General conditions

In these general terms and conditions, the following definitions shall apply:

1.1       Pinchhitters: Pinchhitters B.V., a legal entity incorporated under Dutch law, having its registered office in Rotterdam and registered in the Commercial Register of the Chamber of Commerce under number 85639885. 

1.2       Pinchhitters terms: the present terms and conditions that apply to all offers of Pinchhitters and to all agreements.

1.3       Service/product: the performance of the agreement on the part of Pinchhitters.

1.4       Order confirmation: the assignment to Pinchhitters, whether or not based on an offer, described individually in concrete terms and agreed upon between the client and Pinchhitters.

1.5       Client: the buyer or client.

1.6       Agreement: the order confirmation and the Pinchhitters terms and conditions jointly or each separately.

1.7       Parties: Principal and Pinchhitters.

1.8       Sample: both material and digital examples that are part of the service/product.

2.1 The agreement is to be regarded as a contract of assignment as referred to in Article 7:400 of the Civil Code.

2.2 Terms and conditions to the contrary shall form part of the agreement only if and to the extent that the parties have expressly agreed in writing.

2.3 These terms and conditions also apply in favor of third parties by whom Pinchhitters has the Agreement executed in whole or in part.

2.4 The possible inapplicability of (part of) a provision of the agreement does not affect the applicability of the remaining provisions.

2.5 If documents originating from the client refer to the client's own general terms and conditions, their applicability is hereby expressly excluded and only the Pinchhitters terms and conditions are declared applicable, unless article 2.2 applies.

3.1 The scope of Pinchhitters' obligations is determined solely by the agreement, unless otherwise expressly agreed in writing.

3.2 Pinchhitters is at all times authorized to engage third parties in connection with the service/product. Upon request, Pinchhitters will inform the client of the third parties in question.

3.3 The goods to be delivered by Pinchhitters to the client may be produced following a model that is indicative of the goods to be delivered. This then implies that the quality of the goods to be delivered may deviate from the model within reasonable limits, also taking into account the nature of the material. This includes deviations in quality, surface, color, thickness, size and straightness. In the event of any deviation, the client must prove that Pinchhitters failed to observe all reasonable limits.

3.4 If the client claims that a good does not comply with the contract, the burden of proof shall rest with the client.

3.5 At or after entering into the agreement, Pinchhitters is entitled, before (further) performance of the agreement, to demand an advance payment from the client or to demand security that both the payment and other obligations will be met - within a period to be set by Pinchhitters. Pending the security to be provided as referred to above, Pinchhitters is authorized to suspend its obligations under the agreement without having given the client prior notice of default.

4.1 All quotations by Pinchhitters are entirely non-binding and are valid for the period specified therein and, if none, for a period of fourteen (14) days from the date of the quotation or, if none, from the date of dispatch.

4.2 All offers are accepted when confirmed in writing by Pinchhitters, or by a start of execution of the order by Pinchhitters. ‘Written’, as used in the agreement, includes communication by email and social media.

4.3 After acceptance of an offer by the client, Pinchhitters is entitled to revoke the offer as expressed in the offer within five (5) working days of receipt of that acceptance without having any obligation to the client.

4.4 Pinchhitters cannot be obliged to accept an acceptance by the client received by Pinchhitters after the period referred to in Article 4.1. If Pinchhitters nevertheless decides to do so, an agreement is still established.

4.5 All pre-calculations and budgets included by Pinchhitters in quotations or otherwise are indicative only; no rights or expectations can be derived from them.

5.1 When Pinchhitters, at the request or with the prior consent of the client, performs services or manufactures products that are not part of what is included in the order confirmation, the client will compensate Pinchhitters for additional work according to Pinchhitters' usual rates. Pinchhitters will provide a quotation in the event of additional work at the client's timely request. Pinchhitters is not obliged to carry out additional work without the relevant order confirmation.

5.2 If, during the performance of the service or manufacture of the product, it appears that services and/or products are necessary for proper performance that are not part of the order confirmation, the parties shall, if possible, adjust the order confirmation accordingly in a timely manner and in consultation. If there is a cost-increasing circumstance, the client will reimburse this according to Pinchhitters' usual rates.

5.3 Client accepts that additional work as referred to in Article 5 may affect the agreed or expected time of completion of the assignment and the mutual responsibilities of the parties as agreed in the pre-existing order confirmation.

6.1 All price quotations are in euros and do not include VAT.

6.2 All expenses incurred at the client's request by Pinchhitters or by third parties engaged by Pinchhitters at the client's request shall be borne entirely by the client.

6.3 Unless expressly stated otherwise, the costs of packaging and shipping, as well as all other levies or taxes imposed or levied in respect of the goods and their transportation, shall be borne by the client. The prices are without obligation with respect to any repeat orders and/or follow-up orders.

6.4 Price increases based on raw materials to be delivered by Pinchhitters, increases in taxes, import duties and/or other governmental charges related to the delivery, arising before or after the time of the conclusion of the agreement, can be passed on to the client by Pinchhitters.

6.5 Any discounts are deemed to be granted once each time. Previously granted discounts do not bind Pinchhitters in any way for a subsequent agreement.

6.6 Pinchhitters will send an invoice to the client in respect of the service/product. Payment must be made within fourteen (14) days of the invoice date.

6.7 Pinchhitters is entitled to invoice the client for a specified portion of the total amount as included in the order confirmation or otherwise if it follows from the agreement, immediately after the conclusion of the agreement.

6.8 Payment of the entire invoice amount for (partial) deliveries may also be made in cash on delivery without any discount or setoff.

6.9 If the client fails to pay the amounts due or fails to pay them on time, the client shall, without any demand or notice of default being required, be in default by operation of law and shall owe statutory commercial interest on the outstanding amount.

6.10 If the client fails to fulfill his payment obligation in time and in full, all costs, both judicial and extrajudicial, related to the collection of the amount due shall be borne by the client. The extrajudicial costs shall amount to 15% of the amount due. In addition, the client shall then owe interest on the invoice amount of 1.5% per month - or part thereof - from the date of delivery.

6.11 Objections to the amount of the invoice do not suspend an obligation to pay. The client is not entitled to set off amounts due to Pinchhitters against any (possible) claim the client may have against Pinchhitters, unless expressly agreed otherwise in writing.

7.1 Pinchhitters will use its best efforts to perform/manufacture the service/product.

7.2 Dissatisfaction arising from the aesthetics of the service/product provided can never be considered a shortcoming on the part of Pinchhitters.

7.3 The client's use of any service/product or advice otherwise provided by Pinchhitters is at all times at the client's expense and risk.

7.4 Without Pinchhitters' prior written consent, the client is not entitled to make any communication to third parties about Pinchhitters' methods, methods and techniques and/or the content of Pinchhitters' advice or reports.

8.1 Stated periods within which the service/product should be performed/manufactured do not apply as deadlines. If the exceeding of such a term is reasonably foreseeable, the parties will consult as soon as possible. The mere exceeding of such a term by Pinchhitters does not lead to any default or any right to any compensation.

8.2 Pinchhitters undertakes to observe the delivery time as much as possible. However, Pinchhitters cannot be held liable for any exceeding of the delivery time that was reasonably unforeseeable at the time of entering into the agreement. In cases such as: fire, riots, strikes, transport difficulties, raw material shortages, pandemics, acute travel restrictions and the like, Pinchhitters has the right, after consultation with the client, to unilaterally extend the delivery time or cancel the agreement, without this entitling the client to compensation, or to cancel the relevant and/or any previous or subsequent orders or dissolution of the underlying agreement.

8.3 If delivery does not take place within a new reasonable period set by the client in writing, the client shall thereafter be entitled to cancel the order and reclaim any money already paid.

8.4 If, during the performance/production of the service/product, it appears that it is (has become) impossible to perform the order, either as a result of circumstances unknown to Pinchhitters or not attributable to Pinchhitters or due to force majeure, the performance/production of the service/product will be suspended and Pinchhitters has the right to demand that the agreement be amended in such a way that the performance/production of the service/product is still possible. The Client shall cooperate fully with such an amendment. If, to the determination of Pinchhitters, amendment of the agreement should not reasonably be possible, then Article 15.1 shall apply mutatis mutandis, on the understanding that the percentage for lost profit shall be 5% of the total amount included in the order confirmation or, if the amount is higher, of the total amount as it results from the agreement.

8.5 The client is obliged to take delivery of the goods at the time they are delivered by Pinchhitters. Suspension by the client of taking delivery of the goods is excluded. If the client fails to take delivery, it is legally in default. The goods will then be stored at the expense and risk of the client.

8.6 Any damage and/or shortages of the packaging and the goods delivered, which are present at the time of delivery and/or deviations in the number of packages, must be reported by the client on the packing slip/delivery note, the invoice and/or the transport documents. Simultaneously with the notification of the deviation(s), the client must provide Pinchhitters with a sample of the deviating goods. Deviations in the number of goods in the packaging and/or defects that manifest themselves upon opening this packaging must be reported in writing within 24 hours of delivery, on pain of forfeiting any claim in this regard. If the client has not reasonably been able to assess the goods within this period - in respect of which the burden of proof rests with the client and is not simply assumed in the case of visible defects - the client must report this in writing within eight days after he should reasonably have discovered the damage and/or shortages in the packaging of the goods.

8.7 In all cases, the risk shall be borne by the client from the time of delivery. Delivery shall take place ex factory.

8.8 Transport shall always take place, unless otherwise agreed, at the client's expense. The principal shall be entitled to inspect the goods before shipment.

8.9 The method of transport, shipment, packaging and the like is determined by Pinchhitters as a good merchant, without Pinchhitters bearing any liability for this. Any specific wishes of the client regarding transport/shipment will only be carried out if the client has declared to bear the additional costs thereof. 

9.1 The Client will always provide Pinchhitters with all useful and necessary and/or relevant data or information in a timely manner as well as any other cooperation Pinchhitters deems necessary in the context of the service/product.

10.1 After delivery of a particular order, the goods, which may include campaign elaborations, visualizations, videos, animations, designs, sketches, drawings, etc., shall remain in Pinchhitters' possession until Pinchhitters has received full payment:

1. for the goods delivered according to the particular order, or previous or subsequent orders,
2. of claims arising from the client's default of orders, such as damages, penalties, interest and costs.

10.2 If the goods are actually in the client's possession before they have been paid for, they are to be considered shipped/transported on consignment and Pinchhitters is entitled to reclaim them at any time (if necessary: to enter the client's premises for this purpose) or demand their immediate return.

10.3 Prior to the delivery date of the goods, the customer is not entitled to sell the goods or to use them as collateral for a loan, debt or mortgage or to transfer or assign them to a third party. However, the goods may be used by the principal for usual business purposes.

10.4 In the event of failure to pay amounts due and payable, the client shall immediately enable Pinchhitters to repossess the goods delivered by Pinchhitters, without prior demand or judicial intervention being required for this purpose. In anticipation of the event that the client fails to fulfill its obligations (of payment or otherwise) to Pinchhitters, and regardless of Pinchhitters' rights, the client hereby irrevocably authorizes Pinchhitters to immediately repossess the goods at its request, without prior demand or judicial intervention being required for this purpose.

10.5 The client is obliged to immediately notify Pinchhitters in writing in the event that third parties (should) lay claim to goods subject to the retention of title. In addition, the client must inform these third parties that the goods are the property of Pinchhitters.

10.6 Any payment received by Pinchhitters from the client shall be used primarily to pay off the client's debts to which the retention of title described in paragraph 1 does not apply.

10.7 The principal shall notify Pinchhitters of additional local requirements applicable in the area where the goods purchased from Pinchhitters are stored in order to establish and exercise the retention of title. Furthermore, the client shall cooperate in the completion, signing and filing of additional forms if necessary to establish or exercise Pinchhitters' retention of title.

11.1 Every item supplied by Pinchhitters is deemed - subject to proof to the contrary - to have been developed and/or composed by Pinchhitters itself. Claims by virtue of intellectual and/or industrial property on any good composed or developed by Pinchhitters - including the name and underlying model of the good - belong exclusively to Pinchhitters.

11.2 Client does not acquire a user license in any form in connection with the service/product, unless expressly agreed otherwise in the agreement.

11.3 The intellectual property regarding the service/product, including concepts or any other idea in the context of the agreement, shall at all times belong to and remain with Pinchhitters or third parties engaged by Pinchhitters. The client shall not remove any indications of intellectual property rights.

11.4 Unless otherwise agreed in writing, the design of any good supplied by Pinchhitters shall at all times remain the property of Pinchhitters, regardless of whether any legal possibility of registration has been used and regardless of whether such design was created by the client or by Pinchhitters.

11.5 Unless otherwise agreed in writing, the client remains responsible for copyright claims, including image and portrait rights, resting on goods and materials supplied by the client for the purpose of the service/product to be provided by Pinchhitters.

11.6 The client is not permitted to proceed with the registration of any service/product, product name, product composition and/or model provided by Pinchhitters without Pinchhitters' permission.

11.7 The client is not permitted to have a good delivered, developed or produced by Pinchhitters, as it was/is delivered by Pinchhitters, produced and/or delivered by a party other than Pinchhitters under any name or in any form whatsoever. This under penalty of a fine of € 50,000, - per violation, without prejudice to Pinchhitters' right to full compensation.

11.8 Without prior written permission from Pinchhitters, the client is not permitted to alter in any way the goods supplied by Pinchhitters.

11.9 The client is not permitted to create a variant or derivative of the service/product or to apply, use or in any way directly or indirectly exploit (elements thereof) within other designs or works.

11.10 In case of violation of one of the commands or prohibitions mentioned in this article, the client forfeits an immediately payable fine of € 50,000, - per violation, to be increased by € 2,500, - per day or part of a day that the violation continues, without prejudice to the obligation to pay full damages by the client.

11.11 This Article 11 shall continue to apply even after termination of the Agreement.

12.1 Complaints must be submitted in writing to Pinchhitters no later than eight (8) days after delivery, quoting the packing slip, delivery receipt and/or invoice number, accurately stating the nature and ground of the complaint(s). After this period has expired, the client is deemed to have approved the delivered goods or the invoice, respectively. In that case, complaints will no longer be dealt with.

12.2 The client is obliged to check the delivered goods, including the packaging, immediately upon delivery, or to carry out this check (or have it carried out) after the notification that the goods are at the client's disposal.

12.3 If the complaint concerns defects that only become apparent upon use, the right of complaint can still be asserted within eight (8) days after the defect is discovered, or could reasonably have been discovered, but never later than two months after the invoice date.

12.4 Claims can only be made with respect to goods that are still in the condition in which they were delivered, except in the case of hidden defects and if simultaneously with the notification of the deviation(s) the client sends Pinchhitters a sample of the deviating goods.

12.5 Complaints will not be considered if it appears that the client or a third party has changed anything about the good, except in case this was done with Pinchhitters' prior knowledge and consent.

12.6 The quality of the goods and the raw materials processed therein shall be assessed on the basis of the regulations and quality requirements as applicable to the goods and/or raw materials concerned on the date of offer. Minor, customary, commercially permissible or (technically) unavoidable deviations in quality, thickness, odors, colors, finish, packaging, finishing and the like cannot constitute grounds for complaints.

12.7 Only if and insofar as the complaint is found valid by Pinchhitters, Pinchhitters is (only) obliged to still deliver the agreed performance within a reasonable period.

12.8 If a warranty is granted on the goods supplied by Pinchhitters, this shall be expressly stated in writing. In that case, the warranty is only granted on any manufacturing defects and/or defects in the normal use of the goods, in accordance with their usual and normal purpose, provided that this is not due to improper storage, handling and/or improper improper use and only in the event that the client has fulfilled all its obligations to Pinchhitters.

13.1 Pinchhitters accepts no liability for damage - including indirect damage or consequential damage, damage due to loss of turnover or profit, damage due to loss of data as well as damage due to exceeding deadlines as a result of changed circumstances - that is the result of Pinchhitters’ actions or omissions in the broadest sense of the word, except insofar as Pinchhitters' gross negligence and/or intent is to blame, unless statutory provisions of mandatory law dictate otherwise. A similar limitation applies with respect to staff members and/or third parties engaged by Pinchhitters in the context of performing/manufacturing the service/product.

13.2 Pinchhitters is not liable for defects, also not for defects in materials, parts or service/products supplied by third parties that Pinchhitters has (partly) made available to the client or has caused to be made available to the client and/or have been processed by Pinchhitters in the service/product, unless these defects are due to gross fault and/or intent on the part of Pinchhitters.

13.3 If and insofar as liability is not excluded by Pinchhitters, it is limited to a maximum of 50% of the amount received by Pinchhitters from the client, but on the understanding that liability is at all times limited to €15,000, -.

13.4 If and to the extent applicable, Pinchhitters' liability for attributable failure shall arise only if the client has given Pinchhitters written notice of default immediately and in any event within twenty (20) days after the discovery of any defect or after the time when the defect in question could reasonably have been discovered. The notice of default must contain the fullest possible description of the deficiency as well as a reasonable period to remedy the default.

13.5 The client loses its rights against Pinchhitters and is liable for all damages, including costs for (legal) assistance, and indemnifies Pinchhitters against any third party claim, if and to the extent that:

1. damage is caused by inexpert and/or inconsistent use with instructions or advice given by Pinchhitters and/or a third party on behalf of Pinchhitters by the client;
2. damage is caused by errors or inaccuracies in data, materials, information carriers, etc. provided and/or prescribed to Pinchhitters by or on behalf of the client;
3. damage was caused by the client's use of outdated operating systems, browsers, plug-ins, scripts, software and/or hardware;
4. damage was caused by or because of third parties engaged at the request of the client in performing/manufacturing the service/product;
5. damage was caused by instructions given by the client to Pinchhitters;
6. damage has occurred because the client itself or a third party commissioned by the client has performed work on the (partial) result without Pinchhitters' prior written consent.

13.6 Insofar as it does not already follow from the law, Pinchhitters is not liable if a failure to fulfill any obligation of Pinchhitters under the Agreement is the result of force majeure. Force majeure means any event beyond Pinchhitters' reasonable control, including, but not limited to, international conflicts, violent or armed actions, measures taken by any government, trade fair organization or regulatory body, boycotts, market disruptions, prohibitions or obligations under any applicable law or regulation or court order in any relevant jurisdiction, defective delivery by engaged third parties, labor disturbances at third parties, disturbances in the power supply, in communication links or in Pinchhitters' or third parties' equipment or software, unless such disturbance is caused by Pinchhitters' use of equipment or software that is unsuitable for that purpose. If a case of force majeure occurs, Pinchhitters shall take such measures as may reasonably be required of Pinchhitters with due observance of the agreement in order to minimize the resulting adverse consequences for the client, unless Pinchhitters can no longer reasonably be required to fulfill the agreement.

13.7 This Article 13 shall continue to apply even after termination of the Agreement.

14.1 A non-attributable failure to perform means a failure that cannot be attributed to Pinchhitters and that should not be borne by Pinchhitters either by virtue of the law, a legal act or generally accepted practice. Causes of non-attributable shortcomings include.: work strike or lockout, (proclamation of a state of) war or siege, mobilization, riots, fire, transport difficulties, extreme weather conditions, pandemic, government measures that prevent or hinder the execution of the agreement, which in any case include import and export bans, quota restrictions, business interruptions at Pinchhitters' suppliers, non-performance by its suppliers as a result of which Pinchhitters can no longer fulfill its obligations to the principal, as well as all other circumstances independent of its will that hinder or preclude the execution of the agreement.

14.2 In the event of a non-attributable failure to perform, Pinchhitters has the right, after consultation with the client, to unilaterally set a deadline within which performance can still take place. If compliance is no longer possible, the parties have the right to regard the contract as dissolved. Parties must in that case inform the other party in writing; they are then not liable for any compensation, insofar as existing legal provisions in that regard allow.

14.3 Pinchhitters is entitled to demand payment for the performances made in the execution of the relevant agreement before a situation referred to in this article has become apparent.

15.1 If the client wishes to cancel the agreement with Pinchhitters, the client owes Pinchhitters compensation for all costs incurred by Pinchhitters in this regard, as well as an obligation to take delivery of items already ordered, at cost price plus an amount of 10% of the cost price as an expense allowance. Finally, the client owes Pinchhitters a total amount of 30% of the total price as stated on the order confirmation for lost profit.

15.2 Furthermore, the client is liable to third parties engaged in the context of the service/product for any consequences of the cancellation. The client shall indemnify Pinchhitters in respect of liability and costs.

15.3 Amounts already paid by the client are non-refundable.

15.4 Pinchhitters' authority to rescind without any notice of default being required exists in the event that:

1. the company has ceased to exist, been dissolved, converted to another legal form, legally merged, legally split, or transferred to a third party;
2. the client dies, is placed in receivership, submits to debt restructuring, goes into liquidation, obtains a suspension of payments, faces a bankruptcy petition, is declared bankrupt or if his assets are seized;
3. the client fails or, to Pinchhitters' reasonable fear, will fail to fulfill its obligations under the agreement.

15.5 If a situation as mentioned in article 15.4 occurs, all that the client owes to Pinchhitters by virtue of any means is immediately and fully due and payable.

15.6 If Pinchhitters is forced to take measures to obtain payment due to non-payment by the client, the related extrajudicial costs are to be borne by the client. The extrajudicial costs are fixed at 15% of the overdue invoice amount with a minimum of € 500, -.

15.7 Payment of a sum of money by the client shall extend first to payment of costs, then to payment of interest already accrued and finally to payment of the principal sum.

15.8 This Article 15 shall continue to apply even after termination of the Agreement.

16.1 In connection with the service/product, Pinchhitters will process various personal data of the client and any third parties. Pinchhitters processes only those personal data that are necessary for the performance of the service/product or for which Pinchhitters has obtained the necessary consent. If the client or a third party believes that Pinchhitters is not processing personal data in accordance with the prevailing privacy laws, Pinchhitters requests to make this known.

16.2 For more information regarding the processing of personal data, please refer to Pinchhitters' privacy policy, the most current version of which is always available on the Pinchhitters website.

16.3 This Article 16 shall continue to apply even after termination of the Agreement.

17.1 Parties are mutually obliged to keep confidential any information that they have obtained before, during or after the conclusion and/or in the context of the service/product and of which they (could) suspect that this information must be treated confidentially. Parties shall also impose the foregoing obligation on their employees and third parties engaged by them.

17.2 In the event of a violation of one of the acts or prohibitions mentioned in this article, the client forfeits an immediately payable fine of € 50,000, - per violation, to be increased by € 2,500, - per day or part of a day that the violation continues, without prejudice to the obligation to pay full compensation for damages and performance by the client.

17.3 This Article 17 shall continue to apply even after the termination of the Agreement.

18.1 The agreement concluded between Pinchhitters and the client is exclusively governed by Dutch law. Disputes related to and/or arising from the agreement will also be settled under Dutch law. Applicability of the Vienna Sales Convention is expressly excluded.

18.2 Disputes will be settled exclusively by the competent Dutch court in Amsterdam.

18.4 The preceding provisions do not affect Pinchhitters' right to bring a dispute before the competent court in the place where the client is located.

18.5 This Article 18 shall continue to apply even after the termination of the Agreement.