Terms and conditions

Terms and Conditions of Sales In Motion B.V.

Note: this English text is provided as a courtesy translation. In case of differences in interpretation, the Dutch version prevails.

1. Definitions

In these general terms and conditions, the capitalised terms below have the following meanings: Sales In Motion: Sales In Motion B.V., having its registered office in Rotterdam; Client: the natural person or legal entity with whom Sales In Motion enters into an agreement regarding the Service, or who uses the Service; Service: the service operated by Sales In Motion under which Sales In Motion provides sales activities for the benefit of the Client.

2. Applicability

2.1 These Terms and Conditions apply at all times to all legal relationships between Sales In Motion and the Client, regardless of the basis or designation, unless Sales In Motion and the Client explicitly agree otherwise in writing.

2.2 Provisions deviating from these Terms and Conditions only apply if and insofar as they have been expressly accepted in writing by Sales In Motion.

2.3 Any general terms and conditions used by the Client do not apply unless and insofar as Sales In Motion has expressly accepted their applicability.

3. Formation of the agreement

3.1 To the extent that an offer made by Sales In Motion regarding the Service can be regarded as an offer, every such offer is non-binding.

3.2 The Agreement is concluded when the Client either: (1) signs and submits a fully completed proposal, quotation, order confirmation, or agreement made available by or on behalf of Sales In Motion; or (2) registers orally for one or more Services of Sales In Motion and Sales In Motion accepts that registration.

3.3 Sales In Motion has the right to refuse a Client without stating reasons.

4. Fees and prices for outbound activities

4.1 Unless agreed otherwise and depending on the Service purchased by the Client, Sales In Motion will base the fees to be charged on a proposal provided by Sales In Motion to the Client. Such proposal is set out in writing and includes in any event a project description, which may include but is not limited to activities of the various project staff or, depending on the type of project, the price per performance. Sales In Motion also provides an estimate of the required investments.

4.2 Depending on the project description, Sales In Motion will charge the Client for costs, including but not limited to telecommunication, accommodation, equipment, and other fixed costs.

4.3 The stated price is exclusive of VAT.

4.4 If the Client does not confirm the project proposal made by Sales In Motion, while Sales In Motion has already started executing the assignment, the assignment shall be deemed to apply in accordance with the project proposal.

4.5 Sales In Motion reserves the right to change fees and prices unilaterally. Except during the first year of the term of the agreement, Sales In Motion may adjust its rates up to a maximum of the CBS wage index figure applicable in the relevant year for the Transport and Communication sector, collective labour agreement wages per month including special remuneration. Such a change shall only take effect one month after the Client has been informed. The Client has the right to terminate the Agreement in writing up to the effective date of the increase, subject to the applicable notice period.

4.6 The costs connected with preparing a project proposal may be charged by Sales In Motion if the proposal does not lead to an assignment.

5. Services

5.1 Sales In Motion offers services relating to conducting outbound telephone calls.

5.2 If Sales In Motion is to conduct outbound calls, Sales In Motion shall: (a) if desired, approach a number of addresses provided by the Client on a trial basis to estimate how many addresses need to be called in total to achieve the Client’s goal; and (b) approach the addresses supplied by the Client by telephone in the name of the Client to mediate in the conclusion of agreements or to support the conclusion of agreements between the Client and the contacted party.

6. Performance of the agreement

6.1 Sales In Motion shall always endeavour to perform the assignment to the best of its ability and insight, in accordance with the agreements and procedures recorded in writing with the Client.

6.2 If it has been agreed that the performance of the agreement will take place in phases, Sales In Motion is entitled to postpone the start of work belonging to a next phase until the Client has provided written approval of the preceding phase.

6.3 Instructions or directives from the Client only have to be followed by Sales In Motion if they are provided in time and lead to responsible consequences. If such instructions lead to additional, non-agreed work, an additional fee will be payable.

6.4 Sales In Motion reserves the right to engage third parties in performing the agreement.

7. Payment

7.1 Payment of amounts owed by the Client must be made within 14 days of the invoice date.

7.2 Complaints about the amount of an invoice must be reported in writing by the Client within 14 days after receipt of the invoice. Complaints received later are inadmissible.

7.3 Unless agreed otherwise, all amounts owed by the Client in excess of previously paid advance invoices must be paid within 14 days after the date stated on the invoice. Sales In Motion sends itemised invoices. If the Client does not pay on time, the Client is in default without any notice of default being required.

7.4 If advance invoices exceed the actual costs, Sales In Motion shall repay the difference within 30 days of the invoice date to an account indicated by the Client. No interest is owed on this difference.

7.5 In the event of late payment, the Client owes interest of 1.5% per month or part thereof from the date of default until the date of full payment, as well as reasonable administration costs incurred by Sales In Motion.

7.6 All costs incurred by Sales In Motion in obtaining payment out of court in the event of non-payment or late payment shall be borne by the Client in accordance with the rates applied by the Royal Professional Organisation of Judicial Officers, being 15% of the principal amount, with a minimum of EUR 50.

7.7 In addition to the above extrajudicial costs, all judicial and enforcement costs relating to the collection of an outstanding claim are at the expense of the Client.

8. Obligations of the Client

8.1 If necessary, the Client shall provide all cooperation to Sales In Motion or a third party engaged by it and provide all required information. The Client shall, where necessary, obtain any permits, exemptions, or authorisations needed for the use of the Service.

8.2 The Client shall refrain from conduct contrary to the Agreement or the law. In particular, the Client shall refrain from infringing intellectual property rights of third parties and/or Sales In Motion.

8.3 The Client undertakes, during the execution of the assignment and for a period of one year thereafter, not to recruit, hire, or otherwise engage staff of Sales In Motion, whether directly or indirectly, on penalty of an immediately due fine equal to four times the last monthly salary earned by the relevant employee of Sales In Motion, plus training costs incurred by Sales In Motion for that employee during the last 365 days of the employment relationship.

9. Obligations of Sales In Motion

9.1 For a period of 24 months after the conclusion of an agreement with a Client, Sales In Motion is not entitled to do business directly with that Client without the intermediary role of Sales In Motion.

9.2 The intermediary role of Sales In Motion is based on an agreed financial compensation.

9.3 Violation of clause 9.1 results in a penalty equal to 24 months of the relevant Client’s monthly fee.

10. Obligations of the Sales In Motion participant

10.1 For a period of 24 months after the conclusion of an agreement with a Client of another Sales In Motion participant via the Sales In Motion platform, that participant is not entitled to do business directly with the Client without the intermediary role of Sales In Motion.

10.2 The intermediary role of Sales In Motion is based on an agreed financial compensation.

10.3 Violation of clause 10.1 results in a penalty equal to 24 months of the relevant Client’s monthly fee.

11. Intellectual and industrial property

11.1 Sales In Motion has the necessary intellectual property rights to provide the Service to the Client.

11.2 Sales In Motion indemnifies the Client against claims from third parties relating to alleged infringement of any intellectual property right of such third party caused by use of the Service by the Client, provided that the Client promptly informs Sales In Motion of such claim, allows Sales In Motion to conduct the defence, provides the necessary information and assistance, and grants Sales In Motion exclusive control over the defence and any settlement. Sales In Motion does not indemnify the Client if the alleged infringement arose through, in connection with, or as a result of acts of the Client.

11.3 To the extent that the Client holds copyright in files supplied by the Client, the Client relinquishes that right to Sales In Motion upon conclusion of the agreement for the benefit of Sales In Motion.

12. Force majeure

12.1 Sales In Motion shall not be deemed to have failed imputably in performing its obligations, nor otherwise be liable to the Client, where such failure or non-performance is not attributable to Sales In Motion and is not for its account under the law, legal act, or generally accepted principles. This includes, among other things, insufficient availability of persons involved in execution due to illness, incapacity for work, personal indispensability, strikes, or termination of employment or assignment agreements; delay or failure by suppliers; and other circumstances beyond the control of Sales In Motion, including incorrect or untimely provision of information and/or cooperation by the Client, making performance impossible, delayed, or uneconomical, or making it unreasonable to expect Sales In Motion to perform.

13. Liability and limitations

13.1 Except in cases of intent or deliberate recklessness, the total liability of Sales In Motion for an attributable failure in the performance of the Agreement, including loss of data, is limited to compensation of direct damage up to a maximum of the total amount paid by the Client to Sales In Motion in the two months preceding the event causing the damage. Liability for indirect damage, including but not limited to consequential loss, loss of profit, lost savings, and business interruption, is excluded at all times. In no event does the liability of Sales In Motion exceed the insurable amount that may be paid out under its business liability insurance.

13.2 Outside the case referred to in clause 11.1, Sales In Motion has no liability for damages, regardless of the legal basis of the claim.

13.3 The interest of Sales In Motion in being able to defend itself properly against a damages claim means that the Client’s right to compensation lapses if the Client does not assert that right in writing within two months after the damage arose.

13.4 The Client is liable for any damage or disadvantage caused to Sales In Motion, including costs incurred or yet to be incurred such as wage costs and lost profit, resulting from IT, telecommunications, or other disruptions in the Client’s business operations. This liability also applies to damage caused by third parties whose acts or conduct are attributable to the Client.

13.5 The Client indemnifies Sales In Motion against all third-party claims related to the use of the Service(s) by the Client or by third parties whose conduct can be attributed to the Client. The Client shall compensate Sales In Motion for all losses and costs arising from such claims.

13.6 Sales In Motion is not liable for any damage suffered by the Client due to acts or omissions of third parties with whom the Client has entered into an agreement, including agreements that are beneficial, desirable, or necessary for the use of the Service, such as agreements with telecom companies and hardware or software suppliers.

14. Duration and termination of the agreement

14.1 An Agreement is entered into for either a fixed or indefinite period and, unless expressly agreed otherwise, commences at the time of delivery of the Service, except for agreements that end by completion.

14.2 If an Agreement concluded for a fixed period is not terminated by either Sales In Motion or the Client in accordance with clause 14.3, it shall automatically continue for an indefinite period unless agreed otherwise.

14.3 An Agreement for an indefinite period may be terminated by either party at any time with a notice period of three months. Termination is only possible at the end of a calendar month.

14.4 Sales In Motion has the right to amend the Agreement unilaterally in the interim, provided the intended change is not of a far-reaching nature. Sales In Motion shall notify the Client at least one month before the effective date. The Client has the right to terminate the Agreement in writing within one month after receipt of the notification, except in the case of a price change for which dissolution is not possible under clause 14.5.

15. Suspension and termination

15.1 Sales In Motion has the right, with immediate effect, to suspend the Service and the provision or release of data obtained during the performance of the Service in whole or in part, or to terminate the Agreement, without being liable for damages, if the Client fails to perform obligations under the Agreement or the law, unless the failure does not justify suspension or termination due to its special nature or minor significance; or if the Client has applied for or been granted a suspension of payments, has been declared bankrupt, has had bankruptcy filed against it, or has been placed under guardianship.

15.2 Suspension or termination of the Agreement under clause 15.1 does not affect the Client’s payment obligations under the Agreement.

16. Information

16.1 The Client shall provide Sales In Motion with all information that the Client reasonably knows or should know is important for proper performance of the assignment, as well as all information that Sales In Motion considers necessary and requests for the delivery and performance of the Service. The Client shall immediately notify Sales In Motion of any change in the data provided.

16.2 The Client consents to the inclusion of its personal data and the personal data supplied by it in Sales In Motion’s customer registration. The Client guarantees that the persons concerned have granted consent for the transfer of their data to third parties such as Sales In Motion for the purpose described in the project proposal. This customer registration is only accessible to Sales In Motion and serves only administrative or specific marketing purposes of Sales In Motion.

16.3 Sales In Motion and the Client guarantee that all confidential information received from the other party before and after entering into the agreement shall remain confidential. Information is considered confidential if expressly designated as such by the parties.

16.4 The parties guarantee that all legal rules concerning the data to be processed, in particular the rules under or pursuant to the Dutch Personal Data Protection Act or any replacement legislation, will be strictly observed and that all required notifications have been made. Upon first request, the Client shall provide Sales In Motion with all necessary information for that purpose. Sales In Motion shall ensure state-of-the-art security of these data. To the extent the relevant law applies, the Client, as controller, is responsible for notifying the data processing to the competent authority and indemnifies Sales In Motion as processor against any claims.

17. Transfer of rights and obligations

17.1 The Client is not entitled to transfer its rights and obligations under the Agreement in whole or in part to a third party without prior written consent from Sales In Motion.

18. Telecommunications

When using telecommunications facilities, the Client is responsible for the correct choice and availability of those facilities. Sales In Motion will provide support where desired.

19. Final provisions

19.1 If any provision of this Agreement is found to be null, invalid, unenforceable, or unlawful, the remaining provisions shall remain in full force and effect. In that case, Sales In Motion and the Client shall consult to replace the invalid provision, taking into account as much as possible the purpose and intent of the original provision.

19.2 Unless otherwise provided in these Terms and Conditions, any addition to or amendment of an agreement between Sales In Motion and the Client must always be agreed in writing. These Terms and Conditions replace all earlier versions and apply from the moment they enter into force to all existing agreements.

20. Governing law and competent court

20.1 This Agreement and all disputes arising from it are governed by Dutch law.

20.2 Without prejudice to the right of Sales In Motion to submit a dispute to another court competent under the law, the parties agree to submit disputes arising from or related to this Agreement to the competent court in Rotterdam. If the Client is a natural person and is summoned by Sales In Motion, the Client may, by written statement within one month after service of the summons, opt for the competent court of the Client’s place of residence.