Terms and Conditions
ARTICLE 1. APPLICABILITY OF THESE TERMS AND CONDITIONS
1.1. These terms and conditions apply to each offer and every contract insofar as the parties have not explicitly deviated from these conditions.
ARTICLE 2. OFFERS/COST ESTIMATES
2.1 Highbeat BV/UWKM is only bound to the offers/cost estimates if the acceptance thereof by the client is confirmed in writing within thirty days.
2.2. The in the offers mentioned prices are excluding VAT, unless mentioned otherwise.
ARTICLE 3. IMPLEMENTATION OF THE CONTRACT
3.1 Highbeat BV/UWKM will execute the contract to the best of its knowledge and ability and in accordance with the requirements of good workmanship.
3.2 If and insofar a proper execution of the contract so requires, Highbeat BV/UWKM reserves the right to have certain work carried out by third parties.
3.3. The client ensures all data, of which Highbeat BV/UWKM indicates that these are necessary or of which the client should reasonably understand that these are necessary when executing the contract, are provided to Highbeat BV/UWKM on time. If the data required for the execution of the contract is not provided to Highbeat BV/UWKM on time, Highbeat BV/UWKM preserves the right to suspend the execution of the contract and/or to charge the client for the additional costs resulting from the delays according to the usual rates.
3.4 Highbeat BV/UWKM is not liable for damage, of whatever nature, caused by the fact that Highbeat BV/UWKM operated based on incorrect and/or incomplete data provided by the customer, unless these inaccuracies or incompleteness should have been known to Highbeat BV/UWKM.
3.5 If it has been agreed to that the contract will be executed in phases, Highbeat BV/UWKM may suspend activities belonging to latter phases until such time that the client approves of the results of the preceding phase in writing.
ARTICLE 4. CONTRACT DURATION, EXECUTION TIME
4.1 The contract is entered into for an indefinite period of time, unless all parties explicitly agree otherwise.
4.2 If within the terms of the agreement a specific period has been agreed to for the completion of certain activities, this is not a deadline, unless explicitly agreed to otherwise. In the event that the execution period is exceeded, the client must notify Highbeat BV/UWKM in writing to default.
ARTICLE 5. CHANGING OF THE CONTRACT
5.1 If during the implementation of the contract the discovery is made that for a proper execution it is necessary to adjust or supplement the work to be performed, the parties will adjust the agreement accordingly on time and in mutual consultation.
5.2 If parties agree that the contract will be adjusted or supplemented, the timeline of the completion of the execution may be influenced. Highbeat BV/UWKM will inform the client on this as soon as possible.
5.3 In the event of the adjustment or supplementation having financial and/or qualitative consequences, Highbeat BV/UWKM will inform the client of these in advance. If a fixed fee has been agreed upon, Highbeat BV/UWKM will inform on in which way the adjustment or supplementation of the contract would have consequences on the exceedance of the fee.
5.4 By way of derogation from paragraph 3, Highbeat BV/UWKM will not be able to charge additional costs in the event that the adjustment or supplementation of the contract is due to circumstances that can be allocated to Highbeat BV/UWKM.
ARTICLE 6. HOSTING
6.1 Highbeat BV/UWKM provides hosting services which it purchases from third party companies. Highbeat BV/UWKM does not accept any claims and other responsibilities and/or liabilities than which these third parties have towards Highbeat BV/UWKM.
ARTICLE 7. CONFIDENTIALITY
7.1 Both parties are obliged to maintain confidentiality of all confidential data that they have received in the context of their contract from each other or from other sources. Information is considered confidential if this has been communicated as being such by the other party or if this naturally results from the nature of the information.
ARTICLE 8. INTELLECTUAL PROPERTY
8.1 Notwithstanding that which is noted in article 6 of these terms and conditions, during the execution of the work Highbeat BV/UWKM reserves the rights and powers that accrue to it under the Copyright Act.
8.2 After receiving the full amount for the work as stated in the contract, the client reserves the right to receive the source code of the completed software under a mutually decided on free software licence.
8.3 All of the provided pieces by Highbeat BV/UWKM, such as reports, advices, designs, sketches, drawings, software etc., are exclusively meant to be used by the client and may not be multiplied, made public or disclosed to third parties by them without previous permission by Highbeat BV/UWKM.
8.4 Highbeat BV/UWKM preserves the right to use the knowledge gained for or through the execution of the work for other uses, insofar this does not result in disclosing confidential information to third parties.
ARTICLE 9. TERMINATION
9.1 Both parties can at all times terminate the agreement, provided that the termination is done in writing and supplied with reason. Parties need to uphold a termination period of at least one month.
9.2 In case of intermediate termination, Highbeat BV/UWKM is owed, in addition to the reimbursement of the costs incurred, a reasonable part of the fee, taking in account the work already carried out, the benefits that the client receives from this and the reasons for cancellation.
ARTICLE 10. DISSOLVEMENT OF THE CONTRACT
10.1 The claims of Highbeat BV/UWKM on the client are immediately due and payable in the following situations: if after the signing of the contract Highbeat BV/UWKM becomes aware of circumstances giving Highbeat BV/UWKM solid grounds to fear that the client will not fulfill his obligations and if Highbeat BV/UWKM has requested of the client upon the signing of the contract to provide proof of ensurement for the fulfillment and this proof is not given or insufficient.
10.2 In the situations mentioned above Highbeat BV/UWKM has the right to put a stop to further execution of the contract, all this without prejudice to the right of Highbeat BV/UWKM to claim compensation.
ARTICLE 11. DEFECTS, COMPLAINTS PERIOD
11.1 Complaints about the performed work shall be notified in writing by the customer to Highbeat BV/UWKM within eight days after discovery, though ultimately within thirty days after completion of the activities in question.
11.2 If a claim is valid, Highbeat BV/UWKM will still carry out the work as has been agreed upon, unless this has since become senseless for the client. The latter must be communicated by the client.
ARTICLE 12. FEES
12.1 For offers and contracts in which a fixed fee is offered or agreed upon, paragraph 2 of this article is applicable. In the case that a fixed fee is not agreed upon, paragraphs 3, 4 and 5 of this article are applicable.
12.2 Parties may agree upon a fixed fee with the coming into being of the contract. The fixed fee is excluding VAT, travel hours and travel- and accommodation costs.
12.3 In the case that a fixed fee is not agreed upon, the fees will be established on grounds of actually devoted hours. The fees will be calculated according to the conventional hourly tariffs of Highbeat BV/UWKM, applicable to the period in which the work is done, unless an hourly tariff deviating from this has been agreed upon.
12.4 Any cost estimates are excluding VAT, travel hours and travel and accommodation costs.
12.5 With assignments with a runtime of over three months the costs owed will be billed periodically.
ARTICLE 13. PAYMENT
13.1 Payment should take place within fourteen days after billing date. After the expiry of fourteen days after the invoice date, the client is in default; the client is liable to pay an interest of three percent per month over the amount due, from the moment of default onwards.
13.2 In case of liquidation, bankruptcy or suspension of payment from the client, the client's obligations will immediately be due and payable.
13.3 Payments made by the client always serve first to settle all interest and costs owed, secondly to claimable invoices that have been outstanding the longest, even if the client states that the payment relates to an invoice of a more recent date.
ARTICLE 14. INCURRED COSTS
14.1 If the client is in default or fails to comply with one or more obligations, all reasonable to obtain satisfaction in and out of the court of law shall be at the expense of the client.
ARTICLE 15. LIABILITY
15.1 If during the execution of the contract an unhoped-for event (among which failure in the fulfilment of obligations is also counted) occurs which leads to liability for UWKM, every liability to Highbeat BV/UWKM will be limited to a maximum of one time the amount of the contract of the by Highbeat BV/UWKM charged fees to the client concerning the contract in question, with a maximum of € 25.000,00.
15.2 Claims for payment of damages expire one year from the day the client became aware of the damage and the possible liability of High Beat BV/UWKM for that damage.
15.3 UWKM is only liable insofar the client suffers damage that directly leads from culpable failure to fulfill obligations of the contract by Highbeat BV/UWKM and when there is intention and gross negligence on the side of Highbeat BV/UWKM and only if the client has no own blame to the event in question.
15.4 The client indemnifies Highbeat BV/UWKM from claims of third parties that claim to have suffered damage through or related to the by Highbeat BV/UWKM in assignment of the client delivered product, as well as from the costs of legal proceedings related to a potential claim.
15.5 The client indemnifies Highbeat BV/UWKM from (damage) claims related to IP rights on the by the client provided materials or data that is used during the execution of the contract work.
15.6 In no case will Highbeat BV/UWKM be liable for indirect damage, such as - but not limited to - loss of turnover.
15.7 Highbeat BV/UWKM explicitly does not accept liability for damage caused as result from though not limited to: by or in name of the client performed reparations and/or changes made to (products or services that stem from) the work; deficient cooperation, materials and/or incorrect or incomplete information provided by the client; conflicting IP rights of third parties on the delivered product and/or infringements on patents and/or industrial secrets; mistakes or shortcomings in the work in case of the client having given his approval, or has had the opportunity to check the work and did not make use of the chance; force majeure. This is also taken to mean, aside from that which is decided by (case) law, all outside causes, foreseen or not foreseen, on which Highbeat BV/UWKM can not exercise any influence, though due to which Highbeat BV/UWKM is not able to fulfill its obligations, such as force majeure from suppliers of Highbeat BV/UWKM, governmental measures, electrical failures, failures of computer networks or telecom facilities, work load, strikes, general delivery issues etc.
15.8 Every possibility of reliance on liability by the client expires within one year after completion of the work.
15.9 The limitations and exceptions explained in the previous paragraphs of this article are only applicable insofar permitted on grounds of applicable mandatory law.
ARTICLE 16. FORCE MAJEURE
16.1 During the force majeure the obligations of Highbeat BV/UWKM will be suspended. In the event that the situation where the period in which Highbeat BV/UWKM can not fulfill its obligations due to force majeure continues on for longer than two months, both parties are qualified to dissolve the contract without any obligations to pay compensations in that case.
16.2 If the situation arises where Highbeat BV/UWKM has already partially fulfilled its obligations by the time the force majeure occurs, or can only partially fulfill its obligations, Highbeat BV/UWKM is entitled to bill the already completed work c.q. the feasible work separately and the client is obligated to pay this invoice as if it were a separate contract. This does not apply to the case where the already completed work c.q. feasible work does not have independent value.
ARTICLE 17. PUBLICITY AND PROMOTION
17.1 With publicity surrounding the results, the client will ensure that the contribution of Highbeat BV/UWKM is clearly evident. In case that it is agreed upon that third parties will be party to an adjustment or elaboration of the result, the client will also oblige these third parties to clearly state the contribution of the contractor in the event of publicity surrounding (an elaboration of) the result.
17.2 Highbeat BV/UWKM is entitled to subtly include its own name in the result. The manner in which this mention of the name will take place, will be agreed upon mutually.
17.3 Highbeat BV/UWKM has, while taking into account the interests of the client, the freedom to use the result for its own publicity or promotional activities.
18.1 On every contract between Highbeat BV/UWKM and the client, Dutch law is applicable.