Company info: Terms of Delivery

GENERAL CONDITIONS

ARTICLE 1: RELEVANCE

These conditions apply to all offers and agreements of De Webmakers, established in Gorinchem, hereafter to be referred to as “De Webmakers”.
The customer or buyer will be referred to hereafter as “the other party”. If a condition is explicitly referring to a situation in which the other party is a natural person, not acting in the professional purpose of an occupation or company, this person will be referred to as “the consumer”.
Different conditions are only part of the agreement as entered into by both parties if, and as far as, both parties have agreed upon this explicitly in writing.
In these general conditions, the term “in writing” also includes: a digitally filled-in form, by e-mail, telefax or any other means of communication that could equate with the state of the art and valid social conceptions in society.
The term “matters” in these general conditions refer to: digital services in the broadest sense of the word, delivered by De Webmakers (whether or not in the shape of a standard) with accompanying materials or documents as well as designs, drawings, reports etc. that are to be manufactured by De Webmakers.
Acceptance or preservation of an offer or order confirmation without further comment by the other party, which is referred to in these conditions, is regarded as approval of the content of the afore-mentioned offer or order confirmation.
If (a part of) this regulation in these general conditions is not applicable, it does not imply that the other regulations are not valid as well.

ARTICLE 2: AGREEMENTS

Agreements are only valid after a written confirmation by De Webmakers.
Additions or alterations of the general conditions or other alterations or additions of the agreement are only valid after a written confirmation by De Webmakers. The additions and alterations are only valid for the agreement they refer to.
The extent of the obligations of De Webmakers is exclusively determined by what is confirmed by De Webmakers in writing, unless both parties have explicitly determined otherwise in writing.
If De Webmakers perform certain activities on the request or after prior permission of the other party that is not included in the content or extent of the activities as already agreed upon, then these activities will be charged to the other party by De Webmakers at the common rates of De Webmakers. However, De Webmakers are not obliged to comply with such a request and have the right to insist that a separate written agreement is entered into for these additional activities.
The other party will accept that the activities or performance as described in the previous paragraph of this article could influence the moment on which the activities are completed as agreed upon or anticipated as well as the mutual responsibilities of both parties.
Neither De Webmakers nor the other party are authorized to assign their rights and/or obligations resulting from single or multiple agreements as entered into, to third parties without a prior written permission of the other party. Matters should result in the afore-mentioned unless parties have explicitly agreed otherwise in writing or if matters are explicitly determined otherwise in these general conditions.

ARTICLE 3: OFFERS

All offers, quotations, price lists etc. of De Webmakers are free of engagement unless they contain a period of acceptance. If an offer or quotation is made free of engagement and this offer is accepted by the other party, then De Webmakers have the right to revoke this offer within two working days after receipt of the acceptance.
Illustrations and descriptions in offers and/or on the website of De Webmakers, prospectuses, catalogues, informational- and promotional materials as well as other data as shown or provided by De Webmakers will be as accurate as possible but are only valid as mere indication. No rights can be derived from this unless both parties have explicitly agreed otherwise in writing.
De Webmakers have the right to charge the other party with the costs deriving from this offer or quotation unless De Webmakers have indicated these costs to the other party in writing in advance.

ARTICLE 4: PRICES, HOURLY RATES

The prices and hourly rates of De Webmakers as well as prices or hourly rates in offers, quotations, price lists etc. are ex warehouse and excluding VAT and potential other costs. These costs could – though not exclusively – consist of travelling expenses, postage costs and expense accounts of third parties called in by De Webmakers. Matters should result in the afore-mentioned unless explicitly agreed otherwise in writing.
A. If the cost price of matters that are ordered or materials that are used increase between the date this agreement is entered into and the execution of this agreement, and/or if alterations are imposed by the government and/or employer’s organisations on salaries, terms of employment, social securities etc. De Webmakers have the right to pass on these price increases to the other party. Should a new price list be issued by De Webmakers and/or suppliers and become effective between the afore-mentioned data, De Webmakers have the right to pass on the mentioned prices to the other party.
B For agreements entered into with consumers, a price increase can be passed on to the other party up to three months after entering into the agreement. For price increases within a period of less than three months, the consumer has the right to annul the agreement.

ARTICLE 5: INVOLVEMENT OF THIRD PARTIES

If, and as far as, an appropriate execution of the agreement requires this, De Webmakers have the right to involve third parties for certain activities or deliveries.

ARTICLE 6: OBLIGATIONS OF THE OTHER PARTY

On account of the necessity that the other party renders assistance to the execution of the agreement, the other party will provide De Webmakers with all required or relevant information, data and/or inquiries, always in the required manner as communicated by De Webmakers or on a point in time as desired by De Webmakers or timely to De Webmakers. By providing this information, data and/or inquiries to De Webmakers, the other party states that no infringement of copyright or any other intellectual right of ownership of third parties are made and will indemnify De Webmakers within every right relating to all consequences, both financially and otherwise that could result from this for De Webmakers.
The other party is responsible for a proper use and correct application of the matters that are delivered to them, as well as providing for an adequate protection of the afore-mentioned matters.
If it has been agreed upon in writing that the other party will provide apparatus, data, materials or information on data carriers, electronic files etc. then these materials should comply with the required specifications necessary for a proper execution of the activities. The other party will guarantee that the information carriers, electronic files etc. provided to De Webmakers by them are free of viruses and/of defects.
If the data, required for an appropriate execution of the agreement, is not provided to De Webmakers on time or in compliance with the agreement or if the other party does not comply with the obligations concerning this or does not comply with the other obligations as incorporated in this article, De Webmakers have the right to postpone the execution of this agreement up to the moment the other party does comply with all obligations as described. The costs with regard to this particular delay or the costs for the execution of additional activities or any (other) kind of damage De Webmakers might suffer, will be passed on to the other party.
If De Webmakers have to perform activities on the company premises or in the buildings of the other party which are related to the agreement:
A. the other party is obliged to make sure that De Webmakers or third parties De Webmakers have involved, have complete access to the places as agreed upon on specific points in time;
B. the other party will provide additional personnel, auxiliary tools and other material free of charge on request of De Webmakers;
C. the other party will guarantee that all legal safety regulations with regard to the work place have been observed.

ARTICLE 7: DELIVERY, DELIVERY TIMES

Indicated delivery times and periods within which the activities should be performed or matters should be delivered can never be regarded as final terms, unless parties have explicitly decided otherwise in writing. If De Webmakers do not comply with the obligations as agreed upon or do not deliver in time, they should be declared liable in writing.
In case of delivery or performing activities in separate parts, every delivery or phase is regarded as a separate transaction and can be invoiced by De Webmakers per transaction.
The risk with regard to the matters that are delivered will be transferred to the other party at the moment of delivery.
Sending or transporting matters that are ordered should take place in accordance with the requirements of De Webmakers, but at the expense and risk of the other party. De Webmakers can not be held liable for damage, in any shape, manner or form whatsoever, whether or not connected with sending or transporting the afore-mentioned matters. Matters should result in the afore-mentioned unless parties have explicitly agreed otherwise in writing.
The risk of matters which are under supervision by De Webmakers due to the activities that have to performed, will remain with the other party. The other party is obliged to insure matters adequately and keep them insured during the time afore-mentioned matters remain under supervision of De Webmakers.
If the other party is allowed to pay in instalments and the first term expires after activation of the order, the actual delivery does not have to take place before payment of the first term is received.
If it is not possible to deliver the matters to the other party or to perform the activities as agreed upon, for any reason whatsoever of the other party, De Webmakers have the right to store matters or materials required for the execution of activities at the expense and risk of the other party. De Webmakers will notify the other party in writing about the executed storage and/or impediment related to the activities that have to be performed and will propose a reasonable term in which the other party has to enable De Webmakers to resume their activities and/or deliver the matters as agreed upon.
If the other party fails to comply with the obligations, even after the reasonable term as stated by De Webmakers has expired as determined in the previous paragraph of this article, then the other party is in default after 1 (one) month, valid from the date of storage or impediment of the execution of the activities as agreed upon. Subsequently, De Webmakers have the right to annul (part of) the agreement in writing, taking effect at once, without preceding or specified proof of default, without judicial intervention and without compensation of damages, costs and interests.
The afore-mentioned keeps the obligation of the other party to pay the price as agreed upon or the payable amount as well as possible storage costs and/or other costs intact.
De Webmakers are allowed to demand advance payment or any other kind of security with regard to the financial obligations of the other party before delivering matters or starting the activities that have to be performed as agreed upon.

ARTICLE 8: PROGRESS, EXECUTION OF THE AGREEEMENT

De Webmakers are not obliged to start the delivery of matters or the execution of activities before all required information is in possession of De Webmakers and they have received the instalment if that has been agreed upon. Due to the delay as a result of the above-mentioned, delivery terms as indicated will be adapted accordingly.
If deliveries or activities can not take place normally or without interruptions through causes not brought about by De Webmakers, then De Webmakers have the right to pass on the costs resulting from this delay or interruption to the other party.
If it turns out during execution that the activities can not be realized properly, either caused by circumstances not known in advance by De Webmakers or caused by circumstances beyond the control of De Webmakers, De Webmakers have the right to demand that the agreement is altered in such a way that execution becomes possible except if this is impossible as a result of unforeseen circumstances or situations beyond the control of De Webmakers. In that case, De Webmakers are entitled to receive complete compensation for the activities or deliveries that have already been executed by De Webmakers.
All expenses that will be made by De Webmakers as described in the agreement and made on request of the other party, will be passed on entirely to the latter party unless explicitly agreed upon otherwise in writing.

ARTICLE 9: ACTIVATION

If both parties have agreed that De Webmakers will take care of the activation of the software, the other party is obliged to enable the Webmakers to actually activate the software at the point in time as agreed upon.
The definition “activation” implies taking care of the basic configurations that are required for a technically correct functioning of the software.
If activation is not possible, caused by circumstances brought on by the other party, the other party remains obliged to make full payment of the price for the software as agreed upon.
After activation, the software will be delivered. De Webmakers will deliver the software to the other party ready for use and in conformity with the formulated specifications. The term ‘delivery’ refers to a system that is technically functioning correctly. De Webmakers decline any responsibility with regard to functioning of the content.

ARTICLE 10: COMPLAINTS

The other party is obliged to check the matters immediately after receipt and to examine the activities immediately after termination. If the other party detects visible mistakes, defects and/or deficiencies, they should inform De Webmakers within 24 hours after receipt, which should be immediately followed by a written confirmation of these flaws to De Webmakers.
Other complaints should be sent to De Webmakers by registered post within 8 days after receipt of matters or termination of activities.
Leaving all that is stated in paragraphs 1 and 2 of this article intact, all that is stated in paragraph 9 of article 11 is taken into account as well with regard to the agreement that is entered into with the consumer.
If the above-mentioned complaints are not sent to De Webmakers within the mentioned terms, then it is considered that all matters are received in good condition or the performed activities to be executed correctly.
Complaints do not postpone the obligation to pay of the other party.
De Webmakers should be enabled to investigate the complaint. If it is necessary to return the goods to investigate the complaint properly, then this will only take place at the expense and risk of De Webmakers if the latter has explicitly confirmed this in writing in advance.
If matters and/or activities are rejected, De Webmakers should be enabled to restore the rejected matters and/or activities or deliver the afore-mentioned once again in conformity with the order.
Processed and/or sold matters are considered to be approved, without the other party having any right to complain.
If matters have changed with regard to nature and/or composition after delivery, or have been partly or completely converted or processed, any right to make a complaint will lapse.
In case of justifiable complaints, the damage will be settled by virtue of what is determined in article 11.

ARTICLE 11: LIABILITY AND GUARANTEE

De Webmakers will carry out instructions in accordance with what can be expected of a company in this branch, but will not accept any liability for damage including decease- , bodily injuries, consequential loss, trading loss, loss of profit and/or stagnation damage that is the result of acts or negligence of De Webmakers, their personnel or third parties that were involved by De Webmakers, subject to the fact that it was intentional and/or conscious recklessness of himself, his management and/or his executive staff.
Without prejudice to the provisions in the other paragraphs of this article, the liability of De Webmakers – on account of whoever – will be limited to the amount of the nett price of the matters delivered or activities as executed.
Contrary to what is stated in paragraph 2 of this article, the liability is limited further to the compensation that is owed over the last six months, if the agreement or order has a term of validity exceeding six months.
Without prejudice to the provisions in the previous paragraphs of this article, De Webmakers are not obliged to pay a compensation that is higher than the insured amount, as far as this damage is being covered by the insurance of De Webmakers.
If, during the execution of activities, visible mistakes, defects and/or deficiencies are noticed in used materials or installed matters and/or delivered goods that had to be present at the moment of delivery, De Webmakers are obliged to either process and/or install these materials or goods once again, acting on their own discretion, or to restore or replace them free of charge.
De Webmakers guarantee the usual normal quality and reliability of matters they deliver, although the actual life span can never be guaranteed.
A. In all cases, the term within which De Webmakers can be held liable for compensation of the established damage is limited to six months, valid from the moment on which the compensation of damages has been established. B. Contrary to what is stated in sub A of this paragraph, the maximum term of 1 (one) year is valid for the consumer.
If matters that are delivered by De Webmakers have been provided with a guarantee by the manufacturer, then this guarantee will be valid equally for both parties.
De Webmakers will take the legally established guarantee period into account with regard to the agreement with the consumer.
The other party will forfeit their rights towards De Webmakers, will be liable for all damage and will indemnify De Webmakers against third-party liability with regard to compensation if and as far as:

the afore-mentioned damage has been created as a result of incompetent and/or with instructions of and/or advice from De Webmakers or a third party on behalf of De Webmakers conflicting use and/or incompetent hosting of the delivered matters by the other party;
the afore-mentioned damage has been created by mistakes, incomplete or inaccurate information, data, materials, data carriers etc. that are provided and/or prescribed by or on behalf of the other party to De Webmakers;
the afore-mentioned damage has been created by indications of or made on behalf of the other party to De Webmakers;
the afore-mentioned damage has been created as a result of the other party or a third party having executed certain activities to the delivered matters by order of the other party without prior written permission of De Webmakers;
the afore-mentioned damage has been created because the other party has provided insufficient or incorrect information to De Webmakers and as a consequence, De Webmakers have based and/or executed the activities to be performed on the afore-mentioned information.

ARTICLE 12: PAYMENT

Payment should take place within 10 days after date of invoice unless parties have explicitly agreed otherwise in writing.
If an invoice has not been completely paid after expiry of the mentioned period in paragraph 1:

then the other party will owe De Webmakers an interest charge for delay in payment to the amount of 2% per month, to be calculated cumulatively on the sum total. Parts of a month will be calculated as complete months in this matter;
then the other party, after being reminded by De Webmakers, will owe De Webmakers at least 15% of the amount of the sum total with regard to the non-legal expenses and the interest charge for delay in payment with an absolute minimum of € 150.00;
then De Webmakers have the right to invoice the other party with an amount of minimally € 20.00 for each reminder, final notice etc. to settle administrative costs. De Webmakers will mention this in the agreement and/or on the invoice.

It is up to De Webmakers to decide in the afore-mentioned or corresponding circumstances, without further proof of default or judicial intervention to partly or completely annul the agreement, whether or not combined with a claim for compensation.
If the other party does not satisfy the payment obligations on time, then De Webmakers have the right to postpone the execution of the activities as agreed upon with the other party up to the moment payment has been made or a reliable assurance has been established. The same is valid even before the moment of default or negligence of the other party has been established, if De Webmakers have reasonable doubt that there are reasons to question the financial status of the other party.
Payments that are made by the other party should provide for the settlement of all amounts due regarding interests and costs and consequently of the other claimable invoices that are outstanding the longest, unless the other party explicitly mentions in writing that this payment relates to settlement of a later invoice.
A. If the other party, on account of whoever, has made or obtained one or several counterclaims on De Webmakers, the other party will refrain from the right to settle these claim(s). The afore-mentioned abandonment from the right to settle these claims is also valid if the other party applies for (temporary) suspension of payment or is declared bankrupt.
B. All that is mentioned in section A of this paragraph is not applicable to agreements with consumers.

ARTICLE 13: CIRCUMSTANCES BEYOND ONE’S CONTROL

If it is not possible for De Webmakers to execute activities as agreed upon with the other party and this can not be attributed to the responsibility or accountability of De Webmakers, nor to third parties involved by De Webmakers or suppliers, or if other good reasons exist for De Webmakers, then De Webmakers have the right to annul the agreement as entered into by both parties or to postpone the activities within a reasonable period of time without being liable for any kind of compensation. If the above-mentioned situation occurs when the agreement has been partly executed, then the other party is forced to comply with the obligations towards De Webmakers up to that moment.
Circumstances in which no responsibility or accountability can be attributed include: war, revolt, mobilization, national- and international riots, government measures, strike and exclusion by workers or a threat of these circumstances, disruption of currency rates valid at the moment this agreement is entered into, loss of profits caused by fire, accidents or other incidents and natural phenomena, irrespective of the fact if De Webmakers, his suppliers or third parties that he has involved do not comply or do not timely comply with what is agreed upon.

ARTICLE 14: OWNERSHIP RETENTION

De Webmakers reserve the right to retain ownership of the matters they have delivered or have to deliver up until the moment the other party has fulfilled their payment obligations to De Webmakers with reference to the above-mentioned matters. The obligations consist of paying the purchase price, increased with claims for performed activities connected with the delivery as well as claims relating to possible compensation as a result of failing to comply with obligations of the other party. The other party is obliged to maintain matters properly during this period and to insure themselves against all types of calamities.
Matters that are part of the ownership retention may only be resold by the other party if it is part of common business activities. The other party shall not remove designations about copyright. The other party will always mention the origin of the matters delivered to them corresponding to the prescriptions of De Webmakers. In case of violation of what is specified in this paragraph, the other party will forfeit an immediate and completely claimable penalty of € 10,000.- for every violation, as well as € 500.- for every day the violation continues without requirement of further proof of default and the complete purchase price will be claimable immediately, without prejudice to the obligation to pay full compensation in this case.
Without prejudice to what is defined in the other paragraphs of this article, all intellectual rights of ownership on all software and/or other material that is delivered to the other party by De Webmakers on which an intellectual right of ownership is assigned will remain under authority of De Webmakers unless both parties explicitly agree otherwise in writing.
In case De Webmakers appeal to the right of ownership, the applicable agreement as entered into is considered to be annulled, without prejudice to the right of De Webmakers to demand compensation of damage, lost profit and interest.
The other party is obliged to inform De Webmakers immediately and in writing about the fact that third parties claim their right on matters on which ownership retention is assigned by virtue of this article.

ARTICLE 15: PLEDGE/WARRANTY

Up until the moment on which the other party has completely fulfilled their payment obligations to De Webmakers, the other party is not authorized to give the delivered matters in pledge to third parties and/or establish an unpropertied right of distraint and/or let one or more financiers exercise power on stored matters (warranty) because this will be regarded as imputable non-compliance of their side. De Webmakers have the right to postpone the obligations in the agreement or annul the agreement immediately without any specified proof of default and without prejudice to the right of De Webmakers to demand compensation of damage, lost profit and interest.

ARTICLE 16: INTELLECTUAL RIGHTS OF OWNERSHIP

De Webmakers will guarantee that matters delivered by them will as such not violate the Dutch patent laws, patent design or other rights of industrial or intellectual right of ownership of third parties. If, nonetheless, either De Webmakers have to admit or a Dutch judge has ruled in a lawsuit (with a decision without the ability to appeal) that has determined that the matters delivered by the Webmakers do violate the rights of third parties as afore-mentioned, De Webmakers could decide, after consultation with the other party, to replace the matters with other matters that do not violate the specified right or obtain a manufacturing right in this matter or take the matters back, refunding the price that was paid for it, reduced with the normally expected debited amount without prejudice to further compensation. The other party will forfeit their right to the afore-mentioned performances if they have not informed De Webmakers on time and in full detail about claims of third parties as described in this condition and have informed that De Webmakers are capable to defend their rights in this matter properly.
De Webmakers will indemnify the other party against every action of third parties which are based on storage of software De Webmakers have developed. This is applicable if and as far as the developed software violates an applicable Dutch copyright. De Webmakers will pay for the irrevocably established costs and damage unless the other party immediately informs De Webmakers in writing and leaves settlement of the case exclusively to De Webmakers and renders full cooperation. If legal action is taken or the possibility of such an event exists, then De Webmakers are allowed to replace the software or alter it in such a way De Webmakers see fit.
The ownership and all rights of intellectual ownership with regard to the standard package remain and will remain with De Webmakers or the original manufacturer. The other party is not allowed to remove designation of copyright. To protect the rights of De Webmakers, the other party will make sure that the standard package is treated as confidential information and not disclosed to third parties.
De Webmakers have the right to take technical measures in order to protect their rights. The other party has been informed of the possibility that provided software or other material could contain confidential information and trade secrets of De Webmakers.

ARTICLE 17: BANKRUPTCY, NO POWER OF DECISION etc.

Without prejudice to what is defined in the other articles of these conditions, the agreement as entered into by the other party and De Webmakers will be annulled without judicial intervention and without the requirement of proof of default, at the moment in which the other party is declared bankrupt, applies for a (temporary) moratorium, loses capital, or part of his capital by seizure under a writ of attachment, legal restraint or other loss of power of decision and/or legal capacity, unless the trustee in bankruptcy or the receiver in this matter of the (temporary) moratorium acknowledges the obligations resulting from this agreement as executory debts.

ARTICLE 18: ANNULMENT, CANCELLATION/TERMINATION

A. The other party will renounce all rights to annul the agreement ex article 6:265 et seq of the Dutch Civil Code or other legal provisions, unless compelling reasons oppose this. This is valid with the reservation of the right to annul or terminate the agreement by virtue of the present article.
B. What is determined in section A of this paragraph is not applicable to the agreement with the consumer.
The definition of cancellation in these general conditions is: termination of the agreement by one of both parties before the start of the execution of the agreement.
The definition of termination in these general conditions is: termination of the agreement by one of both parties after the start of the execution of the agreement.
In case the other party terminates or annuls the agreement, the other party has to compensate De Webmakers with an amount to be determined by De Webmakers. The other party has to compensate all costs, damage as well as loss of profit to De Webmakers. De Webmakers have the right to establish the costs, damages and loss of profit and are free to charge 20 – 100% of the price as agreed upon to the other party depending on the activities and deliveries that already took place.
The other party is responsible for the consequences of the cancellation or termination towards third parties and will indemnify De Webmakers in this matter.
No restitution will take place for amounts that have already been paid by the other party.

ARTICLE 19: CONFIDENTIAL INFORMATION

Both parties have to observe secrecy with regard to all information they have obtained which relates to the execution of the agreement and of which they know, or could have known, that this information has to or had to be treated confidentially. This is valid unless one party is obliged to disclose the afore-mentioned information to a third party as a result of legal rules and/or regulations or a judicial decision and this party can not appeal to a legal- or other right of non-disclosure as admitted by the judge
Every party will take all reasonable precautions in order to keep all confidential information secret that was received by the other party.
All matters that are provided to De Webmakers by the other party with reference to the services De Webmakers have to render and activities De Webmakers have to execute will remain irrevocable property of the other party. De Webmakers confirm that all software, data carriers and information will only and exclusively be used by De Webmakers within the scope of the execution of the agreement as entered into by both parties.
Both parties guarantee that their personnel and other persons under their supervision who are involved in the execution of the agreement will maintain their pledge of secrecy as described in this article.
De Webmakers are obliged to return all software, data carriers and information the other party has provided immediately and without delay to the other party within five working days after the other party has made a request to do so.
De Webmakers are allowed to publish information about the services they have rendered or the activities they have executed, as well as using the methods, (partial) analyses etc. once again, provided that this takes place anonymously and in such a way that the privacy of the other party remains guaranteed.

ARTICLE 20: RISK WITH REGARD TO STORAGE OF INFORMATION

De Webmakers are obliged to ensure a safe storage of data, facts and information received from the other party. Except for evidence to the contrary, it is considered that De Webmakers have complied with this obligation.
The other party will bear the risk with regard to damage or loss of data, facts and information that is stored at De Webmakers or third parties, unless this damage or loss can be attributed to intentional recklessness and/or purpose of De Webmakers.

ARTICLE 21: APPLICABLE LAW/AUTHORIZED JUDGE

Dutch law is exclusively applicable on the agreement as entered into by De Webmakers and the other party. All disputes resulting from this agreement will also be settled according to Dutch law.
Contrary to what is defined in paragraph 1 of this article, the consequence of property law regarding an ownership retention of matters destined for export is such, that if the legal system of the country or state the matters are destined for is more favourable for De Webmakers, this legal system will be regarded as legally valid.
Possible disputes will be settled by an authorized Dutch judge, although De Webmakers are entitled to bring a case before an authorized Judge in the place where De Webmakers are established, unless the cantonal Judge is authorized in this matter.
In case of disputes with the consumer, the consumer has to inform De Webmakers that they would like this dispute to be settled by a legally authorized judge within 1 (one) month after De Webmakers have informed the consumer that this case will be brought before court.
In reference to disputes resulting from the agreement as entered into with the other party that is established abroad, De Webmakers are authorized to act in conformity with what is defined in paragraph 3 of this article or – if so desired – to settle disputes at the authorized judge of the country or state the other party is established.

SPECIFIC TERMS

All items as defined in the General Terms of these conditions are fully applicable. In case of conflict between what is defined in the General Terms and what is defined in the Specific Terms and/or in case of explicitly deviating from what is defined in the General Terms that which is defined in the Specific Terms will prevail.

DEVELOPMENT OF THE SOFTWARE

The following terms are applicable if De Webmakers develop custom-made software especially designed for the other party. The definition of the term “software” is: computer programmes saved on materials that are readable for the computer along with the accompanying documentation.

ARTICLE 22: DEVELOPMENT OF THE SOFTWARE

A written specification shall be drawn up that will describe which software will be developed and in which manner this will take place. De Webmakers will handle the development of software with care based on the correct and complete information as provided by the other party and for which the other party will vouch. The other party will indemnify De Webmakers for claims of third parties with regard to the information as provided by the other party.
If it has been explicitly agreed upon in writing between both parties that the development of software will take place in phases, then De Webmakers have the right to postpone the activities that belong to the next phase up until the moment the other party has approved the results of the preceding phase in writing.
It is permitted for other party to make use of the software or phases De Webmakers have delivered without limitations, if and as far as invoices have been settled. The afore-mentioned is valid unless both parties have explicitly determined otherwise.

ARTICLE 23: ALTERATIONS AND ADDITIONAL WORK

De Webmakers will inform the other party as soon as possible if alterations or additional activities, to be agreed upon by both parties, influence the time on which the activities should be concluded.
If a fixed price has been negotiated for the development of software, De Webmakers will inform the other party in advance if the alteration or addition of the activities will exceed the price as agreed upon.

ARTICLE 24: DELIVERY AND ACCEPTANCE

De Webmakers will provide the delivered software ready for use and in conformity with the formulated specifications to the other party.
If parties have determined this explicitly in writing, then the other party is entitled to test the software during a period of 14 days after ready for use delivery. This acceptance test consists of a collection of test cases the other party has composed which should be made available to De Webmakers on time before the ready for use delivery.
If it turns out that the occurring problems in the software interfere with the progress of the acceptance test during the execution of the acceptance test, the other party will inform De Webmakers in detail and in writing, in which case the test period of 14 days will be interrupted up to the moment De Webmakers have solved the defects.
If it turns out that the software contains defects which are not in compliance with the specifications as defined in writing during the execution of the acceptance test, the other party will inform the Webmakers about the defects in writing with a detailed acceptance report immediately following the conclusion of the test period. In that case, De Webmakers will restore the defects as mentioned to them in the written report within a reasonable period of time. Restoration of these defects will take place free of charge if a fixed price has been agreed upon for the development of the software. In all other cases, De Webmakers will charge the other party for the costs involved in solving the defects.
It is assumed that the software is accepted after a ready for use delivery. If both parties have agreed upon an acceptance test, then it is assumed the software is approved after acceptance by the other party or 14 days after a ready to use delivery has taken place and as far as the other party has not informed De Webmakers in writing about the afore-mentioned defects or after solving the reported defects.

ARTICLE 25: GUARANTEE WITH REGARD TO THE SOFTWARE

During a period of 3 months after acceptance or delivery, De Webmakers will solve possible defects to the best of their knowledge, if and as far as the software does not comply with the formulated written specifications. This will be solved free of charge, if the software has been developed for a fixed price. The costs will be passed on the other party if they have made mistakes in using the software properly or if other causes exist that can not be contributed to De Webmakers or if the defects could have been determined in all fairness during the execution of the acceptation test. Retrieving possible lost information is never covered by this guarantee. This guarantee is not applicable if software has been altered and/or revised by parties other than De Webmakers.

RIGHT OF USE OF STANDARD PACKAGE

The following terms are applicable if De Webmakers grant the other party the right to use the generally available software (standard package) that was not especially developed for the other party, also if the standard package has been altered or extended on behalf of the other party. The definition of the term “software” is: computer programmes saved on materials that are readable for the computer and the accompanying documentation, i.e. everything including possible new versions to be issued later on.

ARTICLE 26: RIGHT OF USE

De Webmakers will grant the other party only the non-exclusive right to use the standard package.
The standard package can only be used by the other party on one mainframe (central processing unit). In case of a possible interruption, the software could be used on another mainframe temporarily.
The other party is allowed to make maximally two copies of the standard package for security objectives, unless De Webmakers have stipulated deviating requirements or conditions. These copies will not be used by the other party but only be deployed to replace unusable original materials. The copies will be provided with identical labels and indications as the original material.
The right of use can not be transferred to third parties without the written permission of De Webmakers. The other party is not allowed to sell, rent, transfer or assign the standard package to third parties. The other party is not allowed to alter the standard package, let third parties use the standard package or use it on behalf of third parties. The source code of the software will not be made available to the other party.

ARTICLE 27: STANDARD PACKAGE OF THE SUPPLIER

If a supplier only provides the right to use a standard package in accordance with the terms in his user- or license agreement or if maintenance is executed in accordance with the terms of the maintenance agreement of the supplier, then the terms of these agreements are applicable. De Webmakers will inform the other party on request about the applicable terms.

MAINTENANCE

ARTICLE 28: MAINTENANCE

If a maintenance agreement has been entered into for the delivered matters, then the other party will report the registered defects to De Webmakers in accordance with the usual procedures of De Webmakers. After receipt of the report, De Webmakers will restore possible defects to the best of their ability if the delivered matters do not comply with the written specifications.
De Webmakers are allowed to pass on the costs for restoration if the other party has made mistakes in using the software properly or if other causes exist that can not be contributed to De Webmakers or if the software has been altered or maintained by parties other than De Webmakers. Retrieving possible lost data is not covered by maintenance.
If a maintenance agreement is entered into for a standard package, De Webmakers will provide the other party with improved versions of this standard package as soon as it becomes available. Three months after De Webmakers have made the improved version available, they are not obliged to restore possible defects in the old version anymore. De Webmakers are allowed to charge the other party for making a version with new possibilities and functions available.

SEARCH ENGINE OPTIMIZATION

The following terms are applicable if De Webmakers execute activities for the other party with regard to search engine optimization.

ARTICLE 29: SEARCH ENGINE OPTIMIZATION

De Webmakers will do their utmost to achieve a qualitative rating on the most used search engines. The purpose is an increase in the amount of visitors on the website of the other party.
De Webmakers are obliged to make the required efforts and have no obligation to achieve a specific result with regard to the above-mentioned activities unless both parties have explicitly determined otherwise.
De Webmakers are allowed to deviate from what is stated in paragraph 1 of this article in case of words that are difficult to position, no indexation of search engines, spam, rejection, exclusion or no indexing of the URL by the search engine as a result of technical aspects or specifications of the website or technical deficiencies.
(Statistical) data provided by De Webmakers are only indicative and no rights can be derived from this, unless parties have explicitly agreed upon this in writing.
De Webmakers are not liable for the results of the registration and are not able to guarantee results other than a considerable increase in the number of visitors on the website that has been subjected to search engine optimization by De Webmakers.

DEVELOPMENT OF WEBSITES, WEBSERVICES etc.

In addition to articles 22 up to and including 24, the following terms are also applicable if De Webmakers execute activities with regard to the development of a website, webservice and/or other activities related to this for the other party.

ARTICLE 30: DEVELOPMENT OF THE WEBSITE

De Webmakers will make every effort to execute the agreement with the utmost care, to act in the interest of the other party as much as possible and to strive for a usable result for the other party. As far as this is necessary, De Webmakers will keep the other party informed about the progress of the activities.
De Webmakers and the other party will both appoint a contact person who is exclusively authorized to take decisions within the scope of the activities or services as agreed upon.
De Webmakers have the right to mention his name on the website in a discrete way, unless parties have explicitly agreed otherwise in writing. The way in which the name will be depicted will take place after mutual consultations.
The other party will receive a complete, non-transferable license for the use of the (graphic) design of the website from the moment the other party has completely complied with their obligations as mentioned in the agreement with De Webmakers.
The other party is responsible for the acquisition of licenses with third parties for copyright materials (for instance: fonts, software, corporate identity elements, photographs, compositions etc.) that will be used on the website on request of the other party.
De Webmakers will retain possession of the copyrights on the separate elements related to their own creation of images, programming, texts and concept of images etc.
The other party is allowed to alter the content of databases, underlying pages and tree diagrammes for the daily use of the website within the limits as agreed upon with De Webmakers in writing.
The other party is not allowed to make a variation or derivative of the design or apply or use (elements) of the design within other designs or works without prior written permission of the De Webmakers.
With due regard of what is determined in article 24, the definitive delivery of the website will take place no later than the moment the website is published on the domain name as mentioned in the agreement, unless both parties have explicitly agreed otherwise in writing.
The other party is not allowed to make the website public during the test period as described in article 24.
If De Webmakers recommend a specific provider or another service provider on behalf of proper functioning of the website, then De Webmakers can not be held liable if this service provider fails in his duties.
The data traffic related to the website visits is limited in conformity with what has been agreed upon in writing between both parties.

ARTICLE 31: GUARANTEE WITH REGARD TO THE WEBSITE

During 1 (one) month after implementation, De Webmakers will restore possible defects in the website if these defects are caused by De Webmakers and, as a consequence, do not comply with the specifications as agreed upon in writing.
If an acceptance test has been agreed upon in writing, then De Webmakers, contrary to what is described in paragraph 1 of this article, will repair such defects in the website during a period of 14 days after the conclusion of the test period, as far as these defects are related to alterations or improvements that have been implemented during the test period.
The other party should inform De Webmakers of such defects in writing.
De Webmakers are not obliged to restore defects if these defects are caused by the other party itself, by third parties or by altered circumstances of which De Webmakers were not informed or were not supposed to know about when the agreement was entered into.

ARTICLE 32: WEBSERVICE

During the execution of the agreement, during which De Webmakers perform so-called hosting services to the other party, a number of rules have to be taken into account. Both De Webmakers and the other party should observe these rules. If the other party violates (one of) these rules and continues the violation in spite of written requests to stop the violation, De Webmakers have the right to annul the agreement or postpone the execution without judicial intervention without prejudice to the rights of De Webmakers to receive a possible compensation in this matter. Above all, De Webmakers have the right to receive payment of the complete price as agreed upon.
If the other party does not immediately comply with the request of De Webmakers to stop violation of the rules and never violate them again, De Webmakers also have the right to exclude the other party from the hosting services, without De Webmakers being liable to pay compensation to the other party.
The other party is not allowed to:

act in violation of the Net Etiquette;
violate intellectual rights of ownership of third parties;
disseminate information, offer access to and/or offer websites with a pornographic content including – though not exclusively - web pages with pornographic images, banners advertising for other web pages with a similar content or the distribution of access codes of afore-mentioned websites;
engage in so-called ‘hacking’ which might include unauthorized access to computer systems, software and/or data of third parties;
disperse advertisements, messages and/or opinions in a way that can be regarded as “spamming”;
encourage or engage in illegal activities or activities via the services of De Webmakers that could be harmful to the server of De Webmakers or any other server that is connected to the Internet, such as – though not exclusively – reference to or offering of so-called ‘pirated’ software, ‘hacker’ programmes, -archives or ‘warez’-sites;
do anything that is against the law in any way including the distribution of and offering access to information that is opposed to the public order or common decency or is discriminatory in nature;
act wrongfully towards De Webmakers and/or third parties.

The other party will indemnify De Webmakers in this matter against possible claims of third parties with regard to the way the other party makes use of the hosting services as provided by De Webmakers.
The other party will refrain from improper use of the name of De Webmakers, without prejudice to the right of De Webmakers to put and keep his copyright on data carriers that are used on the Internet by the other party on account of the agreement as entered into by both parties.
The services of De Webmakers are also dependent on the Internet, his service provider and his telecommunication suppliers. The way in which they are available or accessible lies outside the range of influence and responsibility of De Webmakers.
In connection with the afore-mentioned paragraph of this article, it is possible that the Internet is not always fully available. The term ‘available’ means 24 hours a day, 7 days a week.

ARTICLE 33: THE DOMAIN NAME, RENT AND REGISTRATION

De Webmakers will take care of the registration and application for use of the domain name.
After full payment to De Webmakers by the other party, the domain name will be issued in the name of the party entitled. The party entitled is obliged to act in accordance with the rights and duties of the organisation where the domain name is registered.
De Webmakers are responsible for the accessibility and presence on the Internet with regard to the available domain name.
Is it possible to connect the domain name to a server space, intended to place a website or represent the other party.
The domain name is registered for a period of 12 months. This period will be automatically renewed for a similar period unless the other party has cancelled this by registered post not later than 2 months before the expiration date has passed. This is valid unless parties have agreed otherwise in writing.
The term of lease for server spaces is minimally 12 months, unless both parties have agreed otherwise in writing.

ARTICLE 34: INTELLECTUAL RIGHTS OF OWNERSHIP

All rights deriving from the agreement of intellectual ownership, such as patent law, patent design and copyright belong to De Webmakers, unless parties have explicitly agreed otherwise. As far as such a right can be obtained by a deposit or registration, only De Webmakers are exclusively authorized to do so.

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