Terms & Conditions
Article 1: Definitions
In these General Terms and Conditions of delivery will be understood under:
a. Principal: the natural or legal person that, trading in the exercise of his profession or enterprise, has given commission to the supplier to the development and delivery of a website (hereinafter: “Product”) and the execution of the services related thereto (this entirety hereinafter: “Commission”);
b. Supplier: Nathan Lewis, a sole proprietorship under the Laws of the Netherlands, having its seat in Eerste Jan van der Heijdenstraat 108-H, 1072 VB Amsterdam, the Netherlands, and registered with the Chamber of Commerce under number 52479536, that has accepted the Commission or has issued a designated offer or offer prior to a possible Commission;
c. Agreement: the agreement of commission to the manufacturing and delivery of a Product and the execution of the related services that is concluded between Principal and Supplier.
Article 2: General
2.1. These General Terms and Conditions of delivery are applicable to the conclusion (meaning inclusive of all offers, designated offers etc. of Supplier), the content and the compliance with the Agreement or of agreements that are the consequence thereof.
2.2. General Terms and Conditions of Principal, or other general or special terms and conditions (of purchase), are explicitly not applicable to this agreement and will hereby therefore explicitly be rejected.
Article 3: Quotes and offers
3.1. The mere issue of a price statement, budget, ballpark estimate, advance calculation or similar notification, whether or not identified as offers, does not oblige the Supplier to the conclusion of an Agreement with the Principal.
3.2. Offers of the Supplier are each time non-binding.
3.3. Part of the offers issued by Supplier form among others: designs, drawings, models, samples, descriptions, images and so forth, as well as possible Exhibits and documents that relate to the offers. All of this remains, as well as tools made by Supplier in this regard, the property of Supplier, and must be given back to him upon his request and may, without his explicit written permission, not be copied and/or released to third parties. Also, Supplier reserves all rights possibly existing on the basis of intellectual and industrial property.
Article 4: Conclusion Agreement
4.1. The Agreement with Supplier is firstly concluded, when both Parties have accepted and signed this in writing (including also: per e-mail).
4.2. The content of the Agreement will be formed by the Agreement itself, these General Terms and Conditions of delivery and Exhibits to these documents.
4.3. Possible additional agreements made or promises made by employees of Supplier, or made or done on behalf of Supplier by other persons that act as representative, only bind Supplier if these agreements and/or promises have been confirmed by director(s) of Supplier authorised to representation.
Article 5: Commission
5.1. Supplier can involve third parties to execute the Commission. Supplier is not liable for delays, shortcomings and/or damage when this does not derive from commissions to the execution of activities for the exercise of the enterprise of Supplier.
Article 6: Cancellation or delay
6.1. Principal is authorised to cancel the Agreement before Supplier has started with the execution of the Agreement, provided that he compensates the damage emerged because of it for Supplier. Under this damage will be understood among others, the losses suffered by the Supplier and missed profit and the working hours and costs that the Supplier has made already, including that of reserved capacity, purchased materials, called-on services and storage.
6.2. If the final delivery of the Commission suffers delay by the Principal (for instance because Principal misses deadlines for the delivery of information), then Principal is obliged to compensate the damage emerged because of it for Supplier. Under this damage will be understood among others the loss suffered by the Supplier and missed profit and the working hours and costs that the Supplier has made, taking into account the deadlines (think of reserved capacity, purchased materials, called-on services and storage).
Article 7: Information
7.1. Principal must provide Supplier timely with all information and data that are necessary for the execution of the Agreement, including if possible technical data, possible desired applications, files, documentation, test data, work descriptions and/or other relevant information. Principal warrants, and guarantees the correctness of that data. Principal is furthermore responsible for, and accepts the risk of, possible problems and/or claims deriving from the content, preciseness, completeness and consistency of data, materials and information provided by him.
7.2. If information necessary for the execution of the Agreement will not, not-timely, not completely or not in accordance with the agreements be made available to Supplier or if Principal in another manner does not comply with his obligations, then Supplier has the right to suspend the compliance with his obligations without that he can be required to any pay compensation of damages. Supplier is furthermore authorised to bring the costs made extra in relation hereto, into account to Principal.
7.3. Principal bears the risk of misunderstandings concerning the content and execution of the Agreement if these find their cause in communications not, not correctly, not timely or incompletely received by Supplier, that have been made verbally by Principal (or a person designated by him), or have been conveyed by means of any technical means (such as by phone).
Article 8: Price
8.1. All stated prices are exclusive of turnover tax (VAT) and other levies imposed by the government, and unless agreed otherwise explicitly and in writing, exclusive of packaging, costs for transport and other costs.
8.2. The price that Supplier has stated for the performances to be executed by him, applies solely for the performances with the specifications such as agreed in the Statement of Work.
8.3. Supplier has no obligation to delivery of a part of the total performance against the amount stated for this part, or against a proportional part of the price stated for the entirety.
8.4. If only by manner of estimate, a price has been issued or the agreed price on the basis of these General Terms and Conditions of delivery can be changed, then the price or the change will be established by manner of an amount considered as reasonable in the industry.
Article 9: Price changes
9.1. Supplier is authorised to increase the agreed price, when one or more of the following circumstances occur before the day of delivery (after the date on which the Agreement has been concluded):a. Increase of tooling costs, font licensing, media costs or server costs;b. A considerable change in currency dimensions or, in general, circumstances that are comparable therewith.
9.2. Grounds for increase of the agreed price are furthermore also:a. Improper manner of delivery of information by Principal (such as unclear copies, unclear sketches, drawings or models, improper information carriers, improper computer programs or data files);b. Improper manner of delivery of the materials or products to be delivered by Principal; and/or all similar deliveries by Principal, because of which Supplier must make more activities or costs than this might reasonably expect at the conclusion of the Agreement.
9.3. Supplier is authorised to increase the agreed price, if Principal introduces a change in the specifications originally agreed in the Statement of Work. Supplier shall try to cooperate with these changes, if the performances to be executed by him do not materially deviate from the originally agreed performances.
Article 10: Payment term
10.1. Unless otherwise agreed, Principal must pay the price and other amounts due on the basis of the Agreement within 30 days after the date of the invoice, without being able to make a claim on discount, discount or suspension.
10.2. Principal shall make a down payment before Supplier starts with the execution of the Commission. The payment will be divided in 2 terms of which the first term concerns the down payment, for the value of 50% of the entire agreed price.
10.3. In case of non-timely payment, Principal is in default without that notification of default by Supplier is required. Supplier has then the right to suspend the compliance with all of his legal obligations towards Principal, notwithstanding his other lawful rights. Principal may not suspend the compliance with his legal obligations in such a case.
10.4. Principal is each time required to provide upon first request of Supplier surety for payment of the amounts to be paid on the basis of the Agreement to Supplier, or current obligations. The offered surety shall have to properly cover the claim with the interest possibly appeared thereon and costs, and Supplier shall have to be able to take recourse thereon without effort. A (possibly later) surety become insufficient, shall upon first request of the Supplier be supplemented to a sufficient surety.
10.5. If Principal does not timely pay, then he is liable to pay the lawful (trade) interest from the date of the invoice over the amount of the invoice.
10.6. Upon non-timely payment, Principal is, in addition to the due amount and interest, required to full compensation of out-of-court and in-court collection costs, thereunder understood the costs for lawyers, bailiffs and collection agencies.
Article 11: Manner of delivery; retention of title
11.1. Unless otherwise agreed, delivery takes place on the place where Supplier exercises his enterprise.
11.2. Supplier is not required to deliver the Commission in parts.
11.3. Principal is required to grant his full cooperation to the delivery of the Products (for instance by answering without delay of questions by Supplier). If Principal does not do this, then Supplier is authorised to claim, without prior notification of default, payment of the price of the part not taken off.
11.4. Each delivery of Products by Supplier to Principal takes place under precondition of retention of the property thereof until the moment of complete payment of all that Principal is liable to pay on the basis of, related with or deriving from the delivered Products, the Agreement or these General Terms and Conditions of delivery to Supplier (including interest and costs).
11.5. Transport of the Products to be delivered takes place for the account and risk of Principal. Under transport will also be understood transmission of data by means of any technical means.
11.6. If the delivery takes place in parts, then Supplier has the right to regard each delivery as a separate transaction.
11.7. If storage takes place, then this takes place for the account and risk of Principal.
Article 12: Term of delivery
12.1. A term of delivery stated by Supplier, run-through, deadline or planning has, unless it will be agreed in writing that it concerns an ultimate term, only an indicative nature and is not binding. Therefore, the indications of delivery terms can in no manner whatsoever have an imputable shortcoming from the side of Supplier as a consequence. Principal is then in no case whatsoever authorised to make a claim to any compensation of damages.
12.2. The binding of Supplier to an agreed ultimate term of delivery is forfeit if Principal wishes a change in the specifications of the Commission.
12.3. In case of non-timely payment by Principal or when Principal withholds his full cooperation to the delivery of the Product, then an agreed ultimate term of delivery is not binding anymore and Principal is in default without written notification of default. Supplier then has the right to suspend the compliance with all his legal obligations towards Principal, notwithstanding his other lawful rights. Principal may not suspend the compliance with his legal obligations in such a case. If Principal amends his default, then Supplier shall execute the Agreement within a reasonable term.
Article 13: Inspection upon acceptation test and delivery
13.1. Upon delivery, Principal shall subject the Product to an acceptance test. The acceptance test has a purpose to establish that the Product delivered by Supplier, complies with the (functional) specifications stated by Principal and recorded in the Statement of Work.
13.2. During the acceptance test, Supplier can assist Principal upon his request against its current rates.
13.3. In case of non-acceptation, Principal shall send to Supplier within five working days after the acceptance test has taken place, a written statement with the grounds of non-acceptation. Small bugs and issues (such as defects that by their nature or number reasonably do not stand in the way of business wise taking into use), shall be no ground for non-acceptation.
13.4. Principal is after delivery (which takes place after the acceptance test) required to examine with urgency whether Supplier has complied with the Agreement properly. Also, Principal is required to notify Supplier immediately in writing, as soon as he is aware of the contrary. Principal must make this inspection and the notification within no more than fourteen days after delivery.
13.5. If and insofar possible, Supplier shall amend bugs and issues to the best of his abilities. Principal shall complain in writing, with a clear and precise description of the complaint.
13.6. Bugs that at the time of the delivery could not show upon a careful and timely inspection, must be brought to the knowledge of Supplier by Principal within 60 days after delivery.
13.7. Compliance with the Agreement is proper, if Principal has remained in default with the inspection or issuing a notification in the sense of this article timely.
13.8. The compliance by Supplier applies in each case as proper, if Principal has taken the delivered or a part of the delivered in use, has treated or processed it, has delivered it to third parties, respectively has let be taken in use, has let be treated or processed or has had delivered to third parties, unless Principal has executed a timely inspection or issued a notification in the sense of this article.
13.9. Defects — defined as imperfections that result from deviations from the (functional) specifications outlined in the Statement of Work, which the product should not have had — discovered within four weeks of delivery, will be corrected free of charge within a reasonable time frame.
13.10. Each legal claim of the Principal towards Supplier concerning defects in the delivered Products, is forfeit if:
a. the defects have not been brought to the knowledge of within the set terms or not in the designated manner to Supplier;
b. the Principal grants no/insufficient cooperation with regard to an inspection to the foundation of the complaints;
c. the Principal has not installed, treated, used, stored or maintained the Products in the correct manner or he has used or treated the Products under circumstances or for purposes otherwise than foreseen by Supplier;
d. the use of the Products with regard to which the complaints have been expressed, will be continued by the Principal.
Article 14: Key Deliverables
14.1. The Principal is required to thoroughly review the material resulting from the Key Deliverables provided by the Supplier—whether requested or not—for any errors, defects, incorrect specifications, miscalculations, or any deviations from the agreed requirements. The Principal must promptly return the material to the Supplier, either corrected or approved, without undue delay.
14.2. Approval of material by Principal applies as acknowledgement that Supplier has executed the activities prior to the concept, correctly.
14.3. Supplier is not liable for deviations, errors and defects that have remained unnoticed in material approved or corrected by Principal.
Article 15: Deviations
15.1. Deviations between on the one hand the delivered Product and on the other hand the original Interaction design document, Technical document or Visual design, can form no reason for rejection, discount, dissolution of the Agreement or compensation of damages, if they are of a minor or slight meaning or are unavoidable.
15.2. Deviations that in reasonableness have no or a subordinate influence on the use value of the Product, will each time be deemed to be deviations of slight meaning.
Article 16: Hosting disclaimer
16.1. Supplier will propose a hosting partner and a suitable hosting package, based on traffic estimations and peak usage moments as outlined in the Statement of Work. The Principal may also request a specific hosting partner or package, subject to Supplier’s approval. Supplier shall charge a one-time fee for the setup with the hosting partner. However, Supplier bears no responsibility for the hosting service itself, including but not limited to downtime, hardware failures, performance issues during peak traffic, or if the proposed hosting package fails to meet traffic demands or estimations. Supplier is not liable for any damages resulting from these hosting issues.
16.2. Supplier will deliver the Product on a customary medium to the hosting partner or any third party responsible for the hosting. In case of hosting-related issues, such as downtime, performance failures, or underperformance due to inaccurate traffic estimations, Supplier will mediate with the hosting partner to help find a resolution as quickly as possible. However, this mediation may incur additional costs, which will be communicated to the Principal beforehand. Supplier remains free of responsibility for the hosting environment’s performance, reliability, or adequacy in handling traffic beyond estimations.
Article 17: Warranty
17.1. Supplier provides the following warranties with regard to the Product:
a. Support for specific browsers and operating systems, as outlined in the Statement of Work, for a period of three months following final delivery. These may include, but are not limited to, certain versions of Internet Explorer, Edge, Firefox, Chrome, Safari, and mobile browsers as specified in the Statement of Work.
b. Support for specified operating systems, such as macOS and Microsoft Windows, as detailed in the Statement of Work, for a period of three months following final delivery.Supplier expressly rejects all other warranties, whether explicit or implied.
17.2. These warranties do not apply when Principal does not comply with the Agreement or these General Terms and Conditions of Delivery, or when a defect is the consequence of:
a. Hardware disruptions by defects, electricity problems, environmental problems or any other cause that lies not in the Product;
b. Modification of the operating systems of the Product or computer hardware by any other party than the Supplier;
c. Abuse, errors or negligence by Principal, his employees, contractors, agents or representatives in the use of the Product;
d. (Automatic) updates of incorporated Open Source technologies, including but not limited to: DatoCMS, Storyblok, WordPress, third-party plugins and software.
17.3. Supplier does not warrant that the Product shall work without defects and that all defects can be resolved or improved. Supplier shall make an effort as a good supplier should, to amend and/or improve the defects. Parties enter in consultation to solve in joint consultation the defects against suitable compensation.
Article 18: Intellectual property
18.1. If Supplier gets works available from Principal in the framework of the Commission, then Principal warrants that he has the intellectual property right or has acquired such a licence on the works, that the Supplier is permitted in the framework of the Commission to execute acts with regard to these works. Principal safeguards Supplier from all claims of third parties that concern infringements on intellectual property rights as referred to before.
18.2. Supplier shall transfer all intellectual property rights, inclusive of patents, copyrights, trade secrets and other property rights (hereinafter: “IE-rights”) on the Product, to Principal after Full Payment, meaning full payment of all what Principal is liable to pay on the basis of, related with or deriving from the delivered Products, the Agreement or these General Terms and Conditions of Delivery to Supplier (including interest and costs).
18.3. After the Full Payment, the transfer of IE-rights shall take place by means of a separate written deed of transfer. Principal shall give Supplier hereby a non-exclusive, irrevocable, worldwide and continuous licence to use the Product.
18.4. Other IE-rights that derive from the Commission, such as IE-rights deriving from the services of Supplier, remain with Supplier unless Supplier and Principal agree otherwise in writing.
18.5. Principal acknowledges that Supplier possesses licences to use and sublicense various development tools, routines, subroutines and other programs, data and materials (hereinafter “Background Technology”). Supplier can use Background Technology in the Product. Supplier reserves all IE-rights on the Background Technology. After Full Payment, Supplier gives Principal a non-exclusive, irrevocable, continuous and worldwide licence to use the Background Technology in the Product (and all updates and reviews thereof). Principal shall however in no other manner whatsoever make commercial use of the Background Technology, without written permission of Supplier thereto.
18.6. Upon the Principal’s request, Supplier shall make the source code and object code of the Product available, provided that full payment has been received.
18.7. Supplier makes in the design phase and test environment use of images, fonts, icons and other elements on which copyrights rest. Principal can therefore not take over concepts. Supplier is not liable when Principal still uses or discloses the concepts in any manner.
18.8. Supplier can make use of Open Source technologies in its Product (among others content management systems & plugins). Supplier is not liable for possible errors, bugs or other shortcomings that emerged by use of these technologies. Stipulations regarding precondition of intellectual property rights apply not insofar that is in violation of possibly applicable open source licences.
Article 19: Property Principal, right of lien
19.1. Supplier shall keep the goods entrusted by Principal in the framework of the compliance with the Agreement to him, with the care of a good custodian. Principal bears however, during the custody all risks with regard to the goods referred to. Principal must, if so desired, self-conclude an insurance for this risk.
19.2. Principal is required to ensure that, prior to the provision to Supplier of branding components, design, photo, text or any other material, a duplicate of these goods will be made. Principal must keep these under him, in case the released goods during the custody by Supplier will be lost or will become unusable. In that case, Principal must provide Supplier upon request with a new copy.
19.3. Principal grants Supplier a right of lien on all goods that in the framework of the compliance with the Agreement with Supplier will be brought by him in the control of Supplier, for extra surety of what Principal is liable to pay on the basis of, related with or deriving from the delivered Products, the Agreement or these General Terms and Conditions of delivery to Supplier (including interest and costs).
19.4. The Principal does not have the right to give Products in lien, to vest thereon as possession less right of lien or to vest any other property or personal right for the benefit of a third party before full payment.
19.5. If by treating or processing by Principal the property right of Supplier resting on Products delivered by him, has been lost, then Principal is obliged without delay for the benefit of Supplier to vest a possessionless right of lien on the goods emerged after the treatment or processing.
Article 20: Termination
20.1. In case of cancellation of the Agreement by Principal, he is obliged to pay to Supplier a compensation in the amount of:
a. the costs that Supplier has made until then for execution of the Commission; and
b. the value of the man-hours that have been made and done and the works that have been made and done (by) Supplier (designated persons) until then for the execution of the Commission.Supplier shall budget this compensation. Possible rights (such as licences) of Principal with regard to the Product, shall end immediately.
20.2. Supplier can cancel the Agreement with Principal each time immediately, when Principal comes short concerning one or more of his obligations or if it is likely for Supplier that Principal is or shall not be able or willing to comply with his obligations. Supplier is because of this termination never required to any refunding of already received monies or to compensation of damages. Principal is required to compensate all costs already made by Supplier immediately, notwithstanding the right of Supplier to claim full compensation of damages.
20.3. In case of cancellation of the Agreement by Supplier, Principal shall:
- immediately stop the use of the Product;
- within five days after the cancellation, give back to Supplier all copies and parts of the Product and related materials and documentation.Possible rights (such as licences) of Principal with regard to the Product, shall end immediately.
20.4. Cancellation can only take place by means of a registered letter or letter sent with confirmation of receipt.
20.5. Both Parties can cancel this agreement in writing without notification of default with immediate effect in whole or in part if:
a. the counterparty – whether or not provisionally – will be granted suspension of payment;
b. with regard to the counterparty bankruptcy will be requested;c. the enterprise of the counterparty will definitely be liquidated or terminated.
Article 21: Secrecy
21.1. The Parties shall use any confidential information acquired or made available by one Party to the other solely in accordance with the terms of the Agreement. Neither Party shall disclose this information to third parties, directly or indirectly, or grant permission for such disclosure, without prior written consent from the other Party. The Principal must clearly indicate in writing when information is considered confidential, except for login information and passwords, which are deemed confidential by default. Both Parties shall take all necessary precautionary measures to protect confidential information from unauthorised use or disclosure.
21.2. Information is not confidential if:
a. the Supplier already knew the information before the Principal disclosed this to him;
b. the information – without error of the Supplier – will be disclosed publicly;
c. Supplier receives the information from third parties that do not have to observe secrecy towards Principal;
d. and information that the Supplier develops independently.
Article 22: Liability
22.1. Supplier is not liable for:
a. deviations, errors and defects that remained unnoticed in material approved or corrected by Principal (Article 14.3);
b. deviations, errors and defects in the delivered if Principal has not made or not made timely the inspection referred to in Articles 13 and 14 or has not issued a notification in the designated manner;
c. deviations, errors and defects caused by third parties such as the hosting partner (Article 16);
d. deviations, errors and defects that are the result of incorrect, incomplete or improper information, data carriers, data, hardware, software or operating systems or a combination of these, supplied by Principal;
e. bugs or issues in incorporated Open Source technologies (Article 18.8);
f. errors or defects that occur because Supplier has, upon explicit request of Principal, delivered contrary to his advice or explicit instruction.
22.2. Supplier is solely liable for direct damages. Direct damage solely refers to:
- the reasonable costs to determine the cause and extent of the damage, insofar the determination relates to damage in the sense of these terms;
- any reasonable costs incurred to make Supplier’s defective performance comply with the Agreement, unless they cannot be attributed to Supplier;
- reasonable costs incurred to prevent or limit damage, insofar Principal demonstrates that these costs led to limitation of direct damage as referred to in these General Terms and Conditions.
22.3. Supplier’s liability is limited at all times to the amount paid out under his liability insurance. If the insurance does not pay out or no insurance is applicable, then Supplier’s liability is limited to the amount invoiced for the part of the Commission that caused the damage, with a maximum of EUR 5,000. Any further liability is excluded.
Article 23: Force majeure
23.1. Force majeure is understood to include any failure in the fulfilment of the Agreement that cannot be attributed to either Party, because it is not their fault and neither under the law, a legal act or generally accepted practice is for their account. In any case, force majeure includes breakdowns or failures in the Internet, telecommunications infrastructure, power failures, domestic disturbances, mobilisation, war, transport blockades, strikes, lockouts, operational disturbances, stagnation in supply, fire, flood, import and export obstructions, and in the event that suppliers of Supplier fail to deliver or fail to deliver in a timely manner.
23.2. In the event of force majeure, the fulfilment of the obligations under the Agreement shall be suspended, for as long as the force majeure situation continues. If the force majeure lasts longer than thirty days, both Parties are entitled to terminate the Agreement in writing without judicial intervention. In such a case, services already performed under the Agreement shall be settled proportionally, without the Parties being otherwise obliged to each other.
Article 24: Limitation period
24.1. Any claim of Principal under this Agreement shall expire twelve (12) months after the cause of the claim has arisen, unless otherwise provided by mandatory law.
Article 25: Use of name and Product
25.1. Supplier has the right to use the name of Principal and the Product (including screenshots) for promotional purposes, such as on their website or in portfolios, unless Principal explicitly objects in writing in advance.
Article 26: Transfer
26.1. Principal is not permitted to transfer or assign any rights or obligations under the Agreement to third parties without the prior written consent of Supplier.
Article 27: Applicable law and disputes
27.1. Dutch law applies to all Agreements between Principal and Supplier. The applicability of the Vienna Sales Convention is excluded.
27.2. Any disputes will be submitted to the competent court in Amsterdam.
In these General Terms and Conditions of delivery will be understood under:
a. Principal: the natural or legal person that, trading in the exercise of his profession or enterprise, has given commission to the supplier to the development and delivery of a website (hereinafter: “Product”) and the execution of the services related thereto (this entirety hereinafter: “Commission”);
b. Supplier: Nathan Lewis, a sole proprietorship under the Laws of the Netherlands, having its seat in Eerste Jan van der Heijdenstraat 108-H, 1072 VB Amsterdam, the Netherlands, and registered with the Chamber of Commerce under number 52479536, that has accepted the Commission or has issued a designated offer or offer prior to a possible Commission;
c. Agreement: the agreement of commission to the manufacturing and delivery of a Product and the execution of the related services that is concluded between Principal and Supplier.
Article 2: General
2.1. These General Terms and Conditions of delivery are applicable to the conclusion (meaning inclusive of all offers, designated offers etc. of Supplier), the content and the compliance with the Agreement or of agreements that are the consequence thereof.
2.2. General Terms and Conditions of Principal, or other general or special terms and conditions (of purchase), are explicitly not applicable to this agreement and will hereby therefore explicitly be rejected.
Article 3: Quotes and offers
3.1. The mere issue of a price statement, budget, ballpark estimate, advance calculation or similar notification, whether or not identified as offers, does not oblige the Supplier to the conclusion of an Agreement with the Principal.
3.2. Offers of the Supplier are each time non-binding.
3.3. Part of the offers issued by Supplier form among others: designs, drawings, models, samples, descriptions, images and so forth, as well as possible Exhibits and documents that relate to the offers. All of this remains, as well as tools made by Supplier in this regard, the property of Supplier, and must be given back to him upon his request and may, without his explicit written permission, not be copied and/or released to third parties. Also, Supplier reserves all rights possibly existing on the basis of intellectual and industrial property.
Article 4: Conclusion Agreement
4.1. The Agreement with Supplier is firstly concluded, when both Parties have accepted and signed this in writing (including also: per e-mail).
4.2. The content of the Agreement will be formed by the Agreement itself, these General Terms and Conditions of delivery and Exhibits to these documents.
4.3. Possible additional agreements made or promises made by employees of Supplier, or made or done on behalf of Supplier by other persons that act as representative, only bind Supplier if these agreements and/or promises have been confirmed by director(s) of Supplier authorised to representation.
Article 5: Commission
5.1. Supplier can involve third parties to execute the Commission. Supplier is not liable for delays, shortcomings and/or damage when this does not derive from commissions to the execution of activities for the exercise of the enterprise of Supplier.
Article 6: Cancellation or delay
6.1. Principal is authorised to cancel the Agreement before Supplier has started with the execution of the Agreement, provided that he compensates the damage emerged because of it for Supplier. Under this damage will be understood among others, the losses suffered by the Supplier and missed profit and the working hours and costs that the Supplier has made already, including that of reserved capacity, purchased materials, called-on services and storage.
6.2. If the final delivery of the Commission suffers delay by the Principal (for instance because Principal misses deadlines for the delivery of information), then Principal is obliged to compensate the damage emerged because of it for Supplier. Under this damage will be understood among others the loss suffered by the Supplier and missed profit and the working hours and costs that the Supplier has made, taking into account the deadlines (think of reserved capacity, purchased materials, called-on services and storage).
Article 7: Information
7.1. Principal must provide Supplier timely with all information and data that are necessary for the execution of the Agreement, including if possible technical data, possible desired applications, files, documentation, test data, work descriptions and/or other relevant information. Principal warrants, and guarantees the correctness of that data. Principal is furthermore responsible for, and accepts the risk of, possible problems and/or claims deriving from the content, preciseness, completeness and consistency of data, materials and information provided by him.
7.2. If information necessary for the execution of the Agreement will not, not-timely, not completely or not in accordance with the agreements be made available to Supplier or if Principal in another manner does not comply with his obligations, then Supplier has the right to suspend the compliance with his obligations without that he can be required to any pay compensation of damages. Supplier is furthermore authorised to bring the costs made extra in relation hereto, into account to Principal.
7.3. Principal bears the risk of misunderstandings concerning the content and execution of the Agreement if these find their cause in communications not, not correctly, not timely or incompletely received by Supplier, that have been made verbally by Principal (or a person designated by him), or have been conveyed by means of any technical means (such as by phone).
Article 8: Price
8.1. All stated prices are exclusive of turnover tax (VAT) and other levies imposed by the government, and unless agreed otherwise explicitly and in writing, exclusive of packaging, costs for transport and other costs.
8.2. The price that Supplier has stated for the performances to be executed by him, applies solely for the performances with the specifications such as agreed in the Statement of Work.
8.3. Supplier has no obligation to delivery of a part of the total performance against the amount stated for this part, or against a proportional part of the price stated for the entirety.
8.4. If only by manner of estimate, a price has been issued or the agreed price on the basis of these General Terms and Conditions of delivery can be changed, then the price or the change will be established by manner of an amount considered as reasonable in the industry.
Article 9: Price changes
9.1. Supplier is authorised to increase the agreed price, when one or more of the following circumstances occur before the day of delivery (after the date on which the Agreement has been concluded):a. Increase of tooling costs, font licensing, media costs or server costs;b. A considerable change in currency dimensions or, in general, circumstances that are comparable therewith.
9.2. Grounds for increase of the agreed price are furthermore also:a. Improper manner of delivery of information by Principal (such as unclear copies, unclear sketches, drawings or models, improper information carriers, improper computer programs or data files);b. Improper manner of delivery of the materials or products to be delivered by Principal; and/or all similar deliveries by Principal, because of which Supplier must make more activities or costs than this might reasonably expect at the conclusion of the Agreement.
9.3. Supplier is authorised to increase the agreed price, if Principal introduces a change in the specifications originally agreed in the Statement of Work. Supplier shall try to cooperate with these changes, if the performances to be executed by him do not materially deviate from the originally agreed performances.
Article 10: Payment term
10.1. Unless otherwise agreed, Principal must pay the price and other amounts due on the basis of the Agreement within 30 days after the date of the invoice, without being able to make a claim on discount, discount or suspension.
10.2. Principal shall make a down payment before Supplier starts with the execution of the Commission. The payment will be divided in 2 terms of which the first term concerns the down payment, for the value of 50% of the entire agreed price.
10.3. In case of non-timely payment, Principal is in default without that notification of default by Supplier is required. Supplier has then the right to suspend the compliance with all of his legal obligations towards Principal, notwithstanding his other lawful rights. Principal may not suspend the compliance with his legal obligations in such a case.
10.4. Principal is each time required to provide upon first request of Supplier surety for payment of the amounts to be paid on the basis of the Agreement to Supplier, or current obligations. The offered surety shall have to properly cover the claim with the interest possibly appeared thereon and costs, and Supplier shall have to be able to take recourse thereon without effort. A (possibly later) surety become insufficient, shall upon first request of the Supplier be supplemented to a sufficient surety.
10.5. If Principal does not timely pay, then he is liable to pay the lawful (trade) interest from the date of the invoice over the amount of the invoice.
10.6. Upon non-timely payment, Principal is, in addition to the due amount and interest, required to full compensation of out-of-court and in-court collection costs, thereunder understood the costs for lawyers, bailiffs and collection agencies.
Article 11: Manner of delivery; retention of title
11.1. Unless otherwise agreed, delivery takes place on the place where Supplier exercises his enterprise.
11.2. Supplier is not required to deliver the Commission in parts.
11.3. Principal is required to grant his full cooperation to the delivery of the Products (for instance by answering without delay of questions by Supplier). If Principal does not do this, then Supplier is authorised to claim, without prior notification of default, payment of the price of the part not taken off.
11.4. Each delivery of Products by Supplier to Principal takes place under precondition of retention of the property thereof until the moment of complete payment of all that Principal is liable to pay on the basis of, related with or deriving from the delivered Products, the Agreement or these General Terms and Conditions of delivery to Supplier (including interest and costs).
11.5. Transport of the Products to be delivered takes place for the account and risk of Principal. Under transport will also be understood transmission of data by means of any technical means.
11.6. If the delivery takes place in parts, then Supplier has the right to regard each delivery as a separate transaction.
11.7. If storage takes place, then this takes place for the account and risk of Principal.
Article 12: Term of delivery
12.1. A term of delivery stated by Supplier, run-through, deadline or planning has, unless it will be agreed in writing that it concerns an ultimate term, only an indicative nature and is not binding. Therefore, the indications of delivery terms can in no manner whatsoever have an imputable shortcoming from the side of Supplier as a consequence. Principal is then in no case whatsoever authorised to make a claim to any compensation of damages.
12.2. The binding of Supplier to an agreed ultimate term of delivery is forfeit if Principal wishes a change in the specifications of the Commission.
12.3. In case of non-timely payment by Principal or when Principal withholds his full cooperation to the delivery of the Product, then an agreed ultimate term of delivery is not binding anymore and Principal is in default without written notification of default. Supplier then has the right to suspend the compliance with all his legal obligations towards Principal, notwithstanding his other lawful rights. Principal may not suspend the compliance with his legal obligations in such a case. If Principal amends his default, then Supplier shall execute the Agreement within a reasonable term.
Article 13: Inspection upon acceptation test and delivery
13.1. Upon delivery, Principal shall subject the Product to an acceptance test. The acceptance test has a purpose to establish that the Product delivered by Supplier, complies with the (functional) specifications stated by Principal and recorded in the Statement of Work.
13.2. During the acceptance test, Supplier can assist Principal upon his request against its current rates.
13.3. In case of non-acceptation, Principal shall send to Supplier within five working days after the acceptance test has taken place, a written statement with the grounds of non-acceptation. Small bugs and issues (such as defects that by their nature or number reasonably do not stand in the way of business wise taking into use), shall be no ground for non-acceptation.
13.4. Principal is after delivery (which takes place after the acceptance test) required to examine with urgency whether Supplier has complied with the Agreement properly. Also, Principal is required to notify Supplier immediately in writing, as soon as he is aware of the contrary. Principal must make this inspection and the notification within no more than fourteen days after delivery.
13.5. If and insofar possible, Supplier shall amend bugs and issues to the best of his abilities. Principal shall complain in writing, with a clear and precise description of the complaint.
13.6. Bugs that at the time of the delivery could not show upon a careful and timely inspection, must be brought to the knowledge of Supplier by Principal within 60 days after delivery.
13.7. Compliance with the Agreement is proper, if Principal has remained in default with the inspection or issuing a notification in the sense of this article timely.
13.8. The compliance by Supplier applies in each case as proper, if Principal has taken the delivered or a part of the delivered in use, has treated or processed it, has delivered it to third parties, respectively has let be taken in use, has let be treated or processed or has had delivered to third parties, unless Principal has executed a timely inspection or issued a notification in the sense of this article.
13.9. Defects — defined as imperfections that result from deviations from the (functional) specifications outlined in the Statement of Work, which the product should not have had — discovered within four weeks of delivery, will be corrected free of charge within a reasonable time frame.
13.10. Each legal claim of the Principal towards Supplier concerning defects in the delivered Products, is forfeit if:
a. the defects have not been brought to the knowledge of within the set terms or not in the designated manner to Supplier;
b. the Principal grants no/insufficient cooperation with regard to an inspection to the foundation of the complaints;
c. the Principal has not installed, treated, used, stored or maintained the Products in the correct manner or he has used or treated the Products under circumstances or for purposes otherwise than foreseen by Supplier;
d. the use of the Products with regard to which the complaints have been expressed, will be continued by the Principal.
Article 14: Key Deliverables
14.1. The Principal is required to thoroughly review the material resulting from the Key Deliverables provided by the Supplier—whether requested or not—for any errors, defects, incorrect specifications, miscalculations, or any deviations from the agreed requirements. The Principal must promptly return the material to the Supplier, either corrected or approved, without undue delay.
14.2. Approval of material by Principal applies as acknowledgement that Supplier has executed the activities prior to the concept, correctly.
14.3. Supplier is not liable for deviations, errors and defects that have remained unnoticed in material approved or corrected by Principal.
Article 15: Deviations
15.1. Deviations between on the one hand the delivered Product and on the other hand the original Interaction design document, Technical document or Visual design, can form no reason for rejection, discount, dissolution of the Agreement or compensation of damages, if they are of a minor or slight meaning or are unavoidable.
15.2. Deviations that in reasonableness have no or a subordinate influence on the use value of the Product, will each time be deemed to be deviations of slight meaning.
Article 16: Hosting disclaimer
16.1. Supplier will propose a hosting partner and a suitable hosting package, based on traffic estimations and peak usage moments as outlined in the Statement of Work. The Principal may also request a specific hosting partner or package, subject to Supplier’s approval. Supplier shall charge a one-time fee for the setup with the hosting partner. However, Supplier bears no responsibility for the hosting service itself, including but not limited to downtime, hardware failures, performance issues during peak traffic, or if the proposed hosting package fails to meet traffic demands or estimations. Supplier is not liable for any damages resulting from these hosting issues.
16.2. Supplier will deliver the Product on a customary medium to the hosting partner or any third party responsible for the hosting. In case of hosting-related issues, such as downtime, performance failures, or underperformance due to inaccurate traffic estimations, Supplier will mediate with the hosting partner to help find a resolution as quickly as possible. However, this mediation may incur additional costs, which will be communicated to the Principal beforehand. Supplier remains free of responsibility for the hosting environment’s performance, reliability, or adequacy in handling traffic beyond estimations.
Article 17: Warranty
17.1. Supplier provides the following warranties with regard to the Product:
a. Support for specific browsers and operating systems, as outlined in the Statement of Work, for a period of three months following final delivery. These may include, but are not limited to, certain versions of Internet Explorer, Edge, Firefox, Chrome, Safari, and mobile browsers as specified in the Statement of Work.
b. Support for specified operating systems, such as macOS and Microsoft Windows, as detailed in the Statement of Work, for a period of three months following final delivery.Supplier expressly rejects all other warranties, whether explicit or implied.
17.2. These warranties do not apply when Principal does not comply with the Agreement or these General Terms and Conditions of Delivery, or when a defect is the consequence of:
a. Hardware disruptions by defects, electricity problems, environmental problems or any other cause that lies not in the Product;
b. Modification of the operating systems of the Product or computer hardware by any other party than the Supplier;
c. Abuse, errors or negligence by Principal, his employees, contractors, agents or representatives in the use of the Product;
d. (Automatic) updates of incorporated Open Source technologies, including but not limited to: DatoCMS, Storyblok, WordPress, third-party plugins and software.
17.3. Supplier does not warrant that the Product shall work without defects and that all defects can be resolved or improved. Supplier shall make an effort as a good supplier should, to amend and/or improve the defects. Parties enter in consultation to solve in joint consultation the defects against suitable compensation.
Article 18: Intellectual property
18.1. If Supplier gets works available from Principal in the framework of the Commission, then Principal warrants that he has the intellectual property right or has acquired such a licence on the works, that the Supplier is permitted in the framework of the Commission to execute acts with regard to these works. Principal safeguards Supplier from all claims of third parties that concern infringements on intellectual property rights as referred to before.
18.2. Supplier shall transfer all intellectual property rights, inclusive of patents, copyrights, trade secrets and other property rights (hereinafter: “IE-rights”) on the Product, to Principal after Full Payment, meaning full payment of all what Principal is liable to pay on the basis of, related with or deriving from the delivered Products, the Agreement or these General Terms and Conditions of Delivery to Supplier (including interest and costs).
18.3. After the Full Payment, the transfer of IE-rights shall take place by means of a separate written deed of transfer. Principal shall give Supplier hereby a non-exclusive, irrevocable, worldwide and continuous licence to use the Product.
18.4. Other IE-rights that derive from the Commission, such as IE-rights deriving from the services of Supplier, remain with Supplier unless Supplier and Principal agree otherwise in writing.
18.5. Principal acknowledges that Supplier possesses licences to use and sublicense various development tools, routines, subroutines and other programs, data and materials (hereinafter “Background Technology”). Supplier can use Background Technology in the Product. Supplier reserves all IE-rights on the Background Technology. After Full Payment, Supplier gives Principal a non-exclusive, irrevocable, continuous and worldwide licence to use the Background Technology in the Product (and all updates and reviews thereof). Principal shall however in no other manner whatsoever make commercial use of the Background Technology, without written permission of Supplier thereto.
18.6. Upon the Principal’s request, Supplier shall make the source code and object code of the Product available, provided that full payment has been received.
18.7. Supplier makes in the design phase and test environment use of images, fonts, icons and other elements on which copyrights rest. Principal can therefore not take over concepts. Supplier is not liable when Principal still uses or discloses the concepts in any manner.
18.8. Supplier can make use of Open Source technologies in its Product (among others content management systems & plugins). Supplier is not liable for possible errors, bugs or other shortcomings that emerged by use of these technologies. Stipulations regarding precondition of intellectual property rights apply not insofar that is in violation of possibly applicable open source licences.
Article 19: Property Principal, right of lien
19.1. Supplier shall keep the goods entrusted by Principal in the framework of the compliance with the Agreement to him, with the care of a good custodian. Principal bears however, during the custody all risks with regard to the goods referred to. Principal must, if so desired, self-conclude an insurance for this risk.
19.2. Principal is required to ensure that, prior to the provision to Supplier of branding components, design, photo, text or any other material, a duplicate of these goods will be made. Principal must keep these under him, in case the released goods during the custody by Supplier will be lost or will become unusable. In that case, Principal must provide Supplier upon request with a new copy.
19.3. Principal grants Supplier a right of lien on all goods that in the framework of the compliance with the Agreement with Supplier will be brought by him in the control of Supplier, for extra surety of what Principal is liable to pay on the basis of, related with or deriving from the delivered Products, the Agreement or these General Terms and Conditions of delivery to Supplier (including interest and costs).
19.4. The Principal does not have the right to give Products in lien, to vest thereon as possession less right of lien or to vest any other property or personal right for the benefit of a third party before full payment.
19.5. If by treating or processing by Principal the property right of Supplier resting on Products delivered by him, has been lost, then Principal is obliged without delay for the benefit of Supplier to vest a possessionless right of lien on the goods emerged after the treatment or processing.
Article 20: Termination
20.1. In case of cancellation of the Agreement by Principal, he is obliged to pay to Supplier a compensation in the amount of:
a. the costs that Supplier has made until then for execution of the Commission; and
b. the value of the man-hours that have been made and done and the works that have been made and done (by) Supplier (designated persons) until then for the execution of the Commission.Supplier shall budget this compensation. Possible rights (such as licences) of Principal with regard to the Product, shall end immediately.
20.2. Supplier can cancel the Agreement with Principal each time immediately, when Principal comes short concerning one or more of his obligations or if it is likely for Supplier that Principal is or shall not be able or willing to comply with his obligations. Supplier is because of this termination never required to any refunding of already received monies or to compensation of damages. Principal is required to compensate all costs already made by Supplier immediately, notwithstanding the right of Supplier to claim full compensation of damages.
20.3. In case of cancellation of the Agreement by Supplier, Principal shall:
- immediately stop the use of the Product;
- within five days after the cancellation, give back to Supplier all copies and parts of the Product and related materials and documentation.Possible rights (such as licences) of Principal with regard to the Product, shall end immediately.
20.4. Cancellation can only take place by means of a registered letter or letter sent with confirmation of receipt.
20.5. Both Parties can cancel this agreement in writing without notification of default with immediate effect in whole or in part if:
a. the counterparty – whether or not provisionally – will be granted suspension of payment;
b. with regard to the counterparty bankruptcy will be requested;c. the enterprise of the counterparty will definitely be liquidated or terminated.
Article 21: Secrecy
21.1. The Parties shall use any confidential information acquired or made available by one Party to the other solely in accordance with the terms of the Agreement. Neither Party shall disclose this information to third parties, directly or indirectly, or grant permission for such disclosure, without prior written consent from the other Party. The Principal must clearly indicate in writing when information is considered confidential, except for login information and passwords, which are deemed confidential by default. Both Parties shall take all necessary precautionary measures to protect confidential information from unauthorised use or disclosure.
21.2. Information is not confidential if:
a. the Supplier already knew the information before the Principal disclosed this to him;
b. the information – without error of the Supplier – will be disclosed publicly;
c. Supplier receives the information from third parties that do not have to observe secrecy towards Principal;
d. and information that the Supplier develops independently.
Article 22: Liability
22.1. Supplier is not liable for:
a. deviations, errors and defects that remained unnoticed in material approved or corrected by Principal (Article 14.3);
b. deviations, errors and defects in the delivered if Principal has not made or not made timely the inspection referred to in Articles 13 and 14 or has not issued a notification in the designated manner;
c. deviations, errors and defects caused by third parties such as the hosting partner (Article 16);
d. deviations, errors and defects that are the result of incorrect, incomplete or improper information, data carriers, data, hardware, software or operating systems or a combination of these, supplied by Principal;
e. bugs or issues in incorporated Open Source technologies (Article 18.8);
f. errors or defects that occur because Supplier has, upon explicit request of Principal, delivered contrary to his advice or explicit instruction.
22.2. Supplier is solely liable for direct damages. Direct damage solely refers to:
- the reasonable costs to determine the cause and extent of the damage, insofar the determination relates to damage in the sense of these terms;
- any reasonable costs incurred to make Supplier’s defective performance comply with the Agreement, unless they cannot be attributed to Supplier;
- reasonable costs incurred to prevent or limit damage, insofar Principal demonstrates that these costs led to limitation of direct damage as referred to in these General Terms and Conditions.
22.3. Supplier’s liability is limited at all times to the amount paid out under his liability insurance. If the insurance does not pay out or no insurance is applicable, then Supplier’s liability is limited to the amount invoiced for the part of the Commission that caused the damage, with a maximum of EUR 5,000. Any further liability is excluded.
Article 23: Force majeure
23.1. Force majeure is understood to include any failure in the fulfilment of the Agreement that cannot be attributed to either Party, because it is not their fault and neither under the law, a legal act or generally accepted practice is for their account. In any case, force majeure includes breakdowns or failures in the Internet, telecommunications infrastructure, power failures, domestic disturbances, mobilisation, war, transport blockades, strikes, lockouts, operational disturbances, stagnation in supply, fire, flood, import and export obstructions, and in the event that suppliers of Supplier fail to deliver or fail to deliver in a timely manner.
23.2. In the event of force majeure, the fulfilment of the obligations under the Agreement shall be suspended, for as long as the force majeure situation continues. If the force majeure lasts longer than thirty days, both Parties are entitled to terminate the Agreement in writing without judicial intervention. In such a case, services already performed under the Agreement shall be settled proportionally, without the Parties being otherwise obliged to each other.
Article 24: Limitation period
24.1. Any claim of Principal under this Agreement shall expire twelve (12) months after the cause of the claim has arisen, unless otherwise provided by mandatory law.
Article 25: Use of name and Product
25.1. Supplier has the right to use the name of Principal and the Product (including screenshots) for promotional purposes, such as on their website or in portfolios, unless Principal explicitly objects in writing in advance.
Article 26: Transfer
26.1. Principal is not permitted to transfer or assign any rights or obligations under the Agreement to third parties without the prior written consent of Supplier.
Article 27: Applicable law and disputes
27.1. Dutch law applies to all Agreements between Principal and Supplier. The applicability of the Vienna Sales Convention is excluded.
27.2. Any disputes will be submitted to the competent court in Amsterdam.
