General conditions

Definitions

In these Terms and Conditions, the following definitions shall apply:

Acceptance Test: is a (delimited) mandatory testing effort to be made by Client in order to complete the Project.

General Terms and Conditions: these terms and conditions, which are modular in structure.

Service: the performance to be provided by the Contractor, including development and/or maintenance of software, applications, software, etc. The Agreement shall specify the Services concerned and these General Terms and Conditions shall specify further rules for specific Services.

Defect: failure to meet the Specifications.

User: the (end) user who uses the Service/Project provided by Contractor for the benefit of Principal.

Hardware: equipment provided by Contractor to Client.

Materials: for example, (web) applications, software, programming, advice or reports.

Employee: an employee, freelancer/self-employed person without personnel or an auxiliary person hired by Contractor from a third party, who is deployed or performs work by Contractor for the Client.

Module: a module of these General Terms and Conditions containing provisions relating to a specific area of work.

Principal: the natural person or legal entity with whom the Contractor has entered into an Agreement. It also means the person who is or will be negotiating with the Contractor, as well as his representative(s), agent(s), assignee(s) and heirs.

Contractor: Web-Company B.V., located in Gorinchem and registered with the Chamber of Commerce under number 67857590.

Agreement: the agreement between Contractor and Client.

Force majeure: a shortcoming that cannot be attributed to the debtor, if it is not due to his fault, nor for his account by virtue of law, legal act or generally accepted practice.

Project: the work the Contractor will perform for the Client, as described in the quotation and/or in the Agreement.

Project Management System: electronic system that can be used for the management of the Project and for communication between Contractor and Client regarding the performance of the Agreement.

Results: the results of the work performed by Contractor under the Agreement.

Written: in these General Conditions, Written includes e-mail and communication by fax, provided that the identity of the sender and the integrity of the message are sufficiently established.

Specifications: the functional and technical description of the Project.

Website: https://web-company.com

Identity of the Contractor

Name (Contractor)
Web-Company B.V.

Trading under
Web-Company

Branch address
Havendijk 22 4201 XA Gorinchem

Postal address
Havendijk 22 4201 XA Gorinchem

Telefoonnummer
0183-201079

E-mailadres
info@web-company.com

BTW-nummer
NL857201177B01

KvK-nummer
67857590

General Article A.1. Quotation, offer and acceptance

A.1.1 A quotation prepared by the Contractor is without obligation and valid for 14 days from its date by the Contractor, unless otherwise indicated in the quotation.

A.1.2 The Client should preferably accept the quotation in Writing, but if the Client agrees to the quotation in a manner other than in Writing or gives that impression, then the quotation may be deemed accepted by the Contractor.

A.1.3 Any terms or conditions of Principal that differ from, or do not appear in, these General Terms and Conditions shall be binding on Contractor only if and to the extent that they have been expressly accepted in Writing by Contractor.

A.1.4 Without prejudice to the Contractor’s authority to withdraw the offer in accordance with Article 1 paragraph 1, the Agreement may be amended after acceptance only by mutual consent. In case of conflict of provisions in the following documents, the following order of precedence shall apply:

– 1. the Agreement;
– 2. any attachments, excluding brochures;
– 3. these General Terms and Conditions;
– 4. any additional terms and conditions, excluding brochures.

Article A.2. Implementation of the Project & provision of information.

A.2.1 After the formation of the Agreement, the Contractor shall perform the Project in accordance with the quotation as soon as possible, taking into account reasonable requirements of the Client.

The Contractor shall make every effort to perform the Project to the best of its ability under the application of sufficient care and skill. The Principal is obliged to facilitate timely and correct execution of the Project. In particular, the Principal shall ensure that all information which the Contractor indicates is necessary or which the Principal should reasonably understand is necessary for the performance of the Project is provided to the Contractor in good time. The necessary efforts of the Principal must be provided with sufficient quality and timeliness. This applies both to support to be provided by the contact persons and to the planned deployment of project staff within the project work to be performed.

A.2.2 If Customer fails to do the above, Contractor shall be entitled to charge additional costs and the Project may be delayed. Any delay of the Project caused by the Client shall be reported through the project management system or, if no project management system has been deployed for the Project, by e-mail or, in the absence of functioning e-mail correspondence, by other Written means. Should this situation arise, the Contractor shall inform the Client of any additional costs to be charged.

Article A.3. Duration, termination and dissolution

A.3.1 The Agreement shall be considered terminated when the performance thereunder has been mutually delivered.

A.3.2 Notwithstanding Article 3.1, Agreements relating to services shall be tacitly renewed on a monthly basis after expiry. Termination of such Agreements shall take place In Writing.

A.3.3 Delivery deadlines specified by Provider are always indicative in nature. The Contractor, even in the case of an agreed deadline, shall not be in default until the Client has given him Written notice of default, except for the situations prescribed by mandatory law in which the default occurs by operation of law.

A.3.4 If the Client fails to fulfill any of its obligations under the Agreement, the Contractor shall have the right to suspend the performance of all Agreements concluded with the relevant Client without the need for notice of default or judicial intervention and without prejudice to the Contractor’s right to compensation for damages, lost profits and interest, unless the non-performance in question is of minor significance.

A.3.5 The Contractor is authorized to dissolve or suspend the Agreement in whole or in part with immediate effect, without judicial intervention, In Writing and without any obligation to pay damages or compensation, if:

the Client fails to fulfil its obligations under the Agreement or to do so in full or on time; circumstances which have come to the Contractor’s knowledge after the Agreement was concluded give the Contractor good reason to fear that the Client will not fulfil its obligations; the Client was asked to provide security for the fulfilment of its obligations under this Agreement when the Agreement was concluded and this security is not provided or is insufficient; as a result of a delay on the part of the Client, the Contractor can no longer be required to fulfil the Agreement on the originally agreed conditions the Client dies, applies for a suspension of payments or files for bankruptcy; the Client’s bankruptcy is granted; the Client’s activities are discontinued or liquidated; any of the Client’s assets are seized; circumstances arise which are of such a nature that fulfilment of the Agreement becomes impossible or that the Contractor cannot reasonably be required to maintain the Agreement in unaltered condition.

A.3.6 If the Agreement is dissolved, Contractor’s claims against Principal shall become immediately due and payable. If Provider suspends fulfillment of the obligations, it retains its claims under the law and the Agreement.

A.3.7 If the dissolution is attributable to Principal, Contractor shall be entitled to compensation for the damage caused directly and indirectly as a result.

Article A.4. Procedure after termination

A.4.1 The Parties are mutually obligated, upon termination of the Agreement, to promptly return to the possession of the other Party any property of which the other Party is the owner or entitled party and which is in the possession of one Party. Certain property, such as data (carriers), may also be erased or destroyed instead of returned, if the Party entitled thereto has given its Written consent.

A.4.2 All data provided or entered by Provider shall remain the property of Provider at all times. Principal obtains only a non-exclusive, transferable license which is necessary for the performance of the Agreement.

Article A.5. Prices

A.5.1 Prices are exclusive of sales tax (VAT) and other levies imposed by the government.

A.5.2 If a price in an offer is based on data provided by Principal and such data turns out to be incorrect, Contractor shall be entitled to adjust the prices to those reasonably corresponding to the correct data, even after the Agreement has already been concluded.

A.5.3 All prices quoted in Contractor’s quotation are subject to typing and calculation errors.

Article A.6. Payment Terms

A.6.1 Contractor shall invoice Principal for the amount due by Principal. If the Project is delivered in stages, Contractor shall be entitled to invoice for each stage delivered, monthly or on the basis of hours worked (this at Contractor’s discretion). The payment term of an invoice is 14 days from the date of the invoice, unless otherwise agreed between Contractor and Principal.

A.6.2 If Principal does not pay in full on time, he will be in default by operation of law from 30 days after the payment deadline without notice of default being required. If an amount due is not paid within the payment term, a contractual interest of 2% per month and €15,- administration costs shall be payable on the outstanding amount without further notice of default by Provider.

A.6.3 In the event of late payment, Client shall, in addition to the amount due and the interest accrued thereon, be liable for full compensation of both extrajudicial and judicial collection costs, including the costs of lawyers, bailiffs and collection agencies.

A.6.4 The claim for payment shall be immediately due and payable in the event that Client is declared bankrupt, applies for a moratorium, Client dies and furthermore, if Client goes into liquidation, is dissolved or bankruptcy is granted.

A.6.5 In the above cases, Contractor shall further have the right to terminate or suspend performance of the Agreement or any part thereof not yet performed without notice of default or judicial intervention, without giving Principal any right to compensation.

Article A.7. Additional Work

A.7.1 If due to Customer’s wishes, which can reasonably be considered by the Contractor as changes or additions to what is stated in the quotation or the Agreement (which includes a delay or run-out with respect to the Project that can be attributed to the Customer), the amount of work to be performed by the Contractor under this Agreement increases then there will be additional work.

A.7.2 If the Contractor is of the opinion that there is additional work, it shall notify the Client as soon as possible, and request Written approval for the performance of the proposed additional work and the offer made for it by the Contractor including delivery date.

A.7.3 Client shall always decide on the proposed additional work within five (5) working days. The work to be performed under accepted additional work will be recorded in Writing and agreed upon by both parties.

A.7.4 Any extension of the delivery dates specified in the original quotation due to additional work shall be the responsibility of the Client.

A.7.5 The provisions of these General Conditions shall apply to all additional work to be performed by the Contractor to the extent the parties have not agreed otherwise.

Article A.8. Liability

A.8.1 Contractor’s liability for direct damage suffered by Principal as a result of an attributable failure in the performance by Contractor of its obligations under the Agreement, expressly including any failure in the performance of a guarantee obligation agreed with Principal, or as a result of an unlawful act by Contractor, its employees or third parties engaged by it, will be limited per event or a series of related events to an amount equal to the fees owed by Principal under this Agreement per year (excluding VAT). In no event, however, will the total compensation for direct damage exceed EUR 2,500 (excluding VAT).

A.8.2 Contractor’s liability for indirect damage, including consequential damage, lost profits, lost savings, mutilation or loss of (business) data and damage due to business interruption, is excluded.

A.8.3 Outside the cases mentioned in paragraphs 1 and 2 of this article, the Contractor shall have no liability for damage whatsoever, regardless of the ground on which an action for damages would be based. The exclusions and limitations referred to in this article shall lapse if and insofar as the damage is the result of intent or deliberate recklessness on the part of the Contractor’s management.

A.8.4 Contractor’s liability for attributable failure to perform the Agreement will arise only if Principal immediately gives Contractor written notice of default, setting a reasonable deadline for remedying the failure, and Contractor remains attributably in breach of its obligations even after that deadline. The notice of default must contain as detailed a description as possible of the breach so that the Contractor is able to respond adequately.

A.8.5 A condition for the creation of any right to compensation shall always be that the Principal reports the damage In Writing to the Contractor within 30 days of its occurrence.

A.8.6 Customer shall indemnify Contractor against all claims of third parties for liability as a result of a Defect in the Project/Service supplied by Customer to a third party that consisted in part of items, Materials or results supplied by Contractor, except if and to the extent that Customer proves that the damage was caused by those items, Materials or results. The Client also indemnifies the Contractor against claims relating to non-compliance with licenses by the Client and/or third parties (including Users) that fall under the Client’s responsibility.

A.8.7 Contractor’s liability for shortcomings in third-party products and Services, including software and software, is excluded.

Article A.9. Failures and force majeure

A.9.1 Neither party can be held to fulfil any obligation if a circumstance beyond the control of the parties, which could not or should not already have been foreseen when the Agreement was concluded, nullifies any reasonable possibility of fulfilment. Parties may only invoke Force Majeure with respect to each other if the Party concerned notifies the other Party In Writing of such invocation of Force Majeure as soon as possible after the failure has occurred, submitting the necessary documentary evidence.

A.9.2 The circumstances referred to in paragraph 1 may include, for example:
(a) Outages of Internet or other telecommunications facilities,
(b) failures by parties on whom Contractor depends in the provision of the Services,
(c) defectiveness of items, equipment, software or Materials the use of which Client has prescribed to Contractor,
(d) unavailability of one or more staff members (due to illness)
(e) government actions.

A.9.3 In the event of Force Majeure, performance of the relevant, and related, obligation(s) shall be suspended in full or in part for the duration of such Force Majeure, without the parties being mutually obliged to pay any compensation in respect thereof. The parties may only invoke Force Majeure vis-à-vis each other if the party concerned notifies the other party in writing of such invocation of Force Majeure as soon as possible after the failure has occurred, submitting documentary evidence.

A.9.4 In the event of Force Majeure, the party invoking Force Majeure shall make every effort to ensure that the deficiency, which is cured by the Force Majeure, is of the shortest possible duration.

A.9.5 If a situation of force majeure has lasted thirty (30) days, or as soon as it is established that the situation of force majeure will last for more than three months, each of the parties shall be entitled to terminate the Agreement In Writing, unless the nature or extent of the failure does not justify premature termination. What has already been performed under the Agreement shall in that case be settled proportionately, without the parties owing each other anything else.

Article A.10. Intellectual property rights.

A.10.1 All intellectual property rights in all Materials developed or provided as part of the Project shall belong exclusively to the Contractor or its licensors.

A.10.2 Customer only acquires the rights of use and powers expressly granted in these General Terms and Conditions, the Agreement or otherwise in Writing and Customer shall not otherwise reproduce or disclose the Software, Services or other Materials.

A.10.3 Customer shall not be permitted to remove or alter any designation concerning copyrights, trademarks, trade names or other intellectual property rights from the Materials, including any indications concerning the confidential nature and secrecy of the Materials.

A.10.4 The Contractor is permitted to take technical measures, such as passwords or encryption, to protect the Materials. If Contractor has secured the Materials by means of technical protection, Client is not permitted to remove or circumvent this security.

A.10.5 Any use, reproduction or disclosure of the Materials beyond the scope of the Agreement or rights of use granted shall constitute an infringement of the intellectual property of the Contractor or its licensors.

A.10.6 Principal shall pay an immediately due and payable penalty of 5,000 euros per infringing act and 25,000 euros per intentional infringing act to Contractor, without prejudice to Contractor’s right to be compensated for its damage caused by the infringement or to be allowed to take other legal measures in order to have the infringement terminated and/or to recover the damage. After the expiration of one business day after Contractor has notified Principal of an infringement, Principal shall also owe a penalty of 5,000 euros for each day that the infringement is not terminated.

Article A.11. Processing personal data.

A.11.1 If the Contractor will process personal data in the performance of the Services, article 14 Personal Data Protection Act (“Wbp”) obliges the Contractor and the Principal to enter into commitments with respect to the processing operations to be performed by the Contractor, which provide guarantees with respect to the technical and organizational security measures relating to the processing operations to be performed. In the absence of a further, separately agreed “processor’s agreement”, the provisions of this article will apply as the undertakings referred to in the Wbp.

A.11.2 Contractor shall process the personal data only under the authority of Principal and only for the performance of the Services, for as long as the Agreement continues. In this regard, Client is to be regarded as the controller, and Contractor as the processor.

A.11.3 The personal data, of data subjects, that may potentially be processed by the Contractor as part of the Services are detailed in the Agreement.

A.11.4 Where reference is made in these General Terms and Conditions, or in the Agreement, to provisions of the PDPA, as of May 25, 2018, the corresponding provisions of the General Data Protection Regulation (“AVG”) are meant.

A.11.5 The Contractor shall endeavor to take appropriate technical and organizational measures with respect to the personal data processing to be performed and shall endeavor to have the security meet a level that is not unreasonable in view of the state of the art, the sensitivity of the personal data and the costs associated with implementing the security.

A.11.6 The Contractor guarantees that anyone acting under the authority of the Contractor, insofar as they have access to personal data originating from the Client, will only process them on the Client’s instructions, subject to differing legal obligations.

A.11.7 Contractor may process personal data in countries within the European Union. Client additionally authorizes Contractor to process personal data outside the European Union. Processing outside the European Union shall only take place in compliance with the applicable laws and regulations. At Client’s request, Provider shall inform Client in which countries, outside the European Union, it processes personal data.

A.11.8 Principal hereby authorizes Provider to use a third party when processing personal data to perform the Services, subject to applicable laws and regulations. Contractor shall ensure that these third parties assume in writing the same duties as agreed between Client and Contractor, and shall ensure the appropriate authorizations. At the Client’s request, the Contractor shall inform the Client as soon as possible of the third parties it has engaged. The Client has the right to object to any third parties engaged by the Contractor. If the Client objects to any third parties engaged by the Contractor, the Client and the Contractor will consult with each other to find a solution.

A.11.9 Client warrants that it will only enter or otherwise make personal data available to Provider in an entirely lawful manner, without infringing any third party rights in doing so. Client shall indemnify Contractor against all claims and demands related thereto.

A.11.10 If, as part of a legal obligation or exercise of legal rights by data subjects, Principal is required to provide, change, move, delete or surrender personal data stored in Contractor’s systems, Contractor shall assist Principal in doing so to the extent possible. The costs of the work for this purpose may be invoiced separately. In the event that a data subject wishes to exercise one of his legal rights and directs this request to the Contractor, the Contractor shall forward this request to the Client. Principal will then handle the request further independently.

A.11.11 Principal shall have the right to have audits conducted by an independent third party bound by confidentiality for the purpose of verifying this Article A.11. This audit will only take place in the event of a concrete suspicion of misuse which has been demonstrated by Principal. The audit initiated by the Client shall take place two weeks after prior written notice by the Client. The costs of an audit shall be borne by Principal.

A.11.12 All personal data that Provider receives from Principal and/or collects itself in the performance of the Services is subject to an obligation of confidentiality towards third parties. This duty of confidentiality does not apply insofar as the Client has given explicit permission to provide the information to third parties, if the provision of the information to third parties is logically necessary given the nature of the Services, or if there is a legal obligation to provide the information to a third party. If the Contractor is required by law to provide information to a third party, the Contractor will promptly inform the Client to the extent permitted by law.

A.11.13 Principal, as the responsible party within the meaning of the Personal Data Protection Act, is at all times responsible for reporting a data breach (which is understood to mean: a breach of the security of personal data that leads to a chance of serious adverse consequences, or has serious adverse consequences, for the protection of personal data) to the regulator(s) and/or parties involved. To enable the Client to comply with this legal obligation, the Contractor shall notify the Client as soon as possible and no later than forty-eight (48) hours after the discovery of a data breach. If required by law and/or regulations, the Contractor will cooperate in informing the relevant supervisor and/or those involved.

A.11.14 The duty to report shall in any case include reporting the fact that a leak has occurred. In addition, to the extent known to the Contractor, the duty to report includes: – the date on which the leak occurred (if no exact date is known: the period during which the leak occurred);

– What is the (alleged) cause of the leak;
– the date and time when the leak became known to Contractor or any third party or subcontractor engaged by Contractor;
– the number of individuals whose data was leaked (if an exact number is not known: The minimum and maximum number of individuals whose data was leaked);
– a description of the group of individuals whose data was leaked, including the type(s) of personal data that was leaked;
– whether the data was encrypted, hashed, or otherwise made unintelligible or inaccessible to unauthorized persons;
– what measures are planned and/or have already been taken to plug the leak and to mitigate the consequences of the leak;
– contact information for following up on the report.

A.11.15 Upon expiration of the Agreement, the Contractor shall delete or return the personal data referred to in this clause A.11.3 at the discretion of the Client.

Article A.12. Staff

A.12.1 If Employee is required to perform work on Client’s premises for the performance of the Agreement (other than Client and Contractor entering into an Agreement for the secondment of an Employee), the provisions below shall apply.

A.12.2 Client shall provide Employee of Contractor performing work on Client’s premises for the purposes of the performance of the Agreement with all necessary support for the performance of the work. Principal is obliged to do all such things as will enable Employee to perform his work properly and safely.

A.12.3 The Contractor shall endeavor to ensure that the Employee has the appropriate job description and competencies. It is not possible for the Client to make a choice in Employees unless expressly agreed upon. Contractor is entitled to replace an Employee for an Employee with similar competencies and a similar job description.

A.12.4 It is not possible for Client to grant access only to certain Employees. There is also no guarantee that Client can have access to a permanent team of Employees, if relevant.

A.12.5 Principal is not permitted, without the written permission of Provider, to employ Employees of Provider during the term of the Agreement and for two (2) years thereafter, to enter into business relations with them, directly or indirectly, or to have work performed by them, other than in the context of the Agreement, under penalty of an immediately payable fine of €10,000 for each violation, to be increased by €500 for each day during which the violation continues, which fine amounts will be payable to Provider. This article also applies if Principal and Contractor enter into an Agreement for the secondment of an Employee.

Article A.13. Secrecy

A.13.1 The parties shall keep confidential any information which they provide to each other before, during or after the performance of the Agreement if such information is marked as confidential or if the receiving party knows or should reasonably suspect that the information was intended to be confidential. The parties shall also impose this obligation on their employees as well as third parties engaged by them for the performance of the Agreement.

A.13.2 The Contractor shall not take cognizance of any data that the Principal stores and/or disseminates through the Contractor’s Services, unless this is necessary for the proper performance of the Agreement or the quality of the Projects, or the Contractor is obliged to do so pursuant to a statutory provision or court order. In that case, the Contractor will make every effort to limit the knowledge of the data as much as possible, insofar as this is within its power.

A.13.3 This obligation shall survive termination of the Agreement for any reason for as long as the providing party can reasonably claim the confidentiality of the information.

Article A.14. Amendments to General Terms and Conditions.

A.14.1 If it is a continuing contract, the Contractor reserves the right to amend or supplement these General Terms and Conditions and any Modules thereunder.

A.14.2 Amendments shall also apply with respect to Agreements already concluded subject to a period of 30 days after publication of the amendment on the Contractor’s Website or by electronic notice. Changes of minor importance may be made at any time.

A.14.3 If the Customer does not wish to accept a change in these General Terms and Conditions, it may, until the date on which the new General Terms and Conditions become effective, terminate the Agreement by that date or on the date of receipt of the notice of termination if it is after the effective date of the change.

Article A.15. Dispute resolution

A.15.1 The Agreement, as well as any agreements and other legal acts resulting from or related to it, shall be governed exclusively by Dutch law.

A.15.2 All disputes, including those considered as such by only one party, arising out of or relating to (the performance of) this Agreement and/or any agreements arising therefrom or related thereto shall be settled by mediation.

A.15.3 The parties mutually agree to cooperate in the resolution of disputes through Mediation and agree to each bear half of the costs of the Mediation.

A.15.4 Mediation consists of two phases. In the first phase, the parties explore a possible solution in which both parties agree. If agreement is reached, the mediator will summarize the agreement in a settlement agreement. If it proves impossible to reach an agreement acceptable to both parties in the first stage, a second stage starts. In the second stage, the mediator will work out an agreement that binds both parties and that is also reflected by the mediator in a settlement agreement.

A.15.5 Contractor and Principal reserve the right to submit disputes to the competent court at all times, but only when both Parties give their explicit written consent to do so whereby both Parties declare that they waive Mediation.

Article A.16. Final provisions Module General

A.16.1 If any provision of this Agreement is found to be invalid, this shall not affect the validity of the Agreement as a whole. The parties will in that case determine (a) new provision(s) to replace it, which will give shape to the intention of the original Agreement and General Terms and Conditions as much as is legally possible.

A.16.2 Should any disputes arise as a result of the Agreement which cannot be resolved through the dispute resolution procedure, they will be submitted to the competent court in Rotterdam.

A.16.3 Information and communications on the Contractor’s Website are subject to errors.

A.16.4 The version of any communication received or stored by Contractor shall be deemed authentic (including log files), subject to evidence to the contrary to be provided by Principal.

A.16.5 In order to promote its services, the Contractor shall be entitled to display to third parties the Projects it provides to the Client, unless the reasonable interests of the Client make this unacceptable or otherwise agreed in writing.

A.16.6 The Contractor shall at all times have the right to involve third parties in the performance of the Agreement.

A.16.7 The Contractor and the Customer may assign their rights and obligations under the Agreement to third parties, provided that the other party agrees to this in Writing prior to the assignment.

Developing (web) applications

Article B.1. Completion & Acceptance.

B.1.1 Contractor shall make every effort to deliver the Materials to Client for acceptance in accordance with the Specifications.

B.1.2 When the Materials have been delivered to Principal for acceptance, Principal will subject them to an Acceptance Test at its own expense and under its own responsibility during the one-week acceptance period. By acceptance, Client releases Contractor from all of its obligations with respect to the Results.

B.1.3 If Customer does not reject the Materials (in whole or in part) within the period specified in paragraph 2, they shall be deemed to be accepted and delivered.

B.1.4 The Client will also be deemed to have accepted the Materials if the Client has proceeded to put the Materials into use or if the Client has not notified the Contractor In Writing within ten days of delivery at the latest that and for what reason(s) it does not accept the Materials.

B.1.5 If Materials are not accepted, Contractor will specify what adjustments will be made, along with the associated time or cost, if any. Client will then indicate whether it agrees with the said adjustments and the associated time and costs or whether it waives the rejection. The Contractor shall make every effort to remedy the Defects identified and reproducible by the Client within the time agreed upon by the parties, and failing this within a reasonable time.

B.1.6 The making of adjustments in response to a rejection of a Material may take place on a production environment or on an acceptance environment. This is at the discretion of Contractor.

B.1.7 If Client has accepted the Results (with the exception of Defects in functionalities and external Defects; minor Defects), the warranty period of 30 days comes into effect. Within this period the Results are considered accepted, but it is possible to report Defects, which could not reasonably have been discovered during the Acceptance Test. The Contractor will specify and supplement any Defects with the expected time and, if the Defects cannot be easily and within 30 days remedied, any additional costs for adjustment of those parts. Thus, this warranty period does not constitute an extended Acceptance Test and does not provide any more warranties than provided in this paragraph.

B.1.8 Minor Defects, which includes Defects which by their nature and/or number do not reasonably prevent the Materials from being put to operational use, will not constitute grounds for withholding acceptance, without prejudice to Contractor’s obligation to remedy such Defects. The Parties will consult with each other to this end.

B.1.9 If the Project is performed in stages, Customer shall give its approval or disapproval of the Materials of that stage upon completion of each stage and the above procedure shall also apply. Customer may not base an approval or disapproval of the Materials of a later stage on matters approved in an earlier stage.

B.1.10 The Contractor has the right to wait before starting a new phase until the Client has explicitly accepted the old phase.

B.1.11 Contractor does not guarantee that what Principal intends to achieve with the works to be developed or developed by Contractor will actually be achieved.

B.1.12 The Contractor shall make every effort to develop and make available its products/works as well and as error-free as possible.

B.1.13 The Contractor is entitled to set up temporary solutions, limiting certain functionalities in order to avoid serious errors.

Article B.2. Progress

B.2.1 The Client and the Contractor shall mutually agree the phases, completion dates and deadlines specific to the Project, for example in the Quotation or the Agreement.

B.2.2 The Contractor shall keep the Client informed of the progress of the Project at least once every fourteen days by e-mail, telephone or through the project management system.

Article B.3. Specifications & (source) materials

B.3.1 The parties will specify in Writing which works will be developed, the requirements to be met and the manner in which this will be done. The Contractor will carry out the development with care based on the data to be provided by the Client. The Client guarantees the accuracy, completeness, consistency and timeliness of its instructions and data.

B.3.2 A Written Specification as mentioned in article 3.1 is not required if Principal has expressed the wish to offer the Contractor a high degree of freedom in the development of works and the manner in which this takes place. If the development has taken place in that manner, the Client cannot subsequently rely on Specifications, which have been put in writing, to which the Contractor has not agreed.

B.3.3 Contractor shall be entitled, but not obliged, to examine the correctness, completeness or consistency of the (source) Materials, requirements or Specifications made available to him and, upon discovery of any imperfections, to suspend the agreed work until Principal has removed the imperfections in question.

B.3.4 If (source) Materials provided by Client to Contractor are protected by any intellectual property right, Client warrants at all times that it holds all licenses necessary for the provision to and intended use by Contractor under the Agreement.

B.3.5 Unless otherwise agreed, Contractor has the right to use images, software and components of third parties, including open source software, in the development of the works. After delivery, the responsibility for proper compliance with the relevant third party licenses when using the developed works lies with Principal. Contractor shall adequately inform Client of the applicable license conditions. Costs involved in the licenses, which are necessary for the execution of the Agreement, will be charged to Principal. This is specified in the quotation.

B.3.6 Customer is responsible for keeping its own applications, Services and infrastructure up-to-date for interoperability with Contractor’s products and Service. This is in connection with any connections. Applications may not work properly if this is not the case.

B.3.7 Contractor is not liable for the unusability of the Project / Service if the unusability is caused by Customer’s failure to timely migrate (at Contractor’s direction) to current standards or use standards that are no longer supported in the industry. A standard introduced 24 months ago is no longer considered current by the Contractor. This liability exclusion also applies if the Client works with a version of an Internet browser whose use and support is no longer obvious due to the appearance of a new version of that Internet browser.

Article B.4. Development license terms.

B.4.1 Contractor grants to Client the right to reproduce and distribute developed Materials for the purposes intended by Client when entering into the Agreement.

B.4.2 The Contractor thereby never transfers any intellectual property rights (such as copyright) accruing to the Contractor to the Client, unless expressly agreed otherwise in writing.

B.4.3 The source code of software supplied by Contractor, not being open source software, and the technical documentation produced in the development of the software may not and shall never be made available to Principal, nor may Principal make any changes therein, unless expressly agreed otherwise in writing.

B.4.4 Provider grants Principal the non-exclusive right to use the Service/Programme developed for the benefit of Principal. The Customer shall at all times strictly comply with the restrictions on use agreed between the parties. The right of use granted is not transferable.

B.4.5 The Customer shall not be permitted to sell, lease, sub-license, alienate or grant limited rights to the developed works or make them available to a third party in any way or for any purpose whatsoever, even if the third party in question uses the software exclusively for the benefit of the Customer, unless otherwise agreed in writing or in the event of and in combination with a sale of the Customer’s relevant business units or activities.

Hosting / SaaS

Article C.1. Implementation

C.1.1 After the conclusion of the Agreement, the Contractor shall perform the Service in accordance with the quotation as soon as possible, taking into account reasonable wishes of the Client.

C.1.2 The Agreement will specify when the Contractor will start installing and managing the (web) application.

C.1.3 The Contractor shall make every effort to ensure that the (web) application is configured and managed to the best of its ability under the application of sufficient care and skill.

C.1.4 The Principal shall do and refrain from doing everything necessary to enable timely and proper installation of the (web) application. In particular, the Client shall ensure that all data and facilities which the Contractor indicates are necessary or which the Client should reasonably understand are necessary for the installation of the (web) application are made available to the Contractor in good time.

Article C.2. Duration of agreement

C.2.1 The Agreement is entered into by the Client for a minimum term of one month. Thereafter, the Agreement shall be continued on a monthly basis. After the end of the minimum duration, the Agreement may be mutually terminated with due observance of a notice period of at least one (1) month. Termination of the Agreement by either the Client or the Contractor must be in writing.

Article C.3. Rules of conduct

C.3.1 Client shall refrain from storing and/or distributing (or having distributed) material in violation of provisions of Dutch law, including in any case (but not limited to) material that is defamatory, slanderous, insulting, racist, discriminatory or hateful, erotic or pornographic (unless explicitly permitted in the offer), infringes on the rights of third parties, including in any case (but not limited to) copyrights, trademark rights and portrait rights, violates the privacy of third parties, including in any case (but not exclusively) the dissemination of personal data of third parties without permission or necessity or repeatedly harassing third parties with communications unwanted by them, contains hyperlinks, torrents or similar information which the Client knows or should know refers to material that infringes the rights of third parties, contains unsolicited commercial, charitable or idealistic communications, or contains malicious content such as viruses or spyware.

C.3.2 Client shall refrain from hindering other Clients or Internet users or causing damage to Contractor’s servers. Principal is prohibited from starting up processes or programs, whether or not via the server, which Principal knows or can reasonably suspect will hinder or damage Provider, other Principals or Internet users. The Contractor will inform the Client of any measures taken.

C.3.3 In addition to the obligations under the law, damage caused by incompetence on the part of the Client or failure by the Client to act in accordance with the above points shall be borne by the Client.

C.3.4 In order to prevent the aforementioned problems such as damage and security risks, the Contractor shall be entitled, at its discretion, to limit the Customer’s management options to such an extent that the management is carried out in its entirety by the Contractor.

Article C.4. License

C.4.1 Client hereby grants Contractor an unrestricted license to distribute, store, transmit or copy any Materials provided by Client to Contractor’s Services in any manner deemed appropriate by Contractor, but only to the extent reasonably necessary for Contractor’s performance of the Agreement.

Article C.5. Indemnification

C.5.1 Client shall indemnify Contractor against all legal claims by third parties in relation to Client’s use of the Services. The Contractor is not responsible for the data/Services/software invoked through a link.

C.5.2 If the Contractor is required to perform work on data belonging to the Client, its employees or Users by virtue of an authorized order issued by a government agency or in connection with a legal obligation, all related costs will be charged to the Client.

Article C.6. Service and availability

C.6.1 All services of the Contractor shall be performed on the basis of an obligation of effort, unless and to the extent that in the Written Agreement the Contractor has expressly promised a result and the result in question has also been described with sufficient definiteness.

C.6.2 The electronic transmission of Client’s data in connection with the Services, by any means whatsoever, shall be at Client’s risk and expense.

C.6.3 Contractor shall never be required to also provide the applications made remotely available to Client on a physical data carrier (e.g. CD or USB stick).

C.6.4 If the Services are (partly) provided via Services and/or networks of the Contractor, the Contractor shall make every effort to allow as little downtime as possible in doing so.

C.6.5 The Contractor offers no guarantees regarding the exact amount of uptime, unless otherwise agreed in the offer through an SLA designated as such. To the extent not otherwise provided in an applicable SLA, this article shall apply.

C.6.6 Subject to evidence to the contrary, the availability and service level measured by the Contractor shall constitute full proof.

C.6.7 Contractor shall use its best efforts to ensure that Client can use the networks directly or indirectly connected to Contractor’s network. However, the Contractor cannot guarantee that these networks will be available at any time. The use of third-party networks may be subject to legal and contractual conditions. The Contractor shall make every effort to inform the Client about this in a timely manner.

C.6.8 If, in the opinion of the Contractor, a danger arises for the functioning of the Services or the network of the Contractor or third parties and/or of the service over a network, in particular due to excessive sending of e-mail or other data, poorly secured Services or activities of viruses, trojans and similar software, the Contractor is entitled to take all measures it reasonably considers necessary to prevent this.

C.6.9 Provider has the right to temporarily take the Services or parts thereof out of service for the purpose of maintenance, modification or improvement thereof. Contractor shall endeavor to have such taking out of service take place as much as possible outside office hours and shall make every effort to notify Principal in a timely manner of the planned taking out of service. However, the Contractor shall never be obliged to pay compensation for damage caused in connection with such taking out of service, unless explicitly agreed otherwise in writing, for example in an SLA.

C.6.10 Only if expressly agreed in Writing is Contractor required to have a fallback center or other fallback facilities.

C.6.11 Unless the Agreement provides otherwise, Contractor is not required to make backup copies (backups) of data stored by Client on Contractor’s Services. Any backups made may be destroyed at any time after termination of the Agreement. It is the responsibility of the Client to request backups upon termination or dissolution.

Article C.7. Changes

C.7.1 Contractor is entitled to modify the applications made available during the term of the Agreement at its sole discretion. If an adaptation results in a significant change in functionality, the Contractor shall make every effort to notify the Client. Only if this is technically possible and would not require disproportionate effort on the part of the Contractor, the Client may continue to use an older version of the application upon request. Provider may charge additional costs for providing that possibility.

Article C.8. Storage and data limit

C.8.1 Contractor may place a limit on the amount of storage space or data traffic per month that Customer may use under the Services. Client shall not exceed the limits unless the Agreement expressly regulates the consequences thereof. If this limit is exceeded, Provider is authorized to charge an additional amount in accordance with the amounts for additional data traffic specified in the Agreement. If no storage and/or data limits are agreed upon, the Contractor’s fair use policy will apply.

Article C.9. Procedure after termination

C.9.1 The Contractor shall ensure that upon termination of the Agreement, the Client shall be given a reasonable opportunity to transfer the Client’s data stored on the Contractor’s systems back to its own systems or to the systems of a new provider. For this purpose, the Contractor shall endeavor to be able to provide the data in a common file format.

Maintenance and support

Article D.1. Implementation

D.1.1 Maintenance means the operation of existing or new (developed) Materials in accordance with the quotation or further agreement, and more generally the repair of errors. Support means providing assistance, remotely or otherwise, in maintaining or working with the Materials.

D.1.2 After the establishment of the Agreement, the Contractor shall perform the work in accordance with the quotation as soon as possible, taking into account reasonable wishes of the Client.

D.1.3 The Agreement shall specify when, at what fee, Contractor will begin performing the Services and work. There may be fixed fees as well as work based on hourly rates and subsequent costing. The Agreement shall clearly state what work will be performed for what amounts.

D.1.4 All Services provided by Provider are performed on the basis of an obligation of effort, unless and to the extent that Provider has explicitly promised a result in the Written Agreement and the result concerned is also described with sufficient certainty.

D.1.5 Contractor provides no guarantees about results, unless otherwise agreed in the offer through a Service Level Agreement (SLA) designated as such. To the extent not otherwise provided in an applicable SLA, this article applies. The Contractor will make every effort to carry out requests from the Client as soon as possible, but cannot give hard deadlines for this. This applies to both a period of scheduling and execution of planned work and response and recovery times if there is a request to adjust, repair and/or improve the Service and/or Materials.

Article D.2. Duration

D.2.1 The Agreement is entered into by Customer for a minimum duration of one month. Thereafter, the Agreement shall be continued for one month at a time. After the end of the minimum duration, the Agreement may be mutually terminated with due observance of a notice period of at least one (1) month. Termination of the Agreement by either the Client or the Contractor must be in writing.

Article D.3. Specifications and Cooperation Client.

D.3.1 If agreed, Contractor shall install and configure the Materials on hardware and networks to be designated by Client. The Client shall do and refrain from doing everything that is reasonably necessary and desirable to enable timely and proper installation and operation of the Materials. In particular, the Client shall ensure that all information which the Contractor indicates is necessary or which the Client should reasonably understand is necessary for the delivery of the Materials is provided to the Contractor in a timely manner.

D.3.2 Client shall, at Contractor’s request, provide Contractor’s Employees and auxiliaries with all necessary access to the computer systems involved to enable installation, configuration, maintenance and modifications of the Materials. Physical access to these systems will take place only when necessary, and only after prior consultation with Client.

D.3.3 The selection, purchase and management of the hardware and networks to be used shall be the sole and complete responsibility of Principal. The Contractor will provide instructions on the desired configuration. If the designated hardware and networks do not meet Contractor’s requirements, Contractor shall be entitled to refuse installation or configuration.

Article D.4. Updates and improvements.

D.4.1 Only if it is part of the Agreement, Contractor shall use its best efforts to modify the Materials from time to time to improve functionality and to correct errors, whether or not based on instructions and requests from Client or on its own initiative, if provided for in the Agreement.

D.4.2 Only if this is part of the Agreement, Contractor shall make every effort to keep the Materials up-to-date. However, the Contractor is in many cases dependent on its supplier(s) and third parties in doing so. The Contractor is entitled not to install certain updates or patches if, in its opinion, this does not benefit the correct operation of the software or is not in the interest of the Service.

D.4.3 Contractor shall endeavor to add changes and new functionality requested by Client to the Materials. The Contractor is always entitled to refuse such a request if, in its opinion, it is not feasible or may impede proper operation or availability of the Materials. There will be costs associated with adding changes and new functionality to the Materials at the Client’s request. Contractor will notify Client of these costs in advance.

D.4.4 If a change, update or patch leads to changed functionality within an already developed Service or Project which has far-reaching consequences for the functioning of other Materials, systems, etc., Provider and Customer will consult about the consequences thereof. If it is decided to implement this change, update or patch, the Contractor is entitled to invoice the hours incurred for this separately on the basis of subsequent calculation.

D.4.5 If Client wishes to independently make a change to the Materials, this shall be done entirely at Client’s own risk and responsibility. Contractor is then not required to make (longer) efforts to fix bugs or errors. All this unless the Client has previously notified the Contractor of the desired change and the Contractor has approved it in writing. The Contractor may attach conditions to this approval.

D.4.6 If not otherwise agreed upon, support to end users (customers of Client) is not included.

Article D.5. Remote support

D.5.1 Remote support will be provided by telephone, email and other mutually agreed upon channels.

D.5.2 The Contractor shall, at the request of the Client, propose software that allows remote access to the computers to be supported. It is the responsibility of the Client to ensure that its network and security environment allows this software to operate.

D.5.3 If it appears that remote support does not lead to a satisfactory solution or is not feasible given the nature of the problem, then the Contractor will consult with the Client for on-site resolution.

D.5.4 The Contractor shall be available for remote support (including for scheduling maintenance and bug fixes) on business days (Monday through Friday, with the exception of nationally recognized and official holidays) from 10 a.m. to 5 p.m.

Outsourcing

Article E.1. Communication/Registration

E.1.1 Any communication between Programmer and Customer will be through Web-Company’s project management system.

E.1.2 In order to use the project management system, an account will be created by Web-Company.

E.1.3. During the registration procedure, Customer chooses its own user name and password with which it can log on to the Website after registration. The Customer himself is responsible for choosing a sufficiently reliable password.

E.1.4 Customer must keep his username and password strictly confidential. Web-Company is not liable for abuse of the login details and may always assume that Customer who logs on to the Website is actually that Customer. Everything that happens through the account of Buyer, falls under the responsibility and risk of Buyer.

E.1.5 If Customer knows or suspects that his login details have come into the hands of unauthorized persons, he shall change his password as soon as possible and/or notify Web-Company thereof, so that Web-Company can take appropriate measures.

E.1.6 The version of the relevant communication received or stored by Web-Company shall constitute evidence thereof, subject to proof to the contrary by Customer.

Article E.2. Delivery of Outsourcing by Web-Company.

E.2.1 Web-Company shall make every effort to provide a suitable Programmer for the Customer. Web-Company makes no guarantees regarding the performance of the work of Programmer.

E.2.2 The Service shall be delivered within the time period specified in the offer. Deadlines may change by mutual agreement.

E.2.3 The term of delivery given by Web-Company is, unless it is expressly stated in writing that it is a deadline, always indicative in nature. Web-Company, even in the case of an agreed final deadline, is only in default after the Customer has given it written notice of default.

E.2.4 Web-Company shall make every effort, in the event of the unavailability of Programmer, to inform Customer of the nature and expected duration of the interruption. This information will be provided through the Website or by electronic notification. Web-Company will endeavor to provide another suitable Programmer.

E.2.5 Web-Company reserves the right to temporarily take its systems out of service for the purpose of maintenance, modification or improvement of Web-Company’s systems. Web-Company will take such taking out of service as much as possible outside office hours and will inform Customer in time of the planned taking out of service. Web-Company will never be liable for any damages towards the Customer due to such taking out of service.

Article E.3. Obligations/Rights Customer.

E.3.1 Customer shall always promptly notify Web-Company in writing of any changes in name, address, e-mail and, if requested, his/her bank or giro number.

E.3.2 The Customer is responsible for its project and project management for the benefit of which the Programmer is provided. The Customer shall establish the project and provide direction, including to Programmer. Customer shall give Programmer clear instructions regarding the work to be performed by Programmer. Web-Company is in no way responsible for the execution of Customer’s projects.

E.3.3 Rejection of the work performed by Programmer is possible only in the case of serious errors that make normal use of the software reasonably impossible.

E.3.4 Customer shall indemnify Web-Company against all legal claims relating to the work performed by Programmer.

E.3.5 Customer shall comply with Netiquette.

E.3.6 Without the consent of Web-Company, the Customer is prohibited from transferring user names or passwords provided by Web-Company to third parties.

E.3.7 Web-Company has the right to restrict the use of the Service, cq not or only deliver to a limited extent, if the Customer fails to fulfill an obligation to Web-Company in respect of the Agreement or acts in violation of the General Conditions.

E.3.8 Customer is responsible for making its own backups with respect to the work performed by Programmer.

E.3.9 The Customer is not permitted to have Programmer perform work for the Customer – either directly or indirectly – without Web-Company’s permission.

E.3.10 For violation of the prohibition referred to in the previous paragraph, Customer forfeits to Web-Company a penalty equal to six times the compensation per month on a full-time basis (thus six times 173 times the hourly rate) for the Programmer concerned. This penalty does not replace damages which Web-Company may therefore claim separately.

Article E.4. Prices/Offers.

E.4.1 Programmer shall perform the work to be specified by Customer on the basis of the hourly rate specified in the quotation.

E.4.2 All prices are exclusive of sales tax and other levies imposed by the government.

E.4.3 All prices on the Website are subject to typographical errors. No liability is accepted for the consequences of typographical errors.

E.4.4 Web-Company reserves the right to change rates on an interim basis. These changes will be announced by electronic notification no later than one (1) month before they take effect. A Customer who cannot agree with these changes is authorized, notwithstanding the General Terms and Conditions, to terminate the Agreement as of the date on which the changes take effect, until such time as the changes take effect.

E.4.5 All quotations are without obligation unless otherwise expressly stated.

E.4.6 If it appears that the information provided by Customer at the time of the application or Agreement was incorrect, Web-Company has the right to adjust the prices accordingly.

Article E.5. Payment Terms

E.5.1 Once a week, Customer will receive an invoice with hours justification from Web-Company for the hours that Programmer worked for Customer that week.

E.5.2 Invoice payments shall be made no more than 7 days after the invoice is sent, unless otherwise agreed in writing. Customer shall pay the invoice sent by Web-Company by bank transfer.

E.5.3 By paying the invoice, the Customer agrees to those hours incurred by Programmer. Rejection of the work performed by Programmer is not possible thereafter.

E.5.4 After the expiry of 14 days from the invoice date, the Customer who fails to pay on time shall, without notice of default being required, be in default by operation of law.

E.5.5 All costs incurred by Web-Company under the Agreement with Customer shall be borne by Customer.

E.5.6 In the event of late payment, the Customer shall, in addition to the amount due and the interest accrued thereon, be liable for full compensation of both extrajudicial and judicial collection costs, including the costs of lawyers, bailiffs and collection agencies.

E.5.7 The claim for payment shall be immediately due and payable in the event that the Customer is declared bankrupt, applies for a suspension of payments or a general attachment is levied on the Customer’s assets, the Customer dies and furthermore, if the Customer goes into liquidation or is dissolved.

E.5.8 In the above cases, Web-Company furthermore has the right to terminate or suspend the Agreement or the not yet executed part thereof without notice of default or judicial intervention, without prejudice to Web-Company’s right to claim compensation for any damage that may arise for it as a result.