General Terms and Conditions

Version: April 2022

These general terms and conditions apply to all offers, the creation, content, and fulfillment of all agreements made between MPExpert as the contractor and its clients. Any deviations from these terms are only valid if agreed upon in writing.

These general terms and conditions have been filed with the Chamber of Commerce in Amsterdam under number 81900465.

If you have any questions regarding these terms and conditions, please contact us at:
Email: info@mpexpert.nl
Phone: +31 85 007 41 87
Address: Lagendijk 3 – A112, 1541 KA, Koog aan de Zaan

Article 1 – Definitions

In these General Terms and Conditions, the following definitions apply, both in singular and plural forms:

Subscriber: the party to whom MPExpert’s offer is directed, with whom MPExpert has entered into an agreement, or for whom the legal act is/was performed, based on which services are provided to this party.

General Terms and Conditions: the present General Terms and Conditions, regardless of the form in which they are communicated (in print or electronically, for example, via MPExpert’s website).

Services: all tasks and other activities carried out by MPExpert for the Subscriber, as well as any work related to these services.

Indirect Damage: damage suffered by a Subscriber as an indirect consequence of any failure, action, or omission by MPExpert. This includes, but is not limited to: loss of profit or revenue of a Subscriber, damage due to missed opportunities by a Subscriber, damage resulting from the closure of a Subscriber’s sales account, damage due to the delivery of defective products or delayed delivery of products by a Subscriber to its own customers, or damage suffered by a Subscriber or third parties as a result of the product information used on the respective marketplace.

MPExpert: the trade name of the company registered in the commercial register of the Chamber of Commerce under number 81900465.
Agreement: any agreement made in writing, electronically, or in any other form between the Subscriber and MPExpert for the provision of Services by MPExpert on behalf of the Subscriber.

Article 2 – Scope of these Terms and Conditions

2.1 These General Terms and Conditions apply to and form part of all negotiations, offers, orders, quotations, Agreements, and other legal acts, whether made orally, in writing, electronically, or in any other form, where MPExpert offers or provides Services to the Subscriber. These General Terms and Conditions also apply in full to any additional or subsequent orders from the Subscriber.

2.2 These General Terms and Conditions also apply if MPExpert cooperates with third parties in any way in the execution of the Agreement, unless expressly agreed otherwise in writing beforehand.

2.3 Deviations from these General Terms and Conditions are only valid if expressly agreed upon in writing in advance by both MPExpert and the Subscriber.

2.4 MPExpert expressly rejects the applicability of any general terms and conditions of the Subscriber. If the Subscriber refers to its own terms and conditions in any way without these being explicitly agreed upon in writing, MPExpert reserves the right to terminate the relevant Agreement without being liable for damages.

2.5 If and to the extent that one or more provisions of these General Terms and Conditions are void or annulled, the remaining provisions will remain fully in effect. Should such a situation arise, MPExpert and the Subscriber will enter into consultation within 14 (fourteen) calendar days of the declaration of nullity or annulment, with the aim of agreeing on new substitute provisions that align as closely as possible with the purpose, intent, and wording of the void or annulled provision(s).

Article 3 – Quotations and Formation of the Agreement

3.1 All offers from MPExpert are non-binding, unless expressly stated otherwise in writing. MPExpert reserves the right to prevent the formation of an Agreement immediately after acceptance by the Subscriber, without being obliged to compensate any damages.

3.2 All quotations from MPExpert are valid for 30 (thirty) calendar days from the date of the quotation, unless stated otherwise in the quotation.

3.3 The Agreement is established if a quotation is confirmed in writing by the Subscriber within the stated validity period and without reservation or modification. An Agreement between MPExpert and the Subscriber is also established if MPExpert confirms the agreed arrangements in writing, and the Subscriber does not contest the accuracy of this confirmation in writing within 10 (ten) working days from the date of the confirmation, or if this period is shorter, before the start of the work by MPExpert.

3.4 The prices stated in the quotation are exclusive of VAT, unless expressly stated otherwise.

Article 4 – Execution of the Agreement

4.1 Within the framework of an Agreement, the actions of MPExpert are characterized solely as a best-efforts obligation. In this context, MPExpert is required to fulfill its obligations to the best of its ability, taking into account the necessary care.

4.2 In all cases where MPExpert deems it desirable or necessary, it has the right to have certain tasks performed by third parties, or to be assisted by third parties.

4.3 If a specific deadline has been agreed upon for the completion of MPExpert’s tasks, this is not a strict deadline, unless expressly agreed in writing beforehand. Therefore, any delay in meeting the agreed deadline by MPExpert does not constitute a breach. The Subscriber cannot terminate or dissolve the Agreement for this reason, and the Subscriber is not entitled to any compensation as a result.

4.4 When MPExpert is assigned to work in collaboration with a third party on a task or part of a task, MPExpert, in consultation with all parties involved, will determine everyone’s responsibilities. MPExpert accepts no liability, except for liability that is mandatory by law, for the actions, omissions, or consequences of the actions or omissions by a third party.

Article 5 – Amendments

5.1 The Subscriber accepts that the schedule of the assignment may be affected if the parties agree to expand or modify the approach, method, or scope of the assignment and/or the resulting tasks during the course of the agreement.

5.2 Amendments to and additions to the Agreement and the subscription are only valid if they are agreed upon in writing between the Parties.

5.3 MPExpert is entitled to adjust the rates once per year during the term of the agreement in accordance with the price index of the CBS, without written consent.

5.4 If, in consultation with the Subscriber, there is a deviation from the original Agreement between MPExpert and the Subscriber, the resulting costs for additional or reduced work will be charged to the Subscriber based on the prices and/or rates applicable at the time of execution.

Article 6 – Services, Invoices, and Payments

6.1 Unless other payment terms have been agreed upon, the Subscriber must pay the invoiced amounts without any discount or right to set-off within 14 (fourteen) calendar days after the invoice date (strict deadline). The Subscriber explicitly waives the right to impose a lien on their own assets under Article 724 of the Dutch Code of Civil Procedure (Rv). The Subscriber is required, upon first request and to the satisfaction of MPExpert, to provide security for timely and full payment of their financial and other obligations. If the Subscriber does not comply with such a request within 14 (fourteen) calendar days after receiving written notice, all their obligations to MPExpert become immediately due. If the Subscriber does not pay within 14 (fourteen) calendar days after the invoice date, the Subscriber is in default by operation of law, without the need for a formal notice of default, and the Subscriber will owe statutory commercial interest on the outstanding amount from the due date until the day of payment. For the purpose of interest calculation, part of a month is considered a full month. All extrajudicial costs reasonably incurred by MPExpert to collect its claim from the Subscriber will be borne by the Subscriber.

6.2 MPExpert is authorized to suspend its activities under the Agreement (in whole or in part) if the Subscriber fails to meet any obligation under the Agreement, including but not limited to the obligation mentioned in Article 6.1.

6.3 Objections to the amount of an invoice sent by MPExpert and/or the (manner of) performance of the Agreement by or on behalf of MPExpert do not give the Subscriber the right to suspend its payment obligations.

6.4 The full claim of MPExpert under the Agreement becomes immediately and fully due if:

a. the Subscriber has exceeded a payment term;

b. the Subscriber is declared bankrupt, a bankruptcy application has been filed for the Subscriber, or the Subscriber files for suspension of payments;

c. the Subscriber passes away or is placed under guardianship;

d. assets of the Subscriber are seized;

e. the Subscriber fails to meet any obligation to MPExpert;

f. the Subscriber proceeds to cease or transfer their business or a substantial part of it. This also includes the case in which the Subscriber transfers their business to a newly established or existing company or changes the objective of their business.

6.5 Payments will always be applied first to cover owed costs, then to interest, and finally to the due invoices in order of their age, unless MPExpert indicates otherwise, even if the Subscriber states that their payment relates to other invoices and/or debts.

6.6 MPExpert is entitled at any time to demand (partial) advance payment for the provision of Services.

6.7 1. At MPExpert’s first request, the Subscriber must provide (to MPExpert’s satisfaction) adequate security for payments due under the Agreement. MPExpert considers adequate security to include, but not be limited to, an irrevocable bank guarantee, callable upon first request, from a reputable Dutch banking institution.

2. If the Subscriber fails to meet this obligation, they are immediately in default, and MPExpert has the right to terminate the Agreement or suspend its obligations to the Subscriber.

Article 7 – Risk and Liability

7.1 MPExpert is responsible for performing the Services as specified in the Agreement. MPExpert is explicitly not responsible for the quality of the products, damage and/or defects in the products, setting the product price, order processing, the (timely) delivery and shipment of the product, customer care, customer satisfaction, and/or customer reviews on online marketplaces. MPExpert is also not responsible for ensuring that the products comply with local, national, or European regulations. All of these responsibilities lie with the Subscriber. MPExpert is not liable for these. In the event that damage occurs and/or costs are incurred due to the Subscriber’s failure to properly or timely fulfill these responsibilities, these will be borne by the Subscriber.

7.2 The Subscriber guarantees that all data, information, and instructions provided to MPExpert for the execution of the Services are always accurate and complete. The Subscriber is responsible for the proper, complete, and timely provision of information necessary for MPExpert to perform the Services, unless otherwise agreed in the Agreement. In the event that damage occurs and/or costs are incurred due to failure to meet these responsibilities or meet them on time, these will be borne by the Subscriber. Furthermore, MPExpert has the right to suspend the execution of the Agreement until the Subscriber has fulfilled their responsibilities.

7.3 MPExpert is not liable for damage and/or costs incurred due to malfunctions on the online marketplaces. MPExpert is also not liable for damage and/or costs incurred as a result of (or the way in which) information (such as product specifications) is listed on the online marketplace. MPExpert is not liable for damage and/or costs incurred due to staff illness or data loss. Additionally, MPExpert is not liable for damage resulting from any situation of force majeure, as defined in Article 13 of these General Terms and Conditions.

7.4 MPExpert is not liable for Indirect Damage.

7.5 MPExpert’s liability for auxiliary persons is excluded.

7.6 The Subscriber has an account on one or more Marketplaces. The Subscriber is solely responsible for choosing a strong password and keeping this password confidential. When the Subscriber creates logins for other employees within their organization, they are also responsible for choosing strong passwords and keeping them confidential. MPExpert is not liable for any damage and/or costs incurred as a result of failing to properly fulfill the responsibilities outlined in this article.

7.7 If MPExpert fails to meet its obligations to the Subscriber, acts unlawfully towards the Subscriber, or is held liable for any other reason, and except for exclusions of MPExpert’s liability stated elsewhere in these General Terms and Conditions and the Agreement, MPExpert’s total liability (regardless of the grounds) is limited to the loss suffered by the Subscriber and furthermore limited to the total of the amounts invoiced (excluding VAT) by MPExpert to the Subscriber for the Services related to the action on which the liability is based, during a period of six months prior to the act, with a maximum of €500.00 per incident or series of incidents with a common cause. The aforementioned liability limitations will not apply if the damage suffered by the Subscriber is the result of intent or deliberate recklessness by MPExpert or its senior management subordinates.

7.8 The Subscriber indemnifies MPExpert, its staff, and any third parties engaged by MPExpert in the execution of its obligations under the Agreement, against all claims from third parties for compensation for (alleged) damages caused by or otherwise related to the performance delivered by MPExpert under the Agreement, unless the damages are the result of intent or deliberate recklessness by MPExpert or its senior management subordinates.

7.9 The limitations and exclusions of liabilities arising from the Agreement or the General Terms and Conditions also benefit all subordinates of MPExpert and all third parties working on behalf of MPExpert in connection with the Agreement. These parties can invoke all defenses that MPExpert can derive from the Agreement and/or the General Terms and Conditions to prevent liability, as if they themselves were a party to the Agreement. This constitutes a third-party clause within the meaning of Article 6:253 of the Dutch Civil Code (BW). The application of Article 6:254, paragraph 1, of the Dutch Civil Code (BW) is expressly excluded.

Article 8 – Subject of Confidentiality

8.1 Confidential and secret information is defined as:

• The fact that the Subscriber has engaged MPExpert for Marketplace management services for the brands represented by the Subscriber;
• Information that is secret in the sense that it, either in its entirety or in the correct composition and arrangement of its components, is not generally known to or readily accessible by those within circles that normally deal with such information; information that holds commercial value because it is secret, and information that is subject to reasonable measures, considering the circumstances, to keep it confidential by the person lawfully in possession of it.

• Information that MPExpert reasonably should know or ought to know is confidential.

8.2 The list in Article 8.1 of these General Terms and Conditions is non-exhaustive and also includes written and verbal information containing trade secrets, or technical, commercial, or financial data that is not publicly available.

8.3 Exceptions to the confidentiality obligation as defined in Article 8.1 of this Agreement include, but are not limited to:

• Information that is publicly known;
• Information disclosed by the Subscriber;
• Information that must be disclosed by law or by judicial order;
• Information available from public sources, such as newspapers, patent databases, or informative websites;
• Information already in the possession of MPExpert prior to being provided by the Subscriber;
• Information obtained from a third party without that third party violating any confidentiality obligation towards the Subscriber by providing the information to MPExpert;
• Information independently developed by MPExpert without using information from the Subscriber;
• Information that can be easily deduced from freely available products on the market.

Article 9 – Obligation of Confidentiality

9.1 MPExpert shall use the obtained information solely for the purpose of executing the assignment. It will treat the information confidentially and will not disclose or make it available to third parties. To prevent the disclosure of confidential information, MPExpert will ensure that the Subscriber’s information enjoys the same level of protection as its own confidential information. This protection will be at a level that can reasonably be expected, given the industry and activities in which the parties are active.

9.2 MPExpert will not, directly or indirectly, contact the clients of the Subscriber without the prior explicit consent of the Subscriber during the term of the Agreement.

9.3 If confidential information is hacked, despite MPExpert protecting the confidential information in the manner described in Article 9.1, this constitutes force majeure. In such a case, MPExpert cannot be held liable for the damages resulting from the hack.

9.4 Only with the Subscriber’s permission may MPExpert use confidential information, such as the company names for which MPExpert has performed work, for its own purposes, including advertising.

Article 10 – Duration of Confidentiality

10.1 The confidentiality obligation as defined in Articles 8 and 9 of this Agreement applies exclusively for the duration of the Agreement.

10.2 After the termination of negotiations or the assignment, the information and all copies thereof will be returned or destroyed upon the first request of the Subscriber, except to the extent that MPExpert is required to retain the information by law or by a decision of a competent judicial, governmental, supervisory, or regulatory authority, or in accordance with applicable regulations.

Article 11 – Breach of Confidentiality

11.1 In the event of an act or omission that violates the provisions of Article 8 of this Agreement, MPExpert shall compensate the damage resulting from the breach of confidentiality. Damages include financial losses and other disadvantages, the latter only insofar as the law grants a right to compensation. The liability limitations from the general terms and conditions apply.

11.2 In the event of an act or omission that violates the provisions of Articles 8 and 9 of this Agreement, MPExpert shall be liable to pay a penalty to the Subscriber. The penalty is set at €5,000 per violation, with a maximum of €20,000. The Subscriber cannot demand both the enforcement of this penalty clause and the obligation to which this penalty clause is connected. The penalty replaces any compensation for damages based on the law or Article 11 of this Agreement.

Article 12 – Intellectual Property

12.1 The agreement does not entail the transfer of any intellectual property rights, unless otherwise agreed in writing between the parties.

12.2 MPExpert will use software programs provided by the Subscriber or a third party when performing its Services. MPExpert may advise the Subscriber on which third-party software programs to acquire so that MPExpert can provide its Services, but MPExpert is not responsible for the (content of the) terms and conditions of these third parties regarding the use and delivery of the software programs and/or services. If the Subscriber decides to engage a third party for the provision of software programs and/or services, the Subscriber must enter into an agreement directly with that third party.

12.3 The Subscriber is and remains responsible for the use of the software programs and services mentioned in Article 12.2 and guarantees that MPExpert is authorized to use these software programs and services for the execution of its Services. The Subscriber indemnifies and holds MPExpert harmless from claims by third parties regarding an (alleged) infringement of intellectual property rights of those third parties, including personal rights as defined in Article 25, paragraph 1 of the Copyright Act, and similar claims related to knowledge, unfair competition, etc., if such claims arise from the use of the software programs that MPExpert uses from the Subscriber and/or a third party in the context of providing the Service(s).

Article 13 – Force Majeure

13.1 Force majeure includes all circumstances, whether foreseen or unforeseen, beyond MPExpert’s control, which temporarily or permanently prevent MPExpert from fulfilling its obligations. Force majeure includes but is not limited to illness of staff, power, computer, internet, and (mobile) phone outages, as well as obstacles to performing work related to – but not limited to – Covid-19 (mutations) situations, and all other circumstances in which it would be unreasonable to expect MPExpert to meet its obligations to the Subscriber.

13.2 If the period of force majeure on the part of MPExpert lasts for more than sixty consecutive calendar days, both parties have the right to terminate the Agreement without MPExpert being liable for any compensation for damages suffered by the Subscriber as a result of the termination. MPExpert is entitled to payment by the Subscriber for all Services provided to the Subscriber up to the time of termination.

Article 14 – Termination of the Agreement

14.1 The Agreement has a duration as agreed between MPExpert and the Subscriber in the Agreement. After the agreed term, the Agreement is tacitly extended for an indefinite period. After the agreed term, the Agreement can be terminated in writing on a monthly basis by either MPExpert or the Subscriber.

14.2 MPExpert has the right to terminate the Agreement in whole or in part, with immediate effect, in writing in the event:

a. a party applies for (provisional) suspension of payment, this is applied for on their behalf, or they are granted (provisional) suspension of payment;

b. a party files for bankruptcy, bankruptcy is applied for on their behalf, or they are declared bankrupt;

c. the Subscriber passes away or is placed under guardianship;

d. a party ceases or transfers their business or a substantial part of it. This also includes cases where the business is transferred to a newly formed or existing company, or where the business’s objectives are changed.

e. during the work, a significant breakdown of mutual trust has occurred, making further collaboration impossible.

14.3 Articles 11.1 and 11.2 also apply to additional Services unless explicitly agreed otherwise in writing.

14.4 Paragraph 1: The content provided by MPExpert is generated through the use of costly software, which the Subscriber no longer pays for after the termination of the Agreement. Upon termination of the Agreement, for any reason, MPExpert will remove the content it has provided to the Subscriber by replacing it with the content that was present before the Agreement.

Paragraph 2: If desired, the Subscriber can retain the content provided by MPExpert after the termination of the Agreement for a fee.

Paragraph 3: The content referred to in Paragraph 2 is the content that resulted from MPExpert’s search engine optimization efforts.

Paragraph 4: The fee referred to in Paragraph 2 is a mutually agreed-upon fee that has been established in consultation with the Subscriber.

Article 15 – Dispute Resolution

15.1 These General Terms and Conditions and any Agreement between MPExpert and the Subscriber are exclusively governed by Dutch law.

15.2 All disputes between MPExpert and the Subscriber arising from or related to negotiations, offers, assignments, quotes, Agreements, and other legal actions related to the provision of Services or other services by MPExpert will be submitted to the Dutch court. The court of Noord-Holland has exclusive jurisdiction.