Identity: NasQap BV. Trading name: Opitecmedia. Established at: De Noord 1, 6001 DA Weert. Telephone number: +31 6 27 43 1996
1. Definitions
In these general terms and conditions, the following terms shall have the meanings specified below, unless expressly stated otherwise:
- Client: the counterparty of Opitecmedia.
- Agreement: the agreement for the provision of services.
2. General
2.1. These terms and conditions apply to every offer, quotation, and agreement between Opitecmedia and a client to which Opitecmedia has declared these terms applicable, unless the parties have expressly and in writing deviated from these terms.
2.2. These terms also apply to all agreements with Opitecmedia for the execution of which third parties need to be involved.
2.3. Any deviations from these general terms and conditions are only valid if expressly agreed in writing.
2.4. The applicability of any purchase or other conditions of the client is expressly rejected.
2.5. If one or more provisions in these general terms and conditions are void or declared void, the remaining provisions of these terms and conditions remain fully applicable. Opitecmedia and the client will then consult to agree on new provisions to replace the void or annulled provisions, while, as far as possible, respecting the purpose and intent of the original provision.
3. Offers and Quotations
3.1. All offers are without obligation unless a deadline for acceptance is specified in the offer.
3.2. Quotations issued by Opitecmedia are without obligation and valid for 30 days unless otherwise indicated. Opitecmedia is only bound by the quotation if its acceptance is confirmed in writing or by email by the counterparty within 30 days, unless otherwise stated.
3.3. Prices in the aforementioned offers and quotations are exclusive of VAT and other government levies, unless otherwise indicated.
3.4. If the acceptance deviates (on minor points) from the offer included in the quotation, Opitecmedia is not bound by it. The agreement will then not be concluded in accordance with this deviating acceptance unless Opitecmedia indicates otherwise.
3.5. A composite quotation does not oblige Opitecmedia to perform part of the assignment for a corresponding part of the quoted price.
3.6. Offers or quotations do not automatically apply to future assignments.
4. Execution of the Agreement
4.1. Opitecmedia will execute the agreement to the best of its knowledge and ability and in accordance with the requirements of good craftsmanship, based on the state of knowledge at that time.
4.2. If and to the extent required for the proper execution of the agreement, Opitecmedia has the right to have certain tasks performed by third parties, as well as to use purchased work (plugins) from third parties.
4.3. The client shall ensure that all data, which Opitecmedia indicates as necessary or which the client should reasonably understand to be necessary for the execution of the agreement, are provided to Opitecmedia in a timely manner. If the data required for the execution of the agreement are not provided to Opitecmedia in time, Opitecmedia has the right to suspend the execution of the agreement and/or charge the client for the additional costs resulting from the delay in accordance with the usual rates.
4.4. Opitecmedia is not liable for damage of any kind caused by relying on incorrect and/or incomplete data provided by the client, unless such inaccuracy or incompleteness should have been apparent to Opitecmedia.
4.5. If it has been agreed that the agreement will be executed in phases, Opitecmedia may suspend the execution of those parts belonging to a subsequent phase until the client has approved the results of the preceding phase in writing.
4.6. If work is performed by Opitecmedia or third parties engaged by Opitecmedia at the client’s location or a location designated by the client, the client shall provide, free of charge, the facilities reasonably required by those employees.
4.7. The client indemnifies Opitecmedia against any claims from third parties who suffer damage in connection with the execution of the agreement and which is attributable to the client.
5. Amendment of the Agreement
5.1. If, during the execution of the agreement, it becomes apparent that it is necessary to amend or supplement the work to be performed for proper execution, the parties will timely and in mutual consultation adjust the agreement accordingly.
5.2. If the parties agree to amend or supplement the agreement, this may affect the completion date of the execution. Opitecmedia will inform the client of this as soon as possible.
5.3. If the amendment or supplement to the agreement has financial and/or qualitative consequences, Opitecmedia will inform the client in advance.
5.4. If a fixed fee has been agreed, Opitecmedia will indicate to what extent the amendment or supplement to the agreement results in an overrun of this fee.
5.5. Notwithstanding paragraph 3, Opitecmedia cannot charge additional costs if the amendment or supplement is the result of circumstances attributable to Opitecmedia.
6. Contract Duration; Execution Period
6.1. The agreement between Opitecmedia and a client is entered into for a fixed term, unless the nature of the agreement dictates otherwise or the parties expressly and in writing agree otherwise.
6.2. If a deadline has been agreed within the term of the agreement for the completion of certain work, this is never a strict deadline. If the execution period is exceeded, the client must formally notify Opitecmedia in writing of default.
7. Fee
7.1. The parties may agree on a fixed fee when concluding the agreement.
7.2. If no fixed fee is agreed, the fee will be determined based on the actual hours worked. The fee is calculated according to Opitecmedia’s usual hourly rates applicable for the period in which the work is performed, unless a different hourly rate has been agreed.
7.3. The fee and any cost estimates are exclusive of VAT.
7.4. For assignments with a duration of more than two months, the costs owed will be invoiced periodically.
7.5. If Opitecmedia agrees on a fixed fee or hourly rate with the client, Opitecmedia is nevertheless entitled to increase this fee or rate.
7.6. Furthermore, Opitecmedia may increase the fee if, during the performance of the work, it becomes apparent that the originally agreed or expected amount of work was underestimated to such an extent at the time of concluding the agreement, and this is not attributable to Opitecmedia, that Opitecmedia cannot reasonably be expected to perform the agreed work for the originally agreed fee. In such a case, Opitecmedia will notify the client of the intention to increase the fee or rate, specifying the extent of the increase and the date on which it will take effect.
8. Payment
8.1. Payment shall be made as follows: 50% upon assignment, 40% upon first delivery, and the final 10% upon final delivery.
8.2. If the client fails to make payment within 30 days, the client is automatically in default. Reminder costs: first reminder: €0, second reminder: €0, third and final reminder: €25. If no payment is made after the third reminder, Opitecmedia is entitled to (temporarily) deactivate the developed website.
8.3. In the event of liquidation, bankruptcy, seizure, or suspension of payment of the client, Opitecmedia’s claims against the client are immediately due and payable.
8.4. Opitecmedia is entitled to apply payments made by the client first to reduce costs and finally to reduce the principal amount. Opitecmedia may, without being in default, refuse an offer of payment if the client designates a different order of allocation. Opitecmedia may refuse full repayment of the principal amount if the outstanding interest and costs are not also paid.
9. Retention of Title
9.1. All items delivered by Opitecmedia, including but not limited to designs, sketches, scripts, CMS, software, (digital) files, domain names, etc., remain the property of Opitecmedia until the client has fulfilled all obligations arising from all agreements concluded with Opitecmedia.
9.2. The client is not authorized to pledge or otherwise encumber the items subject to retention of title.
9.3. If third parties seize the items subject to retention of title or wish to establish or assert rights to them, the client is obliged to inform Opitecmedia as soon as reasonably expected.
9.4. The client undertakes to insure and keep insured the items delivered under retention of title against fire, explosion, water damage, and theft and to provide the insurance policy for inspection upon first request.
9.5. Items delivered by Opitecmedia that are subject to retention of title under paragraph 1 of this article may only be resold in the context of normal business operations and may never be used as a means of payment.
9.6. In the event that Opitecmedia wishes to exercise its ownership rights as referred to in this article, the client hereby grants unconditional and irrevocable permission to Opitecmedia or third parties designated by Opitecmedia to enter all places where Opitecmedia’s property is located and to take possession of those items.
10. Collection Costs
10.1. If the client is in default or fails to fulfill one or more of its obligations, all reasonable costs incurred to obtain satisfaction out of court shall be borne by the client. If the client fails to pay a sum of money on time, they forfeit an immediately payable penalty of 8% of the outstanding amount, with a minimum of €35.
10.2. If Opitecmedia incurs higher costs that were reasonably necessary, these are also eligible for reimbursement.
10.3. Any reasonable judicial and execution costs incurred shall also be borne by the client.
10.4. The client owes interest on the incurred collection costs.
11. Hosting and Subscriptions
11.1. An agreement for hosting the developed website will be concluded externally with a hosting company. The agreement is entered into for a period of one year and is automatically renewed for the same period. Termination of the (extended) agreement by the client must be made at least one month before the end of the contract period, to Opitecmedia.
11.2. Opitecmedia is not liable for downtime or inaccessibility due to internet or other provider outages, power failures, etc.
11.3. The client is not permitted to use the website, in whole or in part, for:
a. acts and/or conduct contrary to applicable legal provisions, Netiquette, or the guidelines of the Advertising Code Committee;
b. sending large quantities of unsolicited emails with the same content and/or posting unsolicited messages with the same content in large numbers of newsgroups on the internet (spamming);
c. infringing copyrighted works or otherwise acting in violation of third-party intellectual property rights;
d. publishing or distributing illegal texts and/or visual or audio material, including child pornography and discriminatory statements;
e. sexual harassment or otherwise harassing individuals;
f. unauthorized access to other computers or sites on the internet or intranet, breaching any security and/or gaining access through technical intervention using false signals or a false key, or by assuming a false identity (hacking);
g. running processes that continue to operate within Opitecmedia or the internet after the (online) connection with Opitecmedia is terminated;
h. spreading computer viruses.
11.4. The client is not permitted to use the developed website for erotic, pornographic, or racist material, illegal software, MP3s, or similar material.
11.5. Domain names are reserved for a period of one year. This is automatically renewed for the same period. Termination of the (extended) agreement by the client must be made at least one month before the end of the contract period, to Opitecmedia.
11.6. The WordPress Management Subscription is entered into for a period of one year and is automatically renewed for the same period. Termination of the (extended) agreement by the client must be made at least one month before the end of the contract period, to Opitecmedia.
12. Complaints
12.1. Complaints about the work performed must be reported in writing by the client to Opitecmedia within 8 days of discovery, but no later than 30 days after completion of the relevant work. The notice of default must contain a description of the shortcoming as detailed as possible to enable Opitecmedia to respond adequately.
12.2. If a complaint is justified, Opitecmedia will perform the work as agreed, unless this has demonstrably become pointless for the client. The latter must be communicated in writing by the client.
12.3. If performing the agreed work is no longer possible or meaningful, Opitecmedia will only be liable within the limits of Article 16.
13. Termination
13.1. Both parties may terminate the agreement in writing at any time.
13.2. If the agreement is terminated prematurely by the client after the conclusion of the agreement and before the implementation of the developed website on the client’s own domain name, Opitecmedia is entitled to compensation, unless the termination is based on facts and circumstances attributable to Opitecmedia. Furthermore, the client remains obliged to pay the invoice for the work performed up to that point plus 10% of the agreed fee.
13.3. If the agreement is terminated prematurely by Opitecmedia, Opitecmedia will, in consultation with the client, arrange for the transfer of work still to be performed to third parties, unless the termination is based on facts and circumstances attributable to the client.
13.4. If the transfer of the work results in additional costs for Opitecmedia, these will be charged to the client.
14. Suspension and Dissolution
14.1. Opitecmedia is entitled to suspend the fulfillment of its obligations or dissolve the agreement if:
- The client does not or does not fully comply with the obligations under the agreement.
- After concluding the agreement, Opitecmedia becomes aware of circumstances that give good reason to fear that the client will not fulfill its obligations.
- If there is good reason to fear that the client will only partially or improperly fulfill its obligations, suspension is only permitted to the extent justified by the shortcoming.
- The client was requested to provide security for the fulfillment of its obligations under the agreement at the time of concluding the agreement, and this security is not provided or is insufficient.
14.2. Furthermore, Opitecmedia is entitled to dissolve the agreement if circumstances arise that make performance of the agreement impossible or, according to standards of reasonableness and fairness, can no longer be required, or if other circumstances arise that make unaltered maintenance of the agreement unreasonable.
14.3. If the agreement is dissolved, Opitecmedia’s claims against the client are immediately due and payable. If Opitecmedia suspends the fulfillment of its obligations, it retains its rights under the law and the agreement.
14.4. Opitecmedia always retains the right to claim damages.
15. Return of Provided Items
15.1. If Opitecmedia has provided items to the client for the execution of the agreement, the client is obliged to return the delivered items within 14 days in their original condition, free of defects, and complete. If the client fails to fulfill this obligation, all resulting costs are for their account.
15.2. If the client, for whatever reason, remains in default of the obligation mentioned in paragraph 1 after being notified, Opitecmedia is entitled to recover the resulting damage and costs, including replacement costs, from the client.
16. Liability
16.1. If Opitecmedia is liable, this liability is limited to what is regulated in this provision.
16.2. If Opitecmedia is liable for direct damage, that liability is limited to a maximum of twice the invoiced amount, or that part of the assignment to which the liability relates, or a maximum of €5,000 (five thousand euros). The liability is at all times limited to the maximum amount paid out by Opitecmedia’s insurer in the relevant case.
16.3. Notwithstanding paragraph 2 of this article, for assignments with a duration longer than six months, the liability is further limited to the fee portion due for the last six months.
16.4. Direct damage is exclusively understood to mean:
- The reasonable costs to determine the cause and extent of the damage, insofar as the determination relates to damage as defined in these terms;
- Any reasonable costs incurred to make Opitecmedia’s defective performance conform to the agreement, unless these cannot be attributed to Opitecmedia;
- Reasonable costs incurred to prevent or limit damage, insofar as the client demonstrates that these costs led to a limitation of direct damage as defined in these general terms and conditions.
16.5. Opitecmedia is never liable for indirect damage, including consequential damage, lost profits, missed savings, and damage due to business interruption.
16.6. The limitations of liability for direct damage included in these terms do not apply if the damage is due to intent or gross negligence on the part of Opitecmedia or its subordinates.
16.7. A warranty is provided on the delivered composition of the work, including third-party work. Restoration work due to changes in the setup resulting from actions taken by the client will be charged.
17. Indemnities
17.1. The client indemnifies Opitecmedia against third-party claims regarding intellectual property rights on materials or data provided by the client that are used in the execution of the agreement.
17.2. If the client provides Opitecmedia with information carriers, electronic files, or software, etc., the client guarantees that these are free of viruses and defects.
18. Transfer of Risk
18.1. The risk of loss or damage to the items that are the subject of the agreement transfers to the client at the moment they are legally and/or actually delivered to the client and thus come under the control of the client or a third party designated by the client.
19. Force Majeure
19.1. The parties are not obliged to fulfill any obligation if they are prevented from doing so due to a circumstance that is not attributable to fault and is not for their account under the law, a legal act, or generally accepted standards.
19.2. In these general terms and conditions, force majeure is understood to include, in addition to what is understood in law and jurisprudence, all external causes, foreseen or unforeseen, over which Opitecmedia has no influence, but which prevent Opitecmedia from fulfilling its obligations. Strikes in Opitecmedia’s company are included.
19.3. Opitecmedia is also entitled to invoke force majeure if the circumstance preventing (further) fulfillment occurs after Opitecmedia should have fulfilled its obligations.
19.4. The parties may suspend their obligations under the agreement during the period that the force majeure continues. If this period lasts longer than two months, either party is entitled to dissolve the agreement without any obligation to compensate the other party for damages.
19.5. If Opitecmedia has already partially fulfilled or can fulfill its obligations under the agreement at the time the force majeure occurs, and the fulfilled or fulfillable part has independent value, Opitecmedia is entitled to invoice the fulfilled or fulfillable part separately. The client is obliged to pay this invoice as if it were a separate agreement.
20. Confidentiality
20.1. Both parties are obliged to maintain the confidentiality of all confidential information they obtain from each other or from other sources in the context of their agreement. Information is considered confidential if this has been indicated by the other party or if this follows from the nature of the information.
20.2. If Opitecmedia is required, based on a legal provision or a court ruling, to provide confidential information to third parties designated by the law or the competent court, and Opitecmedia cannot invoke a legally recognized or permitted right of non-disclosure, Opitecmedia is not obliged to pay damages or compensation, and the counterparty is not entitled to dissolve the agreement based on any damage caused by this.
21. Intellectual Property and Copyrights
21.1. Notwithstanding the other provisions in these general terms and conditions, Opitecmedia reserves the rights and powers to which it is entitled under the Copyright Act.
21.2. All documents provided by Opitecmedia, such as reports, advice, agreements, designs, sketches, drawings, software, etc., are intended solely for use by the client and may not be reproduced, disclosed, or brought to the attention of third parties without Opitecmedia’s prior consent, unless the nature of the provided documents dictates otherwise.
21.3. Opitecmedia reserves the right to use the knowledge gained through the performance of the work for other purposes, provided that no confidential information is disclosed to third parties.
22. Samples
22.1. If a sample has been shown or provided to the client, it is presumed to have been provided only as an indication, unless it is expressly agreed that the product to be delivered will correspond to it.
23. Disputes
23.1. The court in the place of establishment of Opitecmedia is exclusively competent to hear disputes, unless the district court is competent. Nevertheless, Opitecmedia has the right to submit the dispute to the court competent under the law.
23.2. The parties will only resort to the courts after they have made every effort to resolve a dispute in mutual consultation.
24. Applicable Law
24.1. Dutch law applies to every agreement between Opitecmedia and the client.
25. Amendment, Interpretation, and Location of the Conditions
25.1. The most recently filed version or the version that was in effect at the time the agreement was concluded applies.