These General Terms and Conditions apply to all legal relationships between De Nootfabriek and all companies belonging to it, hereinafter referred to as “De Nootfabriek”, with offices at Zaanstraat 24, 2515 TN The Hague, and its Clients. A copy of these General Terms and Conditions will be sent free of charge at the request of the Client.
Section 1: General provisions
Article 1. Definitions
1.1 De Nootfabriek: the sole proprietorship and all companies belonging to it, trading under the name De Nootfabriek
1.2 Client: the person who has commissioned De Nootfabriek to perform activities and / or the provision of services and products (‘the Order’), as well as the person to whom De Nootfabriek has an offer to perform activities and / or deliver of services and products.
1.3 General Terms and Conditions: these terms and conditions.
1.4 Written: where in these Terms and Conditions the term “in writing” is understood to mean communication by electronic means, whereby the identity and integrity of the communication must be sufficiently established.
1.5 Working: software, (among others software) websites, equipment, data files, documentation, advice, reports, analyzes, designs, texts, images, audiovisual material, logos and / or house styles.
1.6 Agreement: these General Terms and Conditions together with the quotation and order confirmation that originates from De Nootfabriek and signed by the Client.
Article 2: Applicability
2.1 These General Terms and Conditions apply to all legal relationships between De Nootfabriek and the Client regarding the work performed and / or services to be performed and / or services and products to be delivered or to be delivered, including an offer made by De Nootfabriek to the Client for the performance of work and / or the provision of services and products, for the benefit of the Client and of any nature whatsoever, even if these services and products are not (further) described in these General Terms and Conditions.
2.2 Deviations from these General Terms and Conditions are only valid if and insofar as they have been expressly agreed in writing between the parties. Insofar as such deviations have not taken place, the provisions in these General Terms and Conditions remain fully applicable.
2.3 The applicability of any general or other conditions of the Client is explicitly rejected.
2.4. If one of the provisions in Section 1 conflicts with a provision in Section 2, the provision in the specific regulation (Section 2) shall prevail.
2.5 If any provision in these Terms and Conditions is void or is nullified, the other provisions of these Terms and Conditions will remain in full force.
Article 3: Quotation and conclusion of the Agreement
3.1 De Nootfabriek will draw up an offer by e-mail in which it indicates what it understands under the contract. If a service extends to the development of Works, it is sufficient to provide a general description of the Works that will be worked out during the execution. The quotation is without obligation and obliges the Client to do nothing.
3.2 The offer remains valid for a period of thirty days after sending, unless in or in connection with that quotation the parties have expressly stipulated a different term of validity in writing.
3.3 The offer is exclusively based on the information provided for that purpose by the Client, whereby De Nootfabriek can rely on its correctness and completeness.
3.4 The Agreement is concluded at the moment that the order confirmation signed by De Nootfabriek and the Client is returned by De Nootfabriek. As long as the order confirmation is not returned, De Nootfabriek reserves the right to deploy its (personnel) capacity elsewhere. The order confirmation is based on the information provided by the Client to De Nootfabriek at the time. The order confirmation is deemed to represent the Agreement correctly and completely.
3.5 The Agreement is entered into for an indefinite period of time, unless parties have explicitly agreed otherwise in writing or as a result of the content, nature or scope of the assignment that the Agreement has been concluded for a definite period.
3.6 Quotations in quotations may be subject to changes due to unforeseen changes in the work. De Nootfabriek will inform the Client of this as soon as possible.
Article 4: Required information
4.1 The Client is obliged to provide De Nootfabriek with all data and / or information in a timely manner and to provide full cooperation, which De Nootfabriek, in its opinion, needs for a correct execution of the order or of which the Client should know that this is the correct execution of the order. assignment is required. The data and / or information must be provided in the form and in the manner requested by De Nootfabriek. If the Client makes Works, materials or data available on an information carrier to De Nootfabriek, they will comply with the specifications prescribed by De Nootfabriek.
4.2 Unless otherwise ensuing from the nature of the Assignment, the Client is responsible for the accuracy, completeness and reliability of the data and documents made available to De Nootfabriek, even if these originate via or from third parties.
4.3 If the performance of the Assignment is delayed because the Client fails to comply with its obligation referred to in Article
4.4 The extra costs and extra fees arising from the delay in the execution of the Assignment, arising from the failure to make the requested data, documents, facilities and / or personnel timely or improperly available, are at the expense of the Client.
4.5 De Nootfabriek is obliged to return the goods made available by the Client in or on which the information provided by the Client to De Nootfabriek has been recorded – including documents or documents and magnetic or electronic data carriers – to the Client at the request of the Client as soon as the for which the information was provided was executed or the Agreement was terminated, but not before the Client has paid all amounts owed to De Nootfabriek in connection with the execution of the Assignment or the termination of the Agreement. If and insofar as the parties have not expressly agreed otherwise in writing, these items will be returned to the Client at the expense and risk.
Article 5: Execution of the assignment
5.1 De Nootfabriek determines which person or persons from its organization the Assignment is executed. It also determines how and with what means the Assignment will be executed. In doing so, the reasonable wishes and instructions of the Client will be taken into account as far as possible, provided this is, in the opinion of De Nootfabriek, conducive to a timely and correct performance of the Assignment.
5.2 De Nootfabriek shall carry out the work and / or services and products to be performed pursuant to the Agreement with the care of a good Contractor.
5.3 De Nootfabriek is authorized to engage third parties in the performance of the Assignment if it is clear from the content, nature or scope of the Assignment that in the opinion of De Nootfabriek the involvement of third parties is necessary for a timely and correct execution of the Assignment.
5.4 If the Client, prior to the execution of the Assignment by De Nootfabriek, or during the execution of the Assignment by De Nootfabriek, wishes to involve third parties, he is only authorized to do so after having reached agreement in writing between the parties.
Article 6: Delivery period
6.1 If the Client owes an advance payment or has to make the information and / or materials necessary for the implementation available, then the period within which the work must be completed must not be effected until the payment has been received in full by De Nootfabriek, respectively the information and / or materials is / are made available to her.
6.2 Because the duration of the Assignment can be influenced by all kinds of factors, such as the quality of the information provided by the Client and the co-operation that is granted, the terms within which the work must be completed can only be regarded as deadlines if this is explicitly has been agreed in writing.
6.3 Unless it has been established that execution is permanently impossible, the Agreement can not be terminated by the Client due to a time limit, unless De Nootfabriek does not or does not fully execute the Agreement within a reasonable period of time stated to it after the agreed delivery term. Dissolution is then allowed in accordance with article 265 Book 6 of the Dutch Civil Code.
Article 7: Contract transfer
7.1 The Client is not permitted to transfer (any obligation from) the Agreement to third parties, unless De Nootfabriek explicitly agrees to this. De Nootfabriek is entitled to attach conditions to this permission. The Client undertakes in any case to then impose on third parties all relevant (payment) obligations from the Agreement in these general terms and conditions. The Client shall at all times remain liable to these third parties for the obligations under the Agreement and the General Terms and Conditions, unless parties explicitly agree otherwise.
7.2 In the event of contract takeover, the Client indemnifies De Nootfabriek in respect of all third-party claims that may arise as a result of non-compliance or incorrect fulfillment of any obligation by the Client from the Agreement and / or these General Terms and Conditions, unless any mandatory (inter) national law or regulations do not allow such a provision.
Article 8: Confidential information
8.1 The Client undertakes to keep all data and information received (‘the information’) from De Nootfabriek confidential, before and after entering into the Agreement, if this information is confidential or if the Client reasonably suspects that the information must be regarded as confidential .
The Client has in any case a confidentiality obligation with respect to the content of the quotation and order confirmation.
“Confidential information” is understood to mean all information, in whatever form (oral, written, graphic, electronic, etc.) that is exchanged between the parties in any way whatsoever in the context of the Agreement between the Client and De Nootfabriek. Parties mark information as Confidential, unless it is explicitly stipulated that they have classified the information as non-confidential.
The Confidential Information includes, but is not limited to, concepts, reports, data, know-how, models, development tools, computer software, software, source codes, databases, scientific or technical information, designs, processes, marketing strategies and plans, financial information, sales estimates business plans and business results, business activities, data or other information that should reasonably be recognized as Confidential information and entrusted to Client in the context of the Agreement.
Confidential information need not be new, unique, patentable, copyrighted or contain a trade secret to be classified as “Confidential Information”. Under Confidential information, this Agreement also includes digital data, information and / or documents.
8.2 Confidential information does not include information that:
(a) is available from public sources;
(b) was already in the possession of the receiving party before the date of delivery by the supplying party;
c) is available from a third party without this third party violating any confidentiality clause towards the providing party by providing the receiving party;
d) has been developed independently by the receiving party without the use of information from the providing party;
e) can be deduced without any special effort from products freely available on the market, in which the decompilation of software is in any case regarded as a “special effort”.
8.3 Unless any statutory provision, regulation or other (professional) rule obliges her to do so, the Client / the employee (s) deployed by the Client is obliged to observe secrecy towards third parties with respect to Confidential information obtained from De Nootfabriek. De Nootfabriek can grant an exemption in this respect.
8.4 Without the written consent of the Client, De Nootfabriek is not entitled to use the Confidential information made available to it by the Client for a purpose other than that for which it was obtained. However, an exception is made in the event that De Nootfabriek acts for itself in a civil or criminal procedure in which this information may be of importance.
8.5 Unless there is any legal provision, regulation or other rule that obliges the Client to disclose or if prior written permission has been granted by De Nootfabriek, the Client shall not suspend the contents of reports, advice or other written or otherwise expressions of De Nootfabriek. to reveal third parties.
8.6 De Nootfabriek and the Client will impose their obligations on the basis of this article on their employees and third parties.
Article 9: Protection of personal data
9.1 If the Client provides personal information to De Nootfabriek, or if personal data are provided to De Nootfabriek for the benefit of the Client, the Client will allow De Nootfabriek to process these personal data in the context of the execution of the assignment, in accordance with the Wet bescherming personal data and other relevant European laws and regulations.
9.2 The Client indemnifies De Nootfabriek against all claims of third parties with regard to the processing of personal data made available by the Client or on behalf of the Client.
Article 10: Intellectual property right
10.1 All intellectual property rights, including industrial property rights (such as but not limited to trademark, patent and design rights), copyright, neighboring rights, database right, etc., on Works developed or made available under the Agreement, or other materials such as analyzes, designs, models, documentation, reports, quotations, as well as preparation of materials thereof, are exclusively held by De Nootfabriek or its licensers.
Client only obtains the rights of use that are explicitly allocated to these conditions and by law. Any other or more extensive right of the Client to publish or multiply Works, or other materials is excluded. Section 2 of these General Terms and Conditions contains specific rules with regard to licenses granted on Work (s).
A right of use accruing to the Client is non-exclusive and non-transferable to third parties.
Any action concerning Works or other materials that goes beyond the foregoing will be considered a violation of copyrights or other applicable intellectual property rights. In the event of a breach of the provisions of this paragraph, the Client will owe an immediately due and payable fine of 5,000 euros per violation per day to De Nootfabriek, without prejudice to any right of De Nootfabriek to performance or other measures that De Nootfabriek has pursuant to the law. being available.
10.2 If, contrary to article 10.1 De Nootfabriek is prepared to commit to the transfer of a right or multiple rights of intellectual property, such an obligation can always only be made explicitly in writing. If the parties expressly agree in writing that a right or intellectual property rights with regard to Works developed specifically for the Client, or other materials, will be transferred to the Client, this will not affect the authority of De Nootfabriek for the underlying development. to implement and operate parts, general principles, ideas, designs, documentation, works, programming languages and the like without any restriction for other purposes, either for oneself or for third parties. Nor shall a transfer of a right or multiple intellectual property rights affect the right of De Nootfabriek to undertake developments on behalf of itself or third parties that are similar to those that have been or are being made for the benefit of the Client.
10.3 The Client is not permitted to remove or change any designation concerning the confidential nature or concerning copyrights, brands, trade names or other intellectual property rights from the Works or other materials.
10.4 Contrary to the provisions of Article 10.1, the Client is authorized to make the third party developed or made available pursuant to the Agreement, as referred to in Article 10.1, available to a third party, insofar as this is required in order to obtain its expert opinion on the De Nootfabriek performed work and / or the results thereof, or a part thereof, provided that:
i. the availability is made in the context of a dispute between the Client and De Nootfabriek about the work referred to or the results thereof, about which between parties despite consultations and within a reasonable term indicated in writing by the Client no solution has been reached;
ii. the third party is a member of a professional organization set up for the discipline to which the relevant activities belong and as such is deemed sufficiently representative by De Nootfabriek, and;
iii. Client in advance The Nootfabriek informs about the identity of the third party to be engaged, the nature of the assignment to be given and indicates which will be made available or made available to him under the Agreement, as referred to in Article 8.1.
10.5 De Nootfabriek indemnifies the Client against any legal claim by a third party that is based on the assertion that the Equipment, Works or other materials developed by De Nootfabriek infringe an intellectual property right applicable in the Netherlands, but only as stipulated in Article 10 and only Provided the Client informs De Nootfabriek immediately in writing about the existence and content of the legal claim and leaves the handling of the case, including the settlement of any settlements, entirely at the De Nootfabriek. For this purpose, the Client will grant the necessary powers of attorney, information and cooperation to De Nootfabriek to defend itself against these legal claims, if necessary on behalf of the Client.
10.6 The obligation to indemnify as referred to in Article 10.5 will lapse if:
The third party’s alleged infringement relates to the materials made available to De Nootfabriek for use, processing, processing or incorporation, or
Client changes to the Works, or has applied other materials or has them applied by third parties.
10.7 If it is irrevocable in court that the equipment, software, websites, data files, or other materials developed by De Nootfabriek infringe any intellectual property right belonging to a third party, or if, in the opinion of De Nootfabriek, there is a reasonable chance that a such an infringement occurs, De Nootfabriek will take care, as far as possible, that the Client can continue to use the delivered, or functionally equivalent, other equipment, software, websites, data files, or other materials, undisturbed, for example by adapting the infringing parts or by acquiring right of use for the benefit of the Client. If De Nootfabriek can, in its exclusive opinion, not or not otherwise than in a way that is financially unreasonably onerous to ensure that the Client can continue to use the delivered goods undisturbed, De Nootfabriek will take back the delivered goods against crediting the acquisition costs after deduction of a reasonable consumption fee. . De Nootfabriek will not make its choice in this context than after consultation with the Client.
10.8 Any other or further liability or indemnity obligation of De Nootfabriek for violation of intellectual property rights of a third party is completely excluded, including liability and indemnity obligations of De Nootfabriek for infringements caused by the use of the delivered Works, equipment and / or materials:
i. in a form not modified by De Nootfabriek,
iii. in connection with items or software supplied or provided by De Nootfabriek, or
iii. otherwise than for which the Works, equipment and / or other materials have been developed or intended.
10.9 The Client guarantees that no third-party rights preclude making available to De Nootfabriek software, equipment, data files, material intended for websites (including images, text, music, domain names, logos, etc.), or other materials, including design material, with the purpose of use, processing, installation or incorporation. The Client will indemnify De Nootfabriek against any action that is based on the assertion that making such use, use, processing, installation or incorporation infringing any right of third parties.
10.10 If source materials provided by the Client to De Nootfabriek are protected by any intellectual property right, the Client shall at all times guarantee that it has all the licenses that are necessary for the provision and intended use by De Nootfabriek within the framework of the agreement.
Article 11: Honorarium
11.1 The fee for the work to be performed under the Agreement and / or the provision of services and products will be calculated on the basis of the time spent on that work, expressed in hours, multiplied by the hourly rate applied by De Nootfabriek, or on the basis of of what has been agreed in writing between the parties. The fee is stated in the order confirmation and is exclusive of turnover tax and other levies that may or may not be imposed by the government.
11.2 Unless the parties have expressly agreed otherwise in writing, the expenses incurred in the context of the assignment, including travel and accommodation expenses, as well as the costs of third parties engaged in the execution of the assignment, are not included in the fee and are not included in the fee. charged separately. The chargeability of the fee does not depend on the results of the work performed under the assignment.
11.3 The fee, plus any expenses and invoices of the third parties engaged in the performance of the assignment, will be charged periodically to the Client, depending on the nature of the assignment and at the discretion of De Nootfabriek, to the extent that the parties do not otherwise agreed in writing.
11.4 If after the conclusion of the Agreement, but before the completion of the assignment the nature and / or content of the work, or the location where the work is performed or otherwise, are changed, De Nootfabriek is entitled to any new conditions and hourly or daily rates to be established, provided this does not take place within three months after the conclusion of the Agreement, which then, in writing confirmed and signed, part of and a whole with the Order and original order confirmation.
11.5 In the event of premature termination of the Agreement, the Client shall be obliged to pay the full amount due to the termination of the work, plus any expenses and invoices from third parties engaged in the performance of the assignment, if applicable.
11.6 The Nootfabriek has the right to adjust the tariff semi-annually to the changes of the CBS index for CAO wages, category business services, increased by 4%, or otherwise if this is reasonable to De Nootfabriek.
Article 12: Payment
12.1 The quotation amount must be paid in two parts, namely at the start of the execution of the assignment and after completion of the assignment.
12.2 Payment by the Client must take place without deduction, discount or debt settlement within 21 days of the invoice date. Payment must be made in the currency indicated on the invoice, by means of transfer in favor of a bank account to be designated by De Nootfabriek. Objections to the amount of the submitted invoices do not suspend the payment obligation of the Client.
12.3 If the period referred to in 12.1 is exceeded, the Client shall be in default by operation of law after having been summoned at least once by De Nootfabriek to pay within a reasonable period. In that case, the Client will owe statutory interest on the amount due from the date on which the due sum became due and payable up to the time of payment. In addition, all costs of collection, after Client is in default, both judicial and extrajudicial, are at the expense of the Client. If De Nootfabriek must take debt collection measures after the due date, the Client will owe extrajudicial costs – in accordance with “Voorwerk II Report”.
12.4 In the opinion of De Nootfabriek, if the financial position and / or payment behavior of the Client give reason to do so, De Nootfabriek shall be entitled to require the Client to provide (additional) security without delay in a form to be determined by De Nootfabriek and / or an advance payment. If the Client fails to provide the security required, De Nootfabriek shall be entitled, without prejudice to its other rights, to immediately suspend the further performance of the Assignment and all amounts owed by the Client to De Nootfabriek for whatever reason shall be immediately due and payable.
12.5 If there is a periodic payment obligation of the Client, De Nootfabriek shall be entitled to adjust the applicable prices and rates in writing within a period of at least three months. If the Client does not agree with such an adjustment, the Client is entitled to terminate the Agreement within thirty days of the notification by the date on which the adjustment would take effect.
12.6 In the event of a joint Assignment, Clients are jointly and severally liable for payment of the full invoice amount insofar as the work has been performed for the benefit of the joint Clients.
Article 13: Complaints
13.1 The Client is obliged to make any comments and / or comments regarding the work performed by De Nootfabriek and / or the invoice amount to De Nootfabriek in writing within 14 days after the invoice date and / or at the latest within 14 days after interim and periodic reporting, or within 14 days after he has discovered what he wants to complain about. In the latter case, the Client must demonstrate that he has not reasonably been able to discover what he wishes to complain about earlier.
13.2 Complaints as referred to in the first paragraph do not suspend the payment obligation of the Client. The Client is not entitled under any circumstances to postpone payment or refuse payment of other services provided by De Nootfabriek to which the advertisement does not relate on the basis of an advertisement relating to a particular service.
13.3 If the Client has not filed a complaint within the term set by Article 13.1, all rights and claims for whatever reason shall lapse in respect of what he has complained about or could have complained about within that period.
Article 14: Liability
14.1 De Nootfabriek will carry out its activities to the best of its ability and, in doing so, observe the due care that can be expected from De Nootfabriek. If an error is made because the Client has provided incorrect or incomplete information to De Nootfabriek, De Nootfabriek will not be liable for the resulting damage. If the Client demonstrates that it has suffered damage as a result of an error by De Nootfabriek that would have been avoided in the event of due diligence, De Nootfabriek shall be liable for that damage up to a maximum of 2 months for the relevant Assignment for a period of no more than 2 months.
14.2 The Client indemnifies De Nootfabriek against third-party claims for damage caused by the Client providing incorrect or incomplete information to De Nootfabriek, unless the Client demonstrates that the damage is not related to culpable acts or omissions attributable to it, or is caused by intent or similar gross negligence of De Nootfabriek and unless any mandatory (inter) national law or regulation does not allow such a provision. This indemnification also applies to third-party claims for damage resulting from the fact that Works or other materials developed by De Nootfabriek infringe any intellectual property right belonging to a third party, unless the indemnity of article 10.5 and furthermore applies. .
14.3 The liability limitation set out in paragraph 1 of this article is also stipulated for the benefit of the third parties engaged by De Nootfabriek for the execution of the Assignment.
14.4 The Nootfabriek shall not be liable for third-party software (WordPress, themes and plugins) if these are time-barred or due to updates in the future of software or work differently. Client is responsible for keeping the software up to date by posting updates. If the third-party software used is no longer updated by the relevant party that is known as the author of the software, then De Nootfabriek is not liable for the unsatisfactory performance of the delivered Works.
14.5 De Nootfabriek is not liable for damage to or destruction of documents during transport or during shipment by mail, regardless of whether the transport or dispatch is done by or on behalf of the Client, De Nootfabriek or third parties.
14.6 In case of force majeure, which in any case means disruptions or failures of the internet, the telecommunications infrastructure, power failures, domestic disturbances, mobilization, war, traffic jam, strike, exclusion, business disturbances, stagnation in delivery, fire, flooding, import and export restrictions and in the event that De Nootfabriek is not enabled by its own suppliers, irrespective of the reason, not to deliver, as a result of which fulfillment of the Agreement can not reasonably be required from De Nootfabriek, the Agreement will be suspended until the force majeure situation has been lifted. If the force majeure situation has lasted longer than ninety days, each party will be entitled to terminate the Agreement, however without any obligation to pay compensation for each party.
Article 15: Expiry period
Unless otherwise provided in the Agreement, rights of claim and other powers of the Client on any account whatsoever will also lapse towards De Nootfabriek in any case after the expiration of one year from the moment at which a fact occurs that the Client exercises these rights and / or powers in respect of De Nootfabriek can use.
Article 16: Termination of Agreement
16.1 Each party is entitled at all times to terminate the Agreement with due observance of a reasonable period by the end of a calendar month by termination, unless the parties agree otherwise. Cancellation must be done in writing by means of a registered letter.
16.2 If the Agreement is terminated by one of the parties, it is obliged to inform the other party in writing of the reasons for termination and furthermore to do all that is reasonably due to the apparent interest of the other party in connection with the termination of the Agreement. advanced.
16.3 Contrary to the provisions of Article 16.1, each of the parties is entitled to terminate the Agreement with immediate effect by written notice of termination if it can reasonably be expected that the Assignment will be carried out without any attributable failure on the part of the parties to fulfill its obligations. obligations, can not be or will no longer be performed as agreed by the parties, including the situation where one of the parties is in suspension of payment or bankruptcy or if one of the parties is otherwise unable to meet its payment obligation, or if the company of one of the parties is liquidated, discontinued or terminated other than for the purpose of reconstruction or merger of companies. De Nootfabriek is never liable for any refund of already received funds or compensation for damages due to this termination. In the event of bankruptcy of the Client, the right to use any software, equipment or other materials made available to the Client shall lapse by operation of law.
16.4 The provisions of Article 16.3 are without prejudice to the power of either party to terminate the Agreement, but only if the other party imputably fails to fulfill any essential obligation arising from the Agreement and it shall be discharged after a period of time in accordance with the circumstances. reasonable term after proper written notice of default does not fulfill the intended obligation. Dissolution must be done by registered mail addressed to the other party.
16.5 If the Client has already received services from De Nootfabriek for the performance of the Agreement at the moment of cancellation as referred to in Article 16.3 or at the time of dissolution as referred to in Article 16.4, these performances and the related payment obligation will not be subject to of cancellation, unless De Nootfabriek is in default with regard to these performances. Amounts invoiced by De Nootfabriek prior to the dissolution in connection with what it has already performed or delivered in execution of the Agreement shall remain due in full, with due observance of the preceding sentence, and shall become immediately due and payable at the time of the dissolution.
16.6 If an Agreement which by its nature and content does not end by completion, has been concluded for an indefinite period of time, it can be terminated by either party after proper business consultation and stating reasons by means of written cancellation. If no explicit notice period has been agreed between the parties, a reasonable period must be observed in the event of termination. The parties will never be obliged to pay any compensation for termination.
Article 17: Changes to the General Terms and Conditions
De Nootfabriek is authorized to change these General Terms and Conditions. The General Terms and Conditions amended by De Nootfabriek apply to the Client from thirty days after it has been notified of the change in writing, unless the Client notifies De Nootfabriek in writing against the change within that period. In the latter case the unchanged General Terms and Conditions will continue to apply between the parties until the Assignment has been completed or the Agreement has been terminated, but no longer than six months from the end of the aforementioned period of thirty days. If the Agreement between the parties then continues, the amended General Terms and Conditions will apply thereafter.
Article 18: After-treatment
The provisions of this Agreement, which are expressly or tacitly intended to remain in force after termination of this Agreement, will remain in effect thereafter and both parties will continue to bind.
Article 19: Applicable law and disputes
19.1 All legal relationships between De Nootfabriek and the Client to which these General Terms and Conditions apply are governed by Dutch law.
19.2 Disputes that may arise between De Nootfabriek and the Client in connection with an Agreement concluded between De Nootfabriek and the Client, or as a result of further Agreements resulting from this, shall exclusively be submitted to the competent court in the district in which De Nootfabriek is located. and from which the activities for the execution of the assignment have been performed, unless provisions of imperative law dictate otherwise.
Article 20: Recruitment or recruitment of mutual staff
Each of the parties is not authorized during the execution of the Assignment or without prior permission from the other party or within one year of its completion, to employ employees of the other party or to conduct negotiations with those employees.
Section 2: Development of Works and Licensing
This department sees all Agreements concluded between the Client and De Nootfabriek with regard to the development of Works, licenses and the use of software.
Article 21: Development of Works
21.1 If a service extends to the development, configuration and / or adaptation of Works, De Nootfabriek will carry out the work with care on the basis of the information to be provided by the Client. The Client guarantees the correctness, completeness and consistency of its instructions and data.
21.2 De Nootfabriek is entitled, but not obliged, to investigate the correctness, completeness or consistency of the source materials, requirements or specifications made available to it, and to suspend the agreed work upon detection of any deficiencies until the Client has removed the defects concerned.
21.3 Unless agreed otherwise, De Nootfabriek has the right to make use of images, software and components of third parties, including open source software, in the development, configuration or adaptation of Works. After delivery, the responsibility for correct compliance with the relevant licenses of third parties lies with the use of the developed works at the Client. De Nootfabriek will adequately inform the Client of the applicable license conditions.
21.4 Only if explicitly agreed in writing, the source code of developed Works can be made available to the Client. The Client is only entitled to make changes to Works if this is necessary for the intended use or to repair errors.
21.5 The Client indemnifies De Nootfabriek against claims by third parties that a Work infringes an intellectual property right (such as patents, copyrights, etc.), unless the Client can demonstrate that De Nootfabriek had or should have had knowledge of the infringement in the relevant Work. In that case, the indemnification from article 10.5 applies. The De Nootfabriek has no obligation to investigate this area for source materials provided by the Client to De Nootfabriek.
Article 22: Licensing
22.1 De Nootfabrieky can grant the Client the license (s) on one or more of the Works. This can then mean a right to use the relevant Work for internal use (License 1) and / or a right to publish, reproduce and distribute the Work (License 2) in accordance with the provisions set out in article 24.
22.2 In the offer, De Nootfabriek clearly defines which of the two licenses mentioned above, if it concerns both licenses, this is also mentioned, and the price at which the license is granted.
Article 23: Right of use (License 1)
23.1 In the case of a right of use at the Work, De Nootfabriek provides the Client with the right to be allowed to load, execute, display and make available the Work to authorized users.
23.2 The Client is entitled to make a reserve copy of the Work. However, this reserve copy may not be used or marketed by the Client independently than in combination with the original Work.
23.3 The Client is explicitly not permitted to:
to give the Work in copy to third parties,
subcontract the Work or make it available to third parties, through rental, Software-as-a-Service constructions or otherwise,
make changes to the Work,
remove or render illegible indications of the creator or assignee (s) of the Work or parts thereof,
remove or circumvent copy or other protections, or
reverse engineer the source code of the Work or decompile the Work, except to the extent permitted by mandatory law.
23.4 All rights to the Work, the accompanying documentation and all changes and expansions on both are and remain with De Nootfabriek and its associated companies and suppliers. Client only obtains the rights of use and powers arising from the scope of this license agreement or that are granted in writing and otherwise the Client will not reproduce or publish the Work.
Article 24: Right to reproduce the Work (License 2)
24.1 The Nootfabriek (Licensor) provides in the case of a right to publish, reproduce and distribute the Work to the Client (Licensee) the non-exclusive right to deliver the Work to third parties, whereby these third parties are granted the user rights as mentioned in article 23.3.
24.2 Licensee is obliged to pay De Nootfabriek for each delivered software package containing the Work of De Nootfabriek, in any case for each reproduction of the Work of De Nootfabriek, an amount to be paid in accordance with the payment conditions in article 12 of these General Terms and Conditions.
24.3 What amount Licensee owes to De Nootfabriek will be further specified in the quotation and / or order confirmation.
24.4 De Nootfabriek has the right to increase the amount owed by the Licensee in accordance with the method referred to in Article 12.4.
24.5 Licensee is not permitted to adjust the works that have been licensed, unless this has been agreed in writing.
24.6 The right as provided under this article does not include a right of access to the source code, unless this has been agreed separately in writing.
Article 25: Maintenance, installation, support and updates of the Work
25.1 If it has been agreed that De Nootfabriek will provide maintenance or installation of Works, offer support or provide the Client with Updates with regard to these Works, the provisions of this article shall also apply.
25.2 De Nootfabriek will install and configure the relevant Works on hardware and networks to be designated by the Client. The choice, purchase and management of these hardware and networks is solely and completely the responsibility of the Client. De Nootfabriek will give instructions on the desired configuration. If the designated hardware and networks do not meet the requirements of De Nootfabriek, De Nootfabriek is entitled to refuse installation or configuration.
25.3 At the request of De Nootfabriek, the Client shall provide employees and auxiliary persons of De Nootfabriek with all necessary access to the computer systems concerned to enable installation, configuration, maintenance and adjustments of the Works. Physical access to these systems will only take place if this is necessary, and only after prior consultation with the Client.
25.4 If licenses for third parties are required for the use of a Work, the Client will purchase these licenses and ensure that the provisions contained therein are strictly observed. The client indemnifies De Nootfabriek against claims by third parties concerning the installation and maintenance of the Work.
25.5 De Nootfabriek shall endeavor at the request of the Client and on its own initiative from time to time to adjust the Works in order to improve the functionality and to correct errors. In case of new functionality or changes that can substantially change the functioning of the Works, De Nootfabriek will consult with the Client in advance.
25.6 De Nootfabriek will endeavor to keep the Works up-to-date. However, De Nootfabriek is dependent on its supplier (s) and third parties. De Nootfabriek is entitled to not install certain updates or patches if this, in its opinion, does not benefit the correct functioning of the Works.
25.7 De Nootfabriek will offer the Client a reasonable level of support in the use of the Works. This support will take place by telephone and / or by e-mail.
25.8 Costs may be associated with this support, but only if this has been reported to you prior to the support by De Nootfabriek. For these costs, contact De Nootfabriek.
25.9 De Nootfabriek will endeavor to add changes and new functionality (update) requested by the Client to the Works. The De Nootfabriek is always entitled to refuse such a request if it is not feasible in its opinion or may impede the proper functioning or availability of the Works.
25.10 If the Client wishes to independently implement a change to a Work, this will be entirely at the Client’s own risk and responsibility, unless the Client has notified De Nootfabriek in advance of the desired change and De Nootfabriek has approved it in writing. De Nootfabriek can attach conditions to this approval.
Article 26: Exclusion of guarantee
26.1 The Works will be made available to the Client without any form of guarantee or proper functioning.
26.2 If the Client is of the opinion that he has found a defect in a Work, De Nootfabriek will investigate this in order to determine whether there is a real defect and whether this is a known solution. The client must provide De Nootfabriek with full cooperation and all information. De Nootfabriek to provide a request so that De Nootfabriek can come to a solution. However, this in no way implies an obligation for De Nootfabriek to come to a solution.
Article 27: Delivery and acceptance
27.1 If a service extends to the development, configuration, adaptation of Works and / or the granting of a license thereto, De Nootfabriek shall deliver the Works or parts thereof if they meet the specifications or are fit for use in their professional opinion. The client must then evaluate the delivered goods within 20 working days after delivery and approve or reject them. If the Client does not reject delivery within this period, the delivery is deemed to have been accepted.
27.2 If the Client rejects all or part of the delivered goods, De Nootfabriek will endeavor to remove the reason for rejection as quickly as possible. This can be done by revising the result or by stating reasons why the reason is not valid. The Client then has the same period to approve or reject the revision or motivation.
27.3 If the Client continues to reject the completed part or all after a reasonable number of revisions or motivations, De Nootfabriek will be entitled to terminate the agreement with regard to the rejected product. In that case, the Client will receive a full refund of the price paid for the rejected price. The Nootfabriek can only cancel after having given an overhaul or motivation that it is the last and the Client rejects it in whole or in part.
27.4 If a Work is delivered in phases, the Client must give approval or rejection of the part of the Work of that phase after completion of each phase. The Client may not base a good or rejection at a later stage on aspects that have been approved at an earlier stage.
27.5 After acceptance of the delivered, all liability for defects in the delivered goods will lapse, unless De Nootfabriek knew or should have known the defect at the time of acceptance. In any case, any liability for defects in a Work lapses after a period of one year after termination of the Agreement for whatever reason.
Article 28: Duration and cancellation
28.1 The Agreement with regard to the License (s) (1 and 2) is entered into on the day that the offer is agreed, or on the day on which the agreement with the quotation has been found and has, if not agreed otherwise, a term of one year.
28.2 This Agreement is each tacitly renewed for periods of one year unless the Client cancels the Agreement by means of written notification to De Nootfabriek. The Client must observe a notice period of three (3) months.
28.3 If the Client does not fulfill the obligations imposed on him by virtue of these General Terms and Conditions and in the quotation and / or order confirmation, De Nootfabriek shall be entitled to terminate the Agreement existing between him and the Client with immediate effect.
28.4 After termination of the Agreement for any reason whatsoever, the Client will cease all use of the Works and will stop doing so. The Client will remove the Works as well as a possible back-up copy of your systems.
28.5 Parties can only amend or supplement the Agreement with the consent of both parties and only if the changes or additions are recorded in writing and signed by both parties.