Terms & Services - February '24

GENERAL TERMS AND CONDITIONS of Migratespot | www.migratespot.com

1. Definitions

1.1 “Migratespot” in these terms and conditions refers to: Migratespot, located in Amsterdam.

1.2 “The counterparty” in these terms and conditions refers to: the natural person or the legal entity who has entered into an agreement with Migratespot or is in negotiation with Migratespot for that purpose.

1.3 “Parties” in these terms and conditions refers to: Migratespot and the counterparty.

2. General

2.1 All offers, sales, deliveries, and services of Migratespot are exclusively under the application of these general terms and conditions.

2.2 These conditions can be made known by means of mention on letterhead, quotation, order confirmation, or invoice.

2.3 Special clauses that deviate from or supplement these conditions are only binding if agreed upon in writing and only apply on a case-by-case basis.

2.4 In case these conditions are also drawn up in a language other than Dutch, the Dutch text will always be decisive in the event of any differences.

2.5 In case no appeal can be made to any provision in the agreement and/or these conditions, for whatever reason, such provision will be given a meaning as closely corresponding to its content and scope as possible, in such a way that an appeal can be made to it.
The potential invalidity of any part of the agreement and/or these conditions does not affect the validity of the remaining part of the agreement and/or these conditions.

2.6 If Migratespot does not demand strict compliance with these conditions in a particular case, this does not imply that these conditions are not applicable or that Migratespot would lose the right to demand strict compliance with these conditions in future, whether similar or not, cases.

2.7 The applicability of general terms and conditions used by the counterparty is expressly rejected.

2.8 Migratespot may change these conditions at any time. The counterparty will be notified of the change in writing.

2.9 If Migratespot accepts work as part of an assignment that it outsources, unless the terms are unusual for the industry, it will be able to fully conform to the conditions applicable to the outsourcing of the third-party contractor, which means that the counterparty hereby authorizes Migratespot to execute the assignments given to it in this manner. Migratespot is entitled to use such general terms and conditions in relevant cases as a supplement to the relationship with the counterparty. In particular, if Migratespot’s work consists of placing advertisements, the Rules for the Advertising Industry are additionally applicable to the relationship with the counterparty, alongside these conditions, unless the said rules would be in conflict with these conditions. If Migratespot’s work consists of the production, processing, or delivery of printing work, photographic and reproduction materials, or designs and/or advice, the Delivery Conditions of the professional association Grafische Vormgevers Nederland are additionally applicable, insofar as they do not conflict with these conditions. The above-mentioned Rules and Delivery Conditions have all been deposited at the registry of the court in Amsterdam and will apply as they read at the time of entering into the agreement.

3. Offers

3.1 All offers, price quotes, cost estimates, and pre-calculations made by Migratespot are entirely without obligation, whether made orally or in writing.

3.2 All information and/or specifications provided with an offer regarding quantities, sizes, composition, color, and the like are always approximate and are only binding for Migratespot if this has been expressly confirmed in writing. Deviations in quantities, numbers, and colors mentioned in offers up to 10% are accepted as budgetary risks by the counterparty and therefore do not need to be reported as such.

3.3 Unless otherwise agreed, offers from Migratespot are valid for 30 days. If an offer is not followed by an order within the mentioned period of 30 days, the quotation with all accompanying drawings, designs, calculations, etc., must be returned to Migratespot free of charge within 8 days after a request has been made.

4. Agreements

4.1 An agreement between the parties is established at the moment Migratespot confirms an order from the counterparty in writing, or at the moment Migratespot starts executing the order.

4.2 Any subsequent additional agreements or modifications only bind Migratespot if they have been confirmed by Migratespot in writing.

4.3 Agreements with subordinate staff members, representatives, and other intermediaries of Migratespot are not binding unless they have been confirmed by Migratespot in writing.

4.4 The counterparty is not entitled to have the agreed-upon services also provided by a third party without consultation with or permission from Migratespot.

5. Intellectual and Industrial Property

5.1 By placing an order for the publication or reproduction of objects protected by the Copyright Act or any other legal regulation in the field of intellectual property, which have been made available by or on behalf of the counterparty, the counterparty declares that no infringement of legal regulations and protected rights of third parties is made and indemnifies Migratespot against claims in this regard from third parties or for the direct and indirect consequences, both financial and other, arising from the publication or reproduction.

5.2 Intellectual property rights and materials resulting from the work will be transferred to the counterparty, to the extent that they belong to Migratespot and are transferable, once all that the counterparty owes to Migratespot, including the buyout of any development costs and intellectual property rights, has been settled. Insofar as intellectual property rights of third parties are involved, Migratespot will, at the request of the counterparty, consult with these third parties on whether a complete transfer is desired or possible, also considering the associated costs.

5.3 During the duration of the relationship, the counterparty is not entitled to any further or different use of the work produced on commission than the use expressly agreed upon beforehand. If nothing has been agreed upon in this regard, then the first use will be considered as agreed.

5.4 During the duration of the relationship, the counterparty is not entitled to alter the work produced on commission without the express written consent of Migratespot.

5.5 Migratespot is entitled to sign the work produced on commission.

6. Execution

6.1 Migratespot will endeavor to the best of its ability to execute the order with care. However, Migratespot cannot guarantee the achievement of the result desired by the counterparty.

6.2 In order to enable Migratespot to perform its duties properly, the counterparty will, whether asked or not, provide all the information necessary for this purpose.

6.3 Only if it has been explicitly agreed upon in writing, is Migratespot obligated to follow timely and responsibly given instructions from the counterparty in the execution of the order. Migratespot is not obliged to follow instructions that change or supplement the content or scope of the order; however, if such instructions are followed, the relevant work will be compensated according to paragraph 4.

6.4 If Migratespot has carried out work or other performances at the request of or with the prior consent of the counterparty, which fall outside the content or scope of the agreed service, these activities or performances will be compensated by the counterparty according to the usual rates of Migratespot. However, Migratespot is not obliged to comply with such a request and may require that a separate written agreement be concluded for this.

6.5 The counterparty accepts that activities or performances as referred to in paragraph 4 may affect the agreed or expected time of completion of the service and the mutual responsibilities of the counterparty and Migratespot.

6.6 If the agreement was entered into with the intention of execution by a certain person, Migratespot is always entitled to replace this person with one or more other persons with the same qualifications.

6.7 Migratespot explicitly reserves the right to involve third parties in the execution of the assignment given to her.

7. Typesetting, Printing, and Other Proofs

7.1 The counterparty is obliged to carefully check the typesetting, printing, or other proofs received from Migratespot, whether requested or not, for errors and defects and to return them corrected or approved to Migratespot promptly. If Migratespot has not received any comments on the proofs within three days after dispatch, the counterparty is deemed to have tacitly approved them.

7.2 (Explicit or tacit) approval of the proofs by the counterparty is regarded as recognition that Migratespot has correctly performed the work preceding the proofs.

7.3 Migratespot is not liable for deviations, errors, and defects that remained unnoticed in the proofs that have been (explicitly or tacitly) approved or corrected by the counterparty.

7.4 Each proof made at the request of the counterparty will be charged in addition to the agreed price unless it has been expressly agreed that the costs of these proofs are included in the price.

8. Duration and Termination

8.1 Unless explicitly indicated otherwise, the agreement between the parties is presumed to have been entered into for an indefinite period.

8.2 An agreement for an indefinite period may be terminated by either party by giving notice in writing, provided that notice is sent by registered mail and the following notice periods are observed:
– for assignments with a duration of up to 1 year: 2 months;
– for assignments with a duration of up to 2 years: 3 months;
– for assignments with a duration of up to 3 years: 4 months;
– for assignments with a duration longer than 3 years: 6 months.

8.3 Migratespot is at all times entitled to terminate an agreement entered into for a fixed term by giving notice, provided that this is done by registered mail and observing the notice periods mentioned in the previous paragraph.

8.4 Migratespot is, without prejudice to its other rights, authorized to terminate the agreement entered into for a fixed or indefinite period by registered mail, observing a notice period of one month, if the counterparty, despite summons and notice of default, acts in violation of any contractual obligation towards Migratespot.

8.5 Migratespot is, without prejudice to its other rights, authorized to terminate the agreement entered into for a fixed or indefinite period by registered mail with immediate effect:
a. in case the counterparty is declared bankrupt or is granted a suspension of payment, or if bankruptcy or suspension of payment of the counterparty is applied for;
b. In case of an executive seizure on the counterparty’s assets or a conservatory seizure lasting longer than one month;
c. In case of the liquidation of the counterparty’s company or demonstrable plans thereof, or if the counterparty concludes or attempts to conclude any agreement with its creditors.

8.6 Migratespot is obliged to normally and properly complete ongoing work until the end of the relationship unless the counterparty decides otherwise. If the counterparty so requests, Migratespot is obliged to ensure an adequate transfer of the work, but not before the counterparty has met all its (financial) obligations.

9. Confidentiality

Data related to the execution of the assignment shall not be disclosed by Migratespot to (third parties not involved in this execution), except if and insofar as the disclosure is made with the express consent of the counterparty, by legal provisions or by a judicial order.

10. Staff Takeover

10.1 Without the express written consent of Migratespot, the counterparty is prohibited from employing staff members of Migratespot within twelve months after the completion of the assignment or having them work for or with her in any other way, directly or indirectly, for payment or free of charge.

10.2 For each violation of the prohibition referred to in paragraph 1, the counterparty shall forfeit to Migratespot an immediately due and payable fine equal to an amount equal to the highest hourly rate applicable at Migratespot at that time, multiplied by the number 1040 (being 26 weeks of 40 hours per week).

11. Settlement of the Relationship

11.1 All designs, reproduction materials, texts, descriptions, artistic performances, films, and other publicity materials that are in the possession of Migratespot at the end of the relationship as a result of the relationship will be transferred by her to the counterparty at first request free of charge, after all that the counterparty owes her, for whatever reason, has been fulfilled. Then Migratespot will also instruct the media in writing without delay to transfer the remaining contracted media space/time to the counterparty or a third party designated by her.

11.2 In all cases where the relationship between the counterparty and Migratespot ends, pursuant to any provision of these terms or by judicial intervention, these terms will continue to govern the legal relationship between the parties, as far as this is necessary for the settlement of the relationship.

12. Prices

12.1 The agreed prices and rates are based on cost-determining factors at the time of the offer. Migratespot reserves the right to pass on any changes in these cost-determining factors that have occurred after the date of the offer or order confirmation and over which she can reasonably exert no influence, to the counterparty.

12.2 Costs of additions and/or changes to the assignment or agreement are at the expense of the counterparty.

12.3 The prices and rates are exclusive of VAT.

12.4 Discounts and commissions are not given unless explicitly agreed in writing.

12.5 A fee, whether agreed upon or not, will always be charged for ideas, concepts, advice, texts, or designs delivered on assignment, regardless of whether they are used or not.

13. Payment

13.1 The general condition for each agreement is: payment net cash. In the case an invoice is sent, the payment term is a maximum of 14 days from the invoice date. Migratespot is entitled to invoice interim during the execution of the assignments. If Migratespot proceeds to invoice in parts, the counterparty agrees that each part invoice forms a separate whole and is completely independent of previous and/or subsequent activities or invoices. Commercial production and (ether) media costs must have been received by Migratespot from the counterparty before the time Migratespot is obligated to pay these costs. Postage and other distribution costs for mail advertising shipments must have been received by Migratespot from the counterparty before dispatch/distribution. Deviating payment arrangements are only valid if they have been agreed upon in writing. When the counterparty fails to meet its obligations or when Migratespot has reason to doubt the timely fulfillment by the counterparty of its obligations, all orders from Migratespot are immediately due and payable.

13.2 All payments must be made at the office of Migratespot or to an account designated by Migratespot, without any discount, suspension, or settlement, for any reason whatsoever. Payment other than in money is only allowed if the counterparty requests this and Migratespot explicitly agrees to it in writing.

13.3 Payments must be made in the currency in which the agreed prices and rates are expressed.

13.4 Payments by the counterparty always serve primarily to satisfy the delay interest and (extrajudicial) costs owed by her and are then deducted from the oldest outstanding claim, even if the counterparty states that the payment relates to a later claim.

13.5 The counterparty is, without a notice of default being required, in default by the expiration of the payment term.

13.6 During the period of her default, the counterparty owes a delay interest of 1.5% per month or part of a month on the outstanding claims. After the end of each year, the amount on which the delay interest is calculated is increased by the interest due for that year.

13.7 In the case of extrajudicial collection, the counterparty owes the actual collection costs incurred by Migratespot, in addition to the principal and the delay interest. The extrajudicial collection costs amount to at least
– 15% over the first € 2,950,- (with a minimum of € 113,-)
– 10% over the additional amount up to € 5,899,-
– 8% over the additional amount up to € 14,747,-
– 5% over the additional amount up to € 58,991,-
– 3% over the additional amount above € 58,991,-.

13.8 In the case of judicial collection, including bankruptcy petitions, the counterparty remains obliged to pay the delay interest and extrajudicial collection costs.

13.9 If the counterparty defaults on any payment, Migratespot is entitled to suspend its performances, and it also has the right to dissolve the agreement without judicial intervention. In the latter case, the counterparty is obliged to reimburse all costs incurred by Migratespot in preparation for the performances to be delivered, as well as all other damages suffered by Migratespot. The latter damages are hereby determined to be at least 25% of the not yet expired terms and/or not yet due amounts.

14. Advance Payment and Security

14.1 Migratespot is entitled to require an advance payment or prepayment at the conclusion of the agreement, as well as before or during the execution of the order.

14.2 Migratespot is at all times entitled, before performing or continuing to comply with the agreement, to require the counterparty to provide sufficient security for the fulfillment of its payment obligations. The counterparty is obliged to provide the requested security within eight days.

15. Retention of Title

15.1 Migratespot retains ownership of all items delivered to the counterparty until the purchase price for all these items has been fully paid. If Migratespot performs work for the counterparty at the counterparty’s expense and risk within the scope of these sales agreements, the reserved ownership mentioned above applies until the counterparty has also fully met these claims of Migratespot. The reserved ownership also applies to claims that Migratespot may obtain against the counterparty due to the counterparty’s failure to fulfill one or more of its obligations towards Migratespot. As long as the ownership of the delivered items has not been transferred to the counterparty, it may not pledge them or grant any other right to them to a third party, except as provided in paragraph 3. On items delivered that have passed into the ownership of the counterparty and are still in the possession of Migratespot, Migratespot hereby already reserves the right of pledge as referred to in Article 3:237 of the Dutch Civil Code as additional security for claims other than those mentioned in Article 3:92 paragraph 2 of the Dutch Civil Code that Migratespot might still have against the counterparty.

15.2 The counterparty is obliged to store the items delivered under retention of title with due care and as recognizable property of Migratespot. The counterparty is required to insure the items for the duration of the retained title against fire, explosion, and water damage, as well as against theft, and to show the policies of these insurances to Migratespot upon first request. All claims of the counterparty on the insurers of the items under the said insurances shall, as soon as Migratespot expresses such a desire, be pledged to her in the manner indicated in Article 3:239 of the Dutch Civil Code, as additional security for Migratespot’s claims against the counterparty. If the counterparty fails to meet its payment obligations towards Migratespot or gives Migratespot good reason to fear that it will fail to meet its obligations, Migratespot is entitled to take back the delivered items under retention of title. After repossession, the counterparty will be credited for the market value, which can in no case be higher than the original purchase price, reduced by the costs incurred on the repossession.

15.3 The counterparty is allowed to sell and transfer the items delivered under retention of title in the normal course of its business to third parties. In the case of sales on credit, the counterparty is obliged to stipulate a retention of title on the basis of the provisions of this article. The counterparty undertakes not to assign or pledge the claims it obtains against its customers to third parties without prior written consent from Migratespot. Furthermore, the counterparty undertakes to pledge the said claims to Migratespot, as soon as Migratespot expresses such a desire, in the manner indicated in Article 3:239 of the Dutch Civil Code, as additional security for her claims against the counterparty, on whatever grounds.

16. Right of Retention and Right of Pledge

16.1 Migratespot is, until the counterparty has fully complied with all its payment obligations towards her, entitled to withhold any goods, documents, and monies for the account and risk of the counterparty against anyone.

16.2 All goods, documents, and monies that Migratespot has or will obtain under any title serve as a pledge for all claims she has or will obtain against the counterparty.

16.3 Migratespot may also exercise the rights granted to her in paragraph 1 and 2 for what the counterparty still owes in connection with previous agreements.

16.4 If the claim is not satisfied, the sale of the collateral will take place in the manner prescribed by law, or – if there is agreement on this – privately.

17. (Delivery) Terms, Delivery, and Risk

17.1 The (delivery) terms specified by Migratespot are always approximate and are never to be considered as firm deadlines. Exceeding these (delivery) terms does not give the counterparty the right to compensation, suspension of their obligations, or dissolution of the agreement.

17.2 The items sold by Migratespot are delivered from the office and/or warehouse and/or storage location where they are located at the time of entering into the agreement. The risk is transferred to the counterparty as soon as the items have left the business or storage space or as soon as the items have been set aside for the counterparty and notification has been sent or dispatched that the purchase is ready for delivery. The transportation risk is for the counterparty. Migratespot is authorized, but never obliged, to deliver the sold items in parts and to invoice each part separately.

17.3 The right to delivery and other rights arising from an agreement for the counterparty are not transferable without written permission from Migratespot.

17.4 The counterparty is obliged to take delivery of the purchased items within 24 hours after they have been made available. After this period, Migratespot, without prejudice to its right to demand performance, has the right to cancel the agreement, in which case the counterparty is obliged to pay Migratespot 25% of the agreed purchase price as compensation for the costs incurred and loss of profit. The counterparty is also obliged to reimburse all other costs of Migratespot made in preparation for the delivery, as well as all other damages suffered by Migratespot.

17.5 Unless otherwise agreed in writing, for deliveries “on approval”:
– the parties are deemed to have concluded a perfect and unconditional purchase agreement if the counterparty does not return the delivered items within 8 days of receipt;
– the transportation costs of the (return) shipment are for the counterparty;
– the risk, including the transportation risk, is for the counterparty as described in article section 2.

18. Complaints

18.1 The counterparty must immediately check the performance/delivery upon performance/delivery for any deviations from what was agreed. Any complaints must be submitted to Migratespot in writing within 8 days after the performance/delivery, stating precisely the facts to which the complaints relate, failing which the counterparty is deemed to have irrevocably and unconditionally accepted the performance/delivery. Any legal actions must be initiated no later than 1 year after a timely complaint, under penalty of forfeiture.

18.2 Complaints are not permitted with respect to usual or minor deviations in quality, size, weight, color, quantity, etc., that are customary in the trade and industry.

18.3 Migratespot is only obliged to take notice of submitted complaints if the counterparty has met all its contractual obligations towards Migratespot, for whatever reason. The counterparty is not entitled to suspend its obligations because of a complaint submitted by them.

18.4 If the counterparty’s complaint, also considering the above, is founded, Migratespot will, after consultation with the counterparty, take care of re-performance or re-delivery of a product of the same kind, making the necessary improvements, or applying a reasonable price reduction. Complete or partial dissolution of the agreement by the counterparty is only possible with the approval of Migratespot. The counterparty cannot claim compensation for damages.

18.5 Complaints regarding a certain performance/delivery do not affect previous or subsequent performances/deliveries.

18.6 Without prior written permission from Migratespot, the delivered items may not be returned. Just like shipments to the counterparty, return shipments to Migratespot are at the expense and risk of the counterparty. If Migratespot stores the returned items or otherwise takes possession of them, this is done at the expense and risk of the counterparty. No approval or acceptance of the return can ever be derived from these measures.

19. Liability

19.1 Except in cases of intent or gross negligence by Migratespot itself or its managerial subordinates, any liability of Migratespot for damage suffered by the counterparty or third parties is excluded.

19.2 Migratespot is never obliged to compensate for damages other than to persons and things.

19.3 Notwithstanding what has been determined in the previous sections, and unless a higher amount is paid out under its liability insurance, the liability of Migratespot is limited to the damage that was foreseeable as a possible consequence of the act obliging compensation, with a maximum amount of the net invoice value of the performance/delivery that has resulted in the claim of the counterparty and/or third parties. If the agreement is mainly a continuous agreement with a duration of more than one year, the stated invoice value is set at the total of the net fees agreed upon for the period of one year.

19.4 Notwithstanding what has been determined in the previous sections,
– Migratespot is not further liable for products/items that it has obtained from third parties than these third parties are towards Migratespot;
– the risk of the permissibility of advertising is for the counterparty; this particularly applies in the case that the advertising campaigns are in violation of advertising regulations and laws;
– in general, products developed by Migratespot on commission, activities unfolded, or events organized are at the risk of the counterparty.

19.5 Under no circumstances is Migratespot liable in the following situations:
– if the counterparty has not reported the damage to Migratespot within 14 days after having discovered it;
– if the damage was caused by the counterparty providing incorrect and/or incomplete information to Migratespot.

19.6 Migratespot invokes all legal and contractual defenses that it can use to defend its own liability towards the counterparty, also on behalf of its subordinates and non-subordinates for whose behavior it would be liable under the law.

20. Indemnity

20.1 The counterparty shall fully indemnify Migratespot for any form of liability that could rest on Migratespot towards third parties concerning services performed or items delivered by Migratespot.

20.2 The counterparty shall also fully indemnify Migratespot against any claims by third parties related to items that Migratespot has in its possession in connection with the execution of the agreement.

21. Force Majeure

21.1 Force majeure (“non-attributable non-performance”) is understood to mean: any circumstance independent of the will of the parties or unforeseeable, which makes the fulfillment of the agreement no longer reasonably demandable by the counterparty from Migratespot.

21.2 Force majeure includes, but is not limited to: strikes, excessive absenteeism of the personnel of Migratespot or its suppliers, theft or destruction of company assets or data, transportation difficulties, epidemics, fire, war and danger of war, full or partial mobilization, government measures, including at least import and export bans and quota restrictions, business disruptions at Migratespot or its suppliers, storm damage and/or other natural disasters, involuntary disruptions or hindrances making the execution of the agreement more costly and/or difficult, as well as non-performance by the suppliers of Migratespot, which prevents Migratespot from fulfilling its obligations towards the counterparty.

21.3 In the event of force majeure, only Migratespot is entitled to suspend the execution of the agreement or to dissolve the agreement definitively.

21.4 Migratespot is entitled to demand payment for the performances that have been carried out in the execution of the respective agreement before the force majeure circumstance became apparent.

21.5 Migratespot is also entitled to invoke force majeure if the circumstance causing the force majeure occurs after its performance should have been delivered.

22. Applicable Law and Disputes

22.1 All legal relationships between parties are exclusively subject to Dutch law.

22.2 The provisions of the Vienna Sales Convention are not applicable, nor is any other existing or future regulation concerning the purchase of movable tangible property which can be excluded by the parties.

22.3 If a situation of force majeure occurs, only Migratespot is entitled to suspend the execution of the agreement or to dissolve the agreement definitively.

22.3 All disputes that may arise between the parties and which fall within the competence of the District Court will be exclusively settled by the (President of the) District Court of Amsterdam in the first instance, unless Migratespot prefers, for reasons of its own, to bring the case before the District Court of the counterparty’s place of residence or place of establishment, and provided the parties have not agreed on another form of dispute resolution.