WEBSOLVEThe original (and binding) version of our terms and conditions is in Dutch and can be found here.
For your convenience, a translation of these conditions can be found below.
GENERAL TERMS AND CONDITIONS OF WEBSOLVE B.V.
1. DEFINITIONS
1.1. GT&C: These General Terms and Conditions for the supply of products and services by WEBSOLVE B.V.
1.2. Client: the purchaser of the Services.
1.3. Services: the products produced by WEBSOLVE B.V. and work performed under the agreement with the Client, i.e., an economic activity, other than employment, usually carried out for compensation.
1.4. Errors: the substantial non-compliance of the delivered services with the functional or technical specifications of the delivered services as promised by WEBSOLVE in writing. An error exists only if the Client can demonstrate it and if it hinders the normal use of the service.
1.5. Supplier: WEBSOLVE B.V., a company registered in Amsterdam with its office at Gedempt Hamerkanaal 18, Amsterdam (1021 KM), and its possible legal successors.
1.6. Agreements: the agreements concluded between the Client and the Supplier to which these GT&C apply.
1.7. Intellectual Property: all intellectual or industrial property rights to the software, websites, databases, equipment, or other materials developed or made available under the agreement, including but not limited to analyses, designs, documentation, reports, quotations, as well as preparatory materials.
1.8. Written: a document sent by regular mail and an electronically sent message using email software with a confirmed receipt. Sending a message via SMS, MMS, WhatsApp, or other messaging services does not fall under the definition of written.
1.9. WEBSOLVE B.V.: WEBSOLVE and Supplier.
2. GENERAL PROVISIONS
2.1. These general terms and conditions apply to all offers, legal relationships, and agreements in which WEBSOLVE supplies goods and/or services of any kind to the Client.
2.2. Any deviations and additions to these general terms and conditions are only valid if agreed upon in writing.
2.3. WEBSOLVE is authorized to engage third parties in the execution of the agreement.
2.4. All offers and other statements made by WEBSOLVE are non-binding unless expressly indicated otherwise in writing by WEBSOLVE. The Client is responsible for the accuracy and completeness of the requirements and specifications of the performance provided by or on behalf of the Client to WEBSOLVE.
2.5. The applicability of the Client's purchase or other terms and conditions is expressly rejected.
2.6. If one or more provisions in these general terms and conditions are null and void or are declared void, the remaining provisions of these general terms and conditions will remain in full force. WEBSOLVE and the Client will then consult to establish new provisions to replace the null and void or voided provisions, taking into account as closely as possible the purpose and intent of the original provisions.
2.7. If WEBSOLVE enters into agreements with the Client more than once, these general terms and conditions will apply to all subsequent agreements, regardless of whether they have been explicitly declared applicable.
2.8. WEBSOLVE may impose (additional) requirements on communication between the parties or the performance of legal acts via email. The starting point is that communication will take place through electronic addresses provided by the parties at the start of the agreement.
3. PRICE AND PAYMENT
3.1. All prices are exclusive of value-added tax (VAT) and other government-imposed levies unless otherwise indicated.
3.2. The validity period of the offer is one month. The agreement will be concluded after written acceptance of the offer.
3.3. In the case of a continuous agreement with the Client, WEBSOLVE is entitled to adjust the prevailing prices and rates in writing with a notice 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 receiving notice, with the termination taking effect on the date on which the adjustment would come into force.
3.4. The parties will specify in the agreement the date(s) on which WEBSOLVE will invoice the compensation for the agreed-upon services to the Client. Invoices are to be paid by the Client according to the payment conditions specified on the invoice. In the absence of a specific arrangement, the Client shall pay within twenty-one (21) days of the invoice date. The Client is not entitled to offset or suspend payment.
3.5. If the Client fails to pay the amounts due in a timely manner, the Client is obligated to pay the statutory commercial interest on the outstanding amount without any notice or demand being required. If, after notice or demand, the Client remains negligent in paying the claim, WEBSOLVE may transfer the claim to a collection agency, in which case the Client will also be required to pay all costs, in addition to the legally established costs.
3.6. Without prejudice to the preceding article and any applicable statutory rights, WEBSOLVE is entitled to suspend the delivery of services in whole or in part without any notice or demand if payment is not made on time, even without any notice or demand. In the case of services that WEBSOLVE must purchase from third parties, including but not limited to domain name registrations and security certificates, WEBSOLVE is entitled to terminate these services in such a case.
4. CONFIDENTIALITY, EMPLOYEE ACQUISITION
4.1. Each of the parties guarantees that all confidential information received from the other party remains confidential, unless a legal obligation requires the disclosure of such information. The party receiving confidential information shall only use it for the purpose for which it was provided. Information is considered confidential if it has been communicated by the other party or if it arises from the nature of the information.
4.2. Indien, op grond van een wettelijke bepaling of een rechterlijke uitspraak, WEBSOLVE gehouden is vertrouwelijke informatie aan door de wet of de bevoegde rechter aangewezen derden mede te verstrekken, en WEBSOLVE zich ter zake niet kan beroepen op een wettelijk dan wel door de bevoegde rechter erkend of toegestaan recht van verschoning, dan is WEBSOLVE niet gehouden tot schadevergoeding of schadeloosstelling en is cliënt niet gerechtigd tot ontbinding van de overeenkomst op grond van enige schade, hierdoor ontstaan.
4.3.Cliënt zal gedurende de looptijd van de overeenkomst evenals één jaar na beëindiging daarvan slechts na voorafgaande schriftelijke toestemming van WEBSOLVE, medewerkers van WEBSOLVE die betrokken zijn of zijn geweest bij de uitvoering van de overeenkomst, in dienst nemen dan wel anderszins, direct of indirect, voor zich laten werken. WEBSOLVE zal de betreffende toestemming in voorkomend geval niet onthouden indien cliënt een passende schadeloosstelling heeft aangeboden.
5. PRIVACY, DATA PROCESSING, AND SECURITY
5.1. The Client guarantees compliance with all requirements for the lawful processing of personal data entered by the Client into the supplied goods and/or Services and any software used by WEBSOLVE.
5.2. The Client has obligations under legislation related to the processing of personal data, such as the obligation to provide information, as well as to provide access to, correct, and delete personal data of data subjects. The responsibility for compliance with these obligations rests solely with the Client. In relation to this personal data, WEBSOLVE will be considered a 'processor' within the meaning of the GDPR.
5.3. Upon request, WEBSOLVE will, to the extent technically possible, assist the Client in fulfilling the obligations referred to in the preceding paragraph. The costs associated with this assistance are not included in the agreed prices and fees of WEBSOLVE and will be borne by the Client.
5.4. If WEBSOLVE deems it necessary for the execution of the agreement, the Client will promptly inform WEBSOLVE in writing of how the Client fulfills its obligations under data protection legislation. The Client shall fully cooperate with WEBSOLVE to meet the obligations under the GDPR within the statutory timeframes. WEBSOLVE refers to the underlying agreement between the Client and WEBSOLVE, which specifies the extent of WEBSOLVE's liability. If there is no underlying agreement, WEBSOLVE's liability will be limited to the annual subscription fees paid for the products affected by the data breach. WEBSOLVE expressly emphasizes that it cannot guarantee perfection.
5.5. The notification obligation mentioned in the previous paragraph only applies if the breach leads to serious adverse consequences for the protection of personal data (or a significant risk thereof). Whether this is the case will be determined by WEBSOLVE and will comply with the guidelines of the Dutch Data Protection Authority (AP). However, if the leaked data is of a sensitive nature, WEBSOLVE will report it. WEBSOLVE will report the breach to the AP, and the report will include details of the breach and its (potential) consequences, as well as the measures taken and/or to be taken to address the consequences. If it is determined that the leaked data was (adequately) encrypted, WEBSOLVE will not notify the data subject and, if necessary, only inform the AP.
5.6. WEBSOLVE and the Client ensure that the data protection officer, as mentioned in Article 5.5, is properly and timely involved in all matters related to the protection of personal data.
5.7. If WEBSOLVE detects (attempts at) unlawful or otherwise unauthorized processing or breaches of the security measures of the Personal Data, it shall promptly inform the Client and, at its own expense, take all reasonably necessary measures to prevent or limit any (further) violation of the GDPR or other regulations concerning the processing of the Personal Data. This is without prejudice to WEBSOLVE's obligation to compensate the Client for any damage suffered, up to a maximum of €50,000 (fifty thousand euros) per year, for the products affected by the data breach, provided that there is no compensation if there is intent or gross negligence on the part of the Client or if it is clear that the fault lies with the Client.
5.8. The Client indemnifies WEBSOLVE against claims by individuals whose personal data is registered or processed as part of a personal registration held by the Client or for which the Client is otherwise responsible under the law, unless the Client proves that the facts underlying the claim are solely attributable to WEBSOLVE.
5.9. The Client warrants to WEBSOLVE that the content, use, and/or processing of personal data is not unlawful and does not infringe any rights of third parties. The Client indemnifies WEBSOLVE against any claims by a third party, regardless of the legal basis, related to this data or the performance of the agreement.
6. INTELLECTUAL PROPERTY RIGHTS
6.1. All intellectual and industrial property rights to the software, websites, databases, equipment, or other materials developed or made available under the agreement, including but not limited to analyses, designs, documentation, reports, quotations, as well as preparatory materials, are exclusively owned by WEBSOLVE, its licensors, or its suppliers. The Client only obtains the usage rights expressly granted by these terms and conditions and the law. Any other or further right of the Client to reproduce software, websites, databases, or other materials is excluded. The Client's right to use may not be shared or transferred to third parties. WEBSOLVE retains the copyright at all times.
6.2. If, contrary to Article 6.1, WEBSOLVE is willing to transfer intellectual or industrial property rights, any such agreement shall always be made in writing. If the parties agree that intellectual or industrial property rights with regard to specific software, websites, databases, equipment, or other materials developed for the Client will be transferred to the Client, this does not affect WEBSOLVE's right to apply and exploit, without limitation, the components, general principles, ideas, designs, documentation, works, programming languages, and the like, underlying the development, for other purposes, whether for itself or for third parties. The transfer of intellectual or industrial property rights also does not affect WEBSOLVE's right to carry out developments similar to those done for the Client, for the benefit of itself or third parties.
6.3. The Client is not allowed to remove or alter any indication regarding the confidential nature or copyrights, trademarks, trade names, or other intellectual or industrial property rights from the software, websites, databases, equipment, or materials.
6.4. WEBSOLVE is allowed to take technical measures to protect the software or to comply with agreed limitations on the duration of the right to use the software. The Client is not allowed to remove or bypass such technical measures. If security measures result in the Client being unable to create a backup copy of the software, WEBSOLVE will, upon request, provide the Client with a backup copy.
6.6. The Client guarantees that no third-party rights conflict with the provision of equipment, software, materials intended for publication or reproduction (e.g., images, text, music, domain names, logos, etc.), databases, or other materials, including design materials, to WEBSOLVE for the purpose of use, processing, installation, or incorporation (e.g., into a website). The Client will indemnify WEBSOLVE against any claims based on the assertion that such provision, use, processing, installation, or incorporation infringes any third-party rights.
6.7. Data for which the Client holds intellectual property rights, and which are present at WEBSOLVE can be requested by the Client at any time. Such a request will be honored by WEBSOLVE within a reasonable period. This right expires 30 days after the termination of the agreement. After that, WEBSOLVE is entitled to delete all data in its possession.
7. CLIENT'S COOPERATION
7.1. The Client shall always provide WEBSOLVE with timely access to all data or information useful and necessary for the proper execution of the agreement and provide all cooperation. If, as part of providing assistance in the execution of the agreement, the Client deploys its personnel, this personnel shall possess the necessary knowledge, experience, capacity, and quality.
7.2. The Client bears the risk of selecting, using, and applying equipment, software, websites, databases, or other products and materials in its organization and of the services provided by WEBSOLVE, and is also responsible for control and security procedures and adequate system management.
7.3. If the Client provides software, websites, materials, databases, or data carriers to WEBSOLVE as part of the agreement, these shall comply with the specifications prescribed by WEBSOLVE.
7.4. If the Client fails to provide WEBSOLVE with the necessary data, equipment, software, or personnel necessary for the execution of the agreement, or if the Client fails to meet its obligations in any other way, WEBSOLVE has the right to suspend the execution of the agreement in whole or in part until the necessary data are provided and has the right to charge the resulting costs to the Client at its usual rates, without prejudice to WEBSOLVE's right to exercise any other legal right.
7.5. The Client guarantees that the use of WEBSOLVE's systems complies with applicable laws and regulations. If WEBSOLVE has indications that the systems are being used for activities such as, but not limited to, spamming or phishing, WEBSOLVE has the right to immediately suspend the service without any obligation to pay compensation if the indications are later found to be unsubstantiated. The responsibility for such activities always lies with the Client, even if WEBSOLVE decides not to suspend the service. The suspension will end if it is determined that the systems are not being used for purposes such as spamming and phishing.
8. (DELIVERY) TIMES AND ACCEPTANCE
8.1. All delivery times specified or agreed upon by WEBSOLVE are determined to the best of its knowledge based on the data known to WEBSOLVE at the time the agreement was entered into. WEBSOLVE will make every reasonable effort to meet the agreed-upon delivery times. The mere exceeding of a specified or agreed-upon delivery time does not put WEBSOLVE in default. In all cases, including when parties have expressly agreed on an ultimate term in writing, WEBSOLVE is only in default of exceeding a time limit after the Client has notified him in writing and given a reasonable period to remedy the breach. WEBSOLVE is not bound to (delivery) deadlines, whether or not ultimate, that can no longer be met due to circumstances beyond its control that have arisen after the conclusion of the agreement. Nor is WEBSOLVE bound to a (delivery) deadline, whether or not ultimate, if the parties have agreed on a change in the content or scope of the agreement (additional work, change in specifications, etc.). If there is a risk of exceeding any deadline, WEBSOLVE and the Client shall consult as soon as possible.
8.2. If the parties have not agreed on an acceptance test, the Client shall accept the software in the condition it is in at the time of delivery, including all visible and invisible errors and defects, without prejudice to WEBSOLVE's warranty obligations.
8.3. If an acceptance test has been agreed upon, the Client shall be required to test the delivered software within the first fourteen days after delivery and report any errors to WEBSOLVE. Errors shall be rectified by WEBSOLVE as soon as reasonably operationally and technically possible.
9. TERMINATION OF AGREEMENT
9.1. Each party has the authority to terminate the agreement only if the other party, in all cases after a proper and as detailed as possible written notice of default with a reasonable period for rectification, is in default in the performance of essential obligations under the agreement.
9.2. If an agreement, by its nature and content, does not end by completion, it can be terminated by either party after good consultation and stating reasons through written notice of termination. If no specific notice period has been agreed between the parties, a reasonable notice period shall be observed upon termination.
9.3. For an agreement entered into for a term of one year or longer, the agreement may be terminated in writing by the parties at the end of the agreed-upon term with a notice period of 30 days.
9.4. Contrary to what statutory law may provide in this regard, the Client may only terminate a service agreement in the cases regulated in these terms and conditions.
9.5. Each party may terminate the agreement in writing, without notice of default, with immediate effect if the counterparty - whether provisionally or not - is granted a suspension of payments, if bankruptcy is applied for in relation to the counterparty, or if the counterparty's business is liquidated or terminated other than for the purpose of corporate reconstruction or merger. WEBSOLVE is never obligated to refund any monies received or provide compensation due to such termination. In the event of the Client's bankruptcy, the right to use the software provided to the Client will automatically expire.
9.6. If the Client has received performance in the execution of the agreement at the time of the termination referred to in Article 9.1, these performances and the related payment obligations will not be subject to reversal unless the Client can prove that WEBSOLVE is in default with regard to these performances. Amounts invoiced by WEBSOLVE for services that have been properly performed or delivered in the execution of the agreement prior to the termination will remain due and payable immediately upon termination, taking into account the provision in the preceding sentence.
10. LIABILITY OF WEBSOLVE
10.1. The total liability of WEBSOLVE for attributable failure to perform the agreement is limited to compensation for direct damage, up to a maximum of the price stipulated for that agreement (excl. VAT). If the agreement is mainly a continuing performance agreement with a term of one year or more, the price stipulated for the agreement will be deemed to be the total of the fees (excl. VAT) stipulated for one year. In no event shall the total compensation for direct damage exceed €50,000. Direct damage is exclusively understood to mean:
a. reasonable costs that the Client would have to incur to make WEBSOLVE's performance conform to the agreement;
b. reasonable costs that the Client has incurred in keeping its old system or systems and related facilities operational longer because WEBSOLVE did not deliver on a binding final delivery date, reduced by any savings resulting from the delayed delivery;
c. reasonable costs incurred to determine the cause and extent of the damage, insofar as the determination relates to direct damage within the meaning of these terms and conditions;
d. reasonable costs incurred to prevent or limit damage, insofar as the Client demonstrates that these costs have led to the limitation of direct damage within the meaning of these terms and conditions.
10.2. WEBSOLVE's liability for damage due to death or bodily injury or due to material damage to property shall never exceed a total of €750,000 (seven hundred and fifty thousand euros).
10.3. WEBSOLVE shall not be liable for indirect damage, consequential damage, loss of profit, loss of savings, loss of goodwill, business interruption damage, damage resulting from claims by the Client's customers, mutilation or loss of data, damage related to the use of third-party goods, materials, or software prescribed by the Client to WEBSOLVE, damage related to the engagement of suppliers prescribed by the Client to WEBSOLVE, and all other forms of damage not mentioned in Articles 10.1 and 10.2, for whatever reason.
10.4. The limitations mentioned in the preceding paragraphs of this Article 10 shall lapse if and insofar as the damage is the result of intent or gross negligence on the part of WEBSOLVE or its employees.
10.5. WEBSOLVE's liability for attributable failure to perform an agreement shall only arise if the Client promptly and properly notifies WEBSOLVE in writing, providing a reasonable period for rectification of the failure, and WEBSOLVE continues to fall short of its obligations after that period. The notice of default shall contain as detailed and complete a description of the failure as possible so that WEBSOLVE can respond adequately.
10.6. The condition for the existence of any right to compensation is always that the Client reports the damage to WEBSOLVE in writing as soon as possible after the occurrence thereof. Any claim for compensation against WEBSOLVE shall lapse by the mere expiration of 6 months after the claim arises.
10.7. If the Client is in default, WEBSOLVE may claim the damage it incurs, for example but not limited to, hiring experts for the project from the Client.
10.8. The provisions in this Article 10 also apply to the benefit of all (legal) persons used by WEBSOLVE to perform the agreement.
11. FORCE MAJEURE
11.1. Neither party shall be obligated to fulfill any obligation if prevented from doing so due to force majeure. Force majeure, as used in these general terms and conditions, is understood to mean - in addition to what is understood in the law and jurisprudence - all external causes, foreseen or unforeseen, over which WEBSOLVE has no influence but which prevent WEBSOLVE from fulfilling its obligations (including strikes), as well as force majeure of WEBSOLVE's suppliers, failure to properly fulfill obligations by suppliers prescribed by the Client to WEBSOLVE, and defects in third-party goods, materials, or software that the Client has prescribed for use by WEBSOLVE.
11.2. During the period that force majeure continues, the parties may suspend the obligations under the agreement. If this period lasts longer than ninety days, either party is entitled to terminate the agreement, without obligation to compensate the other party for any damages.
11.3. Insofar as WEBSOLVE has partially fulfilled its obligations under the agreement at the time of the occurrence of force majeure or can still fulfill them, and the fulfilled or to be fulfilled part has independent value, WEBSOLVE is entitled to invoice the already fulfilled or to be fulfilled part separately. The Client is obliged to pay this invoice as if it were a separate agreement.
12. SPECIAL PROVISIONS FOR SERVICES
12.1. The provisions mentioned here are in addition to the already mentioned provisions and are also applicable when WEBSOLVE provides services, including but not limited to consulting, feasibility studies, consultancy, training, courses, online surveys, training, support, secondment, hosting, designing, developing, implementing, or managing software, websites, or information systems, and services related to networks.
12.2. WEBSOLVE will make every reasonable effort to carry out the services with due care, in accordance with the agreements and procedures that have been recorded in writing with the Client. All WEBSOLVE services are performed on a best efforts basis, unless explicitly agreed otherwise in writing by WEBSOLVE, with a clear and detailed description of the desired result. Any agreements concerning a service level will only be expressly agreed upon in writing.
12.3. If it has been agreed that the service will take place in phases, WEBSOLVE is entitled to postpone the start of the services that belong to a phase until the Client has approved the results of the preceding phase in writing.
13. SPECIAL PROVISIONS FOR SOFTWARE DEVELOPMENT
13.1. If specifications or a design of the software to be developed have not already been provided to WEBSOLVE when entering into the agreement, the parties shall consult and specify in writing the software to be developed and the manner in which this will be done. WEBSOLVE shall carry out the development of the software with due care based on the data provided by the Client, for the accuracy, completeness, and consistency of which the Client is responsible. If the parties have agreed to use a development method characterized by a further determination of priorities during the execution of the agreement, this prioritization will always be established in consultation between the parties.
13.2. WEBSOLVE is entitled, but not obliged, to investigate the accuracy, completeness, or consistency of the data, specifications, or designs provided to it, and in case of any deficiencies or ambiguities, to suspend the agreed-upon work until the Client has resolved the deficiencies or ambiguities.
13.3. The software may only be used by the Client within its own company or organization, on one processing unit, and for a specified number or type of users or connections for which the license has been granted.
13.4. In the absence of an expressly agreed-upon invoicing schedule, all amounts relating to the development of the software, installation, etc., shall be due monthly.
13.5. WEBSOLVE will make every reasonable effort to remedy software errors within a reasonable period if they are reported to WEBSOLVE in writing in detail within three months after delivery. Remediation will be performed free of charge, unless the software has been developed by WEBSOLVE on behalf of the Client at a variable price, in which case WEBSOLVE will charge the costs of remediation according to its usual rates. WEBSOLVE may charge the costs of remediation according to its usual rates if the errors are the result of user errors or improper use by the Client or other causes not attributable to WEBSOLVE, or if the errors could have been detected during the agreed-upon acceptance test. The warranty obligation lapses if the Client, without the written consent of WEBSOLVE, makes or allows changes to be made to the software, consent that will not be unreasonably withheld.
13.6. Remediation of errors will be performed at a time determined by WEBSOLVE. WEBSOLVE is entitled to apply temporary solutions, workarounds, or problem-avoidance restrictions to the software.
13.7. WEBSOLVE has no obligation to remedy errors reported after the warranty period mentioned in Article 14.5 unless a maintenance agreement between the parties exists that includes such a repair obligation.
14. APPLICABLE LAW AND DISPUTES
14.1. Agreements between WEBSOLVE and the Client are governed by Dutch law. The United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply.
14.2. Disputes arising between WEBSOLVE and the Client in connection with an agreement concluded between WEBSOLVE and the Client, as well as disputes arising from subsequent agreements resulting therefrom, will be settled by the Amsterdam District Court.