If you are reading this, this means we will (probably) start working together. YES! We always enjoy creating amazing works with skilled people (that’s you!). The purpose of this document is to sort out our expectations. At FX Agency we are not big fans of protocols and rules, but for some things it is good to make clear agreements. About the moment we pay you for your hard work, for example. Or the fact that all our information you get to see is strictly confidential. That’s why we have crafted these terms and conditions: to highlight both of our interests. If you have any questions regarding this document, please don’t hesitate to contact us. We are happy to explain it personally!
Article 1: Definitions
For convenience and readability, we use the following definitions with the following meanings in these terms and conditions:
- We are FX Agency, a private company with limited liability with its registered office and actual place of business in Utrecht, listed in the Commercial Register of the Dutch Chamber of Commerce under file number 56101740.
- Contractor: you, as a natural person or legal entity performing work for FX Agency.
- Assignment: all work performed by Contractor for (clients of) FX Agency. This may include, but is not limited to, the production of works, the provision of services and/or products.
- Third Parties: any other person (natural person or legal entity) who is engaged (in)directly by the Contractor in the context of the execution of the Assignment.
Article 2: Applicability of these conditions and the formation of the Assignment
- These terms and conditions apply to all current and future offers, Assignments and other agreements of FX Agency.
- To avoid contradictions and ambiguities, the applicability of any terms and conditions used by the Contractor is hereby expressly rejected.
- To make sure all parties involved are always aware of the agreements made, any deviating agreements shall apply only if agreed in writing.
- Because regulations and customs may change in practice, FX Agency may unilaterally amend these terms. If this happens, we will give you an amended copy. In addition, the most recent version of this document will always be shown on FX Agency's website. If no time is indicated for the amendments to take effect, a change will take effect when the amended conditions are handed to you.
- If (parts of) these terms and conditions are void or unenforceable, the Assignment and remaining provisions shall remain in force. In that case, provisions that are not legally valid or that cannot be legally enforced shall be replaced by provisions that most closely follow the content of the invalid provision.
- An Assignment shall be entered into by written confirmation from FX Agency to Contractor.
Article 3: Content and execution of the Assignment
- In order to have an Assignment executed as efficiently as possible, FX Agency assumes that Contractor requests all information which it knows or should know is necessary for the execution of the Assignment from FX Agency in a timely manner. Contractor shall perform its work on account of an Assignment to the best of its ability and entirely independently, in accordance with the requirements of good professional practice. However, as far as required for the execution of the Assignment, coordination with FX Agency shall take place in case of cooperation with Third Parties, in order to ensure the best possible result. Contractor shall follow FX Agency's reasonable directions and instructions regarding the result of the Assignment. Contractor accepts full responsibility for the proper execution of its work. Contractor is obliged to achieve a certain result, unless Contractor performs consultancy work. In such case Contractor will perform such consultancy work on the basis of a best-efforts obligation.
- Contractor undertakes to carry out its work within the deadlines agreed between us. The expiry dates of these deadlines are strict and final deadlines, unless we have agreed otherwise in writing or it is otherwise clear that it is not a strict deadline.
- If Contractor does not execute the Assignment in time and/or correctly, FX Agency has the right to perform the (remaining) work itself and/or have it performed by Third Parties, at the expense and risk of Contractor.
- Contractor ensures, at its own expense and risk, the necessary resources and the timely application for and obtaining of insurances, permits, approvals and exemptions required for the execution of the Assignment.
- If Contractor engages Third Parties for the execution of the Assignment, Contractor shall also be obliged to agree to the obligations arising from the Assignment and these terms and conditions with the Third Parties in question in writing.
- FX Agency retains the right to set further conditions if Contractor intends to engage Third Parties and/or to refuse the involvement of certain Third Parties al together.
- FX Agency hereby expressly agrees that Contractor shall also perform work on behalf of other clients.
Article 4: Rates and payments
- Offers from Contractor shall state Contractor’s rate and any costs involved in the performance of its work. In addition, all government levies shall be included, including in any case the applicable VAT-rate. The extent of the costs mentioned in offers cannot be altered to FX Agency’s disadvantage after conclusion of the Assignment.
- Unless expressly agreed otherwise, FX Agency will pay the rate and any costs of Contractor afterwards. That is, after the work of Contractor has been completed and FX Agency has received an invoice.
- The payment term is 30 days.
Article 5: Freelancers and/or self-employed workers without employees (“zzp-ers”)
- Any Assignment with FX Agency qualifies as a contract for the provision of services (overeenkomst van opdracht in Dutch). There is no question of an employment relationship or fictious employment under Dutch law within the meaning of article 2b and 2c Uitvoeringsbesluit Loonbelasting 1965 and article 1 and 5 of the Besluit aanwijzing gevallen waarin arbeidsverhouding als dienstbetrekking wordt beschouwd.
- FX Agency shall owe VAT on the remuneration for the services performed by Contractor if and to the extent no statutory exemptions apply. Any other tax claims, insurance premiums due, penalties and/or interest arising from the Assignment, shall be entirely payable, without exception, by Contractor.
- Due to the fact there is no question of an employment agreement or relationship, FX Agency shall not pay any income tax, national insurance contributions, employee insurance contributions or income-related contributions to the Zorgverzekeringswet, unless the tax authorities should rule that FX Agency is obliged to do so. In the unlikely event that tax and/or premiums would be payable, FX Agency shall not be obliged to pay any compensatory consideration to Contractor.
- Should FX Agency prove to be liable for any income tax and national insurance contributions, such contributions (both past and future) shall be at the expense of Contractor. Contractor indemnifies FX Agency fully to this respect. Should the legal relationship be considered as an employment relationship, the VAT wrongfully paid by FX Agency will be paid by Contractor to FX agency.
Article 6: Termination of Assignment
- Unilateral early termination for important reasons by Contractor is only possible with due observance of a notice period of one month.
- Unilateral early termination by FX Agency shall be possible at any time without regard to a notice period. If the Assignment has already been partially executed at the time of termination and FX Agency is able to charge its Client for this work, FX Agency shall reimburse Contractor for the costs of the work already performed in accordance with the method of invoicing and payment included in article 4. In that case, FX Agency shall not be obliged to pay any other compensation (such as damages).
- If Contractor is subject to insolvency proceedings (such as suspension of payments, bankruptcy, etc.), or if insolvency proceedings have been applied for/on its behalf, or if Contractor otherwise no longer has the free disposal of its assets and/or control within its company, or if it appears that Contractor has provided incorrect or incomplete information and/or otherwise acts contrary to its obligations under the Order, FX Agency shall at all times have the right:
* to (partially) terminate or dissolve the Assignment without notice of default and without judicial intervention; and/or
*to suspend its payment obligations;
all without FX Agency being obliged to pay any compensation and without prejudice to FX Agency's right to claim performance and/or full compensation.
Article 7: Force majeure
- In the event of force majeure, the fulfilment of the parties' obligations shall be (partially) suspended for the duration of the force majeure without the parties being obliged to pay damages to each other.
- Force majeure within the meaning of article 7.1 shall not include: a lack of staff, strikes, illness, delay in the delivery or unsuitability of necessary goods and/or any shortcomings of Third Parties.
Article 8: Liability
- FX Agency shall not be liable for any damages except in case intent or deliberate recklessness.
- Any (non-)contractual liability of FX Agency shall in all cases be limited to direct damages. In other words, FX Agency is never liable for indirect damage or consequential damage or other indirect damage such as loss of turnover or loss of profit.
- Any (extra)contractual liability of FX Agency shall furthermore be limited to the amount paid by FX Agency's liability insurer.
Article 9: Intellectual Property
- In the event no Assignment is concluded between Contractor and FX Agency, but Contractor has performed work from which intellectual property rights may arise, such intellectual property shall remain the property of Contractor.
- All intellectual property rights arising from work performed as part of an Assignment shall become and remain the intellectual property of FX Agency, unless expressly agreed otherwise.
- If a further deed is required for FX Agency to acquire intellectual property rights, Contractor hereby agrees in advance to transfer the resulting intellectual property rights and record the same in a deed and shall perform all necessary additional acts that will result in FX Agency being the sole owner of the intellectual property. To the extent that one or more of the rights referred to above are not transferable or have not been validly transferred pursuant to the above, Contractor hereby grants FX Agency a perpetual, worldwide, unrestricted, transferable and exclusive license to exploit the intellectual property rights.
- Contractor is obliged to respect intellectual property rights of third parties and shall indemnify FX Agency against claims of third parties against FX Agency in connection with (alleged) breaches thereof by Contractor or Third Parties.
Article 10: non-solicitation clause
- FX Agency is proud of its collaborations. Maintaining these collaborations is of great importance to us. Of course, it could happen that FX Agency and its Contractors have the same business relations. That is not a problem. FX Agency does however want to prevent Contractors from abusing FX Agency’s network. FX Agency prefers to prevent this in close consultation with its Contractors. Therefore, only with the prior written consent of FX Agency shall Contractor be permitted to directly or indirectly (on behalf of third parties) – wether remunerated or free of charge – establish and/or maintain contacts, with clients, suppliers or other relations of FX Agency or its affiliates, insofar as the purpose is to maintain or establish commercial relationships. To clarify: the above-mentioned 'clients, suppliers or other relations of FX Agency' solely refers to the (contacts of the) relations of FX Agency with whom Contractor first comes into contact during or in connection with the Assignment, and therefore does not apply to existing relations of Contractor.
- The provisions of Article 10.1 shall exclusively apply:
* during the term of the Assignment and for a period of one year after the termination of the Assignment; and
* to the extent that the aforementioned clients, suppliers or other contacts whom the Contractor wishes to approach have been directly or indirectly involved in the Assignment.
Article 11: Confidentiality
- Unless strictly necessary for the execution of the Assignment or to comply with a legal obligation, FX Agency and Contractor shall, during and after the completion of the Assignment, not to disclose any information which they have obtained from or though the other party, in the context of the execution of the Assignment and of which they know or can reasonably suspect the confidential nature.
- The duty of confidentiality contained in clause 11.1 relates to both information pertaining to the parties directly, as well as information relating to clients, associates and other contacts of FX Agency.
- Unless otherwise agreed in writing, FX Agency may use and disclose the results of the Assignment for marketing purposes.
Article 12: Penalty
- In case of breach of the provisions of articles 9, 10 and 11, the Contractor shall forfeit to FX Agency a penalty of EUR 25,000 (in words: twenty-five thousand euros) for each breach, increased by an amount of EUR 2,500 (in words: two thousand five hundred euros) for each day that the breach continues, without prejudice to FX Agency's right to performance and/or damages.
Article 13: Protection of personal data
- FX Agency processes personal data held by it in accordance with the General Data Protection Regulation (EU) 2016/679. More information on how FX Agency handles personal data is included in FX Agency's privacy statement, as displayed on its website.
Article 14: Choice of law and forum
- These general terms and conditions, all Assignments, other agreements and obligations arising from them shall be governed exclusively by Dutch law.
- All disputes shall be settled in the first instance by the competent court of the District Court of Midden-Nederland.