Chapter 1: General
1.1. In these general terms and conditions, the following terms have the following meaning, unless explicitly stated otherwise.
Internetbureau gett or gett: Internetbureau gett B.V. or any other (affiliated) entity that uses the present general terms and conditions. Hereinafter referred to as 'we', 'us' or 'our'.
Other party: any (legal) person who has entered into or wishes to enter into an agreement with us, their agent, authorised representative, assignee or heirs, if any. Agreement: the agreement between us and the other party.
Functional design: the specifications of the Web Software and/or Web Application in accordance with the provisions of the quotation, commissioned by the other party. Functional design change: Changes to the already approved functional design. These changes shall be an addendum to the original functional design.
Hosting: a type of service in the field of information technology in which the data of the other party, the customers and the other party's products are processed, published and distributed with Web software on computer equipment for that purpose, whether or not under the supervision of the other party.
Keyword research: research using a list of keywords provided by the other party, based on which alternative combinations of keywords are compiled and overviews are generated of keywords that are relevant for the other party.
Optimisation: activities and setting up separate landing pages with keyword combinations in order to optimise the improvement of the findability of the other party's internet site(s) on the internet and publicly accessible search engines.
Reporting and maintenance: activities relating to reporting and providing insight into search results and maintaining the positions held.
Web: a type of information technology, defined as specific software, system software and hardware or a combination thereof, aimed at electronic publication, distribution and processing of data and related services.
Defect: non-compliance with the functional specifications stated in writing by us and, in the case of the development of custom (Web) software, with the explicitly agreed functional specifications. A defect only exists if it can be demonstrated and reproduced.
Redirect: a reference from a certain URL to another URL (page) where the content is located.
2.1 All our offers, quotations, agreements – by any name – and the execution thereof are exclusively governed by the present terms and conditions. These terms and conditions also apply to additional, follow-up and other related assignments performed by us. Deviations must be explicitly agreed with us in writing.
2.2 These terms and conditions also apply to all agreements concluded with us, the execution of which requires the involvement of third parties.
2.3 Agreements with our members of staff are not binding on us unless they have been confirmed in writing on our behalf.
2.4 The applicability of the other party's general (purchase) conditions is expressly rejected, unless agreed otherwise in writing.
2.5 If one or more provisions of these general terms and conditions are invalid or are annulled, the other provisions of these general terms and conditions will remain fully applicable. In such cases, the parties shall consult in order to agree on new provisions to replace the invalid or annulled provisions, taking into account the purpose and purport of the invalid or annulled provision, as much as possible.
2.6 “In writing” also refers to communication between the parties by email.
3. Keyword research, optimisation, reporting and maintenance
3.1 We strive to achieve an optimal result for the other party by applying keyword research and/or optimisation and/or reporting and/or maintaining positions.
3.2 When commissioning a task, the other party may specify a desired result. However, we are exclusively under an obligation to perform to the best of our ability.
3.3 The other party accepts that we rely on and cannot influence the availability or any other quality of publicly offered services, such as the Internet and publicly accessible search engines, for the purpose of optimisation.
3.4 If in our opinion the method of optimisation has to be modified due to changes in the accessibility of the internet or the working methods of publicly available search engines, we will not make such changes until after notifying the other party. However, we are entitled to make these modifications without consultation if, in our opinion, the necessary adjustments need to be made as a matter of urgency in order to ensure the continuity of the optimisation.
3.5 Recourse to a desired but unsuccessful result will under no circumstance lead to suspension of any obligation of the other party towards us. The other party remains obliged to pay all outstanding amounts on time, without deduction or setoff. On the other hand, we have an obligation to do our best to achieve the desired result.
3.6 The use of keyword research and/or optimisation is entirely at the other party's own risk. We only check the results of keyword research for statistical relevance. We are not responsible for the results and/or any (legal) aspect of the keyword research. The other party is solely responsible for the application of the results of the keyword research. We are also not liable for any other consequences, such as – but not limited to – the fact that the other party's websites can no longer be retrieved and/or accessed on any internet search engine, as a result of the keyword search, optimisation and the redirection (whether or not it is applicable).
3.7 We carry out optimisation under the responsibility of the other party. We are entitled to discontinue the optimisation and to keep it on hold if the optimisation to be performed by us at the request and/or for the benefit of the other party results in:
– infringement of intellectual property rights belonging to third parties;
– distribution of punishable material or information that discriminates against appearance, race, religion, gender, culture, descent or otherwise incites hatred and/or violence.
Discontinuation of the delivery of optimisation by us on the basis of the provisions in this article will not give the other party the right to compensation for amounts already paid to us and/or damage suffered by the other party. We reserve the right to payment of all amounts owed by the other party.
4.1 All offers or quotations made by us are non-binding, must be regarded as an invitation to make a proposal to enter into an agreement and are provided in writing and are based on a written job description, stating the costs, unless explicitly stated otherwise.
4.2 The costs are determined by the extent of the work mentioned in the job description. We assume that the other party guarantees the correctness and completeness of the information provided to us by them or on their behalf on which we base our offer. If this information appears to be incorrect or incomplete, the other party cannot derive any rights from the offer made by us.
4.3 Sending offers and/or (other) documentation does not oblige us to accept an order. We will notify the other party of acceptance as soon as possible, but in any case within 14 days.
4.4 If we have had to incur costs in order to be able to make an offer to the other party, we are entitled to charge these costs to the other party insofar as we have informed the other party of this prior to making an offer.
5.1 Changes in the nature and/or scope of the assignment to be carried out are only valid if and insofar as this has been explicitly agreed in writing between the parties. Any resulting costs will be charged separately.
5.2 We are authorised, upon or after entering into the agreement, before (further) execution, to require assurance from the other party that both the payment and other obligations will be met.
5.3 We are authorised, if we consider this necessary or desirable for the correct performance of the assignment given to us, to engage third parties for the performance of the agreement, the costs of which will be passed on to the other party.
5.4 The other party is obliged to provide us with all information and documents necessary for the performance of the agreement in a timely manner. If the information required for the performance of the agreement has not been provided to us on time, we have the right to suspend the performance of the agreement and/or to charge the other party for the extra costs resulting from the delay in accordance with the usual rates and/or to invoice the total amount as stated on the agreement. We are not liable for any delay as a result of not receiving all information and documents from the other party on time.
5.5 If it has been agreed that the agreement will be performed in stages, we can suspend the performance of those parts belonging to a subsequent stage until the other party has approved the results of the preceding stage in writing.
5.6 If it has been agreed that the other party will make software, materials or data available, these will meet the specifications necessary for the performance of the work.
5.7 The other party is responsible for the use and application in its organisation of the software, equipment and of the services to be provided by us, as well as for the control and security procedure and adequate system management.
5.8 If employees or third parties appointed by us within the framework of the assignment carry out work at the other party's location or at a location designated by the other party, the other party shall provide the facilities reasonably required by those employees free of charge, such as, a workspace with telecommunications facilities.
5.9 The other party must address all communications and instructions intended for us or our employees regarding the work assigned to it to the project manager or contact person designated by us for that purpose. Without our prior consent, the other party is not permitted to give instructions to our employees directly, other than necessary to protect the safety of the other party or its staff or assets.
5.10 We will perform the agreement to the best of our knowledge and ability and in accordance with the requirements of good workmanship. This agreement will be characterised as an obligation to perform to the best of one's ability, unless and insofar as we have explicitly promised a result in the written agreement and the result in question has also been described with sufficient precision in the agreement.
5.11 We are not obliged to follow instructions that change or supplement the content or scope of the agreed work. If such instructions are followed, the work in question will be paid for in accordance with our usual rates and we will report this to the other party.
5.12 The other party is not authorised to transfer all or part of the rights and obligations under the agreement in question to third parties without our written consent.
6. Prices, budget overruns and additional work
6.1 All our prices are in Euros and are, unless and insofar as explicitly agreed otherwise by us in writing, exclusive of turnover tax, exclusive of all other levies and taxes that are or will be imposed by the government and exclusive of costs of packaging, loading and unloading, transport/shipping, administration and insurance. The above taxes and levies, by any name, are at the expense of the other party.
6.2 A budget overrun is an exceedance of the budgeted hours for a certain task, phase or (part of a) task. If a budget overrun could occur, this will be reported in writing to the other party at the earliest possible stage, but in any case before the budgeted hours are exceeded. The other party is deemed to have agreed to the overrun and the associated costs unless the other party has informed us in advance after notification to refuse the additional hours. An exceedance of the budget cannot lead to dissolution of the agreement or suspension of payments. The other party accepts that an exceedance of the budget can result in influencing the time of completion of the work.
6.3 If additional tasks are added to the work that was agreed upon at the time of entering into the agreement, this will be regarded as additional work. This additional work may result from additional wishes or requirements of the other party or because a different approach is desired or required than initially agreed upon. In the case of additional work, this will be communicated to the other party in writing at the earliest possible stage, but in any case prior to the commencement of such additional work. The other party is deemed to have agreed to the additional work and the associated costs, unless the other party has informed us in good time after notification to refuse the additional work. Additional work cannot lead to the dissolution of the agreement or a suspension of payments. The other party accepts that additional work may influence the time of completion of the work.
6.4 In the event of an unforeseen increase in a cost price factor(s) in the interim, we are entitled to increase the order price accordingly, all this with due observance of any relevant statutory provisions.
6.5 The additional hours and/or work that we must carry out pursuant to the provisions of Articles 6.2 and 6.3 will be charged to the other party in arrears based on the rates applicable at the time, unless expressly agreed otherwise in writing.
7.1 The method of invoicing for the work performed by us depends on the nature, scope and/or duration of the order and will be included in the offer or order confirmation.
7.2 The budget provided in the Agreement is indicative only. We are reasonably entitled to deviate from this budget. The invoices will be determined in arrears per agreed period.
7.3 If we do not receive payment on time, we are authorised to suspend the work.
7.4 Payment must be made without discount or settlement by means of payment or transfer to a bank or giro account designated by us within 14 days of the invoice date. The value date indicated on our bank statement is regarded as the day of payment.
7.5 All payments made by the other party will be used primarily to pay any interest and collection costs incurred by us and subsequently to pay the longest outstanding invoice(s). We may, without defaulting on our part, refuse an offer of payment if the other party indicates a different order of attribution. We can refuse full repayment of the principal sum if the outstanding and current interest as well as the costs are not also paid.
7.6 Objections to the amount of the invoices do not suspend the payment obligation in respect of the amount due.
7.7 We are authorised to retain the results of the agreed work that are still in our possession if the other party fails to fulfil its payment obligation, until the other party has fulfilled its payment obligation, regardless of whether the payment arrears relate to this work result. We are not liable for any delay in the fulfilment of the agreement in the event that the other party fails to fulfil its payment obligation on time.
8. Interest and costs
8.1 If payment has not been made within the specified period, the other party will be in default by operation of law – without further notice of default – and will owe statutory interest per (part of) a month on the outstanding amount from the invoice date.
8.2 All judicial and extrajudicial costs incurred shall be charged to the other party. The judicial costs also include all actual costs of legal and procedural assistance incurred during legal proceedings, which exceed the liquidation rate of our legal assistance provider. The extrajudicial collection costs amount to at least 15% of the amount owed by the other party, including the aforementioned interest, with a minimum of € 250.
9.1 The time of delivery will be the time at which Web software, Web applications, Web hosting, Keyword research, optimisation, reporting and maintenance and/or related services have been provided or delivered by us to the other party. The terms of delivery and the manner in which the results of the work are provided and/or delivered will be determined by the parties in the agreement. The turnaround time of an order depends on the circumstances, such as the quality of the data and information provided by the other party and the cooperation of the other party and relevant third parties.
9.2 The other party is obliged to take delivery of the goods at the moment that we deliver them or have them delivered, or at the moment when they are made available in accordance with the agreement.
9.3 We are authorised to make partial deliveries, which we can invoice separately.
9.4 The indication of a possible delivery time is always approximate, unless explicitly agreed otherwise in writing. These shall never constitute deadlines. In the event of an (imminent) exceeding of a (delivery) date, the parties will consult with each other as soon as possible in order to take appropriate measures. In the event of late delivery, the other party must give us written notice of default and give us a reasonable period in which we can still comply with our obligations. The delivery time stated by us will only commence after we have all the necessary information in our possession. 9.5 Exceeding agreed delivery times, regardless of the cause, does not entitle compensation, unless otherwise agreed in writing.
10. Duration, suspension and termination
10.1 Agreements for subscriptions, such as hosting, domain registration subscriptions, software licenses, keyword research, optimisation, reporting and maintenance, are entered into for a period of 1 year, without the possibility of premature termination, unless otherwise agreed in writing. Invoicing or direct debit occurs in advance. Such agreements for subscriptions are tacitly renewed for a period of 1 year each time, unless one of the parties cancels these in time in writing (including by email) with due observance of a notice period of 1 month.
10.2 We are entitled to suspend the fulfilment of the obligations or to dissolve the agreement, if:
– the other party does not fulfil its obligations in time or in full under the agreement.
– after the conclusion of the agreement, we have become aware of circumstances that give good reason to fear that the other party will not fulfil its obligations. If there is good reason to fear that the other party will only partially or improperly fulfil its obligations, suspension will only be permitted to the extent that the shortcoming justifies such action and an unaltered continuance of the agreement cannot reasonably be expected.
– the other party is declared bankrupt, surrenders its assets,, submits a request for suspension of payment, is placed under guardianship, or an encumberance is levied on all or part of its property.
– when the agreement was concluded, the other party was requested to provide security for the fulfilment of its obligations under the agreement and the security was not provided or was insufficient. As soon as security has been provided, the right to suspend performance lapses, unless such perofrmance has been unreasonably delayed as a result.
10.3 Pursuant to article 10.2, we are entitled to claim any amount owed by the other party based on the services provided by us, immediately and without any warning or notice of default in its entirety, all without prejudice to our right to compensation of costs, damages and interest. If we suspend the fulfilment of the obligations, we retain the claims under the law and the agreement.
11.1 If and to the extent that a third party (the manufacturer) provides us with a guarantee, we will transfer our claims to a manufacturer’s warranty under the associated conditions to the other party as soon as the amount owed has been received by us.
11.2 We will endeavour to repair defects within a reasonable period of time if and insofar as it concerns a defect relating to (the results of) our work and the defect in question has been reported in detail by the other party in writing within fourteen (14) days after delivery of the work concerned. The other party must demonstrate the defect which must be replicable. The other party will provide us with all reasonably necessary assistance in repairing the defect.
11.3 The work that we execute pursuant to the provisions of article 11.2 will be charged to the other party in arrears and based on the usual rates at that time, unless agreed otherwise in writing.
11.4 The provisions of Article 11.2 do not exempt the other party from its payment obligation.
11.5 We cannot offer or guarantee the support of every hardware platform, operating system or web browser (version), unless specifically mentioned in the offer.
12.1 The risk of the item delivered in execution of the agreement, including loss or damage, is transferred once we have made the item available in accordance with the agreement to the other party or an agent used by the other party, unless otherwise agreed.
12.2 The provisions of the previous paragraph also apply if we install and/or assemble the delivered item onsite or at another location designated by the other party, unless agreed otherwise.
12.3 Any storage and transport of materials and data carriers of the other party takes place at the expense and risk of the other party, unless explicitly stated otherwise. The other party can insure against the risks mentioned here.
13.1 If a party fails to fulfill one or more of its obligations under the agreement, the other party will give it a proper and detailed notice of default in writing, whereby a reasonable period is set for rectification of the failure. The notice of default must contain a description of the shortcoming that is as complete and detailed as possible, so that the party concerned is given the opportunity to respond adequately.
13.2 Our liability for damage to the other party, irrespective of the basis of it, is limited to compensation for direct damage up to a maximum of the amount paid out by our insurance policy as appropriate, or to a maximum of the amount stipulated in the agreement ( excl. VAT). If the agreement has a term of more than one year, the price stipulated for the agreement is set at the total of the compensation (excl. VAT) stipulated for one year. A condition for the existence of any right to compensation is always that the other party reports the observed damage to us in writing as soon as possible after its occurrence. Any claim for damages against us expires by the mere lapse of twelve (12) months after the claim arose, unless the other party has filed a legal claim for compensation for the damage before the expiry of that period.
13.3 Direct damage is exclusively understood to mean;
i) the costs incurred by the other party for having to keep its old system or systems and related facilities operational for longer due to our failure to deliver on a date that is binding on the other party, less any savings resulting from the delayed delivery;
ii) reasonable costs incurred to determine the cause and extent of the damage, insofar as the determination relates to direct damage within the meaning of this article;
iii) reasonable costs incurred to prevent or limit damage, insofar as the other party demonstrates that these costs have led to limitation of direct damage within the meaning of this article.
13.4 We are not liable for indirect or consequential damage. Examples of this are loss of profit, missed savings, loss of goodwill, malfunctioning of materials or software of third parties or business stagnation, regardless of whether we are aware (of the possibility) that damage may or will occur. We are never obliged to repair corrupted or lost data.
13.5 With due observance of the provisions on intellectual property rights, the other party indemnifies us against all claims from third parties, for any reason, with regard to compensation for damage, costs or interest related to the agreement.
13.6 The exclusions and limitations of our liability described in Articles 13.1 to 13.5 shall lapse if and insofar as the damage in question was caused by intent or deliberate recklessness on the part of the management.
13.7 If the other party or third parties fail to provide information on time or provide incorrect or faulty information, we will not be liable for the consequences of this and the costs arising for us from this will be charged separately.
13.8 The provisions of this article as well as all other limitations and exclusions of liability mentioned in these general terms and conditions shall also apply in favour of all (legal) persons whom we use for the performance of the agreement, except and insofar as we have entered into an agreement with a (legal) person on behalf of the other party. Therefore, any persons who may be held liable for the performance of our assignment may also invoke this as if they themselves were party to the agreement.
13.9 Our liability on account of an attributable shortcoming in the fulfilment of an agreement only arises in all cases if the other party immediately and properly gives us notice of default in writing, with a reasonable period of time to remedy the attributable shortcoming, and we continue to fail imputably in the fulfilment of our obligations even after that period, except in the case of a permanent attributable shortcoming. The notice of default must contain a description of the shortcoming that is as complete and detailed as possible, so that we are able to respond adequately.
14. Retention of title
14.1 Delivered goods shall remain our property until such time as all amounts owed to us by the other party on the basis of the agreement concluded between the parties have been paid to us in full.
14.2 The consequences of property law in terms of the retention of title of an item intended for export shall be governed by the law of the recipient country if that law contains provisions that are more favourable to us in this respect.
14.3 If the other party creates a new item (partly) from goods delivered by us, the other party shall only create that item for us and the other party shall retain the newly created item for us until the other party has paid all amounts due under the agreement; in that case, we shall have all rights as owner of the newly created good until the time of full payment by the other party.
14.4 Where applicable, rights are always granted or transferred to the other party under the condition that the other party pays the agreed fees on time and in full.
14.5 We can keep the goods, products, property rights, data, documents, databases and results of the services we provide, received or generated within the framework of the agreement, in spite of an existing obligation to hand them over, until the other party has paid all amounts due to us.
15. Intellectual property rights
15.1 Unless otherwise stipulated in the agreement, all intellectual property rights that are vested in all activities granted within the framework of the agreement, as well as on all materials or information that we have made available, exclusively belong to us and/or our licensors.
15.2 To the exclusion of all others, we have the right to perform, publish and reproduce. A right of use to which the other party is entitled shall be non-exclusive, non-sublicensable and non-transferable to third parties, unless expressly agreed otherwise.
15.3 Nothing in these conditions implies a transfer of intellectual property rights. Transfer of an intellectual property right can only take place explicitly and in writing.
15.4 If the parties have agreed that the management will not be carried out by us during the performance, the other party must give us the opportunity to ensure that the realisation of its design takes place in accordance with our intentions. These activities will be remunerated separately.
15.5 We are entitled to use the (results of the) work and the materials used for the performance of the agreement, such as designs, drawings, films, software, (electronic) files, reports, formats and interviews, for our own promotion and/or publicity, unless otherwise stipulated in the agreement.
15.6 We shall indemnify the other party against any legal action based on the claim that software, equipment or materials developed by us infringe an intellectual property rights applicable elsewhere, on the condition that the other party immediately informs us in writing about the existence and content of the legal action and leaves the handling of the case, including negotiating any settlements, entirely to us. To this end, the other party shall provide us with the necessary powers of attorney, information and cooperation in order to put up a defence, if necessary in the name of the other party, against these legal claims. This indemnification obligation lapses if and insofar as the infringement in question relates to changes that the other party has made to the software, equipment or materials or has had made by third parties. If it has been irrevocably established in court that the software, equipment or materials developed by us infringe any intellectual property right belonging to a third party or if in our opinion there is a good chance that such an infringement will occur, we will take back the delivered goods against crediting the acquisition costs minus a reasonable user fee, or ensure that the other party can continue to use the delivered, or functionally equivalent other software, equipment or materials, undisturbed, at our discretion.
15.7 The other party guarantees that no rights of third parties preclude the provision of equipment, software or materials to us for use or processing. The other party declares to have all necessary permissions and/or permits for the use referred to in the previous sentence and will indemnify us against any action based on the allegation that such provision, use or processing infringes any right of third parties.
15.8 In addition to brand-name, copyright, or other proprietary information regarding photographs, images, or logos that directly identify the other party, the other party grants us the right to use, transmit, modify, and maintain indefinitely, irrevocably, royalty-free, and without limitation the information we develop for the other party's website. Unless otherwise specified, and with the exception of specific proprietary material provided by the other party, all information and materials, including products, video, animations, announcements developed and prepared for the other party by us and which are part of the "Client Contract", including and without limitation: images, text, and SGML/HTML coding, as well as any encoding we deem appropriate, or any script encoding developed at the request of the other party and specifically produced by us for the other party's website, remains our property.
15.9 The other party may not remove or change copyright notices, trademarks or other indications of the owner of intellectual property rights from or in the delivered program. The same applies to notifications that certain information is confidential in nature.
15.10 Reverse engineering, decompilation or any other way of adapting the results of the work to a human readable form is prohibited by the other party, unless explicitly permitted by mandatory law or the agreement. Furthermore, it is not permitted to remove or circumvent security measures or technical (use) restrictions.
16. Prohibition of staff acquisition
16.1 During the term of the agreement as well as one year after its termination, neither of the parties shall in any way, except after proper business negotiations on the matter have taken place and only with the prior written consent of the other party, hire employees of the other party or of companies that have been engaged in the execution of this agreement and who are (or have been) involved in the execution of the agreement, or otherwise, directly or indirectly, have them work for them.
16.2 The breaching party shall owe us an immediately payable penalty of € 25,000.00 for each breach found. This is without prejudice to the right to claim damages by virtue of law and/or agreement.
17. Confidentiality and privacy
17.1 Both parties are obliged to maintain the confidentiality of all confidential information that they have obtained from each other or from another source within the framework of their agreement. The party receiving confidential information will use it only for the purpose for which it was provided. Information is considered to be confidential if a party has indicated this or if this results from the nature of the information. The scope of the work and the prices paid for it are in any case confidential information.
17.2 The Other Party shall, at its first request, cooperate in the conclusion of a processing agreement in accordance with our model as required by the General Data Protection Regulation.
17.3 At the request of the other party, the parties shall, within one month of delivery, destroy or return all confidential information obtained from them, subject to the relevant provisions in the processors agreement.
17.4 Contrary to paragraph 1, we shall be free to mention the name of the other party in an appropriate manner in connection with the subject matter of the agreement. We may, after prior consent of the other party, which shall not be withheld unreasonably, provide certain further information about the agreement to third parties for reference purposes.
17.5 We are not obliged to maintain the confidentiality of information which has been or will be widely disclosed, or which is already at the disposal of the parties, or which has been independently developed by the parties outside the framework of the agreement(s), or which has been lawfully obtained from third parties. Nor shall we be bound to confidentiality with respect to ideas, principles, practical knowledge or methods related to information processing, which are made available to us or which are developed during the duration of the agreement by our staff or jointly by staff of both parties.
17.6 If, on the basis of a statutory provision or a judicial decision, we are obliged to provide confidential information to third parties designated by law or by the competent court, and in this respect we cannot invoke a statutory right to refuse to give evidence or a right to refuse to give evidence recognised or permitted by the competent court, we shall not be obliged to pay damages or compensation and the other party shall not be entitled to dissolve the agreement on the grounds of any damage caused by this.
18. Force majeure
18.1 A party is not obliged to fulfil one or more obligations if it is prevented from doing so as a result of force majeure. In these general terms and conditions, force majeure is understood to mean, in addition to what applies in this respect pursuant to the law, all external causes, foreseen or unforeseen, on which a party cannot exercise any (decisive) control, as a result of which this party is unable to fulfil its obligations. This includes strikes by third parties. Force majeure is also understood to mean a non-attributable shortcoming on the part of third parties or suppliers engaged, with the exception of obligations to payment of money.
18.2 If a party is affected by a situation of force majeure, the party concerned will notify the other party as soon as possible. The parties will try to find a reasonable solution in consultation with each other.
18.3 As soon as it becomes clear that the situation of force majeure will last longer than sixty (60) days, each of the parties has the right to dissolve the agreement in writing, without being liable for damages. In that case, any executions already carried out will be settled proportionally.
19. Applicable law and disputes
19.1 All our offers, agreements and the execution thereof are exclusively governed by Dutch law. International regulations that may apply to the agreement are excluded to the extent that the relevant regulations permit exclusion.
19.2 All disputes that may arise as a result of these general terms and conditions or of further agreements that may be the result thereof, shall be exclusively adjudicated by the competent court in Arnhem.
Chapter 2: Web hosting
If, on the instructions of the other party, we process, publish and distribute the data of the other party, the customers and the products of the other party, whether or not under the management of the other party, using Web software on computer equipment equipped for that purpose, the following provisions will apply in addition.
20.1 We will make every effort to ensure the quality and uninterrupted availability of the Webhosting, and to enable access to the data stored by the other party.
20.2 The other party acknowledges that the Webhosting is partly determined by its technical environment (which includes, but is not limited to, configuration and capacity of the hardware, quality control and change management with regard to future changes to be implemented by the other party, the accuracy of test data and system documentation with regard to existing systems).
20.3 We are entitled to (temporarily) shut down the Webhosting and/or to limit its use for the maintenance work, adjustments or improvements to the system. We shall, as far as possible, allow such a shutdown to take place outside office hours and shall inform the other party well in advance. We shall never be obliged to pay any compensation to the other party due to such a shutdown of the Webhosting.
20.4 We are not liable for the unavailability or limited availability of the Webhosting as a result of power outage or power failure, disruptions in the telecommunication or the internet, defects in the hardware or software of the other party and all other causes on which we have no influence.
20.5 If the cooperation between parties is not extended after the expiration of the term of the agreement, we shall cooperate in the transfer to a third party. Our usual rates apply.
20.6 We shall be entitled, without further notice, to charge costs in the event that the permitted data traffic and the permitted disk space are exceeded.
20.7 Agreements relating to service levels will be recorded in a Service Level Agreement (SLA) if desired.
21.1 The other party is expressly prohibited from disseminating information or offering facilities or functionalities through or via websites hosted by us, if and to the extent that this information is in conflict with:
i) applicable laws and regulations, including regulations of self-regulatory bodies;
ii) the Agreement; or
iii) reasonable guidance and instructions given by us.
21.2 If the other party does not comply with the provisions of Article 21.1 and/or if we receive a notification from a third party that this would be the case, we are entitled to suspend or discontinue the Webhosting without further notice, to block connections or to remove content. In those cases where this is justified by the seriousness of the breach, we shall be entitled to terminate the agreement with immediate effect. The other party is not entitled to compensation from us as a result of such a suspension, strike, blocking, removal and/or cancellation.
21.3 The other party indemnifies us against all claims of third parties, including, but not limited to, claims on account of the information and/or data which it publishes through or via its websites and claims of our supplier(s), resulting from the non-compliance by the other party with one of its obligations under the agreement, more specifically under this article.
Chapter 3: Development of Web Application and/or Web Software
If we develop a Web Application and/or Web Software on the instructions of the other party, the following provisions will apply in addition.
22.1 Unless otherwise provided in the agreement, we grant the other party the non-exclusive, non-transferable and non-sublicensable right to use the Web Application and/or Web Software in accordance with the provisions of the agreement. Without prejudice to the other provisions of the agreement, the other party's right of use only includes the right to load or execute the Web Application and/or Web Software.
22.2 The other party may only use the Web Application and/or Web Software in and for its own company or organisation. The other party will not use the Web Application and/or Web Software for the processing of data on behalf of third parties ("time-sharing"), or otherwise use it on behalf of third parties.
22.3 The other party agrees to follow our instructions and directions with regard to the Web Application and/or Web Software.
22.4 The other party will not make the Web Application and/or Web Software available to third parties, unless this has been agreed in writing between the parties.
22.5 The other party is not entitled to the source code of the Web Application and/or Web Software and the technical documentation produced during the development of the Web Application and/or Web Software, unless this has been agreed in writing between the parties.
22.6 At the request and expense of the Other Party, we shall deposit the source code of the Web Application and/or Web Software in escrow with an escrow service provider to be proposed by us for the benefit of the Other Party's continuity of service.
22.7 If the right of use of the Web Application and/or Web Software ends, the Other Party shall immediately cease using the Web Application and/or Web Software and return all copies of the Web Application and/or Web Software in its possession to us.
22.8 We can protect the web application by taking security measures, including firewalls or security keys. The other party is not permitted to remove or circumvent these security measures. If the security measures result in the other party being unable to make a back-up copy of the web application, we shall make a back-up copy available at the request of the other party.
22.9 The other party is at all times responsible for the use of the Web Application and/or Web Software. The other party is not permitted to use the Web Application and/or Web Software for actions and/or conduct that are in conflict with the law, public order, morality or the agreement. The other party indemnifies us against all claims by third parties relating to a violation of the above.
22.10 If the parties have agreed that the web application is to be used on only one processing unit, the web application can be used on another processing unit in the event of a failure of this processing unit.
22.11 If the intellectual property rights to (part of) the Web Application and/or Web Software are vested in our licensors, the other party may be bound by the licence terms and conditions of these third parties, including provisions relating to price changes.
22.12 If, and to the extent, that we make software of third parties available to the other party, the terms and conditions applicable to this software will apply to the exclusion of the provisions of these terms and conditions, provided that we inform the other party thereof. These terms and conditions are available for inspection at our offices and will be sent to the other party upon request. If these third party conditions do not apply or are declared inapplicable, the provisions of our conditions will apply.
22.13 In the event that the Web Application and/or Web Software contains module(s) from third parties, the other party authorises us to conclude the licence agreement for these module(s) on behalf of the other party. If agreed upon by the parties, we will arrange payment of this licence for the other party.
23. Design phase
23.1 Before the parties decide to proceed with the development of the Web Application and/or Web Software, the parties may agree on a design phase in which they will provide each other with access to information that is relevant within the framework of the agreement.
23.2 The parties will ensure that all information received from the other party in the context of the design phase, of which they should reasonably know is confidential in nature, will remain confidential. Except with the prior consent of the releasing party, the receiving party will not make the information and data carriers available to third parties and/or make these available to personnel.
23.3 The parties shall impose on their personnel and any third parties engaged, the confidentiality obligations set out in this article and guarantee compliance therewith.
23.4 The parties shall sign a further confidentiality agreement at the first request of the other party.
24. Development process
24.1 Following the provisions of Article 23.1, the parties will draw up a written framework in which the number of sprints will be laid down, if required, how these will be managed, what efforts are expected from which employees and what the expected timeline for delivery of the various sprints is. In addition, the minimum functionalities of the Web Application and/or Web Software to be developed will be outlined as a focal point.
24.2 The Parties shall agree on the prioritisation of the specifications, with the proviso that such prioritisation may be adjusted by mutual agreement between the Parties at any time during the implementation of the Agreement (hereinafter referred to as 'prioritisation').
24.3 If the parties opt for the periodic debiting of fixed hours, we will contact the other party periodically before the start of the work to discuss the prioritisation and to coordinate what the requirements and expectations are. We will nevertheless review the foregoing and make an appropriate proposal for this as necessary.
24.4 The parties will determine who is part of the group designated and/or approved by the other party and responsible for the development of the Web Application and/or Web Software to be developed for the entire duration of the development process.
24.5 Each sprint to be delivered will be tested in the interim, unless parties agree otherwise in writing. The test period will take a maximum of fourteen (14) days after delivery of the sprint in question, unless the parties agree otherwise in writing.
24.6 If desired, the parties will determine in advance who is authorised to accept individual sprints in accordance with Article 25.
24.7 Only if agreed in writing shall we install the Web Application and/or Web Software at the expense and risk of the other party and carry out data conversion and/or data migration.
25.1 We will deliver the Web Application and/or Web Software in the manner specified in the agreement.
25.2 A sprint is deemed to be accepted:
i) on the first day after the test period; or
ii) if we receive a test report in accordance with Article 25.6 before the end of the test period, at the time when the errors identified in that test report have been corrected.
25.3 The other party shall carry out the agreed acceptance test with sufficient qualified personnel and with sufficient scope and depth and the other party shall report the test results to us in writing, clear and comprehensible.
25.4 If the other party makes the Web Application and/or Web Software public before acceptance or otherwise uses it for productive or operational purposes, the Web Application and/or Web Software will be deemed to have been fully accepted from the beginning of that use.
25.5 The other party may not withhold acceptance on account of minor errors, i.e. errors that would not reasonably impede the operational or productive use of the Web Application and/or Web Software or on grounds other than those relating to the specifications expressly agreed between the parties.
25.6 If, during the execution of the agreed acceptance test, it appears that the Web Application and/or Web Software contains errors that impede the progress of the acceptance test, the other party shall inform us of this in detail in writing no later than on the last day of the test period. In this case, the test period will be interrupted until the obstacle has been removed. The test results must be reported to us in writing and in detail. We will make every effort to fix the reported errors within a reasonable period of time, whereby we are entitled to introduce temporary solutions, program bypasses or problem-avoiding restrictions.
25.7 We are not obliged to fix errors that arise as a result of:
i) an adaptation of the Web Application and/or Web Software, which we have not made;
ii) the use of the Web Application and/or Web Software in any manner not permitted under the agreement;
iii) incorrect use of the Web Application and/or Web Software, whether or not by the other party;
iv) errors in software, hardware, communication equipment, peripheral equipment or other equipment of third parties, or the failure of the other party to have that equipment and/or software regularly maintained; or
v) input errors or errors related to the data used by the other party.
25.8 The non-acceptance of a particular sprint does not affect the acceptance of a previous sprint.
25.9 The Web Application and/or Web Software is deemed to have been accepted:
i) on the first day after the test period of the last open sprint described in the prioritisation; or
ii) if we receive a test report in accordance with Article 25.6 before the end of the test period, at the time when the errors identified in that test report have been corrected.
25.10 The other party can, insofar as this has been agreed, use our support after the acceptance of the Web Application and / or Web Software.