General terms and conditions
Article 1. Definitions.
Client: the other party to Webkracht. Agreement: the agreement entered into between Webkracht and Client.
Article 2. General
The Agreement is formed by these general terms and conditions together with the order confirmation signed by Client and Webkracht. These general terms and conditions apply to every offer, quotation and Agreement between Webkracht and Client, insofar as these terms and conditions have not been expressly deviated from by the parties.
The applicability of any purchase and or other conditions of the Client is expressly rejected. If one or more provisions of these general terms and conditions are at any time annulled or declared null and void by the court in whole or in part, this shall not affect the effect of the remaining provisions.
Article 3. Quotations and offers
All quotations and offers from Webkracht are without obligation, unless the quotation or offer states a deadline for acceptance. If no acceptance deadline is stated, no rights whatsoever can be derived from the quotation or offer. Quotations from Webkracht are based on the information provided by the Client.
The client guarantees that he/she has provided Webkracht with all essential information for the set-up, execution and completion of the assignment in a timely and truthful manner. Webkracht cannot be held to a quotation or offer if the client can reasonably understand that (part of) the quotation and offer contains an obvious mistake or clerical error.
A compound quotation and offer does not oblige Webkracht to perform part of the quotation and offer at a corresponding part of the stated price. Quotations and offers do not automatically apply to future orders.
Article 4. Prices
All prices are in Euros, exclusive of V.A.T. and other government levies as well as any costs to be incurred in the context of the Agreement, such as travel and other expenses, including but not limited to invoices from third parties called in. The aforementioned costs are at the expense of the Customer.
If Webkracht agrees with the Customer on a fixed price, Webkracht is entitled to increase this price, without giving the Customer the right to terminate the Agreement for that reason, if the price increase results from a power or obligation under the law or regulations or is caused by an increase in cost-determining factors such as the price of raw materials, wages, etc. or on other grounds that could not reasonably have been foreseen at the time of entering into the agreement.
If the price increase other than as a result of an amendment to the Agreement exceeds 20%, the Customer has the right to cancel the Agreement, provided this is done in writing within 14 days of receiving the adjusted price, unless Webkracht is still willing to execute the Agreement on the basis of the originally agreed price, the price increase arises from a power or an obligation resting on Webkracht under the law, or if it has been stipulated that the delivery will take place more than three months after the Agreement.
A cancellation as mentioned in the previous paragraph does not entitle the Customer to compensation for any damage. In case the Customer cancels the Agreement, Webkracht is entitled to charge the Customer for all costs already incurred.
Article 5. Agreement
The Agreement is deemed to be concluded from the day of signing by Webkracht, respectively the day of sending the written order confirmation by Webkracht to Client. The Agreement is entered into for an indefinite period of time, unless it follows from the contents, nature or tenor of the Agreement that it has been entered into for a definite period of time.
Article 6. Execution of the Agreement
Webkracht shall execute its work with the care of a good contractor. With the Agreement Webkracht assumes a best-efforts obligation and therefore does not guarantee the results of the assignment, unless explicitly stated otherwise. Webkracht has the right, insofar as the proper execution of the Agreement requires, to have part of the Agreement executed by third parties.
The applicability of articles 7:404, 7:407 subsection 2 and 7:409 of the Dutch Civil Code is expressly excluded. If a term is agreed within the term of the assignment for the completion of certain work, this shall never be a deadline for Webkracht. If the term of execution is exceeded, the client should give Webkracht written notice of default.
Article 7. Changes to the Assignment
Changes to the Agreement by the Customer which could not have been foreseen by Webkracht and which cause extra work, will be charged by Webkracht to the Customer in accordance with the rate agreed in the Agreement. There will also be extra work if, as a result of the provision of incorrect or incomplete data by the Customer, Webkracht has to reorganise the planned work. Webkracht has the right to charge the costs for extra work to the Customer on the basis of subsequent calculation.
Changes in the execution of the Agreement requested by the Client after the assignment has been given, must be notified to Webkracht by the Client in time and in writing. Changes or additions to the Agreement are only valid if accepted by both Webkracht and the Client (preferably in writing).
Changes made to an already issued order may result in Webkracht exceeding the originally agreed delivery time.
Article 8. Cooperation of Client
Client shall always provide Webkracht, solicited and unsolicited, with all relevant information necessary for the correct execution of the assignment given to her/him. If information necessary for the execution of the agreed assignment is not, not timely or not in accordance with the agreements made, provided by the Client, or if the Client has not fulfilled her/his (information) obligations in any other way, Webkracht is entitled to suspend the execution of the Agreement.
In order to allow the execution of the assignment to proceed properly and as much as possible according to time schedule, the Customer shall timely make employees of his/her own organisation available, unless the nature of the assignment dictates otherwise. The Customer shall ensure that his/her employees have the right skills and experience to perform the work.
If and insofar Webkracht requests this, the Client shall provide Webkracht with its own workspace with telephone connection and, if desired, a fax and/or data network connection, free of charge, at his/her location, unless the nature of the assignment dictates otherwise. If, as a result of the Client not, not timely or not properly providing staff, requested data, documents and facilities, extra costs are incurred by Webkracht, these costs shall be borne by the Client.
Webkracht may use the website of Client for promotional and/or publicity purposes. The usual form for this is a small link in the footer of the website with the text: 'Website made by Webkracht'. In addition, Webkracht may use all works developed for Client, as well as the name and logo of Client, for promotional and/or publicity purposes, being, but not limited to its own website webkracht.nl, in newsletters and on social media
Article 9. Delivery
The Customer is obliged to take delivery of the goods at the moment they are made available to him/her. If the Customer refuses to take delivery or is negligent in providing information or instructions necessary for delivery, Webkracht is entitled to store the goods at the expense and risk of the Customer.
Webkracht has the right to execute the Agreement in several stages and to invoice the part thus executed separately.
Customer is obliged to examine the delivered goods (or have them examined) immediately after the goods have been made available to him/her.
The risk of loss, damage or decrease in value shall pass to Principal at the moment goods are delivered to Principal or third parties engaged by him/her.
Article 10. Retention of Title
All goods delivered by Webkracht remain property of Webkracht. In consultation, a transfer is possible for certain delivered goods. Any additional costs are for the account of Customer. Goods that are subject to retention of title may not be resold and may not be used as a means of payment. Also, Customer is not authorised to pledge or encumber in any other way the goods subject to retention of title.
Article 11. Termination
Both parties can terminate the Agreement prematurely in writing at any time with due observance of a 30-day notice period, unless parties have agreed otherwise. If the Client terminates the Agreement prematurely, Webkracht is entitled to compensation due to the resulting and plausible loss of capacity utilisation, whereby the average monthly invoice amount will be used as a starting point, unless facts and circumstances underlying the termination are attributable to Webkracht. The preliminary results of the work performed until then will be made available to the Client under reservation.
In case either party becomes bankrupt, applies for suspension of payment or ceases its business operations, the other party has the right to terminate the Agreement early without observing a notice period.
In the event of premature termination by Webkracht, Client is entitled to Webkracht's cooperation with regard to the transfer of work still to be performed to third parties. If the transfer of the work involves extra costs for Webkracht, these will be charged to Client.
Article 12. Termination and/or suspension authority
1. Webkracht is bevoegd de nakoming van haar/zijn verplichtingen op te schorten of de Overeenkomst te ontbinden, indien: a. Opdrachtgever de verplichtingen uit de Overeenkomst niet, niet volledig of niet tijdig nakomt dan wel Webkracht goede grond heeft te vrezen dat Opdrachtgever in die verplichtingen zal tekortschieten; b. Opdrachtgever bij het sluiten van de Overeenkomst verzocht is om zekerheid te stellen voor de voldoening van zijn/haar verplichtingen uit de Overeenkomst en deze zekerheid uitblijft of onvoldoende is; c. er sprake is van (een aanvraag) liquidatie van Opdrachtgever, aan Opdrachtgever surseance van betaling is verleend, Opdrachtgever is staat van faillissement is verklaard, de Wet Schuldsanering Natuurlijke Personen op Opdrachtgever van toepassing is verklaard of onder curatele stelling van Opdrachtgever, Opdrachtgever de vrije beschikking over zijn/haar vermogen of inkomsten geheel of gedeeltelijk verliest, Opdrachtgever zijn/haar bedrijf verkoopt dan wel indien er ten laste van Opdrachtge
Webkracht is furthermore entitled to terminate the Agreement if circumstances arise of such a nature that performance of the Agreement is impossible or if other circumstances arise of such a nature that unaltered maintenance of the Agreement cannot reasonably be required from Webkracht.
If Webkracht proceeds to suspend or terminate the Agreement, it shall not be liable to compensate any damage or costs in any way.
If Webkracht proceeds to terminate the Agreement, Webkracht's claims against Client shall become immediately due and payable.
If the dissolution is imputable to the Customer or Webkracht has to suspend the performance of the Agreement as mentioned in this article and/or under article 8.2 of these general terms and conditions, the Customer is obliged to compensate Webkracht for the direct and indirect damage and costs incurred as a result.
Webkracht can at all times demand further security, in default of which Webkracht may suspend the execution of the Agreement. If this demand is not met to the satisfaction of Webkracht, Webkracht has the right to suspend or refuse the execution of all Agreements with the Customer, without being liable to pay any compensation itself and without even waiving its other rights under this Agreement or the law.
Article 13. Payment terms
Payment shall be made within 14 days of the invoice date in a way to be indicated by Webkracht in Euros, unless explicitly agreed otherwise. If Customer fails to pay on time, he/she shall be in default by operation of law and Customer shall owe the statutory (commercial) interest. Customer shall then owe interest on each month, or part of the month, whereby a part of the month shall be regarded as the whole month. The interest on the amount due and payable shall be calculated from the moment Customer is in default until the moment of payment of the full amount due.
From the moment the Customer is in default, the Customer is also obliged to reimburse all (extra)judicial costs to be incurred and execution costs related to the collection of the invoiced amounts. The extrajudicial costs are set at 15% of the principal amount, with a minimum of € 40,00 excluding VAT, unless the law provides otherwise.
Payments shall first be applied to settle the costs, then to settle the interest due and finally to settle the principal sum and current interest. Webkracht can, without this leading Webkracht into default, refuse an offer for payment if the Customer designates a different order for the attribution of the payment. Webkracht can refuse full settlement of the principal sum, if this does not include the interest still due and current interest and collection costs.
Complaints concerning the amount of the invoice have to be submitted in writing within 8 days after the invoice date. After this term, complaints will no longer be taken into consideration and the right to complain expires for the Client. The Client is never entitled to settle the amount owed by him/her to Webkracht.
Article 14. Complaints and investigation
If Client does not complain in writing to Webkracht within 8 days after he/she has discovered or should have discovered a defect in the performance of Webkracht, Client can no longer invoke this defect. Client has no right to suspend his/her (payment) obligations if Client believes he/she has any right of complaint.
Customer should give Webkracht the opportunity to investigate a complaint (or have it investigated). In case of well-founded and timely complaints, Webkracht will, at its discretion, either repair or replace the delivered goods against return of the originally delivered goods, or pay a substitute compensation to Customer or credit a proportional part of the invoice. If it is established that a complaint is unfounded, the costs incurred by Webkracht in this respect will be charged to Customer in full.
Article 15. Force Majeure
If Webkracht cannot fulfil its obligations under the Agreement, or cannot fulfil its obligations on time or properly, due to a cause not attributable to it, these obligations shall be suspended until Webkracht is still able to fulfil these obligations in the agreed manner. Force majeure shall in any case be understood to mean illness on the part of Webkracht. If the period in which fulfilment of Webkracht's obligations is not possible due to force majeure lasts longer than two months, parties shall be entitled to terminate the Agreement without any right to compensation from the Customer. Any work already done under the Agreement shall be settled proportionately.
Article 16. Liability
Webkracht is not liable for damage, of whatever nature, caused by the fact that Webkracht relied on incorrect and/or incomplete data provided by or on behalf of the Customer. Should Webkracht be liable for any damage, then Webkracht's liability is limited to a maximum of the invoice amount, at least that part of the amount to which the liability relates.
The liability of Webkracht is in any case always limited to the amount paid out by its insurer in the relevant case. Webkracht is only liable for direct damage.
Direct damage is exclusively understood to mean the reasonable costs to determine the cause and extent of the damage, as far as the determination relates to damage in the sense of these terms and conditions, any reasonable costs incurred to make the faulty performance of Webkracht conform to the agreement, as far as these can be attributed to Webkracht and reasonable costs incurred to prevent or limit damage, as far as the Customer proves that these costs have led to a limitation of direct damage as referred to in these general terms and conditions. Webkracht is never liable for indirect damage, including consequential damage, loss of profit, missed savings and damage due to business stagnation.
Article 17. Secrecy
Client and Webkracht undertake to keep confidential all confidential information which they have obtained from each other or from another source in the context of the Agreement. Information is considered confidential if this has been notified by the other party or if this arises from the nature of the information. If Webkracht, on the basis of a statutory provision or a judicial decision, is obliged to disclose confidential information to third parties designated by law or by the competent court and Webkracht cannot invoke a right to refuse to disclose, Webkracht shall not be liable to pay damages or compensation and Client shall not be entitled to terminate the contract on the grounds of any damage caused by this. Client and Webkracht shall impose their obligations under this article on any third parties to be engaged by them.
Article 18. Intellectual Property
All models, works and/or inventions developed by Webkracht for Customer are and shall remain the property of Webkracht. This also includes all intellectual property rights, including but not limited to copyrights, design rights and/or patent rights. All documents provided by Webkracht for the benefit of Customer, such as reports, computer programmes, system designs, working methods, advice and contracts, can be used by Customer and can be reproduced by Customer for own use in his own organisation. Documents provided by Webkracht may not be disclosed, reproduced or exploited by Customer or brought to the notice of third parties without prior written consent of Webkracht, unless the nature of the documents provided dictates otherwise.
Article 19. Indemnification third parties
Client indemnifies Webkracht against possible claims from third parties, who suffer damage in connection with the execution of the Agreement and of which the cause can be attributed to parties other than Webkracht. Client is obligated to assist Webkracht both in and out of court, if Webkracht is sued on the grounds of the first paragraph of this article, and to immediately do everything that can be expected of him/her in that case. If Client fails to take adequate measures, Webkracht has the right, without notice of default, to take such measures itself. All costs and damages incurred on the part of Webkracht and third parties as a result, shall be for the account and risk of the Client.
Article 20. Limitation period
Notwithstanding the statutory limitation periods, the limitation period of all claims and defences by Customer against Webkracht is one year.
Article 21. Assumption of contract
Customer is not entitled to transfer any obligations from the Agreement to third parties without written permission from Webkracht. Insofar as Webkracht may have already given written permission for a contract takeover, Customer shall at all times remain liable alongside this third party for the obligations from the Agreement of which these general terms and conditions form part.
Furthermore, to the extent Webkracht may have already given written permission for a contract takeover, Client shall inform Webkracht in advance and Webkracht shall be entitled to terminate the Agreement by the date on which the transfer shall take place. Webkracht shall not be liable for any damages in this respect.
Article 22. Applicable law
All Agreements between Webkracht and Client shall be governed exclusively by Ukrainian law. The applicability of the Vienna Sales Convention is excluded. Without prejudice to Webkracht's right to submit a dispute to the court with jurisdiction according to the law, disputes between the parties shall in the first instance be submitted to the competent court in Webkracht's place of business, unless mandatory law requires otherwise.
ANNEX 1: PROCESSING OF PERSONAL DATA
Version 1.0 Date 26 February 2018
If Webkracht processes personal data on behalf of Customer in the performance of the Agreement, the conditions below shall apply in addition to the General Terms and Conditions.
Article 1. General
The terms in this Schedule that are defined in the General Data Protection Regulation (hereinafter "AVG") shall have the meaning assigned to them in the AVG.
When processing personal data, Customer may be regarded as a data controller, or if Customer processes the personal data on behalf of a third party as a processor. Webkracht (depending on the capacity in which Customer processes the personal data) fulfils the role of processor or sub-processor.
Article 2. Purposes of processing
Webkracht undertakes to process personal data on behalf of Customer under the terms of the Agreement. The processing will only take place in the context of the performance of the Agreement, plus those purposes that are reasonably related to it or that are determined by further agreement.
Given the nature of the Services, under the Agreement Webkracht will process all personal data of all categories of data subjects that are stored with the use of the Services, or that are otherwise provided to Webkracht to be processed through the Services. If special personal data are processed with the use of the Services, Customer should notify Webkracht in advance and the Parties will assess in consultation whether additional measures need to be taken in this context.
Webkracht has no control over the purpose and means of processing personal data. Webkracht does not take any independent decisions about the receipt and use of personal data, the provision to third parties and the duration of storage.
Customer warrants that, if required under the AVG, it will keep a register in relation to the data processing operations carried out under the Agreement as of 25 May 2018.
Customer shall indemnify Webforce against all claims and demands related to non-compliance or incorrect compliance with this register obligation.
Article 3. Allocation of responsibility
Parties will ensure compliance with applicable privacy laws and regulations. The permitted processing operations will be performed by Webkracht within a (semi)automated environment.
Webkracht is solely responsible for the processing of personal data under the Agreement, in accordance with the instructions and the explicit (ultimate) responsibility of Customer.
For all other processing of personal data, including in any case but not limited to the collection of the personal data by Customer, processing for purposes not reported to Webkracht by Customer, processing by third parties or for other purposes, Webkracht is not responsible. The responsibility for such processing rests with Customer.
Customer warrants that the content, use and order to process personal data, are not unlawful and do not infringe any rights of third parties. Business Customer indemnifies Webkracht against all claims of third parties arising from Customer's failure to comply with the aforementioned warranty.
Article 4. Obligations of parties
In respect of the processing carried out under the Agreement, Webkracht shall ensure compliance with the conditions imposed under the AVG on the processing of personal data by Webkracht from its role.
Webkracht shall inform Customer upon Customer's first request within a reasonable time about the measures it has taken regarding its obligations under the AVG and any other applicable privacy laws and regulations.
Webkracht shall, to the extent within its power, provide assistance to Customer for the purpose of conducting a data protection impact assessment (also referred to as a "Data Protection Impact Assessment" or "DPIA"). The costs reasonably incurred or to be incurred by Webkracht in connection with the aforementioned assistance shall be reimbursed by Customer.
Webkracht's obligations under this Schedule also apply to those who process personal data under the authority of Webkracht, including employees.
Article 5. Transfer of personal data
Webkracht shall process personal data in countries within the European Union. In addition, Customer gives Webkracht permission to process personal data in countries outside the European Union, subject to applicable laws and regulations.
Upon request, Webkracht shall inform Customer to which country or countries personal data will be transferred.
Article 6. Engaging sub-processors
Customer hereby gives Webkracht permission, within the framework of the Agreement and the data processing referred to in this Appendix, to engage third parties (sub-processors). Webkracht will inform Customer on request which sub-processors it engages.
Article 7. Security
Webkracht will endeavour to take appropriate technical and organisational measures to protect personal data against loss or any form of unlawful processing (such as unauthorised access, impairment, modification or disclosure of personal data).
Customer shall decide which personal data will be processed by Webkracht and shall only make personal data available to Webkracht for processing if Customer has ensured that the security measures required by Customer have been taken.
Article 8. Data breaches
In the event of a personal data breach, Webkracht shall make every effort to inform Customer about this without delay, but at the latest within 72 hours, as a result of which Customer shall assess whether or not to inform the supervisory authorities and/or data subjects. Webkracht shall make every effort to provide complete, correct and accurate information.
A personal data breach shall mean: a breach of security leading accidentally or unlawfully to the destruction, loss, modification or unauthorised provision of, or unauthorised access to, transmitted, stored or otherwise processed data.
If required by law and/or regulations, Webkracht shall cooperate in informing the relevant authorities and any involved parties.
The obligation to report includes in any case the reporting of the fact that there has been a breach, as well as (as far as these data are available):
a. what the (alleged) cause is;
b. what the (as yet known and/or expected) consequence is;
c. what the (proposed) solution is;
d. contact details for following up the report;
e. who has been informed (such as the party involved itself and/or the supervisor); and
f. what measures have already been taken.
Article 9. Requests from data subjects
If a data subject makes a request about their personal data to Webkracht, Webkracht will forward the request to Customer. Webkracht may inform the data subject accordingly.
Webkracht shall provide Customer with the reasonably possible, necessary cooperation in dealing with the request. If it appears that Customer requires assistance from Webkracht in fulfilling a data subject's request, Webkracht may charge a fee for this.
Article 10. Confidentiality
All personal data that Webkracht receives from Customer or collects itself in the execution of the Agreement is subject to a duty of confidentiality towards third parties. Webkracht shall not use this information for any other purpose than that for which it has obtained it, unless it has been put in such a form that it cannot be traced back to data subjects. This duty of confidentiality does not apply:
(a) insofar as Customer has given express permission to provide the information to third parties;
b) if providing the information to third parties is logically necessary for the performance of the Agreement;
c) if there is a legal obligation to provide the information to a third party; or
(d) if personal data are provided to third parties in their capacity as sub-processors.
Article 11. Termination of the Agreement
Upon termination of the Agreement, Webkracht shall delete the personal data received from Customer as soon as possible, unless the parties agree otherwise or any legal obligation prevents this.