Terms and conditions

GENERAL TERMS AND CONDITIONS

WebIQ B.V., Pagewize B.V. and VertilinQ B.V.

 

 

These general terms and conditions consist of three modules. Module A contains general provisions that apply to every agreement. Module B contains provisions that additionally apply when software is made available. Module C contains provisions that apply in addition if the agreement (also) relates to setting up a website or webshop. 

 

A. General

 

Article 1. Definitions

1. In these general terms and conditions, the following capitalised terms are defined as stated below:

 

User:the user of these Terms and Conditions, being WebIQ B.V., listed in the Commercial Register of the Chamber of Commerce under number 68115946, Pagewize B.V., listed in the Commercial Register of the Chamber of Commerce under number 68116020, or VertilinQ B.V., listed in the Commercial Register of the Chamber of Commerce under number 69579458;

Customer:the sole proprietorship or legal entity that contacts the User in connection with a possible Agreement to be concluded or that has concluded an Agreement with the User;

Agreement:the agreement for the delivery of a SaaS service and any related services between the User and the Customer;

SaaS service:the remote provision and maintenance of functionality by the User to the Customer via the Internet or another data network, without the Customer being provided with a physical medium or download containing the underlying software;  

The Parties:The User and Customer;

Terms and Conditions: these general terms and conditions.

 

Article 2. General

1. These Terms and Conditions apply to all legal relationships in which the User acts as (potential) supplier, including all Offers and Agreements.
2. Deviations from and additions to the Agreement and/or these Terms and Conditions are only valid if such agreements are made by a person authorised to do so within the User's organisation and if these deviations and additions have been agreed in writing. Agreed deviations do not apply to subsequent agreements, unless agreed in writing.
3. The application of the Customer's general terms and conditions, under whatever name, is excluded.
4. The User has the right to unilaterally change these Terms. In that case, the User will notify the Customer of the change(s) in a timely manner. The amended terms and conditions will enter into force 14 (fourteen) days after this notification. 

 

Article 3. Offers and conclusion of Agreement

1. All offers from the User are without obligation. The Customer cannot derive any rights from this, unless expressly agreed otherwise in writing. Any brochures, price lists, etc. used by the User are also without obligation.
2. If the User has based its offer on information provided to the User by the Customer or on behalf of the Customer, the Customer guarantees the accuracy and completeness of that information.
3. If a period of validity is stated in an offer, this offer will only be open for acceptance during the period stated therein. The User has the right to revoke the Offer within any specified period of validity.
4. An Agreement will only be concluded if 1) the Parties have both signed the written document drawn up for that purpose, 2) the User confirms the assignment in writing after acceptance of the offer by the Customer, or 3) if the User has commenced the execution of the work offered or requested.

 

Article 4. Execution of the Agreement and information obligations

1. The User will perform the Agreement to the best of its knowledge and ability and in accordance with high standards. Within the context of the performance of its services, the User is under an obligation to use best endeavours, unless the Parties have expressly agreed in writing on a specific result and this result has also been expressly guaranteed in writing by the User. 
2. The User has the right to have work carried out by third parties. 
3. Any term of (delivery) or date (of completion) agreed in the Agreement is indicative and cannot be regarded as a final deadline. Upon expiry of such a term, the User will not automatically be in default. The User will only be in default due to exceeding a term (of delivery) or date (of completion) after the Customer has given the User written notice of default and the User fails to remedy its shortcoming within a reasonable term of at least 14 (fourteen) days, set by the Customer for this purpose. The notice of default must contain a description of the shortcoming that is as complete and detailed as possible, so that the User is given the opportunity to respond adequately.
4. The User is no longer bound by a date (of completion) or term (of delivery) term if the Parties have agreed to a change in the content or scope of the Agreement, if the User carries out additional work for the Customer as referred to in Article 5 paragraph 14, or if the Customer fails to fulfil his obligations under the Agreement and/or these Terms and Conditions, or fails to do so on time or in full. 
5. Services are always performed by the User on the basis of an obligation to use best efforts, unless the User has expressly promised a result in a written Agreement and the desired result is sufficiently defined in the Agreement. 
6. In order to enable proper performance of the Agreement by the User, the Customer will always provide the User with all data or information reasonably requested by the User in a timely manner. The Customer guarantees the accuracy and completeness of the data, information and specifications provided by him to the User.
7. The Customer will provide the necessary equipment, infrastructure and supporting software and install and set up the (support) software required on his own equipment and, if necessary, adapt and keep up to date the equipment, other (support) software and user environment used for this purpose and achieve any interoperability as desired by the Customer.

 

Article 5. Prices, invoicing and payment

1. All prices stated by the User are in Euros and exclusive of turnover tax and other government-imposed levies.
2. The Customer cannot derive any rights from a preliminary calculation or estimate issued by the User, unless the Parties have agreed otherwise in writing. A budget made known by the Customer will only be considered as a (fixed) price agreed between the Parties if this has been expressly agreed in writing.
3. The User has the right to adjust the agreed prices on 1 January of each year, in accordance with the Service Price Index (2015=100). Indexation may be applied for the first time on 1 January of the year following the year in which the Agreement was concluded.
4. The User has the right to increase the agreed prices if, after conclusion of the Agreement, circumstances arise that increase the (cost) price. Such circumstances include, but are not limited to: increases in government levies and/or taxes domestically and abroad, changes in wages, salaries and social security contributions, changes in exchange rates and increases in prices charged to the User by the User's licensors and/or suppliers. Any change in the agreed prices will be communicated to the Customer in writing and does not give the Customer the right to terminate the Agreement.
5. Complaints regarding invoices must be reported to the User in writing within 8 (eight) days after the invoice date. Objections submitted will be processed by the User, but do not suspend the Customer's payment obligation(s).
6. Payment must be made in the manner as specified in the Agreement within 14 (fourteen) days after the invoice date, without the Customer being entitled to any discount or set-off, unless the Parties have agreed otherwise. 
7. Immediately on request of the User, the Customer is obliged to provide sufficient security for payment for the fulfilment of his (further) payment obligations, which security must satisfy the User. If the Customer does not comply with this within the period set by the User, he will immediately be in default. Until the requested security has been provided, the User is not obliged to (continue to) perform the Agreement.
8. If the Customer fails to pay an invoice within the payment term set for this purpose, the Customer will be in default by operation of law pursuant to Article 6:83, preamble and sub a of the Dutch Civil Code, while the Customer will owe default interest of 1.5% on the outstanding amount during the period of default. If the applicable statutory commercial interest rate is higher than the aforesaid percentage, the statutory commercial interest rate applies. Furthermore, part of a month will be considered a full month when calculating interest. Furthermore, all other claims of the User against the Customer will become immediately due and payable, and the default applies to those claims as well, without notice of default. In that case, the User may suspend its obligations under any Agreement concluded with the Customer until full payment of the outstanding amount plus interest due has been received, or proceed to fully or partially terminate such Agreements. 
9. All judicial and extrajudicial costs incurred by the User on account of the Customer failing to meet his payment obligations or other obligations that the Customer has under the Agreement and/or these Terms and Conditions will be payable by the Customer.
10. The User is entitled to offset all claims it has against the Customer, regardless of whether these claims are already due, against any claims the Customer has against the User. 
11. The Customer is not permitted to suspend his payment obligations or to offset his claims against the User. 
12. Payments by the Customer will first be deducted from the extrajudicial costs, then from the interest due and then from the longest outstanding invoice.
13. The User may retain the data, documents, software and/or data files received or created within the context of the Agreement, despite any existing obligation to surrender or transfer, until the Customer has paid all amounts owed to the User.
14. If the User has performed work or other services at the request or with the prior consent of the Customer that fall outside the original content or scope of the Agreement, such work or services will be paid by the Customer at the agreed rates and, in the absence thereof, at the User's usual rates. The User is not obliged to comply with a request as referred to in this paragraph.

 

Article 6. Intellectual property and user rights

1. All intellectual and industrial property rights with regard to everything that has been or will be developed by the User during or before commencement of the Agreement or that has been or will be developed by third parties for the User and/or that has been or will be made available to the Customer, including, but not limited to, software, (designs for) websites, data files, databases, equipment, documentation, reports, advice, quotations, as well as preparatory material thereof, rest exclusively with the User, its licensors or its suppliers. 
2. The Customer will only obtain the user rights and powers expressly granted under the Agreement and/or these Terms and Conditions. The acquired user rights will automatically end once the Agreement has ended.  

 

Article 7. Obligation to complain

1. Complaints about the services provided by the User must be reported in writing by the Customer to the User within 8 (eight) days of discovery, but no later than 14 (fourteen) days after completion of the relevant work, under penalty of forfeiture of any right of the Customer in this regard. The notification must contain as detailed a description of the shortcoming as possible, thus enabling the User to take appropriate action. 

 

Article 8. Liability

1. The total liability of the User for attributable shortcomings in the performance of the Agreement or on any other legal basis whatsoever, expressly including any shortcoming in failing to meet a warranty or indemnity obligation agreed with the Customer, will be limited to compensation for damage or loss as set out in this article.
2. In all cases, the User will only be liable for damage or loss suffered by the Customer as a result of any failure to fulfil its obligations or on any other grounds whatsoever or in case of intent or deliberate recklessness on the part of (the management of) the User. 
3. Under no circumstances will the User be liable for (indirect) damage or loss consisting of loss of turnover or goodwill, reduced revenue, lost profit, losses suffered or costs incurred, missed assignments and missed savings or for other indirect damage or loss.
4. The User is not liable for any damage or costs resulting from use or abuse of access or identification codes, certificates or other means of security.
5. The User is not liable for damage or loss caused by intent or gross negligence on the part of its subordinates and/or non-subordinates for whom it is liable under the law.
6. Without prejudice to the provisions of the previous paragraphs of this article, the total liability of the User for damage or loss suffered by the Customer and/or third parties is in all cases limited to the maximum amount paid out under its liability insurance in the relevant case, minus the policy excess. The User is not obliged to make a claim under its liability insurance when held liable by the Customer. In the event that the User's liability insurance does not provide coverage, its liability will be limited to the maximum price agreed for and under the Agreement (exclusive of VAT). If the Agreement is primarily a continuing performance contract with a term of more than one year, the price agreed for that Agreement will be set at the total fee agreed for one year (exclusive of VAT). In no event will the total liability of the User, on whatever legal basis, exceed € 25,000. 
7. A claim for damage or loss by the Customer will only be valid subject to the Customer having met all his payment obligations towards the User. All claims of the Customer under this article expire one year after the damage or loss occurred.
8. The User stipulates all legal and contractual defences which it can invoke to shield itself from its own liability towards the Customer, also for its subordinates and non-subordinates for whose acts it is liable under the law.
9. Except in the case of intent or deliberate recklessness on the part of (the management of) the User, the Customer will indemnify the User, its employees and other (legal) persons engaged by the User in the performance of the Agreement against all third-party claims for compensation for direct and indirect damage or loss and/or costs in connection with (the performance of) the Agreement. 
10. The foregoing provisions do not affect any liability under mandatory law.

 

Article 9. Force majeure

1. Force majeure on the part of the User is deemed to exist if the User is prevented from fulfilling its obligations under the Agreement as a result of circumstances beyond the User's control or responsibility. Force majeure on the part of the User includes, but is not limited to, (i) force majeure, shortcomings or bankruptcy of suppliers and/or licensors of the User, (ii) government measures, (iii) power outages, (iv) disruptions on the Internet and in data network or telecommunications facilities, (v) cybercrime, (cyber-)vandalism, war or terrorism and (vi) pandemic or epidemic.
2. In the event of force majeure, the User may suspend its obligations under the Agreement, including statutory obligations and/or agreed warranty obligations. If the period in which the User is unable to fulfil its obligations under the Agreement due to force majeure exceeds a period of 60 (sixty) days, the User and the Customer will have the right to terminate the Agreement by means of a written statement, without being obliged to pay or receive any compensation.

 

Article 10. Cancellation and termination 

1. Unless otherwise agreed in writing, an Agreement entered into for a fixed period cannot be cancelled prematurely. 
2. Unless otherwise agreed in writing, an Agreement entered into for an indefinite period may only be cancelled at the end of the contract year, with due observance of a notice period of 3 (three) months.
3. Either party may, without notice of default being required, fully or partially terminate the Agreement with immediate effect if:

• the other party fails to fulfil any obligation under one or more Agreements and/or these Terms and Conditions, or fails to do so properly or in a timely manner, and continues to fail to do so after a written notice of default has been sent in which the other party is granted a reasonable period of at least 14 (fourteen) days to fulfil its obligations in full;
• the bankruptcy of the other party has been filed for or a request for suspension of payments has been made;
• the other party has requested to be eligible under the Court Approval of a Private Composition (Prevention of Insolvency) Act, or such eligibility has been granted;
• the other party is dissolved, ceases to exist through a merger or otherwise ceases to exist or trade.

1. The User may also fully or partially terminate the Agreement, with immediate effect and without notice of default, if decisive control over the Customer's company changes directly or indirectly.
2. In the event of termination of the Agreement on the basis of this article, the User is not entitled to any damages, reimbursement of monies received or other compensation. 
3. If, at the time of termination, the Customer has already accepted delivery of some of the services under the Agreement, these services and associated payment obligations will not be subject to cancellation. Amounts invoiced by the User prior to termination in connection with what it has performed or delivered under the Agreement to date will remain payable in full, subject to the provisions of the previous sentence, and will become immediately due and payable at the time of termination.
4. If the Customer becomes irrevocably bankrupt, the Customer's right to use the software made available and the Customer's right to access and/or use the User's services will end with immediate effect, without any legal intervention on the part of the User being required.

 

Article 11. Confidentiality

1. The User is obliged to maintain confidentiality of all confidential information obtained by it within the context of the Agreement or from other sources. Information is considered to be confidential if this has been communicated as such by the Customer or if this follows on from the nature of the information. 
2. The User is authorised to mention/use the assignment, name and logo of the Customer within the context of its marketing communications. The User will refrain from disclosing any information relating to the Customer's company and that is confidential in nature.
3. The User reserves the right to use the knowledge acquired through the performance of the work, including the data generated by the User within the context of the performance of the Agreement, for other purposes, on the express condition that no confidential information is disclosed to third parties and that only non-personally identifiable (aggregated) data is used.
4. The Customer undertakes to maintain absolute confidentiality with regard to everything that becomes known to the Customer during or in the performance of the Agreement by the User concerning the User's business. This obligation also applies with respect to all other data of which the Customer knows or can reasonably understand that disclosure thereof to a third party could harm the interests of the User.
5. The Customer acknowledges that the software made available by the User is at all times confidential.
6. All information and documents provided by the User, including, but not limited to, reports, advice, designs and software, are intended solely for the Customer's personal use. The Customer is not entitled to reproduce, publish, make available to third parties or use or transfer to third parties any information, documentation or software (modules) without prior written permission from the User. 

Article 12. Processing of personal data

1. Responsibility for the personal data processed using a service provided by the User lies solely with the Customer. The Customer warrants towards the User that the content, use and/or processing of the personal data is not unlawful and does not infringe any third-party rights. The Customer indemnifies the User against any third-party legal claims, on any grounds whatsoever, in connection with these personal data or the performance of the Agreement. 
2. If the User is required under the Agreement to provide some form of information security, such security will comply with the security specifications as agreed in writing between the Parties. The User never guarantees that information security is effective under all circumstances. If the Agreement does not contain an explicitly defined security measure, the security measure will meet a level that is not unreasonable given the state of the art, the sensitivity of the personal data and the costs associated with implementing the security measure.

 

Article 13. Other provisions

1. The User may transfer its rights and obligations under the Agreement to a group and/or subsidiary company or to a third party. The Customer may not transfer the Agreement or rights and obligations under the Agreement to third parties without the express prior written consent of the User. 
2. If one or more provisions of the Agreement or these Terms and Conditions are void or otherwise unenforceable, it will not affect the validity of the remaining provisions. The parties undertake to make (such) arrangements that reflect the purport of the non-binding provision(s) as closely as possible.
3. In the event of any ambiguities and/or contradictions between these Terms and Conditions and any translations thereof, the Dutch version will prevail.
4. In the event of any conflict between any provision of the Agreement and these Terms and Conditions, the provisions of the Agreement will prevail.

 

Article 14. Applicable law and competent court

1. These Terms and Conditions, all Agreements and other legal relationships between the User and the Customer, of whatever nature, are governed by Dutch law.
2. The competent judge of the District Court of Gelderland, Arnhem location, has exclusive jurisdiction to hear all disputes between the Parties, unless this is in conflict with mandatory law. The User may deviate from this jurisdiction rule and apply statutory jurisdiction rules instead. If the Customer is established in a country that does not recognise a judgment rendered in the Netherlands, the User will have the authority to submit a dispute to an arbitration tribunal, which will consist of either one or three arbitrators, this at the User's discretion, and which will be appointed in accordance with the Arbitration Regulations of the International Chamber of Commerce (ICC). The dispute will be settled in accordance with the aforesaid Arbitration Regulations. The place of arbitration will be Arnhem, the Netherlands. The language in which the arbitration proceedings will be conducted will either be in English or Dutch, at the discretion of the User, to be determined prior to the arbitration proceedings. The Customer expressly agrees to this alternative form of dispute resolution.

 

B. Software

 

Article 15. Software

1. The User makes software available to the Customer solely as a SaaS service. The User is never obliged to provide the Customer with a physical medium or download of the underlying software.
2. The Customer is granted a non-exclusive, non-transferable, non-sublicensable and revocable right to use the software during the term of the Agreement. The Customer's right of use does not extend to the use of or access to the source code of the software. 
3. The Customer is only entitled to use the software for his own company, insofar as necessary for the intended use and insofar as this arises from the Agreement. Unless the User has given written consent, the Customer is prohibited from allowing third parties to use the software made available.
4. If the use of the software is made available by the User to the Customer on a "named users" basis, the user rights to the software are personal and the Customer is not authorised to allow the software to be used by users other than the designated users.
5. The passwords, access or identification codes and certificates provided to the Customer are confidential, must be treated as such by the Customer and may only be disclosed to authorised staff within the Customer's own organisation. The Customer guarantees that his staff will strictly observe the aforesaid confidentiality.
6. If the User itself, or suppliers or licensors of the User, modify the software made available to the Customer or release or publish a new version of said software, the User will have the right to make the new or modified version of the software available to the Customer, without the Customer having the right to terminate the Agreement prematurely in that case. The User is not obliged to maintain, modify or add specific features or functionalities of the software for the Customer, unless the Agreement expressly provides for this.
7. Unless otherwise agreed, the Customer will install, set up and configure the software, convert and upload any data, as well as, if necessary, adjust the equipment and user environment used.
8. If the Parties have not agreed on an acceptance test, the Customer accepts the software in the condition it is in at the time of delivery ("as is, where is"), i.e. with all visible and invisible errors and defects. In that case, the software will be deemed to have been accepted by the Customer upon delivery or, if installation by the User has been agreed in writing, upon completion of the installation.
9. If the User makes third-party software available to the Customer, the (licensing) conditions of the relevant third parties will apply to the relationship between the Parties, notwithstanding any provisions in these Terms and Conditions that deviate therefrom. If the aforesaid third-party conditions prove to be inapplicable or are declared inapplicable in the relationship between the Parties for whatever reason, these Terms and Conditions will apply in full between the Parties.

 

Article 16. Software warranty and maintenance

1. The User does not guarantee that the software made available to the Customer is error-free and flawless, that all errors or defects will be corrected, that solutions can be provided for all user problems and/or that the software will be adapted to changes in relevant laws and regulations in a timely manner. 
2. With regard to the software made available to the Customer, all services relating to the maintenance of that software are provided on the basis of an obligation to use best endeavours.
3. If the User's services are (partly) aimed at supporting the Customer's business operations by unlocking data for the Customer and presenting it in a clear manner, the Customer acknowledges that the services provided by the User have a facilitating purpose only and that the User is not responsible or liable for (the consequences of) the choices made on the basis of information presented by the User. The Customer using the software made available by the User and/or the results thereof is therefore always at the Customer's risk.
4. The Customer is obliged to notify the User in detail of any errors, requests for change or user problems found in or with respect to the software. After receiving the notification, the User will make every effort to correct the errors and/or to make improvements in new versions of the software. The User has the right to implement temporary solutions, programme workarounds or problem-avoiding restrictions in the software.
5. The User has the right to suspend or limit maintenance of the software if the Customer fails to follow the User's instructions or fails to follow them in a timely manner and/or if the Customer's infrastructure and telecommunications facilities do not meet the requirements set by the User.
6. New versions or updates of the software will only be made available if this has been agreed in writing.
7. Maintenance of the software does not include the correction of errors, defects or imperfections resulting from or related to:

• user errors or improper use of the software;
• modification of the software other than by or on behalf of the User;
• software use in violation of its terms or in violation of the instructions in the user documentation;
• modifications, errors, defects or imperfections in equipment or software other than that covered by the User's maintenance;
• use of an old version of the software that is no longer maintained by the User;
• (recovery of) corrupted or lost data; and/or
• other causes not attributable to the User.

1. If the User performs maintenance or other work in connection with the provisions of paragraph 7, the User has the right to charge the (additional) costs of that maintenance or work to the Customer, at its usual rates.
2. The User has the right to temporarily disable the software made available, in whole or in part, for preventive, corrective or adaptive maintenance or other forms of service. The User will minimise any period of unavailability to a minimum and, if possible, ensure that this period is planned outside office hours. The User will endeavour to inform the Customer in a timely manner about any faults, (planned) maintenance and foreseeable periods of unavailability.

 

Article 17. Service Level Agreement

1. Any agreements regarding service levels will only be valid between the Parties if agreed in writing.
2. The User only assumes an obligation to use best endeavours with regard to all agreed service levels. There is expressly no obligation to achieve results, unless the Parties agree otherwise in writing.
3. The level of availability of the SaaS service measured by the User will be considered as full proof, unless the Customer provides evidence to the contrary.

 

 

C. Online environment

 

Article 18. Obligations of the Customer 

1. The User enables the Customer to set up the purchased services himself. The Customer must respect third-party rights, not post any content that is unlawful and refrain from distributing viruses or other content (malware) that damages third-party equipment or software.
2. The Customer guarantees that no third-party rights oppose the provision of equipment, software, material intended for websites (images, text, music, domain names, logos, hyperlinks, etc.), data files or other materials, including design material, for the purpose of use, editing, installation or incorporation into a website/platform.
3. The Customer indemnifies the User against any third-party claim pertaining to the aforesaid provision for use, editing, installation or incorporation infringing any rights of that third party. The (legal) costs that the User must incur in this regard will be payable by the Customer.

 

Article 19. Web design

1. The User programmes according to W3C web standards. However, sometimes the code cannot be validated due to the use of specific JavaScript. In that case, the User is not liable for any damage or loss suffered by the Customer. In these cases, the User will make an effort to test the website on different platforms in order to keep differences to a minimum.
2. The User supports the latest two versions of Internet Explorer (Windows), Firefox (Windows and Mac OSX), Chrome (Windows and Mac OSX) and Safari (Mac OSX) by default. With regard to other and/or outdated browsers, the User cannot guarantee that the website will function fully and/or match the intended design.