Terms and conditions Webs

GENERAL TERMS AND CONDITIONS WEBS v2.1 dated 07-05-2024

Article 1. Definitions
1.1 In these Terms and Conditions the following terms are used with an initial capital letter, both in singular and plural: Appendix to the Terms and Conditions with specific provisions regarding the Service to be provided; Service: the services to be provided by Webs to Customer under the Agreement, including, if applicable, results of services; Intellectual Property: All rights of intellectual property and related rights, such as copyrights, trademark rights, patent rights, design rights, trade name rights, database rights and neighboring rights, as well as rights to know-how and one-line performances; Customer: the natural or legal person who has entered into or will enter into an Agreement with Webs; Agreement: the agreement between Webs and Customer regarding the provision of the Service; Parties: Webs and Customer; Personal Data: any data relating to an identified or identifiable natural person, as referred to in Article 4(1) of the General Data Protection Regulation; Terms and Conditions: these General Terms and Conditions of Webs including all applicable Appendices; Webs: Webs Inbound BV and/or Webs Dev BV, depending on which entity is acting as contracting party in a specific case.

Article 2. General provisions and applicability
2.1 These Terms and Conditions apply to all offers and/or agreements by Webs to or entered into with Customer as well as to the execution thereof.
2.2 In addition to these Terms and Conditions, the specific Appendices to the Terms and Conditions agreed upon between Webs and Customer also apply.
2.3 Deviations from the Conditions are only valid when explicitly agreed upon in writing by Webs and Customer and only apply to the specific agreement for which they have been agreed upon.
2.4 The Conditions apply to the exclusion of any purchase or other conditions used by Customer.
2.5 Once these Terms and Conditions have been applicable to a legal relationship between Webs and Customer, Customer is deemed to have agreed in advance to the applicability of these Terms and Conditions to future Agreements.
2.6 Webs has the right, at its own discretion, to engage one or more third parties for the execution of the assignment if necessary, and will inform the client about this.
2.7 The rights and obligations from the Agreement can only be (sub)licensed and/or transferred to third parties by Parties if the other party agrees to this in writing.
2.8 The nullity or voidability of any provision of these terms and conditions or of agreements to which these terms and conditions apply, does not affect the validity of the remaining provisions. Webs and Customer are obliged to replace invalid or void provisions by valid provisions with as much as possible the same scope as the invalid or void provision.
2.9 In case of conflict between provisions from an Agreement and the Terms and Conditions, the provisions from the Agreement will prevail. In the event of a conflict between the Conditions and a specific Appendix, the provisions of the Appendix shall prevail.
2.10 Electronic communications between the Parties shall be deemed to have been received on the date of transmission unless proven otherwise.
2.11 In the explanation and interpretation of the Conditions, the Dutch text shall prevail.

Article 3. Conclusion of the Agreement and information
3. 1 All quotations and other offers from Webs are without obligation. Orders and acceptances of offers by Customer are irrevocable.
3.2 Offers and tenders lose their validity after four weeks, unless otherwise stated in writing.
3.3 An agreement is established by written confirmation by Customer of an unchanged valid offer and/or quotation by Webs.
3.4 Descriptions, presentations, brochures, advertising material, price lists and information displayed on the website are not binding for Webs.

Article 4. Execution of the Agreement and delivery
4.1 Webs will execute the Agreement to the best of its knowledge and ability and in accordance with the requirements of good craftsmanship and on the basis of the then current state of science and technology. The Agreement between Webs and Customer has the nature of an obligation to perform to the best of one's abilities, unless and insofar as Webs has explicitly promised a result in the written Agreement and the result concerned is also described with sufficient certainty in the Agreement. Any agreements about a service level (Service Level Agreement) will always be agreed upon in writing.
4.2 The previous article is also applicable to advice given by Webs. This advice is exclusively intended for Customer. Third parties cannot derive any rights from it. Without written permission from Webs, Customer is not permitted to make the content of recommendations by Webs public or otherwise make it available to third parties.
4.3 In the Agreement parties determine the delivery periods and dates as well as the place and manner in which the Services will be delivered. The lead time of an assignment depends on various factors and circumstances, such as the quality of the data and information provided by the Client and the cooperation of the Client and relevant third parties. The delivery periods/timelines as included in the Agreement are therefore not to be considered as deadlines. In the event of an (impending) exceeding of a (delivery) term, Parties will enter into consultations as soon as possible in order to take appropriate measures.
4.4 If it is agreed that the Agreement will be executed in phases, Webs has the right to postpone the start of Services that belong to a following phase until Customer has approved the results of the preceding phase in writing.
4.5 Webs is not obliged to follow instructions that change or supplement the contents or scope of the agreed Services; if such instructions are followed, the work in question will be compensated according to the usual rates of Webs and Webs will notify the Customer of this.

Article 5. Defects
5.1 Webs is responsible for the soundness of the Services provided in accordance with what the Customer may reasonably expect on the basis of the Agreement and will make every effort to realize any objectives agreed upon with the Customer. Webs cannot guarantee the achievement of these objectives. Webs only provides a (partial) contribution to this objective as well as this objective is often beyond its control.
5.2 Customer must inspect the Services immediately after delivery, but at the latest within eight (8) days, failing which any right to complain, replacement and/or warranty lapses.
5.3 Customer must report any complaints about the delivered Services and/or the execution of the Agreement to Webs in writing and in detail to Webs within fourteen (14) days, after Customer has discovered or reasonably should have discovered the defect, failing which any claim against Webs lapses.
5.4 In the event that Customer has met the requirements of the previous two articles and there are defects in the services provided by Webs, Webs will repair these defects (or have them repaired), redeliver the Service or apply a reasonable price reduction, all this exclusively at the discretion of Webs but always in consultation with Customer. Each time after the repair or redelivery of the Service the previous two articles apply again. After the discovery of a defect or other shortcoming in a Service of Webs, Customer is obliged to do everything to prevent or limit damage.
5.5 The risk of loss, theft, embezzlement or damage of goods, products, information/data, documents or programs that are created or used within the framework of the execution of the Agreement will pass to the Customer at the moment that they are placed under the actual control of the Customer or an assistant of the Customer.

Article 6. Prices and payment
6.1 All fees quoted by Webs or agreed upon with Webs are exclusive of turnover tax (VAT) and other government levies. The costs for third parties and other disbursements do not form part of the agreed upon fees and have to be paid separately to Webs. Webs has the right to charge Customer for these costs by way of an advance payment.
6.2 If Webs takes on additional Services without an explicit compensation for this in the Agreement, Webs has the right to charge a reasonable fee for this.
6.3 Unless explicitly agreed upon otherwise, price indications, budgets and/or pre-calculations of Webs are indicative only and no rights or expectations can be derived from them. Only when parties have agreed upon this, Webs is obliged to inform Customer when a pre-calculation or budget is exceeded.
6.4 Payment of the invoices of Webs must be made within thirty (30) days after the invoice date in the currency stated on the invoice and only in the way as indicated on the invoice. Webs has the right at all times to demand full or partial payment in advance and/or otherwise obtain security for payment.
6.5 If timely payment is not received, Customer will owe the statutory commercial interest over the invoice amount without further notice of default, calculated from the due date until the day of payment, whereby a part of a month is regarded as a whole month and without prejudice to the right of Webs to claim its full damages. All costs related to the collection are for the account of Customer. The extrajudicial and judicial collection costs, including the costs for external experts, amount to at least 15% of the amount to be collected with a minimum of EUR 500,-.
6.6 Customer waives any right to suspension and settlement. Webs has the right to retain Services still held by Webs when Customer does not meet his payment obligations, until Customer has met his payment obligations, regardless of whether the payment arrears relate to the Services that Webs still holds.
6.7 Payments made by Customer always serve first to settle the costs owed, then to settle the interest owed and after that to settle the claimable invoices that have been outstanding the longest, even if Customer states that the payment relates to a later invoice.
6.8 The entire invoice amount shall be immediately due and payable in full in the event of non-payment of an agreed instalment on the due date, as well as in the event that the Client becomes bankrupt, applies for (provisional) suspension of payments, is declared subject to the statutory debt restructuring scheme (WSNP) and/or if any attachment is levied against the Client. If one of the aforementioned situations occurs, Customer is obliged to inform Webs of this immediately.
6.9 Webs is entitled during the term of an Agreement to annually increase the prices for its Services, starting on January 1st, in accordance with the price index figure of the previous calendar year, as published by the CBS (Consumer Price Index "All Households"), increased by a maximum of ten percent (10%). Webs is entitled to implement the cost increase at a later date if he deems it desirable from an administrative point of view.
6.10 Comments or complaints about invoices, bills and declarations sent must be made in writing within fourteen (14) days after receipt of the invoice, bill or declaration in question, failing which they are considered to be accepted. Such complaints do not suspend the obligation to pay.

Article 7. Changes to the assignment or additional work
7.1 Client accepts that the time schedule of the Agreement may be affected if the scope of the Agreement is extended and/or changed in the interim. If the interim change affects the agreed upon fee, Webs will report this to Customer as soon as possible.
7.2 If, as a result of a modification of the Agreement as a result of additional requests or wishes from Customer, additional work has to be performed by Webs (the "additional work"), this work will be charged to Customer on a post-calculation basis according to the rates customary at the time.

Article 8. Client's Obligations
8.1 The Customer shall ensure that all data and/or information which Webs indicates to be necessary or which the Customer should reasonably understand to be necessary for the performance of the Agreement, including information with regard to legislation and regulations to be observed by Webs that are specific to the branch of business of the Customer, shall be provided to Webs in a timely manner and shall provide all cooperation required by Webs. Customer is responsible for the accuracy, completeness and reliability of these data and information. Webs is not obliged to investigate the accuracy, completeness or reliability thereof. Quotes and offers from Webs, as well as the Agreement concluded thereafter, are based on the information provided by the Customer. If this information turns out not to be correct, complete or reliable, Webs has the right to change the offer.
8.2 If data necessary for the implementation of the Agreement are not provided to Webs, not in a timely manner or not in accordance with the agreements made, Webs has the right to suspend the implementation of the Agreement and/or to charge the Customer for the additional costs resulting from the delay according to the then current usual rates.
8.3 Insofar as user names and/or passwords are provided by Webs as part of the Agreement, Customer is responsible for these user names and/or passwords and is fully and independently liable for any misuse made of the user names and passwords, unless such misuse is the result of intent or deliberate recklessness on the part of Webs.
8.4 Insofar as user names and/or passwords are provided by Webs within the scope of the Agreement, it is prohibited for Customer to provide these user names and/or passwords to third parties without the consent of Webs.

Article 9. (Interim) termination, cancellation and the consequences thereof
9.1 Customer may only cancel a given order before the start of the execution of the order if Customer reimburses Webs for all costs reasonably incurred for the work of Webs, plus VAT.
9.2 An Agreement starts on the date in accordance with the conditions as described in article 3 for the period as agreed upon between Parties in writing and ends by operation of law on the date agreed upon between Parties or at the moment that the provision of Services is completed. Unless expressly agreed otherwise, the Parties cannot terminate the Agreement prematurely.
9.3 Each Party is entitled to dissolve the Agreement in whole or in part in the event of bankruptcy or suspension of payments of the other Party, as well as in the event of shutdown or liquidation of the business of the other Party other than for the purpose of reconstruction or merger of companies, or if the decisive control of the business of the other Party changes.
9.4 Dissolution of the Agreement on the grounds of attributable failure shall only be permitted after a written notice of default which is as detailed as possible and in which a reasonable period is given to remedy the failure, unless otherwise provided in these Terms and Conditions or otherwise required by law.
9.5 In case of dissolution of the Agreement, there will be no undoing of what Webs has already delivered and/or performed and the related payment obligation, unless Customer proves that Webs is in default with regard to the essential part of that performance. Amounts that Webs has invoiced before the dissolution in connection with what Webs has already properly performed or delivered in fulfillment of the Agreement will remain fully due taking into account the provisions in the previous sentence and will become immediately payable at the moment of dissolution.
9.6 In the event of dissolution of the Agreement, all rights granted to the Client shall lapse. The Customer is no longer entitled to use the Service.
9.7 Articles which by their nature are intended to continue to apply after the end of the Agreement shall remain in full force after termination of the Agreement.

Article 10. Intellectual Property
10.1 In principle, the Contractor becomes the owner of the services/products delivered by Webs. However, Webs has the right or the possibility to use and/or exploit the components, general principles, ideas, designs, algorithms, documentation, works, proto- colles, templates, methods,flows, standards and the like underlying that development for other purposes without any restrictions, either for itself or for third parties.
10.2 In case a dispute arises between Webs and Customer regarding intellectual property, Webs is presumed to be the rightful owner, barring evidence to the contrary from Customer.
10.3 Nothing in these Terms and Conditions and/or the Agreement implies a transfer of intellectual property rights. Customer only obtains the non-exclusive and non-transferable right to use the Services for the purposes and under the conditions stipulated in the Agreement. If not provided otherwise in writing, the right of use granted applies only to the Netherlands.
10.4 Customer is not allowed to remove or change any indication concerning intellectual property rights from the results of Services.
10.5 Webs explicitly does not waive its moral rights as mentioned in article 25 of the Copyright Act.
10.6 Webs is permitted to use the Services and the materials used for the implementation of the Agreement, such as designs, drawings, films, software, (electronic) files, reports, formats and interviews for its own promotion and/or publicity, unless otherwise specified in the Agreement.
10.7 Webs reserves the right to implement technical protective measures in the Services. Customer is not permitted to circumvent these technical protection measures or to offer means for that purpose.

Article 11. Personal Data
11.1 If, in the context of the performance of the Services by Webs, Personal Data of customers of Customer are to be processed, Webs is to be regarded as a "processor" in the sense of the General Data Protection Regulation and Customer is to be regarded as the "controller". Customer and Webs will, in accordance with article 28 paragraph 3 General Data Protection Regulation, enter into a processor agreement in which the processing of Personal Data by Webs is regulated in accordance with relevant regulations. This in accordance with the model to be provided by Webs.
11.2 Customer indemnifies Webs for all claims from third parties (including in any case users and governmental institutions), financial governmental sanctions and costs (including costs for legal assistance), which arise from a violation by Customer of any legal regulation with regard to the processing of Personal Data.

Article 12. Secrecy
12.1 Parties will treat all information they obtain from each other in any form whatsoever, including - but not limited to - software, (source) code, programs, applications, customer data, know-how, (technical) specifications, (technical) drawings, documentation ("Confidential Information") as strictly confidential and keep it secret.
12.2 Parties shall only use the Confidential Information for the purposes for which it has been provided and in doing so shall observe at least the same duty of care and safeguard that apply to their own internal confidential information. Parties shall only provide the Confidential Information to employees and third parties to the extent necessary in the context of the (performance of the) Agreement.
12.3 The obligations to keep Confidential Information confidential shall not apply to the extent that the Party that received information can demonstrate that the information in question: (i) was already known to it at the time of receipt; (ii) was already publicly known at the time of receipt; (iii) became publicly known after receipt without being attributable to the receiving Party; (iv) was received lawfully from a third party together with the right to disclose it free of any obligation of confidentiality; (v) required to be disclosed by law or regulation or pursuant to a court order and the disclosing Party has notified the other Party of such mandatory disclosure; (vi) disclosed with the approval of the disclosing Party.

Article 13. Liability
13.1 Subject to the provisions in articles 4.1 and 4.2, Customer has no claims against Webs for defects in or with regard to the services provided by Webs. Webs is not liable for direct and/or indirect damage, including personal and property damage, immaterial damage, consequential damage (loss of income, stagnation damage, etc.) and any other damage, resulting from any cause whatsoever, unless there is deliberate recklessness or intent on the part of employees of Webs who are entrusted with a leading position.
13.2 Webs is also not liable in the above-mentioned sense for the actions of its employees or other persons within its sphere of risk, this includes (gross) negligence or intent of these persons.
13.3 The total liability of the supplier for an attributable shortcoming in the fulfillment of the agreement or on any legal ground whatsoever, explicitly including any shortcoming in the fulfillment of a guarantee obligation agreed upon with the customer, is limited to compensation for direct damage to a maximum of the amount of the price stipulated for that agreement (excluding VAT). If the agreement is primarily a continuing performance agreement with a term of more than one year, the price stipulated for that agreement shall be set at the total of the fees (excluding VAT) stipulated for one year. If the damage is covered by the business insurance of Webs, the compensation will never be higher than the amount actually paid out by the liability insurer in the case concerned.
13.4 Every claim against Webs, unless acknowledged by Webs, expires by the mere expiration of twelve (12) months after the claim arose.
13.5 Customer shall indemnify Webs, its employees and its assistants hired to execute the agreement against all claims by third parties, including claims based on product liability, in connection with the execution of the agreement by Webs, regardless of the cause, as well as against the costs resulting from this.
13.6 If Customer acts on behalf of one or more others, he is, without prejudice to the liability of these others, liable to Webs as if he were the Customer himself.
13.7 If Webs concludes an agreement with two or more natural or legal persons, all customers are jointly and severally liable to Webs for the whole.
13.8 If Webs closes an agreement with a company under construction, the founders remain jointly and severally liable for the whole of the agreement even after ratification.

Article 14. Force majeure
14.1 If Webs is prevented from fulfilling the agreement due to force majeure, it has the right to suspend the execution of the agreement. Customer has in this case no right to compensation for damages, costs or interest.
14.2 Force majeure includes: interruptions in the supply of electricity, strikes, riots, government measures, fire, extreme weather conditions, natural disasters, floods, shortcomings of suppliers of Parties, shortcomings of third parties engaged by Parties, failures in connection with the Internet, hardware malfunctions, failures in (telecommunication) networks, cyber terrorism or other types of cyber attacks, security incidents, intentional or unintentional corruption or loss of data, epidemic or pandemic and other unforeseen circumstances.
14.3 If the force majeure continues for at least six (6) weeks, Parties are entitled to dissolve the Agreement, without being obliged to pay any damages, undoing or compensation in respect of such dissolution.
14.4 If Webs has already partially fulfilled its obligations when the force majeure situation arises or can only partially fulfill its obligations, it is entitled to invoice the already delivered or the deliverable part separately and Customer is obliged to pay this invoice as if it were a separate agreement.

Article 15. Applicable law and competent court
15.1 These Terms and Conditions are governed by Dutch law.
15.2 All disputes between Webs and Customer will be judged exclusively by the competent judge of the District Court of Oost-Brabant, location Eindhoven, the Netherlands. Notwithstanding this provision, Webs also has the right at all times to submit a dispute or claim to the competent court of the place where Customer has its registered office or actual place of business.