Terms and conditions

General terms and conditions of Nubos B.V. These general terms and conditions apply to all offers and agreements arising therefrom between Nubos B.V. in Hoorn, Chamber of Commerce 67739326, and its counterparties (“Client”). Provisions or conditions set by the Client that deviate from, or do not appear in, these general terms and conditions are only binding for Nubos B.V. if and to the extent that this is expressly accepted in writing. Article 1 Offer and acceptance 1. Nubos B.V. prepares an offer in which Nubos B.V. indicates which activities (“the Services”) Nubos B.V. offers to perform, what is included in the Services, and what amount will be owed for it. Only the description of the Services stated in the offer is binding. 2. In general, the Services include the creation of custom software at the request of the Client, and everything related thereto. Other activities are only performed if stated in the offer. 3. An offer is entirely without obligation and valid for 14 days after dispatch, unless otherwise indicated in the offer. Nubos B.V. can never be obliged to accept an acceptance after this period, but if Nubos B.V. does so, the offer is still accepted. 4. The agreement is concluded at the moment when the notification containing acceptance of the offer by the Client is received by Nubos B.V. The offer must be accepted in writing by the Client by signing it and returning it by post. 5. If the Client does not explicitly indicate agreement with the offer, but nevertheless agrees, or gives the impression, that Nubos B.V. performs activities that fall within the description of the Services, the offer is considered accepted. This also applies when the Client requests Nubos B.V. to perform certain activities without awaiting a formal offer. 6. Changes to the Services are only possible with the consent of both parties, unless otherwise specified elsewhere in these terms and conditions. 7. Nubos B.V. will provide an appropriate offer for requests for additional work. Article 2 Delivery of the Services 1. After the agreement has been concluded, the Services will be performed by Nubos B.V. as soon as possible in accordance with the offer, taking into account the reasonable wishes of the Client. 2. The Client is obliged to do and refrain from doing everything that is reasonably desirable and necessary to enable proper and timely execution of the Services. In particular, the Client ensures that all information, which Nubos B.V. indicates is necessary or which the Client should reasonably understand is necessary for the execution of the Services, is provided to Nubos B.V. in a timely manner. 3. The Client will give Nubos B.V. access to all places, services, and accounts under its control (such as web hosting accounts) that Nubos B.V. reasonably needs to deliver the Services. 4. Nubos B.V. guarantees that the Services will be performed carefully, properly, and as well as possible. If a proper execution of the Services requires this, Nubos B.V. has the right to have certain activities performed by third parties. Nubos B.V. remains responsible towards the Client. 5. Nubos B.V. is entitled, but never obliged, to investigate the accuracy, completeness, or consistency of the source materials, requirements, or specifications made available to it and to suspend the agreed activities until the Client has remedied the relevant shortcomings. 6. Unless otherwise agreed, Nubos B.V. is not a party to the delivery of third-party services, such as software licenses or hosting required for Services, even if Nubos B.V. procures these services on behalf of the Client. 7. Nubos B.V. has the right to (temporarily) not deliver or limit the Services if the Client does not fulfill an obligation towards Nubos B.V. under the agreement or acts in violation of these general terms and conditions. 8. Nubos B.V. will endeavor to respond to a request from the Client within 2 hours during office hours, unless otherwise agreed in the offer. Article 3 Development of works 1. If a Service is aimed at developing, configuring, and/or adapting Works such as websites, databases, software, documentation, advice, reports, analyses, designs, texts, photos, films, sound recordings, images, audiovisual material, logos, or house styles (hereinafter: “Works”), Nubos B.V. has the right to use images, software, and components of third parties in the development, configuration, or adaptation of Works, unless otherwise agreed. 2. Nubos B.V. is allowed to use open source software owned by third parties. This means, among other things, that Nubos B.V. may supply open source software to the Client and may process open source software in Works that Nubos B.V. creates or adapts as part of a Service. If the license of certain open source software entails that the Client can only distribute (parts of) the software as open source, Nubos B.V. will adequately inform the Client of all applicable license conditions. 3. After delivery, the responsibility for correct compliance with the relevant third-party licenses when using the developed Works lies with the Client. Article 4 Delivery and acceptance 1. Nubos B.V. will deliver the result after performing activities or parts thereof when, in its professional opinion, it meets the specifications or is suitable for use. 2. The Client must then evaluate and approve or reject the delivered work within 14 days after delivery. If the Client does not reject the delivered work within this period, it is deemed to have been accepted. 3. If work is delivered in phases, the Client must give approval or rejection of the part of the work for that phase after delivery of each phase in the manner specified in the previous paragraph. The Client may not base approval or rejection in a later phase on aspects approved in an earlier phase. 4. If the Client rejects the delivered work in whole or in part, Nubos B.V. will endeavor to eliminate the reason for rejection as soon as possible. Nubos B.V. can do this by revising the result or providing a motivated explanation of why the reason is not valid. The Client then has another 14 days to approve or reject the revision or motivation. 5. If the Client has rejected the delivered work in whole or in part after the first revision or motivation, a reasonable number of revision rounds will follow at the discretion of Nubos B.V. If a party indicates that further revisions are not (no longer) considered useful, both parties are entitled to terminate the agreement for the relevant Service. In that case, the Client will reimburse the hours actually incurred by Nubos B.V., with a maximum of the quoted amount for the rejected work. However, the Client is not entitled to use the rejected work in any way. 6. After acceptance of the delivered work, all liability for defects in the delivered work lapses, unless Nubos B.V. knew or should have known about the defect at the time of acceptance. In any case, all liability for defects lapses 1 year after termination of the Agreement for any reason. Article 5 Intellectual property rights 1. All intellectual property rights to all Services or Works developed or delivered under the agreement rest exclusively with Nubos B.V. or its licensors. Only if explicitly stated in the offer or separately explicitly agreed can rights be transferred to the Client. 2. The Client only acquires the rights of use and powers that arise from the scope of the agreement or that are granted in writing, and for the rest, the Client will not reproduce or disclose the Works or other results of Services materials. Any use, reproduction, or disclosure of the materials that falls outside the scope of the agreement or the granted rights of use is considered a violation of copyright. The Client will pay an immediately payable and not subject to judicial moderation penalty of € 50,000 per infringing act to Nubos B.V. This does not affect the right of Nubos B.V. to be compensated for its damage caused by the infringement or to take other legal measures to end the infringement. 3. The Client is entitled to make changes to Works for which it has a right of use. 4. Nubos B.V. will make the source files (such as, but not limited to, PSD, HTML/CSS, or PHP code) of delivered Works available to the Client after payment of the relevant invoice or invoices. 5. The Client is not allowed to remove or change any indication regarding copyrights, trademarks, trade names, or other intellectual property rights from the materials, including indications regarding the confidential nature and confidentiality of the materials. Article 6 Prices and payment 1. The Client owes the fixed amount(s) stated in the offer for the Services. The Client owes 30% at the start of the work and the remaining amount when the work is completed. Advance payments are due as soon as Nubos B.V. reports that the work will begin. Other amounts are only charged if stated elsewhere in these general terms and conditions. 2. Nubos B.V. will send an invoice, both electronically and by post, to the Client for the amounts owed by the Client. 3. The payment term for invoices is 14 days after the invoice date unless a longer payment term is indicated on the invoice. If the Client does not pay on time, he is in default by operation of law after the expiry of this period without the need for a notice of default. If an amount owed is not paid within the payment term, statutory interest is owed on the outstanding invoice amount. 4. If the Client believes that (part of) an invoice is incorrect, he must report this to Nubos B.V. within the payment term. The payment obligation of the disputed (but not the other) is suspended until Nubos B.V. has investigated the notification. If after investigation by Nubos B.V. it appears that the dispute was unfounded, the Client must pay the disputed amount within seven days. 5. In the event of late payment, the Client, in addition to the amount owed and the interest accrued thereon, is obliged to fully reimburse both extrajudicial and judicial collection costs, including the costs for lawyers, bailiffs, and collection agencies. In particular, Nubos B.V. is entitled in this case to charge administration costs of € 50. 6. The claim for payment is immediately due and payable if the Client is declared bankrupt, applies for suspension of payments, or if a general attachment is placed on the Client's assets, the Client dies, goes into liquidation, or is dissolved. Article 7 Confidentiality 1. Parties will treat information provided to each other before, during, or after the execution of the agreement confidentially when this information is marked as confidential or when the receiving party knows or should know that the information was intended to be confidential. Parties also impose this obligation on their employees as well as on third parties engaged by them for the execution of the agreement. 2. Nubos B.V. will endeavor to avoid becoming aware of data that the Client stores and/or distributes via the hardware or software to which the Services relate, unless this is necessary for proper execution of the agreement or the Service Provider is obliged to do so by a legal provision or court order. In that case, the Service Provider will endeavor to limit the knowledge of the data as much as possible, insofar as this is within its power. 3. Nubos B.V. may use the knowledge gained while executing the agreement for other assignments, provided that no information from the Client is made available to third parties in violation of confidentiality obligations. 4. The obligations under this article also continue to exist after termination of the agreement for any reason, for as long as the party providing the information can reasonably claim the confidential nature of the information. Article 8 Liability 1. Nubos B.V. is only liable to the Client in the event of an attributable shortcoming in the performance of the agreement and only for replacement compensation, i.e., compensation for the value of the omitted performance. 2. Any liability of Nubos B.V. for any other form of damage is excluded, including but not limited to additional compensation in any form, compensation for indirect or consequential damage, damage due to lost turnover or profit, damage due to loss of data, as well as damage due to exceeding deadlines as a result of changed circumstances. 3. In the event of liability under the first paragraph, the maximum amount that Nubos B.V. is obliged to compensate will be equal to the amount owed for the relevant Service. This maximum amount lapses if and insofar as the damage is the result of intent or gross negligence by Nubos B.V. 4. The liability of Nubos B.V. due to an attributable shortcoming in the performance of the agreement only arises if the Client immediately and properly gives Nubos B.V. written notice of default, stating a reasonable period to remedy the shortcoming, and Nubos B.V. continues to fail to fulfill its obligations attributable after that period. The notice of default must contain a description of the shortcoming as detailed as possible so that Nubos B.V. is able to respond adequately. 5. In the event of force majeure, which in any case includes malfunctions or failures of the internet, the telecommunications infrastructure, power failures, domestic disturbances, mobilization, war, traffic congestion, strikes, lockouts, business disruptions, stagnation in supply, fire, flooding, import and export restrictions, and in the event that Nubos B.V. is unable to deliver due to its own suppliers, regardless of the reason, making it unreasonable to demand performance of the agreement from Nubos B.V., the execution of the agreement will be suspended, or the agreement will be terminated if the force majeure situation has lasted longer than ninety days, all without any obligation to pay compensation. Article 9 Duration and termination 1. The agreement is entered into for the period necessary for the delivery of the Services. 2. The agreement can only be terminated prematurely as specified in these general terms and conditions, or with the consent of both parties. 3. After termination, termination, or dissolution for any reason, Nubos B.V. is entitled to immediately delete all data stored for the Client after the date on which the agreement ends. Nubos B.V. is not obliged to provide the Client with a copy of this data in that case. 4. The agreement ends automatically if a party is declared bankrupt, applies for suspension of payments, or if a general attachment is placed on assets, dies, goes into liquidation, or is dissolved. Article 10 Changes to the agreement 1. After acceptance, the agreement may only be amended with mutual consent. 2. If the agreement is a long-term agreement, Nubos B.V. is entitled once per calendar year to unilaterally adjust or expand these general terms and conditions. It must notify the Client at least 1 month before the adjustments or expansions take effect. Changes to the general terms and conditions can never set aside a specific agreement. 3. If the Client objects within this period, Nubos B.V. will consider whether to withdraw the objectionable adjustments or expansions. Nubos B.V. will notify the Client of this decision. If Nubos B.V. does not wish to withdraw objectionable adjustments or expansions, the Client has the right to terminate the agreement as of the date they take effect. 4. Nubos B.V. may make changes to these general terms and conditions at any time if these are necessary due to changed legal regulations. The Client cannot object to such changes. 5. The above arrangement also applies to prices. Article 11 Privacy and Data Protection Nubos B.V. attaches great importance to your privacy and the protection of your personal data. Our privacy policy, as set out in our privacy statement, describes how we handle the collection, processing, and protection of your personal data. We recommend that you read our privacy policy carefully so that you understand what data we collect and how we use it. By using our services and agreeing to these general terms and conditions, you agree to the terms and conditions as set out in our privacy policy. For more information about our privacy policy, we refer you to our Privacy Statement: https://www.nubos.nl/privacy If you have any questions about our privacy policy or how we handle your personal data, please contact us using the contact details provided in our privacy policy. Article 12 Final provisions 1. Dutch law applies to this agreement. Unless otherwise prescribed by mandatory law, all disputes arising from this agreement will be submitted to the competent Dutch court for the district in which Nubos B.V. is established. 2. If any provision of this agreement proves to be null and void, this does not affect the validity of the entire agreement. In that case, the parties will establish (a) new provision(s) to replace it, which will reflect the intention of the original agreement and these general terms and conditions as much as legally possible. 3. “Written” in these terms and conditions also includes email and communication by fax, provided the identity of the sender and the integrity of the content are sufficiently established. The parties will endeavor to confirm the receipt and content of communication by email. 4. The version of any communication received or stored by Nubos B.V. is considered authentic, unless proof to the contrary is provided by the Client. 5. Each party is only entitled to transfer its rights and obligations under the agreement to a third party with prior written consent from the other party. In deviation from this, Nubos B.V. is always entitled to transfer its rights and obligations under the agreement to a parent, subsidiary, or sister company.