General Terms and Conditions

Definitions

In these General Terms and Conditions, the following terms shall have the following meanings, unless expressly stated otherwise:

General Terms and Conditions: these general terms and conditions as set forth below.

Company: the Counterparty acting in the exercise of a business or profession.

BW: the Dutch Civil Code.

Assignment: All activities, in whatever form, that Digitalique performs for or on behalf of the Counterparty.

Distance Service Provision: an agreement concluded between Digitalique and the Counterparty within the framework of an organized system for distance service provision where, up to and including the conclusion of the agreement, exclusive or partial use is made of one or more techniques for distance communication.

Agreement: Any agreement concluded between Digitalique and the Counterparty.

Counterparty: the Company that has accepted these General Terms and Conditions and has commissioned the performance of an Assignment.

Unless the General Terms and Conditions expressly provide otherwise, in the interpretation of the General Terms and Conditions, the singular shall be deemed to include the plural and vice versa, and a reference to a male form shall also be deemed to include a reference to a female form and vice versa.

Applicability

1. These General Terms and Conditions apply to every offer, quotation, and Agreement concluded between Digitalique and the Counterparty, unless the parties have expressly deviated from these General Terms and Conditions in writing.
2. These General Terms and Conditions also apply to agreements with Digitalique for the execution of which third parties must be involved.
3. The applicability of the Counterparty's general terms and conditions is expressly rejected.
4. Deviations from the Agreement and General Terms and Conditions are only valid if they have been expressly agreed upon in writing between the parties. 

Quotations and/or Offers

1. All quotations and/or offers, unless expressly stated otherwise, are considered a non-binding offer and can always be revoked, even if they contain a term for acceptance. Offers/quotations can also be revoked by Digitalique in writing immediately after receipt of acceptance, but no later than within two working days, in which case no agreement has been concluded between the parties.
2. All quotations and/or offers from Digitalique are valid for 30 days, unless stated otherwise.
3. Digitalique cannot be held to its quotations and/or offers if the Counterparty, based on reasonableness and fairness and generally accepted views in society, should have understood that the quotation and/or offer or a part thereof contains an obvious mistake or clerical error.
4. If the acceptance, whether or not on minor points, deviates from the offer included in the quotation and/or offer, Digitalique shall not be bound by it. The Agreement will then not be concluded in accordance with this deviating acceptance, unless Digitalique indicates otherwise.

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Formation of the Agreement

1. The Agreement is formed by the Counterparty's acceptance of Digitalique's quotation and/or offer.
2. Quotations and/or offers can only be accepted in writing (including electronically). Digitalique is nevertheless entitled to accept an oral acceptance as if it had been made in writing.
3. An Agreement between the parties is concluded at the moment Digitalique receives an order confirmation from the Counterparty, or at the moment Digitalique actually begins with the execution. 
4. The Agreement supersedes and replaces all previous proposals, correspondence, agreements, or other communications, whether made in writing or orally.

Execution of the Agreement

1. The Agreement will be executed by Digitalique to the best of its knowledge and ability, in accordance with the requirements of good craftsmanship. With regard to the intended work, there is a best-efforts obligation on the part of Digitalique. The application of articles 7:404, 7:407 paragraph 2, and 7:409 of the Dutch Civil Code is expressly excluded.
2. Digitalique determines the manner in which and by which person(s) the Assignment is executed. Digitalique is entitled to have certain activities performed by third parties.
3. Digitalique is entitled to execute the Agreement in phases. If the Agreement is executed in phases, Digitalique has the right to invoice each executed part separately. If and as long as this invoice is not paid by the Counterparty, Digitalique is not obliged to execute the next phase and has the right to suspend the Agreement.
4. Digitalique is entitled to the previously announced days off, despite any minimum number of hours that may be included in the Agreement.

Changes and Additional Work

1. If during the execution of the Agreement it appears that for a proper execution it is necessary to change or supplement the Agreement, Digitalique will inform the Counterparty of this as soon as possible. The parties will then proceed to amend the Agreement in a timely manner and in mutual consultation.
2. If the parties agree that the Agreement will be changed/supplemented, the time of completion of the execution may be affected. Digitalique will inform the Counterparty of this as soon as possible.
3. If the change or supplement to the Agreement has financial, quantitative, and/or qualitative consequences, Digitalique will inform the Counterparty about this in advance.
4. If a fixed rate or fixed price has been agreed upon, Digitalique will indicate to what extent the change/supplement to the Agreement affects the rate/price. Digitalique will try to provide a price estimate in advance as far as possible.
5. Digitalique will not be able to charge additional costs if the change/supplement is the result of circumstances that can be attributed to Digitalique.
6. Changes to the originally concluded Agreement between the parties are only valid from the moment that these changes have been accepted by both parties by means of a supplementary or amended Agreement.

Obligations of the Counterparty

1. The Counterparty shall ensure that all data, equipment, or spaces, of which Digitalique indicates that they are necessary or of which the Counterparty should reasonably understand that they are necessary for the execution of the Agreement, are available in a timely manner. The Counterparty must also grant Digitalique all powers and authorizations necessary to properly perform the Assignment.
2. Digitalique is not liable for damage, of whatever nature, because Digitalique has relied on incorrect and/or incomplete data provided by the Counterparty, unless this inaccuracy or incompleteness should have been known to Digitalique.
3. The Counterparty shall refrain from behaviors that make it impossible for Digitalique to properly perform the Assignment.
4. If work is performed by Digitalique or third parties engaged by Digitalique within the framework of the Assignment at the location of the Counterparty or a location designated by the Counterparty, the Counterparty shall provide the reasonably desired facilities free of charge.
5. If the Counterparty has not fulfilled its obligations as included in this article, Digitalique has the right to suspend the execution of the Agreement and/or to charge the Counterparty for the extra costs arising from the delay according to the usual price or rates.

Prices

1. Unless expressly agreed otherwise in writing, the prices and rates indicated by Digitalique are always exclusive of VAT.
2. The prices and rates are exclusive of shipping, travel, accommodation, advertising and other expenses, unless otherwise agreed.
3. If a price or rate has not been expressly agreed upon, the price or rate will be determined on the basis of the hours actually spent and the usual rates of Digitalique.
4. Digitalique will provide the Counterparty with a statement of all additional costs or provide data on the basis of which these costs can be passed on to the Counterparty in a timely manner before the conclusion of the Agreement.
5. If Digitalique agrees on a fixed price or fixed rate when concluding the Agreement, Digitalique is entitled to increase it, even if the price or rate was not originally given subject to reservation.
6. In the event that Digitalique intends to change the price or rate, it will inform the Counterparty of this as soon as possible.
7. If the increase in the price or rate takes place within three months of the conclusion of the Agreement, the Counterparty may dissolve the Agreement by means of a written declaration, unless:
8. the increase results from a power or an obligation resting on Digitalique under the law;
9. the increase is caused by a rise in the price of raw materials, taxes, production costs, currency exchange rates, wages, etc., or on other grounds that were not reasonably foreseeable at the time the Agreement was entered into;
10. Digitalique is still prepared to execute the Agreement on the basis of the originally agreed upon terms; or
11. it has been stipulated that the execution will be carried out more than three months after the conclusion of the Agreement.

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Payment

1. Payment shall be made by transfer to a bank account designated by Digitalique, unless otherwise agreed.
2. Digitalique will send an invoice for the amounts owed by the Counterparty. The payment term for each invoice is immediately after the date of the relevant invoice, unless otherwise indicated on the invoice or otherwise agreed.
3. Invoicing takes place weekly, unless otherwise agreed.
4. Digitalique and the Counterparty may agree that payment will be made in installments in proportion to the progress of the work. If payment in installments has been agreed, the Counterparty must pay according to the terms and percentages as laid down in the Agreement.
5. Objections to the amount of the invoice do not suspend the payment obligation of the Counterparty.
6. The Counterparty is not authorized to deduct any amount from the amount due on account of a counterclaim asserted by it.
7. In the event of non-payment or late payment, the Counterparty is in default by operation of law without notice of default. The Counterparty shall then owe the statutory commercial interest from the date on which the payment became due until the day of full payment, whereby interest on a part of the month is calculated over a full month.
8. A payment made by the Counterparty shall first be applied to all interest and costs due and finally to the longest outstanding due and payable invoices, even if the Counterparty states that the payment relates to later invoices.
9. If the Counterparty is in default or in default in the (timely) fulfillment of its obligations, all reasonable costs incurred to obtain satisfaction out of court shall be for the account of the Counterparty.
10. With regard to the extrajudicial (collection) costs, Digitalique is entitled to a fee of 15% of the total outstanding principal sum with a minimum of €250 for each invoice that is not paid in whole or in part.
11. In the event of bankruptcy, suspension of payments, liquidation, general seizure of assets, death, or guardianship, the claims of Digitalique and the obligations of the Counterparty towards Digitalique are immediately due and payable.
12. Any reasonable judicial and execution costs incurred will also be for the account of the Counterparty.

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Complaints

1. The Counterparty must examine the Assignment at the time of execution, but in any case within 7 days of execution, to see whether the executed Assignment complies with the Agreement.
2. Complaints must be reported to Digitalique in writing within 7 days of the execution of the Assignment.
3. The right to (partial) refund of the price, replacement, or compensation for damages shall lapse if the complaint is not reported within the set period, unless a longer period results from the nature of the Assignment or the circumstances of the case.
4. The payment obligation is not suspended if the Counterparty informs Digitalique of the complaint within the set period.

Force Majeure and Unforeseen Circumstances

1. A shortcoming cannot be attributed to Digitalique or the Counterparty, as the shortcoming is not due to its fault, nor is it for its account under the law, a legal act, or generally accepted views. In this case, the parties are also not obliged to fulfill the obligations arising from the Agreement.
2. In the General Terms and Conditions, force majeure is understood to mean, in addition to what is understood in this area in law and jurisprudence, all external causes, foreseen or unforeseen, over which Digitalique has no influence and as a result of which Digitalique is unable to fulfill its obligations.
3. Force majeure on the part of Digitalique is in any case understood to mean:
4. strikes;
5. traffic disruptions;
6. government measures that prevent Digitalique from fulfilling its obligations in a timely or proper manner;
7. riots, rebellion, war;
8. traffic impediments;
9. lack of manpower;
10. extreme weather conditions;
11. fire;
12. import, export, and/or transit bans; and/or
13. any circumstance that hinders the normal course of business as a result of which the fulfillment of the Agreement by Digitalique cannot reasonably be expected by the Counterparty.

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Termination of the Agreement

1. The parties can terminate the Agreement at any time by mutual consent.
2. The parties may terminate the Agreement in writing in the interim with a notice period of 30 days.
3. The parties may terminate the Agreement in writing with immediate effect in the event of:
4. application for or granting of a moratorium on payments to the other party;
5. application for bankruptcy by or declaration of bankruptcy of the other party; or
6. liquidation of the other party or non-temporary cessation of the business of the other party.
7. If the Agreement is dissolved, the claims of Digitalique on the Counterparty are immediately due and payable. If Digitalique suspends the fulfillment of its obligations, it retains its claims under the law and the Agreement. Digitalique always reserves the right to claim damages.

Liability

1. Digitalique is only liable for direct damage caused by gross negligence or intent on the part of Digitalique, and not for more than the amount that the insurer pays out to Digitalique or up to a maximum of the invoice amount or an amount of €1,000, if the invoice amount is higher than €1,000.
2. Direct damage is exclusively understood to mean:
3. reasonable costs to determine the cause and extent of the damage, insofar as the determination relates to damage within the meaning of the General Terms and Conditions;
4. reasonable costs incurred to make the defective performance of Digitalique comply with the Agreement, insofar as these can be attributed to Digitalique; or
5. reasonable costs incurred to prevent or limit damage, insofar as the Counterparty demonstrates that these costs have led to the limitation of direct damage as referred to in the General Terms and Conditions.
6. Digitalique is never liable for indirect damage, including consequential damage, lost profit, missed savings, damage due to business interruption, damage as a result of providing defective cooperation and/or information from the Counterparty, damage due to non-binding information or advice given by Digitalique, the content of which does not explicitly form part of the Agreement, and all damage that does not fall under direct damage within the meaning of these general terms and conditions.
7. Digitalique is never liable for errors in the material provided by the Counterparty or for misunderstandings or errors with regard to the execution of the Agreement if these have their origin or cause in actions of the Counterparty, such as not providing complete, sound, and clear data/materials in a timely manner.
8. Digitalique is never liable for errors if the Counterparty has given its approval at an earlier time, or has been given the opportunity to carry out an inspection and has indicated that it has no need for such an inspection.
9. The liability limitations laid down in this article are also stipulated for the benefit of third parties engaged by Digitalique for the execution of the Agreement.
10. Digitalique is not liable for damage to or loss of documents during transport or during shipment by post, regardless of whether the transport or shipment is carried out by or on behalf of Digitalique, the Counterparty, or third parties.

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Confidentiality

1. Both parties are obliged to maintain the confidentiality of all confidential information that they have obtained from each other or from another source in the context of the Agreement. Information is considered confidential if this has been communicated by the other party or if this results from the nature of the information. The party that receives confidential information will only use it for the purpose for which it was provided.
2. If, on the basis of a statutory provision or a court ruling, Digitalique is obliged to provide confidential information to third parties designated by law or the competent court, and Digitalique cannot invoke a statutory or court-recognized or permitted right of non-disclosure in this matter, then Digitalique is not obliged to pay damages or compensation and the Counterparty is not entitled to dissolve the Agreement on the grounds of any damage resulting therefrom.
3. Without prejudice to the foregoing, Digitalique is authorized to include the name of the Counterparty on a list of relations, which is published on the website or via other communications to third parties, unless otherwise agreed.

Indemnification

1. The Counterparty indemnifies Digitalique, to the extent permitted by law, with regard to liability towards one or more third parties, which has arisen from and/or is related to the execution of the Agreement, regardless of whether the damage was caused or inflicted by Digitalique or by its auxiliary person(s), auxiliary materials, or executed Assignment.
2. In addition, the Counterparty indemnifies Digitalique, to the extent permitted by law, for all claims from third parties in connection with any infringement of intellectual property rights of these third parties.
3. The Counterparty is always obliged to do everything in its power to limit the damage.
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Intellectual Property

1. All intellectual property rights to all products, materials, analyses, designs, software, documentation, advice, reports, quotations, (electronic) information as well as preparatory material thereof (collectively the "IP Material") developed or made available in the context of the execution of the Agreement, rest exclusively with Digitalique or its licensors.
2. The Counterparty only obtains any rights and powers with regard to the IP Material that arise from the Agreement and/or that are expressly granted in writing.
3. The Counterparty is not permitted to transfer any acquired right or power with regard to the IP Material to third parties without the prior written consent of Digitalique.
4. The Counterparty is not permitted to remove or change any designation concerning intellectual property rights such as copyrights, trademark rights, or trade names from the IP Material.
5. Any exploitation, reproduction, use, or disclosure by the Counterparty of the IP Material that falls outside the scope of the Agreement or granted rights and powers is considered an infringement of Digitalique's intellectual property rights.
6. There will be no infringement of intellectual property rights if the Counterparty has received express written permission from Digitalique for the exploitation, reproduction, use, or disclosure of the IP Material that falls outside the scope of the Agreement or granted rights and powers.
7. All IP Material developed by Digitalique for the execution of the Agreement can be used by Digitalique for its own promotional purposes, unless otherwise agreed with the Counterparty.

Privacy

1. Digitalique respects the privacy of the Counterparty. Digitalique treats and processes all personal data provided to it in accordance with the applicable legislation, in particular the General Data Protection Regulation. The Counterparty agrees to this processing. To protect the personal data of the Counterparty, Digitalique uses appropriate security measures.
2. Digitalique uses the personal data of the Counterparty exclusively in the context of the execution of the Agreement or the handling of a complaint.
3. Voor meer informatie over privacy wordt verwezen naar de privacy pagina op de website van Digitalique.

Lapse Period

For all claims and/or powers that the Counterparty has against Digitalique and/or against third parties possibly engaged by Digitalique, a limitation period of one year applies, in deviation from the statutory limitation periods, from the moment a fact occurs that allows the Counterparty to exercise these rights and/or powers against Digitalique and/or the third parties possibly engaged by Digitalique.

Transfer

1. The Counterparty is not permitted to transfer rights and obligations arising from the Agreement to third parties without having obtained written permission from Digitalique.
2. Digitalique is entitled to attach conditions to this permission.

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Survival

The provisions of the General Terms and Conditions and the Agreement, which are expressly or by their nature intended to remain in force after the termination of this Agreement, shall remain in force thereafter and shall continue to bind both parties.

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Miscellaneous

1. Any deviations from these General Terms and Conditions can only be agreed upon in writing. No rights can be derived from such deviations with regard to legal relationships entered into later.
2. The administration of Digitalique serves as proof of the requests made by the Counterparty, unless proven otherwise. The Counterparty acknowledges that electronic communication can serve as proof.
3. If and insofar as any provision of the General Terms and Conditions and the Agreement is declared null and void or is annulled, the other provisions of these General Terms and Conditions and the Agreement will remain in full force. Digitalique will then establish a new provision to replace the null/annulled provision, whereby the purport of the null/annulled provision will be observed as much as possible.
4. The place of execution of the Agreement is deemed to be the place where Digitalique is established.

Applicable Law and Choice of Forum

1. All Agreements, the General Terms and Conditions, and all non-contractual rights and obligations arising therefrom are governed in all respects by Dutch law.
2. All disputes between Digitalique and the Counterparty, which may arise as a result of an Agreement and/or the General Terms and Conditions, or of agreements resulting therefrom, will in the first instance be settled by the competent court of the District Court of Amsterdam.

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