I. GENERAL TERMS AND CONDITIONS
1.1 Definitions
“Client” means the party with whom Quagga has entered into an Agreement and/or to whom Quagga has issued a quote;
“Agreement” means any agreement under which Quagga undertakes to deliver goods, perform services, and/or provide personnel;
“Quagga” means the sole proprietorship Quagga Media, Chamber of Commerce number 09219255, represented by Raouf Othman or a person designated by him in writing.
1.2 Applicability
1.2.1 These general terms and conditions apply in their entirety to every Agreement entered into by Quagga and every quotation issued for the conclusion of an Agreement.
1.2.2 The applicability of any purchasing conditions or other terms and conditions of the Client is expressly rejected.
II. FORMATION OF AN AGREEMENT
2.1 Formation
An Agreement is formed only through (I) written confirmation by Quagga or the Client of a previously reached verbal agreement between Quagga and the Client, unless the other party objects in writing within 7 days to a key provision in this confirmation, (II) the signing of a quotation or confirmation by both Quagga and the Client as an indication of their agreement, or (III) the commencement of performance by Quagga that is known to the Client, to which the Client does not immediately object in writing to Quagga.
2.2 Quotations
2.2.1 All offers and quotations from Quagga for the conclusion of an Agreement are non-binding and remain open for acceptance for 15 days, unless otherwise stated in the quotation. If the quotation is not accepted within this 15-day period, it shall lapse.
2.2.2 The Client guarantees the accuracy and completeness of the measurements, requirements, and specifications of the service, as well as any other information provided by the Client to Quagga, upon which Quagga has based its offer.
2.2.3 Quagga cannot be held to its quotations or offers if the Client can reasonably understand that the quotations or offers, or any part thereof, contain an obvious error or typographical mistake.
2.2.4 A composite quotation does not oblige Quagga to perform a portion of the Order for a corresponding portion of the quoted price.
2.2.5 Offers and quotations do not automatically apply to future orders.
2.3 Options
If Quagga grants an option to enter into an Agreement, Quagga may request that the option holder exercise the option within 24 hours. If the option holder does not exercise the option in writing within this period, the option granted shall lapse.
2.4 Cancellation
2.4.1 The Client may cancel (part of) an Agreement only if such cancellation is made in writing and before Quagga begins performing the Agreement.
2.4.2 In the event of cancellation, Quagga may charge the Client for any preparation costs incurred.
2.4.3 If cancellation occurs less than 5 business days before Quagga begins performing the Agreement, the Client shall owe compensation equal to 75% of the agreed-upon total price. If cancellation occurs less than 3 business days before Quagga begins performance of the Agreement, the Client shall owe compensation equal to 100% of the agreed-upon total price.
2.4.4 Quagga is entitled to cancel the Agreement in whole or in part in writing in the event of such changes in circumstances that performance can no longer reasonably be expected of Quagga (for example, due to illness) or that performance would entail criminal or other legal risks. In such a case, the Client is not entitled to any compensation. In the event of cancellation pursuant to Section 2.4.4, only the costs incurred and the hours actually worked will be billed.
2.5 Early Termination
2.5.1 Quagga and the Client are only entitled to terminate the Agreement if the other party, in all cases following a written notice of default containing a complete and detailed description of the breach and setting a reasonable deadline for compliance, is at fault for failing to fulfill a material obligation under the Agreement.
2.5.2 Quagga is entitled to terminate the Agreement in whole or in part in writing with immediate effect, without prior notice of default, if the Client commences negotiations with one or more creditors or takes similar steps with a view to restructuring all or part of its debts, enters into a debt settlement agreement with its creditors, files for a stay of payments, files for bankruptcy, or is declared bankrupt. If the Agreement is terminated on this basis, Quagga shall under no circumstances be obligated to refund any funds already received or to pay damages.
III. EXECUTION OF AN AGREEMENT
3.1 Provision of a Service
3.1.1 Quagga reserves the right to outsource the performance of the Agreement, in whole or in part, to third parties, or to have third parties assist it in the performance thereof.
3.1.2 Quagga will use its best efforts to ensure that the personnel engaged possess the expertise and professional skill that the Client may reasonably expect under normal circumstances for the performance of the work.
3.1.3 Quagga will use its best efforts to perform the services with due care, where applicable in accordance with the agreements and procedures set forth in the Agreement. All of Quagga’s services are performed on a best-efforts basis, unless and to the extent that Quagga has expressly committed to a specific result in the Agreement and such result has also been described with sufficient specificity.
3.1.4 In performing the Agreement, Quagga will follow timely and reasonable instructions from the Client. Quagga is not obligated to follow instructions that alter or supplement the content or scope of the Agreement.
3.1.5 The Client shall at all times provide Quagga in a timely manner with all data or information useful and necessary for the proper performance of the Agreement, provide full cooperation, including granting timely, free-of-charge, and unimpeded access to buildings and premises, and ensure that Quagga has timely access to the workspace and facilities reasonably necessary for the performance of the Agreement. The Client shall ensure that its personnel assigned to cooperate in the performance of the Agreement possess the necessary knowledge and experience.
3.1.6 The Client shall provide Quagga with a parking space free of charge in the vicinity of the work site. If this is not possible, any parking costs will be charged. Travel time between the parking space and the work site will be charged.
3.1.7 Quagga is entitled to perform the Agreement in separate phases and to invoice the portion thus performed separately.
3.1.8 If the Agreement is performed and invoiced in phases, Quagga may suspend performance of those parts belonging to a subsequent phase until the Client has fulfilled its payment obligations.
3.1.9 If the Agreement is performed in phases, Quagga may suspend the performance of those parts that belong to a subsequent phase until the Client has approved the results of the preceding phase.
3.2 Working Conditions
3.2.1 The Client warrants that the workspace and facilities referred to in Section 3.1.5 comply with all applicable (legal) requirements and regulations regarding working conditions and workplace safety.
3.2.2 If the Client fails to fulfill the obligations referred to in Section 3.2.1, or fails to do so in a timely manner, or if the Client otherwise fails to meet its obligations, Quagga shall have the right to suspend the performance of the Agreement in whole or in part, and Quagga shall have the right to charge the Client for the resulting costs in accordance with its standard rates, all without prejudice to Quagga’s other rights.
IV. PRICES AND PAYMENT
4.1 Prices
4.1.1 The hourly rate is specified in the Agreement. Price increases will be notified in writing at least 30 days in advance.
4.1.2 The number of hours is calculated in increments of 0.25 hours, with a minimum of four hours per day.
4.1.3 If work is billed at a daily rate, a half-day consists of 5 hours on-site and off-site, and a full day consists of 10 hours on-site and off-site, including any breaks.
4.1.4 All prices quoted by Quagga are in euros, exclusive of value-added tax (VAT), material, shipping, travel, parking, and accommodation costs, unless otherwise specified in the Agreement.
4.1.5 Hours worked on Dutch national holidays will be billed at 150%.
4.1.6 Night hours between 12:00 a.m. and 6:00 a.m. will be billed at 150%.
4.1.7 If actual breaks taken are deducted, this will be done with a maximum deduction of 1 hour per day.
4.1.8 Quagga is entitled to charge the Client for additional work, within reason, based on Quagga’s standard rates. Additional work is defined as: all work performed by Quagga at the Client’s request in addition to the work specified in the Agreement (for example, extending a shift or making corrections not agreed upon in advance). The absence of a written order does not affect the right to compensation for additional work. Quagga is never obligated to comply with such a request and may require that a separate written agreement be entered into.
4.2 Indemnification
Quagga shall indemnify the Client against all claims and/or additional assessments by the social insurance agency or tax authorities pursuant to all applicable social insurance and tax laws.
4.3 Payment
4.3.1 The Client must pay Quagga’s invoices within 14 days of the invoice date, without the Client having the right to set off or suspend payment. If an invoice is not paid within this period, the Client shall, without the need for a demand for payment or notice of default, owe interest on the outstanding amount at a rate of 1% per calendar month from the date on which the payment term expired until the date of payment, with any partial calendar month counted as a full month.
4.3.2 After the payment term for its invoices has expired, Quagga may, without any demand for payment or notice of default being required, decide to take extrajudicial collection measures.
4.3.3 If Quagga decides to take extrajudicial collection measures, the Client is obligated, without any demand for payment or notice of default being required, to reimburse Quagga for the associated costs. These costs amount to at least 15% of the unpaid amount, with a minimum of €250.00.
4.3.4 Quagga is entitled, upon the conclusion of the Agreement and throughout its term, to require, without having to provide a reason to the Client, an appropriate form of security—such as a bank guarantee or security deposit—to ensure the Client’s performance of its obligations under the Agreement. If Quagga requires security from the Client, Quagga is entitled to suspend its (further) performance of the Agreement until such security has been provided.
V. LIABILITY
5.1 Liability
5.1.1 The Client is at all times liable to Quagga, its employees, and/or third parties engaged or authorized by Quagga for all damages caused by the Client or third parties hired by the Client resulting from death, physical or mental injury, or the loss, damage, or theft of the property of Quagga, its employees, and third parties engaged or authorized by Quagga, respectively.
5.1.2 Quagga’s total liability for attributable failure to perform the Agreement is limited to a maximum of the agreed-upon price (excluding VAT) for the part of the Agreement to which the failure directly relates. Under no circumstances shall the total compensation for direct damages exceed €10,000 (ten thousand euros). “Direct damages” are exclusively defined as:
- reasonable costs incurred by the Client to bring Quagga’s defective performance into compliance with the Agreement;
- reasonable costs incurred by the Client to prevent or limit direct damages as referred to in these general terms and conditions;
- reasonable costs incurred by the Client to determine the cause and extent of direct damages as referred to in these general terms and conditions.
5.1.3 Quagga is not liable for indirect damages, which in any case include consequential damages, business interruption, lost revenue or profits, lost savings, damages resulting from business downtime, reputational damage, diminished goodwill, damages resulting from third-party claims against the Client, inferior quality of recording materials, destruction, loss, or damage to audio and/or video and/or data storage media and the material recorded thereon, damages related to the use of items belonging to the Client or third parties that were provided to or specified by the Client for Quagga’s use, damages related to the engagement of third parties specified by the Client to Quagga, theft, destruction, or damage to the property of the Client, the Client’s employees, third parties engaged by the Client, or members of the public admitted by the Client, and all other forms of damages other than those mentioned in Article 5.1.2.
5.1.4 Quagga shall be liable for an attributable breach of the Agreement only if Quagga, without delay, but no later than 48 hours after the performance of (the relevant part of) the Agreement, a written notice of default containing a complete and detailed description of the Client’s breach, in which Quagga is given a reasonable period of time to remedy the breach, and if such remedy is not provided within that period. In the absence of a notice of default within the aforementioned period, any claims by the Client arising from Quagga’s attributable breach shall lapse. Any claim for damages against Quagga shall lapse by the mere passage of 2 months after the claim arises.
5.1.5 The limitations on Quagga’s liability set forth in the preceding paragraphs of this Section 5.1 do not apply if and to the extent that the damage results from Quagga’s willful misconduct or gross negligence.
5.2 Deadlines
5.2.1 All deadlines agreed upon by Quagga for the performance of the Agreement have been set to the best of Quagga’s knowledge based on the information known to Quagga at the time the Agreement was entered into. Quagga will make every reasonable effort to adhere to the agreed-upon deadlines as much as possible.
5.2.2 The mere exceeding of a deadline does not constitute a default on the part of Quagga. In all cases, Quagga will only be in default due to exceeding a deadline after the Client has given Quagga notice of default. If there is a risk of exceeding any deadline, Quagga and the Client will consult with each other as soon as possible.
5.3 Intellectual Property
The Client warrants to Quagga that no third-party intellectual property rights preclude Quagga’s performance of the Agreement. The Client shall fully indemnify and hold harmless Quagga and all parties affiliated with Quagga from any claim arising from a breach of the provisions of this Article.
VI. MISCELLANEOUS
6.1 Retention of title
6.1.1 All goods delivered to the Client remain the property of Quagga until all amounts owed by the Client to Quagga have been paid in full to Quagga.
6.1.2 Unless expressly provided otherwise in the Agreement, all intellectual and industrial property rights in the goods manufactured or made available under the Agreement by Quagga, its employees, and/or third parties engaged by Quagga are vested exclusively in Quagga, its licensors, or its suppliers. The Client shall acquire only the rights of use expressly granted by these general terms and conditions and by law. Any other or further rights of the Client are excluded. Any right of use granted to the Client is exclusive and non-transferable to third parties.
6.2 Confidentiality
The Client and Quagga shall keep strictly confidential any information received from the other party in writing or orally in connection with the Agreement, which the recipient knows or ought to know is of a confidential nature, and shall not disclose such information to third parties, unless such information:
- was already in the recipient’s possession without any obligation of confidentiality;
- is already in the public domain, other than as a result of a breach of this Section 6.2 or a disclosure of which the recipient knew or reasonably should have known at the time of disclosure that it was unlawful;
- is disclosed to their respective professional advisors, subject to a confidentiality obligation and only to the extent necessary for any reasonable purpose; or
- must be disclosed pursuant to applicable laws or stock exchange regulations, or by any national, provincial, municipal, or other government authority, or by a court order in any relevant jurisdiction, but in such a case, only after prior and timely consultation with the other party regarding the necessity, timing, and content of the disclosure;
- Information shall in any case be considered confidential if it has been designated as such by the provider of that information. The recipient of the confidential information shall use it only for the purpose for which it was provided.
6.3 Promotional materials
6.3.1 The Client shall, to the greatest extent possible, ensure that Quagga’s name and role are mentioned in the promotional materials and/or credits for the product covered by the Agreement.
6.3.2 Quagga reserves the right to add its name and role in a discrete manner to the products and services it provides.
6.3.3 Quagga reserves the right to use the products and services it has delivered to promote Quagga and/or third parties engaged by Quagga.
6.4 Deviations from these Terms and Conditions
6.4.1 Any deviation from or exclusion of these general terms and conditions is valid only if Quagga has agreed to it in writing.
6.4.2 If any provision of these general terms and conditions proves to be void or unenforceable, the remaining provisions of these general terms and conditions shall remain in effect to the greatest extent possible. Quagga and the Client will do their utmost to reach agreement on a new provision that, given the scope and purpose of the void or unenforceable provision, deviates as little as possible from that void or unenforceable provision.
6.4.3 The Client is not entitled to assign its rights and obligations under the Agreement without Quagga’s prior written consent.
6.5 Disputes
6.5.1 The Agreement is governed exclusively by, and shall be interpreted in accordance with, Dutch law. The applicability of the Vienna Convention on Contracts for the International Sale of Goods of April 11, 1980 (Trb. 1986, 61) is excluded.
6.5.2 Any disputes that may arise in connection with the Agreement shall be submitted in the first instance to the competent court in Arnhem, to the exclusion of any other court. Quagga reserves the right to sue the Client in the court of the Client’s place of residence.
