Terms and Conditions

Definitions

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

Terms and Conditions: these terms and conditions as stated below.

Company: the Other Party acting in the course of a business or profession.

BW: the Civil Code.

Assignment: All work, in whatever form, performed by Digitalique for or on behalf of the Other Party. 

Remote services: an agreement concluded between Digitalique and the Other Party within the framework of an organized system for remote services, whereby up to and including the conclusion of the agreement, exclusive or joint use is made of one or more techniques for remote communication;

Agreement: Any agreement concluded between Digitalique and the Other Party.

Counterparty: the Company that has accepted these General Terms and Conditions and has placed an Order. 

Unless the General Terms and Conditions expressly state otherwise, when interpreting the General Terms and Conditions, the singular shall be deemed to include the plural and vice versa, and a reference to a masculine form shall be deemed to include a reference to a feminine form and vice versa.

Applicability

1. These General Terms and Conditions apply to every offer, quotation, and Agreement concluded between Digitalique and the Other Party, 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 Other Party'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 in writing between the parties. 

Quotations and/or offers

1. All quotations and/or offers, unless expressly stated otherwise, are considered non-binding and may be revoked at any time, even if they contain a term for acceptance. Offers/quotations may 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 will have been concluded between the parties.
2. All quotations and/or offers from Digitalique are valid for 30 days, unless otherwise stated.
3. Digitalique cannot be held to its quotations and/or offers if, based on reasonableness and fairness and generally accepted standards in society, the Other Party should have understood that the quotation and/or offer, or part thereof, contained an obvious mistake or error.
4. If the acceptance deviates, whether or not on minor points, from the offer included in the quotation and/or proposal, Digitalique is not bound by it. The Agreement will then not be concluded in accordance with this deviating acceptance, unless Digitalique indicates otherwise.

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Creation agreement

1. The Agreement is concluded upon acceptance by the Other Party of Digitalique's quotation and/or offer.
2. Quotations and/or offers can only be accepted in writing (including by electronic means). Digitalique is nevertheless entitled to accept a verbal 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 Other Party, or at the moment Digitalique actually commences performance. 
4. The Agreement supersedes and replaces all previous proposals, correspondence, agreements, or other communications, whether written or verbal.

Implementation agreement

1. Digitalique will perform the Agreement to the best of its knowledge and ability, in accordance with the requirements of good workmanship. With regard to the intended work, Digitalique has a best-efforts obligation. The application of Articles 7:404, 7:407(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 carried out. Digitalique is entitled to have certain work performed by third parties.
3. Digitalique is entitled to perform the Agreement in phases. If the Agreement is performed in phases, Digitalique has the right to invoice each performed part separately. If and as long as this invoice is not paid by the Other Party, Digitalique is not obliged to perform the next phase and has the right to suspend the Agreement.
4. Digitalique is entitled to the previously announced days off, regardless of any minimum number of hours specified in the Agreement.

Changes and additional work

1. If, during the execution of the Agreement, it appears that it is necessary to amend or supplement the Agreement in order to ensure its proper execution, Digitalique will inform the Other Party 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 amended/supplemented, this may affect the time of completion of the performance. Digitalique will inform the Other Party of this as soon as possible.
3. If the amendment or addition to the Agreement will have financial, quantitative, and/or qualitative consequences, Digitalique will inform the Other Party of this in advance.
4. If a fixed rate or fixed price has been agreed, Digitalique will indicate the extent to which the amendment/addition to the Agreement affects the rate/price. Digitalique will endeavor to provide a quote in advance, where possible.
5. Digitalique will not be able to charge additional costs if the change/addition is the result of circumstances that can be attributed to Digitalique.
6. Changes to the Agreement originally concluded between the parties shall only be valid from the moment that these changes have been accepted by both parties by means of a supplementary or amended Agreement.

Obligations Counterparty

1. The Other Party shall ensure that all data, equipment, or spaces that Digitalique indicates are necessary, or that the Other Party should reasonably understand to be necessary for the performance of the Agreement, are available in a timely manner. The Other Party shall also grant Digitalique all powers and authorizations necessary to properly perform the Assignment.
2. Digitalique is not liable for damage of any kind caused by Digitalique relying on incorrect and/or incomplete information provided by the Other Party, unless Digitalique should have been aware of this incorrectness or incompleteness.
3. The Other Party must refrain from any conduct that makes it impossible for Digitalique to properly perform the Assignment.
4. If Digitalique or third parties engaged by Digitalique perform work at the location of the Other Party or at a location designated by the Other Party in the context of the Assignment, the Other Party shall provide the reasonably desired facilities free of charge.
5. If the Other Party has not fulfilled its obligations as set out in this article, Digitalique has the right to suspend the performance of the Agreement and/or to charge the Other Party for the additional costs resulting from the delay in accordance with the usual prices or rates.

Prices

1. Unless expressly agreed otherwise in writing, the prices and rates indicated by Digitalique are always exclusive of VAT.
2. Prices and rates exclude shipping, travel, accommodation, and other expenses, unless otherwise agreed.
3. If no price or rate has been expressly agreed, the price or rate will be determined on the basis of the actual hours worked and Digitalique's usual rates.
4. Digitalique will inform the Other Party of all additional costs in good time before concluding the Agreement or provide information on the basis of which these costs can be charged to the Other Party.
5. If Digitalique agrees to a fixed price or fixed rate when concluding the Agreement, Digitalique is entitled to increase this, 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 Other Party of this as soon as possible.
7. If the price or rate increase takes place within three months of the conclusion of the Agreement, the Other Party may terminate the Agreement by means of a written statement, unless:
8. the increase results from a power or obligation incumbent on Digitalique under the law;
9. the increase is caused by a rise in the price of raw materials, taxes, production costs, exchange rates, wages, etc., or by other reasons that could not reasonably have been foreseen when the Agreement was entered into;
10. Digitalique is still willing to perform the Agreement on the basis of the originally agreed terms; or
11. it has been stipulated that performance will take place 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 Other Party. The payment term for each invoice is immediately after the date of the invoice in question, unless otherwise indicated on the invoice or agreed otherwise. 
3. Invoicing takes place weekly, unless otherwise agreed. 
4. Digitalique and the Other Party 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 Other Party must pay according to the installments and percentages as laid down in the Agreement.
5. Objections to the amount of the invoice do not suspend the Other Party's payment obligation.
6. The Other Party is not authorized to deduct any amount owed on account of a counterclaim it has asserted. 
7. In the event of non-payment or late payment, the Other Party will be in default by operation of law without notice of default being required. The Other Party will then owe statutory commercial interest from the date on which payment was due until the date of full payment, with interest for part of a month being calculated as interest for a whole month.
8. Any payment made by the Other Party will first be applied to all interest and costs owed and finally to the longest outstanding invoices, even if the Other Party states that the payment relates to later invoices.
9. If the Other Party fails to fulfill its obligations or is in default in the (timely) fulfillment of its obligations, all reasonable costs incurred in obtaining satisfaction out of court will be borne by the Other Party.
10. With regard to extrajudicial (collection) costs, Digitalique is entitled to compensation of 15% of the total outstanding principal amount, with a minimum of €250 for each invoice that has not been paid in full or in part.
11. In the event of bankruptcy, suspension of payments, liquidation, total seizure of assets, death, or guardianship, Digitalique's claims and the Other Party's obligations towards Digitalique will become immediately due and payable.
12. Any reasonable legal costs and enforcement costs incurred shall also be borne by the Other Party. 

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Complaints

1. The Other Party must examine the Assignment at the time of execution, but in any case within 7 days after execution, to determine whether the executed Assignment complies with the Agreement. 
2. Complaints must be reported to Digitalique in writing within 7 days of completion of the Assignment.
3. The right to a (partial) refund of the price, replacement, or compensation will lapse if the complaint is not reported within the specified period, unless the nature of the Assignment or the circumstances of the case warrant a longer period.
4. The payment obligation will not be suspended if the Other Party informs Digitalique of the complaint within the specified period.

Force majeure and unforeseen circumstances

1. A shortcoming cannot be attributed to Digitalique or the Other Party, as the shortcoming is not due to its fault, nor is it for its account under the law, legal act, or generally accepted practice. 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 regard in law and case law, 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 shall in any case include: 
4. strikes;
5. traffic disruptions;
6. government measures that prevent Digitalique from fulfilling its obligations in a timely or proper manner;
7. riots, unrest, war;
8. traffic obstructions;
9. labor shortage;
10. extreme weather conditions;
11. fire; 
12. prohibitions on entry, exit, and/or transit; and/or
13. any circumstance that hinders the normal course of business, as a result of which the Other Party cannot reasonably expect Digitalique to fulfill the Agreement.

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Termination agreement

1. The parties may terminate the Agreement at any time by mutual consent. 
2. The parties may terminate the Agreement in writing during the term with a notice period of 30 days. 
3. The parties may terminate the Agreement with immediate effect in writing in the event of: 
4. request for or granting of a moratorium on payments to the other party; 
5. filing for bankruptcy by or declaration of bankruptcy of the other party; or
6. liquidation of the other party or non-temporary cessation of the other party's business. 
7. If the Agreement is terminated, Digitalique's claims against the Other Party will become immediately due and payable. If Digitalique suspends the fulfillment of its obligations, it will retain its rights under the law and the Agreement. Digitalique will always retain the right to claim compensation.

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 paid to Digitalique by the insurer or up to a maximum of the invoice amount or €1,000 if the invoice amount exceeds €1,000.
2. Direct damage is understood to mean exclusively:
3. reasonable costs incurred in determining 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 bring Digitalique's defective performance into line with the Agreement, insofar as these can be attributed to Digitalique; or
5. reasonable costs incurred to prevent or limit damage, insofar as the Other Party demonstrates that these costs have led to a 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 profits, lost savings, damage due to business interruption, damage resulting from the provision of inadequate cooperation and/or information by the Other Party, damage due to non-binding information or advice provided by Digitalique, the content of which is not expressly 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 shall never be liable for errors in the material provided by the Other Party or for misunderstandings or errors with regard to the performance of the Agreement if these are caused by actions of the Other Party, such as the late delivery or non-delivery of complete, sound, and clear data/materials.
8. Digitalique shall never be liable for errors if the Other Party has given its approval at an earlier stage, or has been given the opportunity to carry out a check and has indicated that it does not require such a check.
9. The limitations of liability set out in this article are also stipulated for the benefit of third parties engaged by Digitalique for the performance 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 Other Party, or third parties.

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Confidentiality

1. Both parties are obliged to maintain confidentiality regarding all confidential information that they have obtained from each other or from other sources within the framework of the Agreement. Information is considered confidential if this has been communicated by the other party or if this arises 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 legal provision or a court ruling, Digitalique is obliged to disclose confidential information to third parties designated by law or by the competent court, and Digitalique cannot invoke a legal right of non-disclosure or a right of non-disclosure recognized or permitted by the competent court, Digitalique shall not be liable for any compensation or indemnification, and the Other Party shall not be entitled to terminate the Agreement on the basis of any damage resulting therefrom. 
3. Notwithstanding the foregoing, Digitalique is authorized to include the name of the Other Party in a list of business relations, which is published on the website or via other communications to third parties, unless otherwise agreed.

Indemnification

1. The Other Party indemnifies Digitalique to the extent permitted by law with regard to liability towards one or more third parties arising from and/or related to the performance of the Agreement, regardless of whether the damage was caused or inflicted by Digitalique or by its auxiliary person(s), auxiliary matters, or performed Assignment. 
2. In addition, the Other Party indemnifies Digitalique, to the extent permitted by law, against all claims from third parties in connection with any infringement of the intellectual property rights of these third parties.
3. The Other Party is always obliged to make every effort to limit the damage.
   
   

Intellectual property

1. All intellectual property rights to all products, materials, analyses, designs, software, documentation, advice, reports, quotations, (electronic) information, and preparatory material developed or made available in the context of the performance of the Agreement (collectively referred to as the "IP Material") are vested exclusively in Digitalique or its licensors. 

2. The Other Party shall only acquire 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 Other Party is not permitted to transfer any rights or powers obtained with regard to the IP Material to third parties without the prior written consent of Digitalique.
4. The Other Party is not permitted to remove or change any indication of intellectual property rights such as copyrights, trademark rights, or trade names from the IP Material. 

5. Any exploitation, reproduction, use, or disclosure by the Other Party of the IP Material that falls outside the scope of the Agreement or the rights and powers granted shall be considered a violation of Digitalique's intellectual property rights. 
6. There will be no infringement of intellectual property rights if the Other Party has received explicit written permission from Digitalique for the exploitation, reproduction, use, or disclosure of the IP Material that falls outside the scope of the Agreement or the rights and powers granted. 
7. All IE Material developed by Digitalique for the performance of the Agreement may be used by Digitalique for its own promotional purposes, unless otherwise agreed with the Other Party.


Privacy

1. Digitalique respects the privacy of the Other Party. Digitalique handles and processes all personal data provided to it in accordance with applicable legislation, in particular the General Data Protection Regulation. The Other Party agrees to this processing. Digitalique takes appropriate security measures to protect the personal data of the Other Party. 
2. Digitalique uses the personal data of the Other Party exclusively in the context of the execution of the Agreement or the handling of a complaint.
3. For more information about privacy, please refer to the privacy page on the Digitalique website.

Expiration date

For all claims and/or powers that the Other Party has against Digitalique and/or against any third parties engaged by Digitalique, a limitation period of one year applies, contrary to the statutory limitation periods, from the moment that a fact occurs that the Other Party can use these rights and/or powers against Digitalique and/or any third parties engaged by Digitalique.

Transfer

1. The Other Party is not permitted to transfer rights and obligations arising from the Agreement to third parties without obtaining Digitalique's written consent.
2. Digitalique is entitled to attach conditions to this consent. 

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Aftermath

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

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Other

1. Any deviations from these General Terms and Conditions can only be agreed in writing. No rights can be derived from such deviations with regard to legal relationships entered into at a later date.
2. The records of Digitalique shall, unless proven otherwise, serve as evidence of the requests made by the Other Party. The Other Party acknowledges that electronic communication may serve as evidence.
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 invalid/void provision, taking into account as much as possible the purport of the invalid/void provision.
4. The place of performance of the Agreement shall be deemed to be the place where Digitalique is established.

Applicable law and forum selection

1. All Agreements, the General Terms and Conditions, and all non-contractual rights and obligations arising therefrom shall be governed in all respects by Dutch law.
2. All disputes between Digitalique and the Other Party that may arise in connection with an Agreement and/or the General Terms and Conditions, or agreements resulting therefrom, will in the first instance be settled by the competent court in Amsterdam.

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