This translation can only be used in combination with and as explanation to the Dutch text. In the event of a disagreement or dispute relating to the interpretation of the English text the Dutch text will be binding. These general terms and conditions are subject to Dutch Law.
Article 1 Parties
1.Klik Webmedia, registered with the Chamber of Commerce under number 05084676, established in Zwolle at Hoedenmakerstraat 11 (8043 BJ) in Zwolle, user of these general terms and conditions.
2. Further details of Klik Webmedia:
Website: www.klikwebmedia.com
Email: [email protected]
Phone number: +31 (0)85 060116
VAT-identificationnumber: NL001136324B61
3. Client: the (potential) buyer of the services offered by Klik Webmedia.
Article 2 Applicability
1. Klik Webmedia declares these General Terms and Conditions applicable to every offer made by Klik Webmedia and, whether or not resulting therefrom, agreements entered into between the parties, or the parties’ legal successors. Insofar as their content has not been changed and/or no more specific conditions apply between the parties, these General Terms and Conditions shall also apply to future contractual relationships between the parties, or their legal successors.
2. Deviations from these terms and conditions shall only apply insofar as they have been expressly agreed upon by the parties in writing.
3. General (purchase) conditions of Client are explicitly excluded from the agreement.
4. Third parties engaged by Klik Webmedia for the performance of the agreement may also invoke these General Terms and Conditions.
5. If one or more part(s) of the provisions of these general terms and conditions are void or annulled, for example because they are in violation of mandatory law, the remaining provisions or the remaining part of the relevant provision of these general terms and conditions shall remain applicable. Parties will then consult to agree on new rules to replace the void or nullified provisions, in which the purpose and meaning of the void or nullified (part of the) provisions will be expressed as much as possible.
Article 3 Offer, account and agreement
1. Any offer, in the form of an offer or otherwise, is entirely and unconditionally free of obligation and revocable and has a validity of 30 days, unless otherwise indicated in writing by Klik Webmedia.
2. The prices stated on the website or in any other form of an offer are in Euros and exclusive of VAT and subject to levies, surcharges and other factors.
3. All statements by Klik Webmedia of numbers, size, colour and other specifications of services to be delivered in the shown or provided drawings, images, videos, photos or models are indications only. A minor deviation in the delivered goods shall not lead to a shortcoming in the fulfilment of the agreement on the part of Klik Webmedia.
4. Obvious clerical errors and mistakes in the offer are not binding on Klik Webmedia.
5. An offer does not automatically apply to subsequent orders.
6. An agreement is concluded after both parties have signed a written offer, after Klik Webmedia has confirmed a written acceptance or after Klik Webmedia, or a third party on its behalf, has commenced execution.
7. Klik Webmedia is explicitly not a party to any agreement made between Client and third parties. Disputes arising from such an agreement must be resolved by the parties themselves. Klik Webmedia has no role in this.
8. If an order is given by several Clients, all Clients are jointly and severally bound to the agreement. If Klik Webmedia takes on the order with several Clients, each Client is responsible for their own actions. Section 7:407(2) of the Dutch Civil Code is excluded.
9. It is not permitted to provide login details to third parties. It is not permitted to use login details of third parties to purchase other services. Client is responsible for any use/acting through Client’s account, with or without Client’s permission. Client is obliged to report all unauthorised use of Client’s account to Klik Webmedia as soon as possible.
Article 4 Execution/Delivery
1. Klik Webmedia shall represent the Client’s interests within the limits of the order given. Klik Webmedia shall execute the agreement to the best of its knowledge and ability and in accordance with the requirements of good craftsmanship. Client acknowledges that Klik Webmedia has artistic freedom in the execution of the agreement insofar as no specific features, functions or wishes of Client have been laid down in the main agreement/quotation. All services of Klik Webmedia are performed on the basis of an obligation of effort, unless and insofar as in the written agreement Klik Webmedia has explicitly promised a result and the result concerned has also been described with sufficient certainty. Klik Webmedia has the right to execute anything not explicitly described in the order at its own technical and creative discretion. The amount of the fee is therefore in no way dependent on the outcome of the order or the result.
2. Klik Webmedia shall endeavour to fulfil the order within the stated/estimated time period. This term is not fatal, which means that the client must always first give Klik Webmedia notice of default, whereby a long and reasonable term of at least 30 days must be given, before any remedy can be taken.
3. Klik Webmedia is free to have the order and/or delivery carried out by third parties. Section 7:404 of the Dutch Civil Code is expressly excluded in the agreement.
4. Klik Webmedia is at all times entitled to fulfil the agreement in partial deliveries/phases.
5. Client accepts that the time schedule of the order may be affected if the parties decide to change approach, working method or scope of the order and the resulting work in the interim. If changes in the execution of the order become necessary by Client in the interim, Klik Webmedia will make the necessary adjustments on behalf of Client. If this results in additional work, Klik Webmedia will charge this to the Client as an additional order. Klik Webmedia may charge the Client for the additional costs of modifying the order, unless the modification or addition is the result of circumstances attributable to Klik Webmedia. The latter situation does not lead to a reduction of the principal sum(s).
6. Client warrants that digitally delivered material does not infringe third party rights, is safe and contains no viruses or other harmful content that may in any way damage the computer systems, computer programs of Klik Webmedia and/or third parties.
7. Without the written permission of Klik Webmedia, Client is not permitted to resell the services provided by Klik Webmedia or to make them available to third parties. Even in the event of permission, Client shall indemnify Klik Webmedia against all third party claims for liability as a result of a defect in the services provided by Klik Webmedia to Client and which Client has resold to a third party. Client shall not (attempt to) hack the software and/or set up websites pretending to be part of Klik Webmedia. Client is not entitled to reproduce, copy, duplicate or resell (parts of) the software without permission of Klik Webmedia.
8. Klik Webmedia reserves the right to put all services, such as servers or software, temporarily out of service for maintenance, adaptation or improvement of Klik Webmedia’s computer systems. Klik Webmedia shall as much as possible arrange such downtime outside office hours. Klik Webmedia shall never be liable to compensate the Client for such downtime.
9. Klik Webmedia makes every effort to publish the services in the best possible quality and to keep them active throughout the agreed period. However, Klik Webmedia does not guarantee the continuous quality and quantity of the services. This is because display of content depends on many different external and/or related factors. At a moment after delivery it may turn out, for example, that the website, is no longer displayed or no longer functions optimally due to external circumstances, such as, for example, in case the template or plug-in used is no longer developed/supported. Klik Webmedia advises Client to enter into a service contract with a website developer. Klik Webmedia gives no guarantee regarding the availability of the website and is therefore in no way liable for any damage resulting from the (temporary) unavailability of the website. Klik Webmedia is in no way liable for any damages resulting from the (temporary) unavailability (in full) of the services. Klik Webmedia therefore provides no warranty as to the availability of the services.
10. At a moment after delivery it may turn out that the services, are no longer displayed or no longer function optimally due to external circumstances, such as, for example, in case the network operator no longer supports the service, Klik Webmedia’s supplier goes bankrupt or the template or plug-in used is no longer developed/supported. If the Client requires that in these cases the services function and display optimally again, the Client must provide additional orders or enter into a possible service/maintenance agreement.
11. Unless otherwise agreed, Klik Webmedia is entitled to make technical provisions to protect equipment, software or data files. These provisions may restrict the Client in the content or duration of use. Client will not remove or circumvent these provisions.
12. In case of ongoing services, Klik Webmedia shall regularly release updates in connection with the maintenance or optimisation of the services. Klik Webmedia does not require Client’s permission to do so. Updates may involve changes in functionalities. The provisions of this agreement and general terms and conditions also apply to the new version.
13. Unless otherwise agreed, Klik Webmedia is never obliged to make and maintain backups on behalf of the Client. Any backups made will in any case be destroyed after termination of the agreement, unless there is a legal obligation to the contrary.
14. Unless otherwise agreed, the Client is responsible for maintaining adequate security.
15. Unless agreed otherwise, Client is responsible for the management, such as checking the settings, of the services used. Unless agreed otherwise, Client is also responsible for the configuration and continuity of the hardware required for Klik Webmedia’s services.
16. If, in the opinion of Klik Webmedia, there is a danger to the functioning of the computer systems or the network of Klik Webmedia or third parties and/or the deliveries of Klik Webmedia are obstructed by, but not limited to, failures or breakdowns of the internet, telecommunications infrastructure, synflood, network attack, DoS or DDoS attacks, power failures, domestic disturbances, mobilisation, war all obligations of Klik Webmedia are suspended and Klik Webmedia is entitled to take all measures it reasonably deems necessary to avert or prevent this danger/hindering, without giving the Client any right to compensation. If fulfilment due to force majeure is impossible for longer than one month or if there are other circumstances that make it disproportionately difficult for Klik Webmedia to fulfil its obligations, Klik Webmedia is entitled to dissolve the agreement, in whole or in part, by giving notice to the Client and without judicial intervention, without there being any obligation to pay damages.
17. Klik Webmedia is entitled to remove content posted on the website or block access to it in case of a violation or imminent violation of third party rights. In this case Klik Webmedia is also entitled to deny Client access to the server and/or website. The foregoing does not entitle the Client to damages.
18. Klik Webmedia is entitled to refuse, suspend or remove publication of web content for reasons of its own. This may be the case because of content, nature, purpose or form, technical objections, refusal of advance payment or obvious conflict with Klik Webmedia’s own reasonable interests.
19. Client is prohibited from sending spam messages through the network of Klik Webmedia and from being permanently or temporarily connected to an insufficiently secured mail server in the network of Klik Webmedia. If the Client fails to (correctly) comply with these obligations, Klik Webmedia forfeits an immediately payable fine of EUR 1,000, without prejudice to the right to compensation for damages actually suffered. In addition, in that case Klik Webmedia has the right to put the Client’s domain name, hosting account or server out of commission or remove it altogether.
20. Hosting accounts, servers and domain names may only be used for legal purposes (assuming the laws applicable in the Netherlands). Klik Webmedia takes no responsibility for the information placed by Client on the server. Client is fully responsible for the information placed on the server. Client unconditionally indemnifies Klik Webmedia against all third party claims arising from or related to the information placed on the server by Client. So-called “warez” sites and/or other sites with illegal software are also not allowed.
21. The use of scripts and other programs on Klik Webmedia’s servers is permitted, as long as this does not endanger the functioning of the server. This is at the discretion of Klik Webmedia. Client also declares not to perform any actions on Klik Webmedia’s servers that may cause damage in any way or form.
22. The premium packages offered by Klik Webmedia relate to regular business websites. Extensive customisation is expressly excluded.
23. Support minutes may not, unless otherwise agreed in writing, be carried over to the following month.
Article 5 Prices, payment and suspension.
1. The offer is made by mutual agreement. By concluding the agreement, the parties consider the prices to be reasonable and fair.
2. A composite quotation does not oblige Klik Webmedia to perform part of the assignment at a corresponding part of the quoted price.
3. Unless otherwise agreed, the Client must have paid the entire sum in full immediately prior to delivery.
4. If payment is by invoice, payment must be made within 14 days after receipt of the invoice by means of a bank transfer. Klik Webmedia is entitled to invoice immediately after the conclusion of the agreement.
5. If the agreed payment term is exceeded, Klik Webmedia is immediately entitled to charge the Client default interest of 1% of the principal sum per month and an amount for extrajudicial collection costs. The latter costs are 15% of the principal amount due with a minimum amount of EUR 150,- excluding VAT.
6. Without the express written permission of Klik Webmedia, Client is not allowed to apply set-off and/or suspension and/or deduction with respect to the payment obligations.
7. Klik Webmedia has the right to stop its work or (temporarily) decommission services and/or restrict their use, as long as the Client fails to fulfil any obligation to Klik Webmedia with respect to the agreement or acts in violation of these general conditions.
8. In the case of continuing performance agreements, Klik Webmedia is entitled to increase the fees by, for example, indexation in accordance with the applicable CBS figure. In any case, Klik Webmedia is entitled to increase prices once a year by a maximum of 3% without the Client’s consent. If Klik Webmedia wishes a higher price increase, it has a waiting period of 1 month, in which case the Client is entitled to dissolve the agreement in writing within that period. Failing this, Client is deemed to agree with the price increase.
Article 6 Duration and (interim) termination of the agreement
1. Section 7:408 of the Dutch Civil Code is expressly excluded in the agreement with regard to the Client acting in the course of a profession and/or business. Klik Webmedia is at all times entitled to terminate the (duration) agreement(s) with immediate effect.
2. In the case of duration agreements with a minimum term of one year, a notice period for the Client of one (1) month shall apply after the term of one year.
3. Klik Webmedia has the right to terminate the agreement with Client with immediate effect for the future by means of a written notification without (further) prior notice of default if:
(a) Client discontinues or otherwise liquidates all or part of his business operations and/or substantially changes or transfers his business activities to a third party without prior written consent of Klik Webmedia;
b) Client is granted suspension of payment (whether provisional or not) or Client is declared bankrupt, Client submits a request for application of a debt rescheduling scheme or Client is placed under guardianship or administration.
c) A right to which the Client is entitled is seized.
4. In case of dissolution of the agreement, all payments owed by Client to Klik Webmedia are immediately due and payable in full. In addition, Klik Webmedia is entitled to claim the positive contract interest if the agreement had continued until the first possible regular notice period.
Article 7 Guarantee and liability
1. Client is only entitled to warranty and/or remedy as a result of a shortcoming if this is explicitly stated in the main agreement or these general terms and conditions. After the agreement has been performed by Klik Webmedia, Client must check the performance and/or delivery for conformity with regard to quantity and quality as soon as possible, but no later than within 48 hours. If the performance does not meet what could be expected based on the agreement, and therefore there is a defect, the Client must inform Klik Webmedia within 8 days after discovering the defect.
2. After the provision of information as referred to in the previous paragraph, Klik Webmedia shall repair or replace the defect free of charge to a reasonable extent. If none of the two remedies described above effectively remedy the defect, Client has the right to dissolve the agreement. The foregoing applies without the Client being entitled to any compensation for damages by Klik Webmedia.
3. Klik Webmedia is entitled to postpone the commencement of services belonging to a phase until Client has approved the results of the preceding phase in writing.
4. If the defect was caused by a fault attributable to the Client or the Client informed Klik Webmedia too late about the defect, the Client’s right to any remedy/warranty lapses. The burden of proof regarding the imputation of the fault lies with the Client.
5. If the Client informs Klik Webmedia about complaints after the period mentioned in paragraph 1 has expired, any right to warranty regarding the continuity, availability and functionality of the delivered goods lapses, unless the Client has concluded a service agreement and the warranty is covered by the service services and conditions as agreed in writing.
6. The existence of a defect does not suspend the Client’s payment obligation.
7. The Client is never entitled to any remedy if incorrect or careless use can be attributed to the Client or if the Client, without the prior written permission of Klik Webmedia, single-handedly makes changes or causes changes to be made to the work delivered by Klik Webmedia.
8. A circumstance that is for the Client’s account is the installation/access of viruses, such as “Ransomware”, through which data of Client can be encrypted by third parties (file hostage-taking), due to actions or omissions of Client. In many of these cases, a backup made by Klik Webmedia does not offer any relief because they are, for example, on the same server and therefore also affected by the virus. A backup therefore does not guarantee that files and other content can be recovered in the event of a virus such as “Ransomware”. Damage attributed to viruses such as “Ransomware” are at all times beyond the liability of Klik Webmedia. Services to remedy viruses or their consequences always fall outside the agreement and are charged additionally.
9. Client is responsible, and indemnifies Klik Webmedia, for the lawful use of the website, including the use of textual and graphical data and content.
10. Should Klik Webmedia be liable to Client forthwith, this liability shall at all times be limited to the amount claimed under the professional or business liability insurance taken out by Klik Webmedia, but at all times (even if there is no insurance to which a claim can be made and/or the insurance does not pay out) to the amount of the invoice amount, if any, from which the damage arose, plus 15%. In the case of continuing performance agreements ending by expiry of time, this liability is limited to the amount of the fees invoiced by Klik Webmedia in the past 6 months.
11. Liability of Klik Webmedia never includes consequential damages and, barring intent or gross negligence, also not to property damage, immaterial damage, lost profits.
12. Client shall indemnify Klik Webmedia for any third party damage arising in connection with the agreement because Klik Webmedia has acted, including omitted to act, on the basis of late and/or incorrect or incomplete information, data and documents provided by Client.
13. In all cases, the period within which Klik Webmedia can be sued for damages is limited to 12 months.
14. Klik Webmedia accepts no liability for the distribution of any virus-infected information.
15. Klik Webmedia accepts no liability for the consequences of actions of third parties who gain access to the Client’s software or information, such as hacks or internet fraud, and, for example, make changes therein.
16. The services of Klik Webmedia are based on data received by Klik Webmedia from the Client. Klik Webmedia does not guarantee the accuracy of the data used. Klik Webmedia’s services are a snapshot, therefore the outcome of the service provided may vary in the meantime. Klik Webmedia’s services are an indication only and it is deemed Client’s responsibility to check the service at his own expense and risk. Unless otherwise agreed, no guarantees can be given of the outcome of the services.
Article 8 Domain names
1. Klik Webmedia is authorised to apply for, renew, transfer, cancel and change domain names and data on behalf of the Client if the Client has given the order to do so. Orders in this sense may also be established by means of password identification via the Internet or telephone order.
2. For the application and use of domain names, in addition to and supplementary to these terms and conditions, the then current general terms and conditions, procedures and rules of the bodies that register domain names apply (for domain names with a .nl extension this is, for example, the SIDN). The application and use of IP addresses are subject to the then current rules of RIPE NCC (Réseaux IP Européens). Klik Webmedia has no influence on the rules and procedures used by these bodies and only plays a mediating role in this; therefore only a contract is concluded between the Client and the Registry.
3. If the domicile address of Klik Webmedia is used for the public registration of the domain name, Client, as end user of the domain name, will have the domicile changed when transferring the domain name to another hoster, so that Klik Webmedia can no longer be associated with the domain name concerned.
4. In case of changes of data regarding a domain name registration, Client shall ensure that these changes are immediately communicated to the relevant Registry (including but not limited to SIDN).
5. Client indemnifies Klik Webmedia from all liability for failure to register or renew domain names on time or correctly. Client is responsible for checking whether after ordering the desired services or products have been delivered as desired by Klik Webmedia.
Article 9 Privacy and intellectual property
1. Client is aware and agrees that Klik Webmedia under its responsibility processes (personal) data of Client and third parties. Client guarantees that all requirements for the lawful processing of the (personal) data, under e.g. the AVG, entered or processed by Client or third parties in the software or otherwise hosted or processed by Klik Webmedia have been met. The Client is responsible for these data. Client warrants to Klik Webmedia that the data are not unlawful and do not infringe any third party rights. The Client indemnifies Klik Webmedia from any legal action by third parties, on whatever grounds, in connection with these data or the execution of the agreement.
2. Client may have obligations towards third parties under the legislation concerning the processing of personal data (such as the AVG), such as the obligation to provide information, as well as to allow inspection, correction and deletion of personal data of data subjects. The responsibility for compliance with these obligations rests fully and exclusively with the Client. Klik Webmedia will cooperate as much as is technically possible and can reasonably be expected to cooperate with the obligations to be met by Client. The costs related to this cooperation are not included in the agreed prices and fees of Klik Webmedia and are for the full account of the Client.
3. Klik Webmedia retains the right to use the knowledge, developed software, content and other IP rights gained from the execution of the work for other purposes, to the extent no confidential information is disclosed to third parties.
4. Klik Webmedia reserves the rights and powers to which it is entitled under the Copyright Act and other intellectual property laws and regulations. In principle, Client obtains (only) a non-exclusive, non-transferable and non-sublicensable license for the use of services provided. Client is not entitled to resell/transfer or edit the software. Klik Webmedia has unlimited right to reuse (part of) the productions.
5. Client does not become owner of the delivered service, such as software (applications), unless otherwise agreed or licenses are redeemed or if Client wishes to purchase a copy of the desired programming language for the software application in payment.
6. Klik Webmedia may use all developed and published or unpublished web content for its own publicity purposes.
7. The ownership of ideas, concepts or (test) designs provided by Klik Webmedia remain entirely with Klik Webmedia, unless expressly agreed otherwise in writing. In the latter case, Klik Webmedia can demand compensation. In case of proven violation of this property, Klik Webmedia is entitled to charge a reasonable fee, to be determined in advance.
Article 10. Force majeure
1. In addition to its definition in the law and case law, force majeure includes all external causes, foreseen or unforeseen, which
Klik Webmedia cannot influence. This includes, but is not limited to, synflood, network attack, DoS or DDoS attacks, war, business disturbances, strikes, traffic disruptions, unforeseen stagnation, disruptions or failures in the supply of energy, disruptions of internet or other (tele)communication facilities, transport difficulties, fire, loss or damage during transport, epidemics, pandemics and government measures.
2. During force majeure Klik Webmedia’s obligations are suspended. If fulfilment due to force majeure is impossible for longer than two months or if there are other circumstances that make it disproportionately difficult for Klik Webmedia to fulfil its obligations, Klik Webmedia is entitled to dissolve the agreement in whole or in part by giving notice to the Client and without judicial intervention, without there being any obligation to pay damages.
3. If at the onset of force majeure Klik Webmedia has already partially fulfilled its obligations, it is entitled to invoice the part already delivered or performed separately, or in the case of advance payments, to credit part of it.
Article 11. Amendments to the general terms and conditions
In the case of continuing agreements, which end by expiry of time, Klik Webmedia reserves the right to amend or supplement these general terms and conditions. Amendments also apply to agreements already concluded subject to a period of 30 days after notification of the amendment. Changes of minor importance may be made at any time. If the Client does not wish to accept an amendment to these general terms and conditions, he must have made this known in writing before the date on which the new general terms and conditions enter into force.
Article 12 Forum, choice of law and transfer of rights
1. Klik Webmedia is authorised to transfer its rights and obligations under this agreement to a third party. Client is only entitled to transfer its rights and obligations to a third party with the written consent of Klik Webmedia
2. This – and other – agreement(s) concluded between the parties is exclusively governed by Dutch law, with the exception of the Vienna Sales Convention. If in the future an obligation arises between the parties other than an agreement, that obligation shall also be governed by Dutch law.
3. In the event of a dispute between the parties arising from the agreement, the court in the district where Klik Webmedia has its (principal) place of business has exclusive jurisdiction. In the event a dispute arises between the parties regarding non-contractual obligations, the court in the district where Klik Webmedia has its (principal) place of business also has exclusive jurisdiction.
These General Terms and Conditions have been drawn up Bleijerveld Juridisch advies www.bleijerveldjuridischadvies.nl