General Terms & Conditions ITMATEC
Article 1: General
1. "Client": any (legal) person who has a contract with ITMATEC completed or intends to close, and his representative(s), endorsee(s), legal obtainer(s) and heirs.
2. "Contractor": The corporation ITMATEC acting under the name "ITMATEC".
3. These general conditions apply to all promotions, quotations and agreements relating to services or products offered by the Contractor.
4. These conditions also apply to all agreements with the Contractor for the execution of which a third-party contractor is enlisted.
5. The applicability of any purchase or other conditions of the Client's general conditions is explicitly rejected.
6. If one or more stipulations of the agreement or the General Terms and Conditions in whole or in the part at any time appear to be affected, then is not the validity of the entire agreement or General Terms and Conditions affected. In that case, the Contractor is entitled to put in its place a to a Client is not unreasonably burdensome stipulation which approaches the invalid stipulation as closely as possible.
7. If an situation arises which is not regulated in these general conditions, this situation should be estimated according to the spirit of these terms and conditions.
8. If the Contractor does not always requires strict compliance of these conditions, then this does not mean that its stipulations do not apply, or that the Contractor in any degree would lose the right in other cases, to demand strict compliance with the stipulations of these terms and conditions.
Article 2: Quotations and promotions
1. All promotions and quotations from the Contractor are without engagement by the Contractor unless otherwise indicated in writing.
2. All promotions and quotations are valid for 1 month, unless otherwise indicated. Contractor shall only be bound to this quotation if the acceptance by the other party in writing is confirmed within 1 month. If the acceptance is after 1 month, the Contractor has the right to alter the time for completion or amounts charged. If no acceptance period is given, can from the promotion or quotation in any way any rights be derived if the product or service covered by the quotation or promotion is no longer available in the meantime.
3. Contractor can not be kept to promotions or quotations if the client can reasonably understand that the promotions or quotations, or any part of this, a recognizable mistake or slip contains.
4. In a promotion or quotation prices are excluding VAT and other levies, possible in the context of the contract costs, including travel and expenses, postage and administrative costs, unless otherwise indicated. The prices may be revised on the basis of inflation and price development.
5. If the acceptance (whether or not on secondary items) deviate from the promotion or quotation included, then the Contractor shall not be bound. The agreement is not achieved in accordance with the deviating acceptance, unless Contractor states otherwise.
6. In case of a compound quotation Contractor is not obliged to conduct a portion of the assignment against a corresponding part of the price. Quotations and promotions shall not apply automatically to future orders.
Article 3: Contract duration, implementation time, risk transfer, implementation and modification agreement; rice of prices
1. The agreement between the Contractor and the Client shall be entered into for an indefinite period, unless the nature of the different results or if the parties expressly agree otherwise in writing.
2. Is for the implementation of certain activities or the supply of certain things a period agreed or specified, then this is never a deadline. When a term will be exceeded, the Client shall hold the Contractor liable in writing. Contractor shall be designated a reasonable to still implement the agreement.
3. The Contractor will execute the agreement to the best of his knowledge and ability and in accordance with the requirements of good craftsmanship. This based on the current known state of the science. Contractor can not guarantee that with the operations the Clients desired result is achieved all the time.
4. Contractor has the right to have certain work done by others. The applicability of Article 7:404, 7:407 and 7:409 paragraph 2 Dutch Civil Law is explicitly excluded.
5. If Contractor or third parties hired by the Contractor under the contract work at the site of the Client or a site designated by the Client, the Client takes care for free for those by the employees reasonably required facilities.
6. We deliver form Contractors business address. The Client is obliged to take things at the time that are made available to him. If the client refuses sale or fails to provide information or instructions necessary for the delivery, then the Contractor has the right to warehouse those things on the expense and risk of the Client. The risk of loss, damage or loss is transferred to the Client at the time that it is made available to the Client.
7. The contractor has the right to carry out the agreement in different stages and thus separately bill the executed part.
8. Is within the period for completion of work an agreed term, then this is only an indicative term and never a deadline. If the Contractor expects a period not to be achieved, then Contractor shall inform the Client as soon as possible.
9. If the agreement is implemented in phases, the Contractor can suspend the implementation of those parts to the next stage until the client approves the results of the preceding stage in writing.
10. The Client shall ensure that all information, which the Contractor indicates that they are necessary or which the Client reasonably should understand that they are necessary for the execution of the agreement, shall be timely provided to the Contractor. If the for implementation of agreement necessary data are not timely provided to the Contractor, the Contractor has the right to suspend the implement of the agreement and / or charge the extra costs resulting from the delays at then customary rates to the Client. The implementation period starts no earlier than after the Client has put the information to the Contractor's disposal. The Contractor is not liable for damages of any kind, because the Contractor is assumed by the Clients provided false and / or incomplete data.
11. If during the execution of the agreement shows that for proper implementation it is necessary to amend or supplement, then parties will mutually consult to amend the agreement. If the nature, scope or content of the agreement, whether by request or appointment of the Client of the competent authorities et cetera, is amended and the agreement would be qualitatively and / or quantity changed, it could have consequences for what was originally agreed. Thus, the originally agreed amount can be increased or decreased. Contractor will it as much as possible previous of that do a quotation. By an amendment to the agreement may also change the initial specified term of implementing. The Client accepts the possibility of amending the agreement, including the change in price and time of implementation.
12. If the agreement is amended, including a supplement, then the Contractor is entitled to implement it first after this agreement is agreed by the competent person within the Contractor and the Client has agreed to for the execution given price and other conditions, including the then to determine when it will be implemented. Failure or delay execution of the amended agreement does not default to the Contractor and the Client is not entitled to the cancel contract. Extra work with no specific price agreement will be established by the prevailing hourly rate and full compensation for additional costs incurred by the Contractor shall be executed if the Client provides a written instruction.
13. Without being in default, the Contractor refuse a request to amend the agreement, if it qualitatively and / or quantitatively, could have consequences for example in this context to the work or things to be delivered.
14. If the Client was failing in the proper fulfilment of that which he is held against the Contractor, then the Client is liable for all damages to the Contractor side of it, directly or indirectly incurred.
15. If no fixed fee or fixed price is agreed, the fee shall be determined on the basis of actual hours spent, calculated according to the usual hourly rates of the Contractor, in force in the period in which the work is done, unless a deviating hourly rate has been agreed.
16. If the Contractor agrees with the Client a fixed fee or fixed price, then the Contractor is nevertheless at all times be entitled to increase this fee or the price without the Client in this case is entitled to dissolve the Agreement for that reason, if the increase of the price is resulting from a power or obligation under the law or regulation or find its cause in an increase in the price of raw
materials, wages, et cetera, or other grounds that when the agreement was agreed was not reasonably foreseeable.
17. If the price other than as a result of an amendment to the agreement is more than 10% and within three months after the conclusion of the agreement, then only it is the Client that an appeal deserves to title 5 section 3 of book 6 BW entitled to cancel the agreement by a written declaration to dissolve, unless:
- The Contractor then is still willing to perform the agreement on the basis of the originally agreed;
- Or if the price increase resulting from an authority or a Contractor's obligation under the law;
- Or if stipulated that the delivery will take place longer than three months after the agreement;
- Or, in the delivery of a case, if it is stipulated that the delivery longer than three months after the sale will take place.
18. Neither party is entitled to transfer the rights and obligations under this agreement, without our prior written consent of the other party. Changes and additions to this agreement are only valid if agreed in writing between the parties.
Article 4: Suspension, dissolution and interim termination of the agreement
1. Contractor is authorized to suspend or terminate the fulfilment their obligations of the agreement, if the Client's obligations under the agreement does not, not fully or timely comply after the conclusion of the agreement, the Contractor learns of circumstances giving good ground to fear that the Client will not fulfil his obligations, if the client at the conclusion of the agreement was requested to guarantee the fulfilment of his obligations under the agreement and this security or insufficient or if the delay on the part of the Contractor may no longer be required that the contract against the originally agreed conditions will honour.
2. Furthermore, the Contractor is authorized to dissolve the agreement if circumstances arise of such a nature that fulfilment of the contract impossible or if there are other circumstances arise of such nature that the unaltered maintenance of the contract Contractor can not reasonably be demanded .
3. If the agreement is dissolved, the claim of the Contractor to the Client is immediately due and claimable. If the Contractor suspends the fulfilment of the obligations, he retains his rights under the law and the agreement.
4. If the Contractor proceeds to suspension or termination, he is in no way liable for damages and costs it incurred in any way.
5. If the termination is responsible to the Client, the Contractor is entitled to compensation for damages, including costs, thus directly and indirectly created.
6. If the Client does not fulfil the obligations from the contract and this failure justifies termination, then the Contractor has the immediate and direct right to terminate the agreement without any obligation on his part to pay any damages or compensation, while the Client, because of the default, is required for damages or compensation.
7. If the agreement is interim terminated by Contractor, Contractor will, in consultation with the Client take care of the transfer of the remaining work to third parties. This is unless the termination is attributable to the Client. If the transfer of work means extra costs to Contractor, then these will be charged to the Client. The Client shall pay such costs within the period referred to, unless Contractor agreed otherwise.
8. In the event of liquidation, (application for) suspension of payments or bankruptcy, embargo - when and where the embargo is not lifted within three months - at the expense of the Client, of debt or other circumstances which the Client no longer freely on assets available, the Contractor is free to the immediate and direct effect to cancel the order or agreement or to cancel without any obligation on his part to pay any damages or compensation. The claims of the Contractor to the Client in this case are immediately due and claimable.
9. If the Client cancels an order totally or partially, then the work that was performed and the order or prepared things, increased with the potentially discharge and delivery costs and the implementation of the reserved work hours, will be charged to the Client integrally.
Article 5: Superior forces
1. Contractor is not obliged to fulfil any obligation to the Client if he is hindered due to a circumstance that is not due to guilt, and neither under the law, an act of force or in the traffic applicable conceptions are for his account.
2. Superior forces in these terms mean, in addition to what this effect in the law and jurisprudence is understood, all external causes, foreseen or not foreseen, which Contractor can not exercise, but which the Contractor is unable to meet his obligations . Restrictive disease and strikes in the business of Contractor or third party companies included. The Contractor also has the right to invoke Superior forces if the circumstance that prevents rendering of (further) fulfilment of the agreement, occurs after Contractor should fulfil its commitment.
3. Contractor can during the period that the superior forces continues suspend obligations under the agreement. If this period lasts longer than three months, then either party has the right to terminate the agreement, without liability for compensation for damage to the other party.
4. As much as the Contractor at the time of the occurrence of superior forces has already partially fulfilled or will be able to fulfil its obligations under the agreement, and the fulfilled part has independent value, the Contractor is entitled to bill the already fulfilled part separately. The Client is obliged to pay this invoice as if there is a separate agreement.
Article 6: Payment and collection costs
1. Payment should always be made within 28 days after the invoice date, in a way that is mentioned by the Contractor in the currency which is billed, unless indicated otherwise in writing by Contractor. Contractor is entitled to periodic billing.
2. If the Client defaults in timely payment of an invoice, then the Client shall automatically be in default by law. The client is then due to an interest of 2% per month, unless the statutory interest rate is higher, in which case the statutory interest is due. The interest on the due amount will be calculated from the time the client is in default until the time of payment of the full amount.
3. Contractor has the right to stretch payments made by the client, in the first place to reduce the costs, then deducting the interest still due and finally to reduce the principal and accrued interest. Contractor may, without getting into default, refuse a quotation to payment, if the Client designates a different order for the allocation of the payment. Contractor can refuse the total payment of the principal amount, if this does not include all the interest and collection costs.
4. The Client is never entitled to settle the his debt to the Contractor. Objections to the amount of an invoice do not suspend the payment. The Client that can not make an appeal to Section 6.5.3 (Articles 231 and 247 Book 6 Dutch Civil Law) is not entitled to suspend the payment of an invoice for any other reason.
5. If the client is in shortage or in omission to ensure compliance (in the early) with its obligations, all reasonable costs incurred in obtaining satisfaction out of court are on behalf of the client. The extra costs are calculated on the basis of what the Dutch collection practice is currently the method according to Report for Work II. However, if the Contractor has higher collection costs incurred were reasonably necessary, the actual costs are for reimbursement. Any judicial and execution costs incurred will also be recovered from the Client. The client is on any collection costs also deud to interest.
Article 7: Reservation of property
1. The by Contractor under the Contractor provided remains the property of the Contractor until all obligations of the Client with the Contractor under the agreement is properly fulfilled.
2. The by Contractor delivered, that pursuant to paragraph 1 is under reservation of property, is not allowed to be sold and should never be used as payment. The Client is not entitled to under the reservation of property falling to pledge or otherwise encumber.
3. The client should always do all that it reasonably can be expected to secure property rights of Contractor. If third parties seize goods delivered under reservation of property or rights to establish or exercise, the Client is required to notify the Contractor immediately. It also obliges the Client to the delivered subject property, to insure and keep insured against fire, explosion and water damage and against theft and give access to the policy of this insurance for inspection to the Contractor on first request. When there is any payment of insurance Contractor is entitled to these funds. Insofar as necessary, the Client commits itself against the Contractor in advance to co-operate with all that in that framework is necessary or desirable (appear) to be.
4. In the event the Contractor in this article designated to exercise property rights, the Client in advance will unconditional and irrevocable consent to the Contractor and the by Contractor designated third parties to all these sites and locations where the property of the Contractor are and take back .
Article 8: Guarantees, research and claims, term of limitation
1. The by Contractor to supply goods and services meet the usual requirements and standards, that at the time of delivery can reasonably be postulated and for what they are intended normally in the Netherlands. The guarantee mentioned in this article shall apply to matters that are intended for use within the Netherlands. When used outside the Netherlands, the Client himself should verify that its use is suitable for the use there and meet the terms from that country. The Contractor may in that case appoint other guarantees and other conditions for the to supply goods or the to perform work.
2. The in paragraph 1 of this article mentioned guarantee applies to goods for a period of one year after delivery, unless from the nature of the delivered results otherwise or if parties have agreed otherwise. If the by Contractor provided guarantee is about a case produced by a third party, then the guarantee is limited to those provided by the producer of the matter, unless otherwise indicated.
3. Any form of guarantee will lapse if a defect is created as a result of or resulting from improper or inappropriate use or use after the expiration date, incorrect storage or maintenance thereto by the Client and/or third party when, without the written approval of Contractor, the Client or third parties have made changes to the matter or have tried to make changes, attach other matters to it that should not be attached to it, or if they were processed or modified other than as prescribed. The Client is not entitled to warranty if the defect is caused by or arising from circumstances where the Contractor can not affect them, including weather conditions (such as but not limited to, extreme temperatures or rainfall) et cetera.
4. The Client is obliged to investigate the delivery immediately when things are made available to him or the work performed. It is the Client to investigate whether the quality and/or quantity of the delivery corresponds to the agreement and satisfies the requirements that parties have agreed. Any visible defects shall be reported within seven days after delivery in writing to the Contractor. Any non-visible defects must immediately, but in any event within seven days, after discovery be reported in writing to the Contractor. The notification shall provide a detailed description of the defect, so that the Contractor is able to respond adequately. The Client should give the Contractor the opportunity to investigate the complaint.
5. If the client appeals time, this does not suspend the obligation of payment. The client is in that case also required to purchase and payment of the otherwise ordered and which he has commissioned the Contractor.
6. If a defect is reported later, then the Client has no longer rights of repair, replacement or compensation.
7. Where it is established that a matter is weak and that is appealed in time, then the Contractor will, within a reasonable time after return receipt or, if return is not reasonably possible, written notification of the defect by the Client, at the option of Contractor, settle a replacement or arrangement for repair or a replacement fee to the Client. In case of replacement, the Client is held to return the to be replaced matter to the Contractor, and to return the property on to the Contractor, unless Contractor otherwise.
8. If it is established that a complaint is unfounded, then the costs incurred thereby, including the research costs at the Contractor side of this case, are integral on behalf of the client.
9. After the warranty period, all costs for repair or replacement, including administrative, shipping and driving expense will be charged to the Client.
10. Contrary to the legal terms of limitation, the terms of limitation of all claims and defences against the Contractor and by the Contractor in the performance involved third party, are one year.
Article 9: Liability
1. If the Contractor should be liable, this liability is limited to what this stipulation is governed.
2. The Contractor is not liable for damages of any kind, incurred because the Contractor is assumed by or on behalf of the client provided false and/or incomplete data.
3. Contractor is in no way liable for damage suffered by Client, for example, by damage caused by:
a) errors in the by Contractor provided advice, materials and/or automated files;
b) by Client provided text, graphics or other information or unauthorized use of it by the Client;
c) content of advertisements or publications of other Clients or authors in the same or a different edition, section and/or elsewhere in the electronic service, which could undermine respect for the intended purpose of the Client or its publication;
d) not following by the Client of the by the Contractor provided advice;
e) the being unlawful of the by Contractor offered services or the way services are provided by the Contractor;
f) failures in the electronic services of Contractor and third parties such as providers, network operators and other telecommunications networks;
g) any encroachment of trademark rights, trade name rights, copyrights or other intellectual property rights or related rights, which violations are the result of the Contractor for Client executed Search Engine Marketing services and/or other services contractor for the client performs. Client shall indemnify the Contractor, both in and out of court, fully against any claims and claims of third parties to which the Contractor infringes on intellectual property rights of third parties or is guilty of deceptive or unfair advertising or otherwise illegal act. Client will defend against the claims and entitlements to take and reimburse any expense of the Contractor in connection with these claims and any other damages of any kind. Reimbursement of these costs and damages by the Client will be at the first request specified in writing of the Contractor;
h) damage caused to Client as a result of change in rules or conditions by Dutch or foreign search services.
4. If the Contractor should be liable for any damages, the liability of the Contractor is limited to a maximum of 75% of the invoice value of the order, to that part of the order in which the liability relates, excluding spending on media billings and/or materials and costs incurred, including travel and subsistence.
5. The liability of the Contractor is always limited to the amount of the benefit of its insurer in the case.
6. The Contractor is only liable for direct damage, not liable for indirect or consequential damages (such as click fraud or search spam).
7. Direct damage is only to the reasonable costs incurred to establish the cause and extent of the damage, where the establishment relates to damage under these conditions, any reasonable cost to answer the poor performance of the Contractor to the agreement, so far as this can be attributed to Contractor and reasonable costs to prevent or minimize damage, if the Client proves that these costs have led to the limitation of direct damage as referred to in these terms and conditions. Contractor shall never be liable for indirect damage, including consequential damages, lost profits, lost savings and damage due to business stagnation.
Article 10: Safeguard
1. The Client shall indemnify the Contractor for any claims by third parties that in connection with the implementation of the agreement suffer damage and of which the cause is other than attributable to the Contractor. If the Contractor accordingly by third parties is addressed, then the Client is held both outside and in to right to support Contractor and immediately to do what for him in this case can be expected. If the Client defaults in taking appropriate measures, then the Contractor, without notice, entitled themselves doing so. All costs and damage to the part of Contractor and third parties that are created, are integral for the account and risk of the Client.
Article 11: Intellectual property
1. Contractor reserves the rights and powers for which he is entitled under the copyright law and other intellectual laws and regulations. Contractor shall have the right to the performance of a contract to his side to use his increased knowledge for other purposes, provided it does not bring strictly confidential information from the Client to a third party.
2. All documents supplied by Contractor, like reports, checklists, advice, design, web pages etc., are intended to be used by the Client only. The Client is not allowed to provide information obtained from the Contractor to disclose and/or reproduce in any form whatsoever, including the selling, processing, making available, distribution and whether or after preparation to integrate into networks unless such disclosure and/or reproduction is authorized in writing by Contractor and/or such disclosure and/or duplication is resulting from the nature or purpose of the agreement with the Contractor.
3. Client shall indemnify the Contractor against all claims of third parties in respect of intellectual property rights relating to the publication of by the Client or by the Client side provided texts, images or other data. In this is that the parties will agree that digital images of networks of third parties are not belonging to the client unless the client proves otherwise.
Article 12: Secrecy, exclusivity
1. Parties are obliged to maintain secrecty of all confidential information in connection with the agreement, of each other or from other sources provided, whether it is written or verbal form and whoever the source is. Information as confidential if the other party is notified or when it arises from the nature of the information.
2. Contractor reserves the right to use the name of the Client as reference and as such make it public.
3. The (personal) data from the sites of the Client given to the Contractor, shall be treated confidential. The supplied data will be recorded in a file. This information will not be made available to third parties.
4. Client grants to the Contractor for the duration of the agreement and subject to the stipulations of the agreement the exclusive right to fulfil the assigned task.
Article 13: Specific stipulations on Searchengine Marketing
1. On the product search engine marketing Contractor reserves the following rights: Contractor will work with the best effort to carry out the contract. Contractor is not liable if there is difficulty to position keywords, spam from third parties, not being indexed by the search engine(s), rejection or not indexing the URL by the search engine due to technical aspects or specifications of the website or technical inaccuracies or non-compliance and/or following up by the Client of the advice provided by the Contractor. By or on behalf of Contractor provided reports are always just guidance, unless emphatic indicated otherwise. This data can not bind the Contractor. For all services in the field of Search Engine Marketing is therefore a effort commitment and no performance commitment.
2. Contractor is in the context of Article 9 not liable for any errors arising from the work performed by third parties, hereby specifically but not exclusively referring to search engines (i.e. Google and Yahoo!) guides and portals (i.e. DMOZ).
Article 14: Hardware / Software
1. Client must self and at their own risk ensure for proper equipment and proper facilities for accessing a network on which by the Contractor provided services (i.e. .pdf and .zip files) can be received. The Client must have to ensure the compensation of its communication costs.
2. Contractor can not be hold responsible for damage of any kind to, respectively standstill of computers, peripheral equipment, memory systems, information carriers, the information on information carriers, software en software applications, as well as resulting damage, as far as the damage causing event is connected with a product or work supplied by the Contractor. If it is applicable, Client can appeal to possible guarantee of the manufacturer of the product supplied, but Client must settle this himself with the manufacturer.
Article 15: Cancel appointments
1. For the cancellation of planned appointments in the Netherlands is a cancellation period of 48 hours held, outside the Netherlands, a period of 7 days. If earlier than the deadline for the upcoming appointment is cancelled (by telephone to ITMATEC), no costs will be charged. If later than the deadline for the upcoming appointment it is cancelled, the made and to be made costs for the specific appointment will be charged. For cancellations by e-mail, this is only accepted if this is confirmed by the Contractor.
Article 16: Applicable law and disputes
1. For all legal relations in which Contractor is a party, only Dutch law applies, even if a contract entirely or partly abroad to be given or if the legal relationship to the party concerned is domiciled there. The applicability of the Vienna Sales Convention is excluded.
2. The court in the seat of the Contractor shall have exclusive jurisdiction to hear actions, unless the law requires mandatory otherwise. Nevertheless, the Contractor has the right to submit to the competent court according to law.
3. Parties will first appeal to the court to do after they have made effort to the final dispute in mutual consultations.
Article 17: Finding-place and alteration conditions
1. These conditions are placed on the website of the Contractor and downloadable in PDF format.
2. Applicable is always the latest version issued or the version in force at the time of the creation of the legal relationship with the Contractor.
3. The Dutch version of the general conditions is always the main determining factor in the interpretation.
Article 18: Effective Date
1. These general conditions apply to all contracts and agreements after May 1, 2009 entered into or carried out. This brings the Terms and Conditions prior to expiry of contracts and agreements after May 1, 2009 entered into or carried out.
2. The difference with the General Terms and Conditions of Mars 1, 2009 is that article 14 paragraph 2 is added.