TERMS & CONDITIONS
Article 1. Introduction
We thank you for your interest in OMSI, established in The Netherlands under file number 90100611. These are our General Terms and Conditions, which outline the terms under which we provide our services to clients. By using our services, you agree to our terms. Please read them carefully. If you have any questions or comments about these General Terms and Conditions, you can contact us via e-mail: team@theomsi.com.
Article 2. Definitions
In these general terms and conditions, the following terms are understood as:
Offer: all proposals and quotations from the contractor to natural or legal persons aimed at entering into an agreement;
Agreement: the assignment agreement between OMSI (hereinafter: contractor) and the natural or legal person or persons with whom the agreement is concluded (hereinafter: client);
Assignment: the service or product that the contractor will provide in accordance with the offer and/or agreement;
Contractor: OMSI, also the user of these general terms and conditions;
Client: the legal entity or natural person or persons with whom the contractor has concluded the agreement, also the acceptor of these general terms and conditions;
Fixed Fee: a fixed price, not being an hourly rate, for a pre-agreed service package;
Cancellation: termination of the agreement;
Written: where these general terms and conditions refer to 'written,' it also includes electronic communication such as email, provided the identity of the sender and the authenticity of the communication is sufficiently established. The burden of proof regarding the receipt of electronic communication always lies with the client;
Use: reproduction and/or public disclosure within the meaning of the Copyright Act.
Article 3. Application
These terms and conditions apply to all legal relationships between the contractor and the client, as well as to all offers, proposals, and agreements.
Provisions or conditions set by the client that deviate from, or do not appear in, these general terms and conditions are only binding if and to the extent that they have been explicitly accepted in writing by the contractor.
The applicability of the client’s general terms and conditions is expressly rejected.
These general terms and conditions also apply to agreements where the contractor involves third parties for the performance of the agreement.
If the contractor does not require strict compliance with these terms and conditions for a short or long period, this does not affect the contractor's right to demand direct and strict compliance.
Any null and void or invalid provisions will be replaced by new, legally permissible provisions that align with the purpose and intent of the null and void provisions.
Article 4. Offer
The contractor makes an offer in the form of a quotation.
A price quotation included in the contractor's offer contains, depending on the type of assignment, an hourly rate or fixed fee.
Unless otherwise agreed, the offer loses its validity 30 days after the date on which the contractor made the offer.
The contractor cannot be held to the offer if the client can reasonably understand that the offer contains an obvious mistake or typographical error.
Price quotations may be subject to changes due to (unforeseen) circumstances. The contractor will inform the client of this as soon as possible.
A composite offer does not obligate the contractor to perform a part of the assignment for a corresponding part of the stated fee.
Article 5. Acceptance of the Assignment
The client must explicitly and in writing accept the offer. If the client fails to do so but nevertheless agrees or at least gives the impression that the contractor is performing work under the agreement, the offer is considered accepted, and these general terms and conditions apply.
For clarification: agreements can also be concluded digitally (e.g., via email approval).
The contractor reserves the right to refuse an assignment if new information becomes available after acceptance that makes the execution of the assignment unreasonably unacceptable or undesirable.
After acceptance, the agreement can only be modified with mutual consent. In that case, the contractor is entitled to adjust the fee or delivery date ("deadline") for the agreement.
Article 6. Execution of the Assignment
The contractor will perform the work competently and to the best of their ability. However, the client should be aware that the contractor only has an "effort obligation." The contractor gives no guarantee regarding the result.
Calculations of ROI and feasibility expectations do not guarantee achieving them.
The contractor may involve third parties in the execution of the agreement. Articles 7:404 BW (performance by a specific person) and 7:407 paragraph 2 (joint liability) do not apply.
The client will always provide full cooperation for the timely and correct execution of the assignment. For example, the client must: a) timely provide all useful and necessary information (or access to it); b) timely provide clear and unequivocal instructions to the contractor regarding the execution of the assignment; c) timely provide the contractor access – for example, by providing login codes – to all systems and (social media) platforms necessary to execute the assignment as well as possible; d) timely ensure all licenses, permits, materials, etc., necessary to execute the assignment as well as possible; e) timely appoint a fixed contact person with whom the contractor will communicate.
If the client does not (timely and/or sufficiently) cooperate, the contractor may temporarily suspend their work. Parties will then agree on a new delivery date. The costs resulting from the delay will be charged to the client according to the contractor's usual rates.
The contractor is never liable for damage – of any kind – resulting from the contractor relying on incorrect and/or incomplete information provided by the client.
If and to the extent that costs involved with an assignment are not agreed upon between the parties (such as production costs, advertising costs, etc.), these costs will be borne by the client. The contractor will inform the client of this in a timely manner. The client must – at the contractor's request – provide a response (approval or disapproval) within two working days.
The contractor will naturally handle the items/materials/data entrusted by or on behalf of the client with care. However, the contractor accepts no liability in this regard (e.g., due to damage, loss, destruction, etc.). The contractor assumes that the client has adequately insured these items/materials/data.
If desired, the parties will agree on a schedule and deadlines together. This schedule is indicative and also depends on the level of effort of the client. Deadlines may change due to actions or omissions by the client or unforeseen circumstances. In such a case, the contractor reserves the right to move the deadline in consultation.
If the assignment (partly) involves writing and/or publishing advertorials/texts for promotional purposes, the contractor is obliged to disclose this to the reader. Such promotional text will include a caption such as “sponsored text,” “promotion,” or “ad.”
The contractor has no obligation to retain used/developed materials and data after the termination of the agreement. The client should retain a copy of all files they have provided. Source files will not be provided.
Article 7. Feedback
After delivering the first version, the client has two opportunities to request desired adjustments/changes. If the client is still not satisfied after the second round, the client must pay the contractor's hourly rate for additional work, unless the client's dissatisfaction is entirely due to the contractor.
Article 8. Compensation and Costs
The parties generally agree on a fixed fee for a clearly defined assignment.
If no compensation has been agreed upon, the contractor's usual fee applies.
If no usual fee can be specified, the contractor charges a reasonable and fair fee for the services provided.
If costs must be incurred for the execution of the assignment, such as costs for special software, licenses, advertisements, or for engaging third parties, these costs are borne by the client unless expressly and in writing agreed otherwise.
If it is likely that the contractor has incurred higher costs and/or performed additional work that was reasonably necessary, the contractor will pass these costs on to the client.
The agreed compensation is calculated based on current knowledge and the current market. If circumstances or costs change, requiring additional work or the purchase of extra media, this will be discussed with the client in advance.
Media and platform conditions may change, resulting in higher costs for the agreed work. These costs will be passed on to the client.
The final compensation is based on the work performed and costs incurred based on post-calculation, considering the contractor's usual hourly or daily rates.
All amounts mentioned and quoted by the contractor are exclusive of VAT, and any costs to be incurred under the agreement, including travel and accommodation costs, shipping costs, advertising costs, extra hours, and administrative costs.
Article 9. Payment Terms
The contractor will send an (electronic) invoice to the client for the amount owed unless otherwise agreed.
For one-time assignments and investments, the contractor will send an invoice to the client in advance. The client must pay this invoice before the commencement of the assignment. For long-term assignments, the contractor will invoice monthly in advance, with the invoice to be paid before the start of the coming month.
The contractor reserves the right to send interim invoices.
If the contractor's costs are incurred or will be incurred for special purposes, the contractor will inform the client in advance and request the client to advance these costs. The client must pay the advance to the contractor within 14 days of receiving the invoice.
The client must pay the invoice within 14 days of the invoice date unless otherwise agreed. Payments must be made in Euros to the account number indicated by the contractor.
If the client has not paid within the payment term, the client is in default without further notice. The client will then owe interest of 1% per month, calculated from the due date until the invoice amount has been paid in full. The client will also owe collection costs of 15% of the invoice amount, with a minimum of EUR 100, plus any judicial and extrajudicial costs incurred by the contractor.
Article 10. Cancellation and Termination
Cancellation must be communicated in writing, and the contractor reserves the right to charge the agreed fee for the services rendered and costs incurred.
If the client cancels an assignment or agreement, the contractor will charge the client for the following:
1. 50% of the fee if cancelled up to one month before the planned start;
2. 75% of the fee if cancelled up to 14 days before the planned start;
3. 100% of the fee if cancelled within 14 days before the planned start.
If the contractor terminates the agreement, the client will be reimbursed for any already paid amounts, less costs already incurred and/or work already performed.
The client cannot terminate or cancel the agreement without the contractor's consent or unless stated otherwise in the agreement.
If the client is a consumer, the client has the right to terminate the agreement within 14 days after entering into the agreement, unless the client has started using the services or products within this period.
Article 11. Intellectual Property
All intellectual property rights to the materials produced by the contractor (such as texts, designs, graphics, etc.) remain the property of the contractor. The client acquires a non-exclusive, non-transferable, and non-licensable right of use, limited to the purpose for which the assignment was carried out.
The contractor's written consent is required for the reproduction and/or publication of any work, data, or results of the assignment.
The contractor retains the right to use the results of the assignment for promotional purposes, including showcasing the client's project in the contractor's portfolio.
Article 12. Confidentiality
The contractor and client will treat all information received in the context of the assignment as confidential and will not disclose this information to third parties unless required by law or with the client's explicit consent.
This confidentiality obligation remains in force after the termination of the agreement.
Article 13. Liability and Indemnification
The contractor is not liable for any indirect damages, including but not limited to consequential damages, lost profits, and reputational damage.
The client indemnifies the contractor against any claims by third parties related to the use or publication of the results of the assignment, including claims related to intellectual property rights.
Article 14. Force Majeure
The contractor is not liable for any failure to perform the agreement if such failure is due to circumstances beyond their control, including but not limited to war, natural disasters, strikes, and government measures.
In the event of force majeure, the contractor may suspend the performance of the agreement or terminate it without any obligation to compensate damages.
Article 15. Disputes and Applicable Law
Any disputes arising from or related to the agreement or these general terms and conditions will be settled by the competent court in the district where the contractor is established.
The agreement is governed by Dutch law.
Article 16. Consulting Services and Limitation of Liability
Consulting Services: The contractor provides consulting services based on the client’s requirements and professional expertise. These services include advice and recommendations aimed at assisting the client in making informed decisions. However, the contractor does not guarantee specific results or outcomes.
No Liability for Decisions: The contractor is not liable for any decisions made or actions taken by the client based on the consulting services provided. The client acknowledges that they remain fully responsible for any decisions and actions taken as a result of the contractor’s advice or recommendations. The contractor disclaims any liability for damages, losses, or expenses incurred by the client due to reliance on the consulting services, including but not limited to financial losses, operational issues, or reputational damage.
Limitation of Liability: In the event of any claim arising out of or related to the consulting services provided, the contractor’s liability shall be limited to the amount of the fee paid by the client for the specific consulting services that are the subject of the claim. The contractor shall not be liable for any indirect, consequential, or special damages, including but not limited to loss of profits, loss of business opportunities, or loss of data.
Client Responsibilities: The client agrees to provide accurate and complete information necessary for the contractor to perform the consulting services effectively. The contractor is not responsible for any inaccuracies or omissions in the information provided by the client. The client agrees to review and evaluate the contractor’s recommendations and advice critically and to seek additional professional advice if needed.
Article 17. Training and Workshops
Training and Workshop Services: The contractor provides training and workshops related to social media, including but not limited to strategy development, content creation, platform management, and analytics. These sessions aim to enhance the client’s knowledge and skills in social media marketing.
Objectives and Scope: The specific objectives, topics, and scope of each training session or workshop will be detailed in a separate agreement or training plan. The contractor will tailor the content based on the client’s needs and the agreed-upon objectives.
No Guarantee of Results: While the contractor will make every effort to provide high-quality training and workshops, the contractor does not guarantee specific outcomes or improvements in the client’s social media performance. The effectiveness of the training is subject to the client’s implementation of the strategies and techniques learned.
Client Responsibilities: The client agrees to provide accurate information about their current social media practices and any specific areas of interest or concern. This information is essential for tailoring the training to meet the client’s needs effectively. The client is responsible for ensuring that participants in the training or workshop are available and prepared to engage in the sessions as scheduled.
Materials and Resources: The contractor will provide training materials and resources as part of the sessions. These materials are intended for the client’s internal use only and may not be reproduced or distributed without the contractor’s prior written consent.
Fees and Payment: The fees for training and workshops will be outlined in the separate agreement or proposal. Payment terms, including any deposits or advance payments, will also be specified in the agreement. Additional costs for materials, travel, or other expenses, if applicable, will be communicated to the client in advance and are payable in accordance with the agreed terms.
Cancellations and Rescheduling: If the client needs to cancel or reschedule a training session or workshop, they must notify the contractor in writing. The contractor will make reasonable efforts to accommodate rescheduling requests, but cancellations or rescheduling may incur charges as specified in the agreement.
Feedback and Follow-Up: The contractor may seek feedback from the client to assess the effectiveness of the training and identify areas for improvement. The client agrees to provide constructive feedback and may be offered follow-up support or additional resources as part of the training engagement.
Limitation of Liability: The contractor’s liability for any claims arising from the training and workshops is limited to the amount of the fees paid by the client for the specific training or workshop in question. The contractor is not liable for any indirect or consequential damages resulting from the training.
15.09.2024 OMSI.