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Make it Max General Terms and Conditions.
Article 1. Definitions
- The Contractor: the party as listed in the quotation on which the Agreement based. This party may be Make it Max, established in Amsterdam and registered with the Chamber of Commerce under registration number 66006791, respectively. Only the parties named in the quotation are parties to the Agreement.
- The Client: the natural or legal person who has entered into an Agreement with the Contractor.
- General Terms and Conditions: this document.
- Service: the activity/activities that the Contractor will perform for the Client, as specified in the Agreement. The Services provided by the Contractor include CMS, internet marketing and developing websites, (web) applications and corporate identities.
- Term Agreement: an Agreement that aims to periodically perform/deliver Services for a certain period of time.
- Framework: a collection of components (software/code) already developed and owned by the Contractor on which the Contractor may build a new environment/application for the benefit of the Client.
- User: The user of the Service, which is specified by the client (for example, an employee).
- Agreement: the agreement between the Contractor and the Client, pursuant to which the Contractor will perform/deliver the Service, as described in the quotation.
- Written/In writing: written on paper.
- Fault: A detected disruption or threat of disruption to the agreed service level of service.
- Website: makeitmax.design
Article 2. Offer and Acceptance
- The Contractor will prepare a quotation indicating what is included in the Service and the amount that will be due upon acceptance. Only the description of the Service given in the quotation is binding. If the quotation is accepted by the Client (electronically or In Writing), the Agreement will come into effect.
- If it appears that the information provided by the Client is incorrect, the Contractor has the right to adjust the prices accordingly.
- The Agreement, offers and quotations shall at all times be subject to these General Terms and Conditions, unless expressly agreed otherwise In Writing.
- Terms or conditions set by the Client that deviate from, or do not appear in, these General Terms and Conditions are only binding on the Contractor if and insofar as they have been expressly accepted In Writing by the Contractor.
- After acceptance, the Agreement may be amended only by mutual consent. For modification of these Terms and Conditions, see Article 18.
- In case of conflict of provisions in the following documents, the following order of precedence shall apply:
- the Agreement;
- the Service Level Agreement;
- any appendices;
7. these General Terms and Conditions.
Article 3. Execution of the Service
- Insofar as not otherwise agreed In Writing, the Contractor guarantees that the Service will be performed to the best of its ability, applying sufficient care and professionalism. With regard to the Service(s) to be provided, the Contractor merely has an obligation of effort and not an obligation of result.
- All Services are provided by the Contractor on a best effort basis: The Contractor shall make every effort to provide the Services to the best of its ability, but makes no guarantees regarding its performance. The Contractor shall be entitled to have certain work performed by third parties. Any additional costs associated with this will only be passed on with the agreement of the Client.
- The Client is obliged to do and to refrain from doing all that is reasonably necessary and desirable to enable the timely and proper performance of the Service. In particular, the Client shall ensure that all data and facilities, which the Contractor indicates are necessary or which the Client should reasonably understand are necessary for the performance of the Service, will be made available to the Contractor in a timely manner. If the Client, after a Written or electronic reminder fails to deliver any (or the correct) materials, the Contractor is permitted to cancel the Agreement free of charge and the Client is obliged to buy off the Agreement in accordance with Article 8, paragraph 9.
Article 4. Completion
- If the Agreement relates to a standard Service, the Contractor will make every effort to deliver the Service as soon as possible after the Agreement is concluded.
- If the Service (partly) aims to develop custom work, the delivery may consist of several partial deliveries, whereby each part is seen as a separate whole.
- If at least one of the following situations occurs, it can be considered as “delivered”:
- by the Client’s use of the Service;
- by a communication from the Contractor to the Client that the Service is available;
- by a written or electronic confirmation of delivery of the Service by the Contractor.
Article 5. Extra work
- If, at the request or with the prior consent of the Client, the Contractor has performed any other work or activities that fall outside the content or scope of the agreed work and/or performance, these activities or work performed by the Client shall be reimbursed on the basis of actual costing. The Contractor shall never be obliged to comply with such a request and it may require that a separate Written Agreement be entered into for this purpose.
- The Client accepts that work or performance as referred to in this article may affect the agreed or expected time of completion of the services and the mutual responsibilities of the Client and Contractor. Any contract changes due to (required) additional work during the performance of the agreement shall never be grounds for cancellation or dissolution of the agreement by the Client. To the extent that a fixed price has been agreed for the services, the Contractor will, upon request, inform the Client In Writing of the financial consequences of the additional work or performance as referred to in this article.
Article 6. Duration and Termination
- If the Service is a Term Agreement, the Agreement shall be deemed to have been entered into for a minimum term of twelve months, unless otherwise agreed In Writing. In the absence of a Written notice, subject to two months’ notice by the end of the aforementioned period, the Agreement shall always be tacitly renewed for the same period, unless otherwise agreed In Writing.
- If the Service extends to the development of software, advice or other works, the Agreement is deemed to have been entered into for the duration specified in the Agreement. The Agreement can only be terminated by the Contractor in the interim and free of charge if, in the opinion of the Contractor, the collaboration is no longer sustainable.
In the event that the Client fails to fulfill any of its obligations under the Agreement, the Contractor will have the right to suspend or terminate (at the Contractor’s discretion) all Agreements concluded with the relevant Client without any notice of default or judicial intervention being required and without prejudice to the Contractor’s right to compensation for damage, loss of profits and interest.
Article 7. Prices
- All prices are in euro and exclusive of sales tax (VAT) and other government levies.
- All prices on the Website, brochures, price list(s) and/or other means of communication of the Contractor are subject to programming and typing errors. No liability is accepted for the consequences of such errors.
- If the Agreement is a Term Agreement, the Contractor shall be entitled to change the rates charged at any time. To this end, the Contractor will notify the Client of rate changes at least 2 (two) months in advance. In the event of a price increase, the Client has the right to terminate the Agreement, subject to 1 (one) month’s notice.
- Without prejudice to the provisions of the preceding paragraph, the Contractor is entitled to adjust the prices charged once per calendar year, if it concerns a Term Agreement, based on the consumer price index (CPI) published at that time, without the possibility for the Client to terminate the Agreement.
- All costs arising for the Contractor from the Agreement shall be borne by the Client, unless otherwise agreed.
Article 8. Payment Terms
- The Contractor will send an invoice to the Client for all amounts due from the Client.
- After the expiry of fourteen days from the payment deadline, the Client who fails to pay on time will be in default by operation of law without notice of default being required. If an amount due is not paid within the payment term, statutory interest shall be payable on the outstanding amount without further notice of default by the Contractor.
- The Client agrees to electronic billing by the Contractor.
- If the Service (partly) involves the development of custom work, a designated employee of the Contractor will draw up a schedule in consultation with the Client. Developing custom work consists of multiple delivery moments, as scheduled. For each completion, the Contractor will send the Client an invoice for the work performed up to that point, unless otherwise expressly agreed In Writing.
- If the Agreement is a Term Agreement, the Client will pay the Contractor the amount due for that term annually in advance, unless otherwise agreed In Writing. Payment should be made by direct debit, for which the Client authorizes the Contractor.
- If the (ACH) direct debit is unsuccessful, this will be communicated to the Client and the Contractor has the right to charge administrative costs to the Client.
- In the event of late payment, the Client is obliged, in addition to the amount owed and the interest thereon, to pay in full both extrajudicial and judicial collection costs (with a minimum of 250 euro), including the costs of lawyers, bailiffs and collection agencies. In addition, the entire amount for the remaining contract term shall be immediately due and payable by the Contractor and the Contractor shall be entitled to suspend other services contracted with the Contractor (and its affiliates within the Contractor Group Company).
- The claim for payment shall be immediately due and payable in the event that the Client is declared bankrupt, applies for a suspension of payments or if assets of the Client are seized, the Client cancels the order and within 5 working days after cancellation does not invoke paragraph 9 of this article, the Client deceases and furthermore, if the Client goes into liquidation or is dissolved.
- The Client is permitted to cancel the Agreement in whole or in part at the following cancellation rates (the stage to be determined by the Contractor):
- when the intake has been carried out and no actual work has been performed yet, the cancellation fee is 25% of the total quotation value.
- when graphic work has been done, the cancellation fee is 50% of the total quote value.
- when online marketing work has been done, the cancellation fee is 75% of the total quote value.
- If technical work was also performed, the cancellation fee is 75% of the total quote value.
- In the above cases, the Contractor also has the right to terminate or suspend performance of the Agreement or any part thereof not yet performed without notice of default or judicial intervention, without the right to compensation for damage to the Client, including but not limited to damage caused by delay.
- Termination or suspension as referred to in this article shall not affect the payment obligations of the Client.
Article 9. Intellectual Property Rights
- The Framework is the intellectual property of the Contractor and/or its licensors.
- The Contractor grants the Client, for the duration of the Agreement, a non-exclusive and non-transferable right of use with respect to the Framework.
- The Parties agree that copyrights on the layout (of, for example, a website) and other developed graphic materials will be transferred to the Client under a suspensive condition after completion of the project and full payment thereof by the Client to the Contractor.
- The Client will not have access to the source code of the Framework (this will be compiled at all times). If and only to the extent expressly agreed in writing, the source code of other software and the technical documentation produced in developing that software may be made available to the Client and the Client shall be entitled to make changes in that software.
- The Client is not entitled to exploit and/or (re-)use the created (web) applications, as indicated in the previous paragraph, in any other way after termination of the Agreement, unless otherwise agreed in writing.
- The Client is not permitted to remove from or change any indication in the work performed concerning copyrights, brands, trade names or other intellectual property rights, including any indications concerning the confidential nature and secrecy of the works.
- The Contractor and/or its licensors are permitted to take technical measures to protect the work performed. If the Contractor has protected the work performed by means of technical security, the Client is not allowed to remove or circumvent this security.
- Any use, reproduction or disclosure of the work performed that falls outside the scope of the Agreement or rights of use granted shall be considered a copyright infringement. The Client shall pay the Contractor an immediately payable penalty, which is not subject to judicial moderation, of 10,000.00 euro per act of violation and per day that the violation continues, without prejudice to the Contractor’s right to be compensated for its damage caused by the violation or to be allowed to take other legal measures in order to have the violation terminated.
Article 10. Liability
- The liability of the Contractor for direct damage, per event or a series of related events, is limited to the amount owed by the Client under the Agreement per year with a maximum of 10,000 euro (excluding VAT).
- The total liability of the Contractor for damage caused by death or bodily injury or for material damage to property shall in no case exceed EUR 50,000 per damaging event, whereby a series of connected events shall be considered a single event.
- The Contractor is expressly not liable for indirect damages, consequential damages, lost profits, lost savings and damages due to business interruption.
- The Contractor’s liability for attributable failure to perform the Agreement will only arise if the Client gives the Contractor immediate and proper notice of default In Writing, thereby setting a reasonable time period in which to remedy the failure, and the Contractor continues to fail attributably in the performance of its obligations even after that period. The notice of default must contain as detailed a description as possible of the shortcoming, so as to enable the Contractor to respond adequately.
- The Contractor shall never be liable for damage caused by force majeure. See article 11 about force majeure.
- The limitation of liability referred to in the preceding paragraphs of this article shall cease to apply if and insofar as the damage is the result of intent or deliberate recklessness on the part of the Contractor’s management.
- Section 6:271 of the Dutch Civil Code does not apply to the Agreement (excluded).
- A condition for the existence of any right to compensation is always that the Client must report the damage to the Contractor, In Writing, within 30 days of its occurrence.
- The Client shall indemnify the Contractor against all third-party claims due to liability as a result of a defect in the Service provided by the Client to a third party and which partly consisted of items, materials or results provided by the Contractor. The Client will also indemnify the Contractor for non-compliance with licenses by the Client and/or third parties (its Users).
Article 11. Force Majeure
- In case of force majeure, which in any case includes malfunctions or outages of the internet, the telecommunications infrastructure, syn flood, (D)DOS and other network attacks, power failures, civil unrest, mobilization, war, traffic congestion, strikes, lockouts, industrial disturbances, delays in the supply, fire, floods, import and export obstructions and in the event that the Contractor is unable to deliver due to its own suppliers, regardless of the reason, as a result of which Make it Max cannot reasonably be expected to fulfill the Agreement, the performance of the Agreement will be suspended or the Agreement will be terminated when the force majeure situation has lasted longer than two months, without any obligation to pay damages.
- To the extent that the Contractor has already partially fulfilled its obligations under the Agreement or will be able to fulfill them at the time when the force majeure occurs, and that part fulfilled or to be fulfilled has independent value, the Contractor is entitled to invoice the part already fulfilled or to be fulfilled respectively. The Client is required to pay this invoice.
Article 12. Software Development
- If the Agreement (also) provides for the development of software, the Parties will specify In Writing (in the Agreement) which software will be developed and how this will be done. The Client warrants the accuracy, completeness and consistency of this information.
- The Contractor is entitled, but not obliged, to examine the accuracy, completeness or consistency of the data or specifications made available to it and, if any imperfections are found, to suspend the agreed work until the Client has removed the relevant imperfections.
- The Contractor has the right to use third-party software, software and components, including open-source software, in the development of software. The responsibility for proper compliance with the relevant third-party licenses when using the software lies with the Client.
- If an acceptance test has been agreed, the software will be deemed to have been accepted after successful completion of the acceptance test by the Client.
Article 13. SaaS (Make it Max)
- If the Service (also) aims to provide services regarding SaaS, the provisions of this article also apply.
- It is not permitted to use the Service in a way that violates the rights of third parties or violates Dutch or other applicable laws and regulations.
- The Client determines the content of the data that is stored using the Service. The Contractor accepts no liability for the data stored and/or made accessible using the Service. The Client shall indemnify the Contractor against claims from third parties based on the allegation that unlawful information is displayed or distributed through the (web) application.
- Should the Contractor have a reasonable suspicion of or come to the realization that the data, which the Client has distributed or stored using the Service, is unlawful, the Contractor may act immediately to block access to it. In no event shall the Contractor be liable for any damages resulting from such actions.
- The Client shall conduct and behave with the degree of care with respect to the Service that may be expected of the Client. The Client is not permitted to create the impression in any use of the Service that the Client is a partner of the Contractor, unless the Contractor has given its express, written consent to do so.
- The Client is not allowed to use the Service for more than one company or to have multiple Clients working on one environment.
- The Client is permitted to create Users. The Client shall be liable for a fee for this. The Client may assign certain rights to these Users. The Client is responsible for the actions of these Users.
- The Contractor may place a limit on the amount of storage space, CPU, memory or data traffic per month that the Client may use under the Service. If this maximum is exceeded, the Contractor is authorized to charge the Client an additional amount, in accordance with the amounts for additional storage space, memory, CPU or data traffic stated in the Agreement or to block the Service, as a result of which the (web) application will no longer be accessible. Blocking the Service is also permitted if, in the opinion of the Contractor, the Client uses a disproportionate capacity of the server(s), all without any obligation to pay compensation. If, in the opinion of the Contractor, the Client creates a risk for the functioning of the server(s) or network of the Contractor or third parties, the Contractor is entitled to take all measures it reasonably deems necessary to avert or prevent this danger.
- If the Client acts in violation of these General Terms and Conditions, the Contractor has the right to block the Client’s access to the Service.
Article 14. Availability and Maintenance
- The Contractor shall make every effort to have the Service available, but does not guarantee uninterrupted availability.
- The Contractor actively maintains systems and networks. If maintenance is expected to result in reduced availability, the Contractor will perform the maintenance outside of business hours. Maintenance will be announced in advance if possible. Emergency maintenance may occur at any time and will not be announced in advance.
- The Contractor may modify the functionality of the Framework from time to time. In doing so, feedback and suggestions are welcome, but ultimately the Contractor decides which adjustments to make or not to make. The Contractor will give at least thirty days’ notice of the adjustments it intends to make. This may also mean that certain functionalities will disappear. It is not possible for the Client to waive a particular adjustment only. The Contractor has the right to cease providing updates or maintaining components of the Framework.
- If agreed in writing, a back-up of data stored by the Client can be made available on request and against payment of a reasonable fee. The timing of the backup shall be determined by the Contractor. Backing up is a service provided by the Contractor and does not provide a guarantee.
- If, in the opinion of the Contractor, the functioning of the computer systems or network of the Contractor or third parties and/or the provision of services through a network is endangered, in particular as a result of the excessive sending of email or other data, poorly secured systems or activities of viruses, Trojans and similar software, the Contractor is entitled to take all measures it reasonably considers necessary to avert or prevent this danger.
- Copies of the software must be expressly agreed upon In Writing.
The Parties may enter into a Service Level Agreement for additional conditions regarding availability and maintenance.
Article 15. Confidentiality
- The Parties shall keep confidential any information they provide to each other before, during or after the performance of the Agreement when such information is marked as confidential or when the receiving party knows or should reasonably suspect that the information was intended to be confidential. The Parties shall also impose this obligation on their employees as well as on third parties engaged by them for the execution of the Agreement.
- The Contractor will not become aware of data that the Client stores and/or distributes through the Contractor’s systems, unless this is necessary for the proper performance of the Agreement or the Contractor is required to do so by a statutory provision or court order. In this case, the Contractor shall make every effort to limit the access to the data as much as possible, to the extent that this is within the Contractor’s power.
Article 16. Staff
- The Client shall not be permitted, while the relationship between the Client and the Contractor continues, as well as one year after the end of the relationship, to employ or otherwise have employees of the Contractor work for it, directly or indirectly, without the prior Written consent of the Contractor. For this purpose, employees of the Contractor shall mean persons employed by the Contractor or by one of the Contractor’s affiliates or who were employed by the Contractor or by one of the Contractor’s affiliates no more than six months ago.
Article 17. Privacy
- Personal data may be processed when using the Service. Under the Personal Data Protection Act (Wet bescherming persoonsgegevens), the Client is considered to be the “Controller” and the Contractor will be considered the “Processor”.
- The personal data, of (potential) customers, that can be processed by the Contractor on behalf of the Client when using the Service are:
- contact information (including name and address information, email addresses, and phone numbers);
- technical data (including IP addresses and browser information);
- login credentials (including usernames and passwords);
- payment data (including IBAN/BIC and credit card information).
In addition, as part of the Service, the Contractor may process the following personal data from employees of the Client:
- employee contact information (including name and address information, email addresses, and phone numbers);
- technical data (including IP addresses and browser information);
- login credentials (including usernames and passwords).
- If these General Terms and Conditions or the Agreement refer to provisions of the Personal Data Protection Act, the corresponding provisions of the General Data Protection Regulation (GDPR) will be referred to as of 25 May 2018.
- The Contractor shall process the personal data described in Article 17.2 under the authority of the Client and under the Client’s express (final) responsibility. The Contractor will not process the personal data for any purpose other than that agreed between the Client and the Contractor, and will only process it for the duration of the Agreement. The Client will inform the Contractor of the processing purposes to the extent they are not already named in the Agreement.
- The Contractor will comply with the Personal Data Protection Act and GDPR in the performance of the Agreement. The Client shall also comply with its own obligations under applicable laws and regulations at all times.
- The Client warrants that the content, use and assignment of the processing of the personal data is not unlawful and does not infringe any right of third parties, and that all information obligations as well as consent requirements as laid down in the PDPA, the GDPR, the Dutch Telecommunications Act and other relevant laws and regulations have been met. The Client shall indemnify the Contractor against all claims and demands related thereto and shall fully indemnify the Contractor.
- The Client warrants that the processing of personal data falls under one of the exemptions under the Personal Data Protection Act, or if this is not the case has notified the Data Protection Authority. In addition, as of May 25, 2018, the Parties will each separately maintain records with respect to the processing of personal data in connection with the Service, in accordance with the GDPR. The Client shall indemnify the Contractor against all claims and demands relating to the failure to comply, or to comply correctly, with the reporting obligation and/or register obligation.
- The Contractor may process personal data in countries within the European Economic Area (EEA). The Client also authorizes the Contractor to process personal data outside the EEA, subject to applicable laws and regulations. At the request of the Client, the Contractor will inform the Client in which countries, outside the EEA, it processes personal data.
- The Client hereby authorizes the Contractor to use third parties when processing personal data, subject to applicable laws and regulations. The Contractor shall ensure that such third parties assume the same duties as agreed upon between the Client and Contractor In Writing. At the request of the Client, the Contractor will inform the Client as soon as possible about the third parties engaged by the Contractor. The Client shall have the right to object to any third party engaged by the Contractor. If the Client objects to third parties engaged by the Contractor, the Client and Contractor will consult with each other to find a solution.
- In the event that a data subject wishes to exercise one of their legal rights and makes the request to the Contractor, the Contractor will forward the request to the Client, and the Client will further process the request. The Contractor may notify the person concerned.
- In the event that a data subject makes a request to the Client to exercise one of their legal rights, the Contractor shall, if the Client so requires, cooperate to the extent possible and to a reasonable extent. The Contractor may charge reasonable costs for this purpose. Once the Agreement is terminated, for any reason and in any manner, the Contractor shall delete and/or destroy all personal data on file with it and any copies thereof. The Client must ensure that it receives timely copies or makes backups of the personal data present at the Contractor’s premises.
Article 18. Security & Audits
- The Contractor shall ensure an appropriate level of security in view of the risks involved in the processing and the nature of the personal data to be protected. However, this only applies if and to the extent that they are located in the systems or infrastructure of the Contractor or third parties engaged by the Contractor. The Client shall notify the Contractor if the type of personal data to be processed differs from that specified in Article 17.2, in order to enable the Contractor to ensure an appropriate security level.
- The Client shall have the right to have audits performed by an independent third party bound by confidentiality to verify compliance with this article. This audit will only take place in case of a concrete suspicion of abuse which has been demonstrated by the Client and only after audit reports already present at the Contractor have been requested. This audit will be announced by the Client at least two weeks in advance, and will take place no more than once a year.
- The Contractor shall cooperate with the audit and provide all information reasonably relevant to the audit, including supporting data such as system logs, and personnel as timely as possible. The findings as a result of the audit carried out will be assessed and extensively discussed by the Parties and implemented as a result of that assessment.
- The cost of the audit shall be borne by the Client.
- The Contractor will support the Client in conducting a Privacy Impact Assessment (hereinafter: ‘PIA’) when it appears to be necessary. This support can manifest itself, among other things, in the provision of the necessary information by the Contractor to the Client, for the correct performance of the PIA. The Contractor may charge reasonable costs for this purpose.
Article 19. Duty to Report Data Breaches
In the event of a data leak, the Contractor will inform the Client immediately or within 48 hours at the latest, following which the Client will assess whether or not to inform the supervisor or those involved. The Client is and remains responsible for any legal obligation to do so. If the laws and/or regulations require it, the Contractor will cooperate in informing the supervisor and/or those involved.
A notification should only be made for events with a significant risk of serious adverse effects on the protection of personal data, and only if the event actually occurred.
Article 20. Changes to General Terms and Conditions
- The Contractor reserves the right to amend or supplement these Terms and Conditions.
- Amendments shall also apply to agreements already concluded subject to a period of 30 days after the announcement of the amendment on the Website, by electronic message or In Writing. Changes of minor importance may be made at any time.
- If the Client does not wish to accept a change in these Terms and Conditions, the Client may terminate the contract by that date until the date on which the new terms and conditions become effective, unless the Contractor has indicated that the old Terms and Conditions will remain in effect for the Client.
Article 21. Final Provisions
This Agreement is governed by Dutch law.
- As far as the rules of mandatory law do not prescribe otherwise, all disputes that may arise from this Agreement will be submitted to the District Court of Gelderland, location Zutphen.
- If any provision of this Agreement is found to be invalid, this shall not affect the validity of the entire Agreement. In that case the Parties will lay down (a) new provision(s) by way of replacement, which will give shape to the intention of the original Agreement and General Terms and Conditions as much as is legally possible.
- The version of any communication received or stored by the Contractor shall be deemed authentic, subject to proof to the contrary to be furnished by the Client.
- The Client agrees that the Contractor may transfer its rights and obligations under the Agreement to a third party without the Client’s consent. In the event that the Client wishes to transfer its rights and obligations under the Agreement to a third party, the written consent of the Contractor will be required.
- The Parties shall always inform each other without delay of any changes in name, postal address, email address, telephone number and, if requested, bank account number.