply to all Agreements with 2DAYSMOOD, for the execution of which third parties are involved.
- Any deviations from the Conditions are only valid if explicitly agreed in writing.
- The applicability of any purchase- or other general conditions of the Client is explicitly rejected.
- If one or more of the provisions in the Conditions are null and void or become void, the other provisions of the Conditions remain fully applicable. 2DAYSMOOD and Client will then enter into discussions to agree new provisions to replace the void or nullified provisions, whereby as far as possible the purpose and intent of the original provisions will be achieved.
Article 3 – Offers and quotations
- The offers and quotations made by 2DAYSMOOD are without obligation; they are valid for 14 days, unless stated otherwise. 2DAYSMOOD is only bound to the offers if the acceptance thereof is confirmed in writing by the other party within the aforementioned 14 days, unless stated otherwise.
- The prices in the aforementioned offers and quotations are exclusive of VAT and other taxes or government levies, as well as any costs to be incurred within the context of execution of the Agreement, such as shipping and handling costs, unless stated otherwise.
- If the acceptance deviates (even on minor points) from the offer included in the quotation, 2DAYSMOOD is not bound by it. The Agreement will in such case not be concluded in accordance with this deviating acceptance, unless 2DAYSMOOD explicitly confirms otherwise.
- A quotation for a combined assignment does not oblige 2DAYSMOOD to perform part of the assignment against the corresponding part of the stated price.
- Offers or quotations do not automatically apply to future assignments.
Article 4 – Execution of the Agreement
- 2DAYSMOOD will execute the Agreement to the best of its knowledge and ability and in accordance with standards of good workmanship. All on the basis of the current state of knowledge at that time.
- If and in so far required for the proper execution of the Agreement, 2DAYSMOOD has the right to have certain work carried out by third parties.
- The Client ensures that all data which 2DAYSMOOD has indicated to be required or which the Client reasonably understands to be necessary for the execution of the Agreement, will be provided to 2DAYSMOOD in time. If data required to perform the obligations under the Agreement are not provided in time to 2DAYSMOOD, 2DAYSMOOD has the right to suspend its services and/or charge the additional costs resulting from the non-provision of data and/or delay at the usual rates to the Client.
- 2DAYSMOOD shall not be liable for damages of any kind, caused by 2DAYSMOOD working with inaccurate and/or incomplete data provided by the Client.
- If it has been agreed that the Agreement will be executed in phases, 2DAYSMOOD can suspend the execution of those parts belonging to a following phase until the Client has approved the results of the preceding phase in writing.
- If 2DAYSMOOD or third parties involved by 2DAYSMOOD perform work under the contract on the Client’s site or a site designated by the Client, Client shall ensure the provision of facilities which are reasonably required free of charge.
- The Client indemnifies 2DAYSMOOD against any claims from third parties that suffer damage in connection with the execution of the Agreement due to causes attributable to the Client.
Article 5 – Modifying the Agreement
- If it becomes apparent during the execution of the Agreement that it is necessary for a proper execution of the work agreed to change or supplement the scope of work to be performed, the parties shall timely and in mutual consultation adjust the Agreement.
- If the parties agree that the Agreement will be amended or supplemented, the time for completion may be affected. 2DAYSMOOD will inform the Client of such change in timing as soon as possible.
- If the amendment or supplement to the Agreement has financial consequences and/or consequences for the quality of the work to be performed, 2DAYSMOOD will inform the Client in advance.
- If a fixed fee has been agreed, 2DAYSMOOD will indicate to what extent the amendment or supplement to the Agreement results in exceeding of this fee.
- Notwithstanding paragraph 3, 2DAYSMOOD will not be able to charge additional costs if the amendment or supplement is necessary as a result of causes that can be attributed to 2DAYSMOOD.
Article 6 – Contract duration; execution period
- The Agreement between 2DAYSMOOD and a Client is entered into for at least 6 months, unless the nature of the Agreement dictates otherwise or the parties explicitly agree otherwise in writing.
- If a duration has been agreed within the Agreement for the completion of certain activities, this is never deemed to be an absolute legal deadline. In the event that the agreed duration is exceeded, the Client must give 2DAYSMOOD written notice of default before it can take any further legal steps related to exceeding the completion date.
Article 7 – Fees
- The parties can agree on a fixed fee at the time of conclusion of the Agreement.
- If no fixed fee is agreed, the fee will be determined on the basis of:
2.1. actual hours spent. The fee is calculated according to 2DAYSMOOD’s usual hourly rates, applicable for the period in which the work is performed, unless a deviating hourly rate has been explicitly agreed upon; or
2.2. an alternative remuneration form, agreed in writing between parties with written mutual consent;
- The fee as well as any cost estimates are exclusive of VAT or any other taxes or levies.
- For Agreements with a duration exceeding one month, the remuneration will be charged and invoiced per month.
- If a fixed fee or hourly rate is agreed, 2DAYSMOOD is nevertheless entitled to increase this fee or rate as follows:
5.1. 2DAYSMOOD is entitled to pass on price increases if 2DAYSMOOD can demonstrate that between the time of the offer and execution, the costs and/or rates, for example with regard to wages, have in general increased considerably.
5.2. Moreover, 2DAYSMOOD may increase the fee if, during the execution of the work, it appears that the originally agreed or expected amount of work was to such an extent insufficiently assessed at the conclusion of the Agreement, which is not attributable to 2DAYSMOOD, that in all reasonableness 2DAYSMOOD may not be expected to perform the agreed work at the originally agreed fee.
- In the event of a price increase, the Client is entitled to terminate the Agreement if the fee or rate is increased within two months after entering into the Agreement. After the expiration of this two month period, the Client is entitled to terminate the Agreement if the increase amounts to more than 10%. The Client is not entitled to termination if the increase of the fee or rate is dictated by or a consequence of the law.
6.1. 2DAYSMOOD will notify the Client of the intention to increase the above fee or rate in writing, and indicate the financial effect and the date on which the increase will take effect.
6.2. If the Client does not wish to accept the increase of the fee or rate made known by 2DAYSMOOD, the Client is entitled to terminate the Agreement in writing within seven days after the said notification, or to cancel the order at the date on which the fee or rate adjustment would take effect.
Article 8 – Payment
- Payment must be made within 30 days of the invoice date, in a manner to be indicated by 2DAYSMOOD in the currency in which it is invoiced.
- Objections against the amount invoiced do not suspend the payment obligation.
- If the Client fails to pay within the above 30-day period, the Client is legally in default. Client will then owe interest to 2DAYSMOOD of 1% per month, unless the statutory interest rate is higher, in which case the statutory interest rate applies. The interest on the due and payable amount will be calculated from the moment that the Client is in default until the moment of payment of the full amount invoiced and owed.
- In the event of liquidation, bankruptcy, attachment or suspension of payment of the Client, the claims of 2DAYSMOOD against the Client shall be immediately due and payable.
- 2DAYSMOOD shall be entitled to have the payments made by the Client to first compensate costs, subsequently settle the interest due and finally to reduce the principal amount due. 2DAYSMOOD can, without being in default, refuse a payment offer if the Client defines a different allocation to the payment.
Article 9 – Retention of Title
- Survey data, being all answers – in whatever form – as given by employees of the Client, remain the property of 2DAYSMOOD at all times.
- All items delivered by 2DAYSMOOD, including designs, sketches, drawings, films, software, (electronic) files, presentations, etc., remain the property of 2DAYSMOOD until the Client has fulfilled all obligations from any agreements concluded with 2DAYSMOOD.
- The Client is not authorized to pledge the items subject to the retention of title or to encumber them in any other way.
- If third parties seize the goods delivered under retention of title or want to establish or assert rights thereon, the Client is obliged to notify 2DAYSMOOD as soon as possible.
- The Client undertakes to insure the goods delivered subject to retention of title and to keep them insured against fire, explosion and water damage as well as against theft.
- In the event that 2DAYSMOOD wishes to exercise its title as referred to in this article, the Client hereby gives unconditional and irrevocable permission to 2DAYSMOOD or third parties designated by 2DAYSMOOD to enter all places where the properties of 2DAYSMOOD are located to allow them to be taken back.
Article 10 – Collection fees
- If the Client is in default or omission in the (timely) fulfillment of his obligations, then all reasonable costs incurred in obtaining payment through legal proceedings are for the account of the Client.
- Collection fees for account of the Client are calculated in accordance with the collection fees as advised by the Netherlands Bar Association.
- If 2DAYSMOOD has actually incurred higher costs to collect payment, these (reasonable) costs will also be reimbursed by the Client.
Article 11 – Complaints
- Complaints about the work performed by 2DAYSMOOD must be reported in writing by the Client to 2DAYSMOOD within 8 days of discovery, but no later than 14 days after completion of the respective work. The notice must contain a detailed a description of the underperformance, to enable 2DAYSMOOD to respond adequately.
- If a complaint is justified, 2DAYSMOOD will still perform the work as agreed, unless this has become demonstrably no longer useful for the Client. The latter must be made known by the Client in writing.
- If the performance of the agreed work is no longer possible or useful, 2DAYSMOOD will only be liable to the extent of the limits of Article 15.
Article 12 – Termination
- The Agreement may be terminated unilaterally by the Client with a notice period of one calendar month.
- If the previously agreed contract duration has not been finished, the full fee for the agreed duration will be due. No refund will be granted on payments made for the agreed duration.
- If the Agreement is prematurely terminated by the Client, 2DAYSMOOD shall be entitled to compensation because of the resulting loss of utilization, unless the reasons for termination is attributable to 2DAYSMOOD. Furthermore, the Client is obliged to pay the invoices for work done up to the time of termination.
- The results of the work carried out until then will be made available to the Client after all payments have been received by 2DAYSMOOD.
- If the Agreement is terminated prematurely by 2DAYSMOOD, 2DAYSMOOD shall, in consultation with the Client, assist in transfer of work still to be performed to third parties, unless the facts and circumstances for the cancellation are attributable to the Client.
- If the transfer of the work to a third party leads to additional costs for 2DAYSMOOD, these will be charged to the Client.
Article 13 – Suspension and termination
- 2DAYSMOOD is entitled to suspend the fulfilment of the obligations or to terminate the Agreement if:
1.1. the Client does not or not fully comply with the obligations arising out of the Agreement.
1.2. after concluding the Agreement, 2DAYSMOOD becomes aware of circumstances that give reasonable ground to fear that the Client will not fulfil its obligations. In the event that there is good reason to fear that the Client will only partially or improperly fulfil its obligations, the suspension is only permitted insofar as the related shortcoming justifies this.
1.3. Client has been asked at the conclusion of the Agreement to provide security for the fulfillment of his obligations under the Agreement and this security is not provided to the extent required.
- Furthermore, 2DAYSMOOD is authorized to terminate the Agreement (or have it terminated) if circumstances arise which are of such a nature that fulfillment of the Agreement is impossible or, according to standards of reasonableness and fairness, can no longer be required or if other circumstances arise which dictate that maintaining the Agreement in its originally agreed form cannot reasonably be expected.
- If the Agreement is terminated, 2DAYSMOOD’s claims against the Client are immediately due and payable.
- If 2DAYSMOOD suspends fulfillment of its obligations, 2DAYSMOOD retains its rights under the law and Agreement.
- 2DAYSMOOD always reserves the right to claim compensation.
Article 14 – Returning of goods
- If 2DAYSMOOD has made goods available to the Client during the execution of the Agreement, the Client is obliged to return the delivered goods within 14 days in full, in their original state and free of defects. If the Client does not comply with this obligation, all resulting costs are for the Client’s account.
- If the Client, for whatever reason, after being notified to do so, still remains in default with respect to the obligation mentioned under 1, 2DAYSMOOD has the right to recover the damage and costs from the Client, including the costs of replacement.
Article 15 – Liability
- If 2DAYSMOOD is liable towards the Client or its associated parties, then its liability is limited to the terms of this provision.
- If 2DAYSMOOD is liable for direct damage, this liability is limited to a maximum of the amount of the reimbursement received from the insurer of 2DAYSMOOD, but no more than the maximum of twice the amount of the invoice for the part of the assignment to which the liability relates. Moreover, 2DAYSMOOD’s liability for direct damage is at all times limited to a maximum of the fee that 2DAYSMOOD receives under the Agreement for services rendered.
- Contrary to what has been stipulated under 2. of this article, in the case of an assignment with a term of more than six months, the liability is further limited to the part of the fee due over the last six months.
- Direct damage is exclusively understood to mean:
the reasonable costs for determining the cause and extent of the damage, insofar as the determination relates to damage within the meaning of these conditions;
any reasonable costs incurred to have the faulty performance of 2DAYSMOOD comply with the Agreement, unless the underperformance can not be attributed to 2DAYSMOOD;
reasonable costs incurred to prevent or limit damage, insofar as the Client demonstrates that these costs have led to the limitation of direct damage as referred to in these general terms and conditions.
- 2DAYSMOOD is never liable for indirect damage, including consequential damage, loss of profit, missed savings and damage due to business interruption.
- The limitations of liability for direct damage included in these conditions do not apply if the damage is due to intent or gross negligence of 2DAYSMOOD or its subordinates.
Article 16 – Indemnities
- The Client indemnifies 2DAYSMOOD against claims of third parties with regard to intellectual property rights on materials or data provided by the Client which are used in the execution of the Agreement.
- If the Client provides 2DAYSMOOD with information carriers, electronic files or software etc., the latter guarantees that the information carriers, electronic files or software are free of viruses and defects.
Article 17 – Transfer of Risk
- The risk of loss or damage to the items that are the object of the Agreement passes to the Client at the moment at which they are actually or legally delivered to the Client and have come in the power of the Client or a third party designated by the Client.
Article 18 – Force Majeure
- The parties are not obliged to comply with any obligation out of this Agreement if they are prevented from doing so as a result of circumstances that are not due to their fault, and which is not by law, by their actions or generally accepted to be for their account.
- Force Majeure in these Conditions includes, in addition to its meaning in the law and jurisprudence, all external causes, foreseen or unforeseen, on which 2DAYSMOOD can not exert influence, but as a result of which 2DAYSMOOD is unable to fulfil its obligations. Strikes in 2DAYSMOOD, or companies used by 2DAYSMOOD for the execution of the Agreement, are explicitly included.
- 2DAYSMOOD also has the right to invoke Force Majeure if the circumstance that prevents (further) performance, occurs after the term within which 2DAYSMOOD should have fulfilled its obligations.
- During the period that the Force Majeure continues, the parties can suspend their obligations under the Agreement. If this period lasts longer than two months, each of the parties is entitled to terminate the Agreement, without any obligation to compensate the other party for damage.
- To the extent that 2DAYSMOOD at the time of the occurrence of Force Majeure has partially fulfilled its obligations under the Agreement or will be able to fulfil obligations which represent value to the Client, 2DAYSMOOD is entitled to invoice the already fulfilled or to be fulfilled part separately. The Client is obliged to pay this invoice as if it were a separate Agreement.
Article 19 – Confidentiality
- Both parties are obliged to keep all confidential information that they have obtained from each other or from another source within the framework of the Agreement confidential.
- Information is considered confidential if this has been designated as such by the other party or if this follows from the nature of the information. The parties will also impose this obligation on their employees as well as on third parties engaged by them to execute the Agreement.
- This obligation also continues after termination of the Agreement for whatever reason, and for as long as the providing party can reasonably claim the confidential nature of the information.
- If, on the basis of a statutory provision or court order, 2DAYSMOOD is obliged to provide confidential information to third parties, then 2DAYSMOOD is not obliged to compensation and the other party is not entitled to termination of the Agreement on the basis of breach of this Article.
Article 20 – Intellectual property and copyright
- Without prejudice to the other provisions in these Conditions, 2DAYSMOOD reserves its rights pursuant to the Dutch Copyright Act.
- All documents provided by 2DAYSMOOD, such as reports, advice, agreements, designs, sketches, drawings, software, etc., are exclusively intended for use by the Client and may not be reproduced without prior consent of 2DAYSMOOD, may not be made public, or brought to the notice of third parties, unless this is contrary to the nature of the documents provided.
- 2DAYSMOOD reserves the right to use the knowledge gained in the execution of the work for other purposes, as long as no confidential information from the Client is brought to the notice of third parties.
Article 21 – Samples and models
- If a sample or (theoretical) model has been shown or provided to the Client, then it is presumed to have been provided as an indication only, unless it is explicitly agreed that the product to be delivered should be in conformity therewith.
Article 22 – Not acquiring personnel
- During the term of the Agreement, as well as one year after its termination, the Client will in no way, except after proper consultation has taken place with 2DAYSMOOD, hire or directly or indirectly employ employees of 2DAYSMOOD or of companies which 2DAYSMOOD has involved in the execution of this Agreement.
Article 23 – Privacy
- 2DAYSMOOD may process personal data in case the Client uses the product and services provided by 2DAYSMOOD, which is usually a continuous employee engagement survey.
- 2DAYSMOOD only requires an email address or telephone number to be able to send surveys to participants. All other user data (first name, last name, gender, date of birth, date start employment, department and job status) are optional.
- All data stored by 2DAYSMOOD is encrypted. Unless it has been agreed to use the private cloud of the Client, the survey data is stored in a third party datacentre in the EU for Clients in the EU and in the USA for Clients in the USA, with all the required security standards in place.
2DAYSMOOD does not store personal data for longer than is strictly necessary to achieve the objectives for which the data is collected. Personal data that is necessary for performing an employee engagement survey will, by default, be retained for four months after the termination of the Agreement, unless otherwise agreed in writing.
- 2DAYSMOOD never discloses personal data to third parties, unless this is required to comply with a legal obligation.
- 2DAYSMOOD complies with GDPR and also with Dutch AVG legislation. The provider of datacentres used by 2DAYSMOOD and the provider of the tool to send surveys are also fully GDPR compliant and (amongst others) certified subscribers to the EU-US Privacy Shield Framework regarding the collection, use and retention of personal information from the EEA, the United Kingdom and Switzerland.
- At any moment, users have the right to view, correct or delete their personal data. A request for accessing, editing or removing data can be submitted to firstname.lastname@example.org. 2DAYSMOOD will respond to such request as quickly as possible, but in any case within two weeks.
Article 24 – Disputes
- The courts of Utrecht, the Netherlands are exclusively competent to deal with disputes arising out of the Agreement.
- The parties will only appeal to the courts after they have made every effort to settle a dispute in mutual discussions and consultation.
Article 25 – Applicable law
- Dutch law applies to any Agreement between 2DAYSMOOD and the Client.