CHAPTER I - GENERAL PROVISIONS

Article 1. Definitions

1. Nxt agency: the company defined in article 2 of these general terms and conditions;
2. Other party: the (legal) person with whom Nxt agency enters into an Agreement, the person who enters into negotiations with Nxt agency or the person who calls upon (the Services of) Nxt agency in any other way;
3. Party(ies): Nxt agency and Counterparty jointly or each as an individual contracting party;
4. Services: all services provided by Nxt agency to the Other Party, which includes, but is not limited to, the performance of PR work, media buying and content marketing;
5. Agreement: any agreement between Nxt agency and the Other Party to provide Services;
6. Third Party(ies): other natural or legal persons who are not part of this Agreement;
7. Written: notice via the Website, by Whatsapp, email or in writing;
8. Website: the website of Nxt agency;
9. Consumer: the natural person not acting in the exercise of his profession or business.

Article 2. Identity of Nxt agency

Company name: NXTAgency B.V,

Street name and number: Keizersgracht 203

Postal code and place of business: 1016 DS in Amsterdam

Phone number: + 31 20 765 75 70

Chamber of Commerce number: 90686993      

Email address: info@nxt.agency

Article 3. General Provisions

1. These general terms and conditions apply to every offer and all (legal) acts of Nxt agency and to every Contract concluded between Nxt agency and the Other Party.
2. If the Agreement is concluded electronically, notwithstanding the previous paragraph and before the Agreement is concluded, the text of these general terms and conditions may be made available to the Other Party electronically in such a way that it can be easily stored by the Other Party on a durable data carrier. If this is not reasonably possible, before the Agreement is concluded it will be indicated where the general terms and conditions can be inspected electronically and that at the request of the Other Party they will be sent electronically or otherwise free of charge.
3. Nxt agency cannot guarantee that the work it performs will always achieve the result desired by the Other Party. The accepted assignment, unless otherwise agreed in writing, therefore leads to an obligation to perform to the best of one's ability and not to an obligation to achieve a result.
4. Unless otherwise agreed in Writing, the applicability of other (general) terms and conditions is excluded.
5. Deviations or additions to these general terms and conditions shall only be valid if expressly agreed upon in Writing between the Parties.
6. If Nxt agency does not always require strict compliance with these terms and conditions, this does not mean that the provisions thereof do not apply, or that Nxt agency would to any extent lose the right to require strict compliance with the provisions of these terms and conditions in other cases.
7. If and to the extent that any provision of these general terms and conditions cannot be invoked on the grounds of reasonableness and fairness or its unreasonably onerous nature, the provision in question shall in any event be accorded a meaning corresponding as closely as possible to its content and purport so that it may be invoked.
8. Agreed delivery deadlines are always indicative deadlines. Delivery terms are expressly not deadlines. Exceeding a term expressly does not entitle the Other Party to compensation.
9. Nxt agency is entitled to engage Third Parties for the performance of the Contract.
10. The effect of Article 7:404 and/or 7:407 (2) of the Civil Code is/are excluded.
11. These general terms and conditions also apply to (parts of) the Services that Nxt agency has outsourced in whole or in part to Third Parties and/or for which it hires (in part) a Third Party for support.

Article 4. The offer

1. If an offer has a limited period of validity or is made subject to conditions, this shall be expressly stated in the offer.
2. The offer contains a complete and accurate description of the Services offered. The description is sufficiently detailed to allow a proper assessment of the offer by the Other Party. Obvious mistakes or obvious errors regarding, for example, amounts stated are not binding to Nxt agency.

Article 5. The Agreement

1. The Agreement is established at the moment of acceptance by the Other Party of the offer and the fulfillment (if any) of the conditions set forth therein.
2. If any provision of these general terms and conditions or the Agreement turns out to be invalid or is nullified, this shall not affect the validity of the entire general terms and conditions or Agreement. The parties shall consult in order to agree a new provision to replace the void or voided provision, taking into account as far as possible the purpose and purport of the void or voided provision.
3. Nxt agency reserves the right not to execute a concluded Contract, for instance if it has reasonable doubt or information that the Other Party will not (be able to) fulfil his/her (financial) obligations. If Nxt agency refuses, it shall inform the Other Party in Writing of the refusal within a reasonable period after the conclusion of the Contract.
4. These general terms and conditions also apply to future, additional and/or follow-up assignments/ Agreements.
5. If the Other Party has accepted the offer electronically, Nxt agency shall immediately confirm electronically the receipt of the acceptance of the offer.
6. In addition to the other (legal) means available to Nxt agency, Nxt agency shall be entitled at any time and without prior explanation or statement of reasons, to (temporarily) restrict, suspend or put out of operation the activities of the Other Party in connection with the Services, to issue a warning, to terminate the Service(s) and to refuse to provide a Service to the Other Party, in particular but not limited to the situation in which the Other Party acts in breach of these general terms and conditions. Nxt agency shall in no way be liable or liable for damages to the Other Party in such a situation.

Article 6. Dissolution of the Agreement and notice periods

1. If the Other Party fails to fulfill one or more of its obligations, fails to do so properly or in a timely manner, is declared bankrupt, applies for (temporary) moratorium and/or suspension of payments, proceeds to liquidate its business, as well as when its assets are seized in whole or in part, Nxt agency shall be entitled to suspend the performance of the Agreement or to terminate and/or rescind the Agreement by operation of law and without prior notice of default in whole or in part by means of a Written declaration, all this at its discretion and always with retention of any right it may have to compensation for costs, damages and interest.
2. In principle, an Agreement is entered into for a fixed term. For Agreements entered into for a definite period, premature termination is not possible.
3. If an Agreement has been entered into for an indefinite period, termination of the Agreement shall be effected In Writing and with due observance of a notice period of 3 (three) months. However, the Parties may deviate In Writing from this notice period in the Agreement in force between them.

Article 7. Liability

1. Nxt agency is not liable for indirect and direct damages. Not excluded is the liability of Nxt agency for damages resulting from intent or conscious recklessness of Nxt agency.
2. If Nxt agency can nevertheless be held liable in a specific case, regardless of the provisions of this article, Nxt agency's total liability shall be limited to compensation of damages up to a maximum of the amount of the fee (excluding VAT) stipulated for that Contract.
3. The amount of compensation will never exceed the amount paid out by Nxt agency's liability insurance.
4. If Nxt agency can nevertheless be held liable for direct damages, then direct damages shall mean:

a. reasonable costs which the Other Party would have to incur to have the performance of Nxt agency comply with the Contract: however, this replacement damage will not be compensated if the Contract is dissolved by or at the request of the Other Party;

b. reasonable costs that the Other Party has incurred for keeping its old system or systems and related facilities operational longer out of necessity because Nxt agency did not deliver on a final delivery date that was binding for it, less any savings resulting from the delayed delivery;

c. reasonable costs incurred in determining the cause and extent of the damage insofar as the determination relates to damage within the meaning of these general terms and conditions;

d. reasonable costs incurred to prevent or limit damage insofar as the Other Party demonstrates that these costs have led to a limitation of the damage within the meaning of these general terms and conditions.

5. If the Agreement is a continuing performance agreement, with a term of more than 6 (six) months, the fee stipulated for that Agreement shall be set at the total fees (excluding VAT) of the past 6 (six) months prior to the event causing damage.
6. The Other Party shall indemnify Nxt agency for any claims of Third Parties who suffer damage in connection with the performance of the Contract.
7. Conditions for the occurrence of any right to compensation shall always be that the Other Party reports the damage in writing to Nxt agency as soon as possible after it occurs. Any claim for damages against Nxt agency shall expire by the mere lapse of 12 (twelve) months after the claim arose.
8. Nxt agency is not liable for damages, of any nature whatsoever, because Nxt agency has relied on incorrect and/or incomplete data provided by the Other Party or if the Other Party has provided these data too late.
9. Nxt agency is not liable for damage inflicted by auxiliary persons as referred to in article 6:76 of the Civil Code.

Article 8. Force Majeure

1. In addition to the provisions of article 6:75 of the Civil Code, a failure on the part of Nxt agency to fulfill any obligation towards the Other Party cannot be attributed to Nxt agency in the event of a circumstance beyond the control of Nxt agency, as a result of which the fulfillment of its obligations towards the Other Party is wholly or partially impeded or as a result of which the fulfillment of its obligations cannot reasonably be required of Nxt agency. Such circumstances shall include non-performance by suppliers or other Third Parties, (power) failures, computer viruses, cyber attacks, internet failures, (major) cable breaks, extreme weather conditions, fire (danger), (imminent) danger of war, pandemics, epidemics, quarantines, sick leave, incapacity for work, strikes, government measures and the failure of equipment with which the Services must be performed.
2. If a situation as referred to in paragraph 1 of this article occurs as a result of which Nxt agency cannot fulfill its obligations towards the Other Party, those obligations shall be suspended for as long as Nxt agency cannot fulfill its obligations. If the force majeure situation has lasted for 30 (thirty) calendar days, both Parties shall be entitled to dissolve the Contract In Writing in whole or in part. In that case, Nxt agency shall not be obliged to compensate any damage, even if Nxt agency enjoys any advantage as a result of the force majeure situation.
3. If the Agreement is terminated due to force majeure, Nxt agency shall be entitled to payment for the hours already worked or investments made at the time of termination of the Agreement.

Article 9. Warranty

1. Nxt agency warrants that the Services comply with the Contract, the specifications stated in the offer, reasonable requirements of soundness and the legal provisions and/or government regulations existing on the date of the conclusion of the Contract.
2. Nxt agency and the Other Party may also include additional assignment-specific guarantees in the Contract.
3. The warranty referred to in this article shall lapse:

a. if the Other Party has itself edited the delivered goods or has had them edited by Third Parties;

b. if the delivered goods are exposed to abnormal conditions or the otherwise carelessly treated or used contrary to the instructions of Nxt agency;

c. In the event that Nxt agency has delivered a concept version and the Other Party has approved this concept version. The guarantee for visible defects already present in the concept version will then lapse.

Article 10. Prices

1. All amounts are in euros and exclusive of sales tax and other government levies, unless otherwise agreed.
2. If at the request of the Other Party or on Nxt agency's own initiative - where the Other Party has agreed to this in Writing - a Third Party is engaged by Nxt agency, Nxt agency will charge an agency fee of 15% with a maximum of €500,- (five hundred) per activity for the financial risk they incur.
3. Nxt agency reserves the right to adjust for inflation semi-annually.
4. The agreed amounts are based on cost-determining factors at the time of the offer. Nxt agency reserves the right, 3 (three) months after the conclusion of the Contract, to pass on to the Other Party any changes in cost-determining factors, which Nxt agency cannot reasonably influence, such as increases in excise duty, social security charges, insurance premiums or turnover tax, up to a maximum of 20% of the original amount.
5. A compound quotation does not oblige Nxt agency to perform part of the Contract at a corresponding part of the quoted amount.
6. Discounts and quoted amounts do not automatically apply to future Agreements.

Article 11. Payment and billing

1. Insofar as not otherwise provided for in the Contract or additional terms and conditions, the activities of Nxt agency will be charged to the Other Party on a monthly basis and the amounts owed by the Other Party must be paid within 14 (fourteen) days of the invoice date.
2. The other party has the duty to report inaccuracies in payment information provided or stated immediately to Nxt agency.
3. If the Other Party does not timely fulfill its payment obligation(s), it will be pointed out by Nxt agency to the late payment and the Other Party will be granted a period of 14 (fourteen) days to still fulfill its payment obligation(s). After failing to make payment within this fourteen-day period, the Other Party shall be in default. As a result, the Other Party shall also owe the statutory (commercial) interest on the amount still due. In addition, Nxt agency shall be entitled to charge the extrajudicial collection costs it has incurred.
4. The right of suspension and of offset are excluded in the case of a Counterparty acting in the exercise of a profession or business.
5. In case of (reasonable prospect of) bankruptcy, liquidation or suspension of payments or debt restructuring under the WSNP, the claims of Nxt agency on the Other Party and the obligations of the Other Party towards Nxt agency shall be immediately due and payable.
6. The payments made by the Other Party always serve to settle - in the first place - all interest and costs due, in the second place payable invoices that have been outstanding the longest, even if the Other Party indicates that the payment relates to a later invoice.
7. If the Other Party wishes to receive a further specification of the invoice, this does not suspend its payment obligation.

Article 12. Complaints

1. The Other Party may no longer invoke a defect in the performance if it has not protested to Nxt agency within 2 (two) months after it has discovered or reasonably should have discovered the defect. If there is a so-called 'visible defect' upon delivery, a period of 48 (forty-eight) hours shall apply.
2. The Other Party must give Nxt Agency at least 4 (four) weeks to resolve the complaint by mutual agreement.
3. If a complaint has not been reported to Nxt agency within the time periods specified in the preceding paragraphs, the Service shall be deemed to be in compliance with the Agreement and to have been performed in accordance with the Agreement.
4. Complaints do not suspend the Other Party's payment obligation if it is acting in its profession or business.

Article 13. Additional Work

1. If Nxt agency has performed work or other performance at the request of the Other Party or at its own request - with the Other Party's prior Written consent - that falls outside the content or scope of the Contract, such work or performance shall be compensated by the Other Party in accordance with Nxt agency's customary rates. The Other Party shall never be obliged to comply with such a request and may require that a separate Agreement In Writing be concluded for that purpose.
2. The Other Party accepts that work or performance as referred to in paragraph 1 of this Article may affect the agreed objectives and expectations.
3. Insofar as a fixed amount has been agreed for the provision of services, Nxt agency will always inform the Other Party in advance and in Writing of the (financial) consequences of the additional work.

Article 14. Intellectual property

1. All intellectual property rights pertaining to and/or resulting from the Contract executed by Nxt agency rest with the Other Party, unless the Parties have agreed otherwise in writing, Nxt agency has indicated this in writing or this reasonably results from the nature of the documents.
2. Intellectual property rights in respect of works intended to pass to the Other Party shall not pass until the Other Party has fully fulfilled its payment obligation.
3. If the intellectual property rights relating to certain documents belong to Nxt agency, the Other Party is not permitted to disclose and/or reproduce the information obtained in question in any form whatsoever. This includes processing, selling, making available, distributing and integrating - whether or not after processing - in networks. In such a case, the Other Party only acquires non-exclusive and non-transferable rights of use. Any other or further rights of the Other Party are then excluded.
4. Nxt agency retains the right to use the knowledge acquired in the performance of the Contract for other purposes, provided that no confidential information of the Other Party is disclosed to Third Parties in the process.
5. Nxt agency has the right to use the name and logo of the Other Party as a reference or promotion.
6. The Other Party shall indemnify Nxt agency for the claims of Third Parties regarding intellectual property rights.
7. If Nxt agency has a copyright on a portrait commissioned by the Other Party, the Other Party gives Nxt agency permission to publish the work. This publication is therefore not an infringement of the portrait right of the Other Party.
8. The Other Party shall indemnify Nxt agency against any claims by Third Parties regarding intellectual property rights. If, for example, Nxt agency or a Third Party appointed by it is filming or photographing something on the instructions of the Other Party, Nxt agency may assume that the persons present have been informed about the making of this visual material and their portrait rights.
9. In addition, Nxt agency may have to search for stock images or other visual material on the instructions of the Other Party. In that case Nxt agency does not have to investigate whether there is an intellectual property right on the material. Nxt agency will try to take this into account as much as possible.
10. If the Other Party acts in violation of the provisions of this article, the Other Party shall owe an immediately payable penalty in the amount of 3 (three) times the amount stipulated for that Contract, without prejudice to Nxt agency's right to damages.

Article 15. Secrecy

1. Confidentiality of all confidential information, which the Other Party has obtained from Nxt agency in the context of the Contract, is mandatory for the Other Party. Information is confidential if this has been communicated by Nxt agency or if this reasonably follows from the nature of the information.
2. This confidentiality does not apply if the party can demonstrate that the information is not confidential, this because:
   1. it is already known to the receiving party at the time it was provided by the departing party; or
   2. it is publicly known at the time it was provided by the providing party.

3. With respect to the confidential information, the Parties shall observe at least the same duty of care and safeguards that apply with respect to their own confidential information. Nxt agency shall be entitled to disclose the confidential information to Third Parties insofar as they need to know it strictly in connection with the performance of the Contract. Nxt agency guarantees that these Third Parties will observe the same secrecy of the confidential information as described in this article.
4. If the Other Party violates this article, the Other Party, regardless of whether the violation can be attributed to the Other Party and without prior notice of default or court proceedings, shall owe Nxt agency an immediately payable fine of €20,000 (twenty thousand) for each violation, without the need for any form of damages and without prejudice to Nxt agency's other rights, including the right to claim damages in addition to the fine.

Article 16. Employee clause

1. During the term of the Agreement, as well as for 1 (one) year after its termination, each of the parties shall, only with the prior Written consent of the other party, employ, or otherwise directly or indirectly have employees of the other party who are or have been involved in the performance of the Agreement.    
2. Where appropriate, Nxt agency shall not withhold the relevant consent if the Other Party has offered appropriate compensation. Adequate compensation is defined as at least compensation of 10 (ten) monthly salaries.

Article 17. Transfer

1. Rights and obligations of the Other Party under this Agreement cannot be transferred without the prior Written consent of the other party. This provision counts as a clause with effect under property law as referred to in Article 3:83 paragraph 2 of the Civil Code.  

Article 18. Multiple contractors

1. If the Counterparty wishes to provide the same or similar work performed by Nxt agency to multiple parties, including Nxt agency, at the same time, the Counterparty must notify all parties.
2. If the Other Party has previously given the same assignment to another party and, for whatever reason, wishes to have the assignment performed again by Nxt agency, the Other Party must inform which party the assignment was given to and why the Other Party is giving the assignment again.

Article 19. Applicable law

1. Contracts between Nxt agency and the other party are exclusively governed by Dutch law.
2. Disputes between Parties shall be resolved as much as possible through proper consultation. All disputes between the Other Party and Nxt agency shall be settled exclusively by the competent court in the district in the Netherlands in which Nxt agency has its registered office.

Article 20. Survival

1. The provisions of these general terms and conditions and the Agreement that purport to retain their validity after the termination of the Agreement shall remain in full force after the termination of the Agreement.

Article 21. Amendment or supplementation

1. Nxt agency is entitled to unilaterally amend or supplement these general terms and conditions. In that case, Nxt agency shall notify the Other Party of the amendments or additions in a timely manner.
2. There will be a minimum of 30 (thirty) days between such notice and the effective date of the amended or supplemented terms.

CHAPTER II - PROCESSOR AGREEMENT PROVISIONS

Article 22. Personal Data Processing.

1. Should Nxt agency qualify as a processor as referred to in Article 4 paragraph 8 of the General Data Protection Regulation (GDPR), Articles 22 to 26 of these general terms and conditions qualify as agreements to be made in accordance with Article 28 paragraph 3 of the General Data Protection Regulation (GDPR).
2. Nxt agency will process personal data on behalf of the Other Party. Among other things, Nxt agency processes the personal data of the Other Party, such as: the full name, (business) addresses, place of residence, telephone number, business and/or personal e-mail addresses, financial data and/or other (personal) data provided by the Other Party.
3. The Other Party guarantees that it is entitled to designate Nxt agency as a processor of the personal data and - like - Nxt agency will comply with the applicable laws and regulations. Nxt agency is not liable for damages resulting from the non-compliance of obligations of the applicable laws and regulations by the Other Party.
4. Nxt agency processes the data on behalf of the Other Party, and in doing so is not under the direct authority of the Other Party.
5. Data as mentioned in the above paragraphs are never the property of Nxt agency. Data provided by the Other Party for the above purpose shall therefore remain the property of the Other Party.
6. Nxt agency will not process the personal data for longer than for the duration of the Contract, unless the Other Party has expressly instructed in Writing or unless otherwise agreed in Writing between the parties.
7. If, in the opinion of the Other Party, certain personal data should not or need not be kept any longer, Nxt agency shall, upon the Other Party's Written request, promptly destroy the relevant personal data specified by the Other Party and certify to the Other Party in writing that it has done so.
8. The Other Party shall indemnify Nxt agency against claims by Third Parties that relate to (or result from) the processing of personal data by Nxt agency and/or are caused by a breach of the guarantee by the Other Party as stated in this article (Article 21.3).
9. The Other Party authorizes Nxt agency to engage Third Parties (sub-processors) if necessary for the performance of the Agreement and in compliance with legal obligations.
10. Upon termination of the Agreement, the processing by Nxt agency stops and the personal data processed through Nxt agency are permanently deleted one month after the end date. If (possible) data subjects request the counterparty to return the personal data, Nxt agency can provide support. To that end, a request should be submitted one month before the end date of the Agreement via remi.kuchler@nxt.agency.  

Article 23.Execution processing

1. Nxt agency is only responsible for the processing of personal data that are processed in the context of the Services offered under the conditions set forth in these general terms and conditions. Nxt agency is explicitly not responsible for any other processing of personal data.
2. The Other Party authorizes Nxt agency to process personal data through Third Parties outside the European Union, provided that it is necessary and all legal conditions are met.
3. Nxt agency will keep personal data concerning the Other Party separate from the personal data it processes for itself or on behalf of Third Parties.
4. Nxt agency will process personal data in a proper and careful manner and in accordance with Nxt agency's obligations under privacy legislation, including European Regulations and the AVG.
5. Nxt agency will reasonably cooperate with requests the Other Party receives from data subjects.
6. If the Other Party performs a DPIA and requests cooperation from Nxt agency, Nxt agency will provide it to the extent that it may reasonably be required to do so.

Article 24. Security

1. Nxt agency shall, in accordance with Article 32 AVG, take all appropriate technical and organizational measures to secure personal data against loss or any form of unlawful processing. These measures, taking into account the costs involved and the state of the art, will correspond to the nature of the personal data to be processed.
2. Nxt agency makes every effort to prevent, detect and take action against security breaches involving personal data to the extent possible.
3. If Nxt agency has implemented appropriate technical and organizational measures to secure personal data, and despite these measures a breach of security as referred to in article 23.1 occurs, Nxt agency shall not be liable for the damage resulting from this breach of security. This does not apply if the damage was caused by intent or deliberate recklessness on the part of Nxt agency.

Article 25. Duty to report

1. In the event of a security breach and/or a data breach as referred to in the Data Breach Notification Act, Nxt agency will reasonably inform the Other Party about this as soon as possible, but at the latest within 48 (forty-eight) hours from the moment of discovery, and provide information to the Other Party that he/she needs to be able to (also) make a notification to the Personal Data Authority and possible data subjects.
2. The duty to report includes, in any case, reporting the fact that a leak or incident has occurred, as the (alleged) cause of the leak or incident, the as yet known and/or expected consequence and the (proposed) solution.
3. Nxt agency is not permitted to provide information about a data breach or other incidents directly to Data Subjects or other Third Parties, except insofar as Nxt agency is required to do so by law or has obtained permission from the Other Party.

Article 26. Inspection

1. Nxt agency allows the Counterparty to inspect Nxt agency's compliance with the security measures or, at the Counterparty's request, to have Nxt agency's processing facilities inspected by a designated investigative body.
2. The inspection referred to in paragraph 1 of this article shall take place no more than once every 12 (twelve) months.
3. The Other Party shall pay all costs, fees and expenses related to the inspection, including reasonable internal costs incurred by Nxt agency.

4. The Other Party shall provide Nxt agency with a copy of the report of the inspection.

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