WPonderhoud.nl (hereinafter: WP Onderhoud) is registered with the Chamber of Commerce under number 51791870 and is located at Zoomstede 27L (3431HK) in Nieuwegein.
Article 1 – Concepts
1. In these general terms and conditions, the following terms are used in the following sense, unless expressly stated otherwise.
2. Offer: any offer or quotation to the Client for the provision of Services by WP Maintenance.
3. Services: the Services offered by WP Maintenance are Services through WordPress, such as maintaining the website, making backups, monitoring the website, changing the website, securing the website, optimizing the website, sending reports, support regarding WordPress problems, as well as hosting activities and search engine optimization (SEO).
4. WP Maintenance: the service provider that offers Services to the Client.
5. Client: The Company or Consumer who has appointed WP Maintenance has provided projects to WP Maintenance for Services performed by WP Maintenance, or to which WP Maintenance has made a proposal on the basis of an Agreement.
6. Agreement : any Agreement and other obligations between the Client and WP Maintenance, as well as proposals from WP Maintenance for Services provided by WP Maintenance to the Client and accepted by the Client and accepted and executed by WP Maintenance with which these general terms and conditions form an inseparable whole.
Article 2 – Applicability
1. These general terms and conditions apply to every WP Maintenance Offer, every Agreement between WP Maintenance and the Client and to every Service offered by WP Maintenance.
2. Before a (distance) Agreement is concluded, the Client will have access to these general terms and conditions. If this is not reasonably possible, WP Maintenance will indicate to the Client how the Client can view the general terms and conditions.
3. Deviation from these general terms and conditions is not possible. In exceptional situations, deviations from the general terms and conditions can be made if this has been explicitly agreed in writing with WP Maintenance. The Client’s terms and conditions expressly do not apply.
4. These general terms and conditions also apply to additional, amended and follow-up assignments from the Client.
5. The general terms and conditions of the Client are excluded.
6. If one or more provisions of these general terms and conditions are partially or completely null and void or are annulled, the other provisions of these general terms and conditions will remain in force, and the void/annulled provision(s) will be replaced by a provision with the same scope as the original provision.
7. Ambiguities about the content, explanations or situations that are not regulated in these general terms and conditions must be assessed and interpreted in accordance with the spirit of these general terms and conditions. The agreements in the Agreement are leading, and go beyond these general terms and conditions.
8. The applicability of Articles 7:404 of the Dutch Civil Code and 7:407(2) of the Dutch Civil Code is explicitly excluded.
9. The rights and obligations under the Agreement between the Parties cannot be transferred by the Client to a third party unless WP Maintenance grants explicit and prior permission to the Client. WP Maintenance is free to attach further conditions to this.
10. If reference is made to she/her in these general terms and conditions, this should also be understood as a reference to he/him/his, if and to the extent applicable.
11. In the event that WP Maintenance has not always required compliance with these general terms and conditions, it retains its right to demand full or partial compliance with these general terms and conditions.
Article 3 – The Offer
1. All offers made by WP Maintenance are without obligation, unless expressly stated otherwise in writing. If the Offer is limited or valid under specific conditions, this will be expressly stated in the Offer.
2. WP Maintenance is only bound by an Offer if the acceptance thereof is confirmed in writing by the Client within 30 days. Nevertheless, WP Maintenance has the right to refuse an Agreement with a potential Client for a reason justified for WP Maintenance.
3. The Offer contains a description of the Services offered. The description is detailed in such a way that the Client is able to make a good assessment of the Offer. Obvious mistakes or errors in the Offer cannot bind WP Maintenance. Any images and data in the Offer are only an indication and cannot be grounds for any compensation or the termination of the Agreement. All offers are also made on information provided by the Client. Offers expire if the client’s data is incorrect or incomplete.
4. Offers or quotations do not automatically apply to follow-up orders.
5. Delivery times and deadlines in WP Maintenance’s offer are indicative and do not entitle the Client to dissolution or compensation if they are exceeded, unless expressly agreed otherwise.
6. A composite quotation does not oblige WP Maintenance to deliver part of the items included in the offer or quotation at a corresponding part of the stated price.
Article 4 – Conclusion of the Agreement
1. The Agreement is concluded at the moment that the Client receives an Offer or. Agreement of WP Maintenance has accepted by explicitly and unambiguously agreeing to the Offer by e-mail.
2. WP Maintenance is not bound by an Offer if the Client could reasonably have expected or should have understood or should have understood that the Offer contains an obvious mistake or error. The Client cannot derive any rights from this mistake or error.
3. Any Agreement entered into with WP Maintenance or a project awarded to WP Maintenance by the Client rests with the Company and not with an individual person associated with WP Maintenance.
4. If the Client cancels an already confirmed Agreement, the costs already incurred until then (including the time spent) will be charged to the Client.
5. The Client’s right of withdrawal is excluded, unless otherwise agreed.
6. If the Agreement is entered into by several Clients, each Client is jointly and severally liable for the fulfilment of all obligations arising from the Agreement.
Article 5 – Duration of the Agreement
1. The Agreement to perform Services is entered into in the form of a subscription. A subscription is entered into for the duration agreed between the Client and WP Maintenance.
2. The Agreement is tacitly renewed each year with the originally agreed term, unless the Client or WP Maintenance has terminated the Agreement in writing with a notice period of one month before the end of the agreed relevant period.
3. Both the Client and WP Maintenance can dissolve the Agreement on the basis of an attributable shortcoming in the performance of the Agreement if the other party has been given written notice of default, and he has been given a reasonable period of time to fulfill his obligations, and he imputably fails to do so. This also includes the payment and cooperation obligations of the Client.
4. The dissolution of the Agreement does not affect the payment obligations of the Client if WP Maintenance has performed work or provided services at the time of dissolution.
5. In the event of premature termination of the Agreement, the Client shall owe WP Maintenance the costs actually incurred until then on the basis of the set (hourly) rate. The (hourly) registration of WP Maintenance is leading in this.
6. Both the Client and WP Maintenance may terminate the Agreement in whole or in part in writing without further notice of default with immediate effect in the event that one of the Parties is in suspension of payments, bankruptcy has been filed or the company in question ends by liquidation or other than the merger or reconstruction of the company. If a situation as mentioned above occurs, WP Maintenance is never obliged to refund any money already received and / or compensation.
7. In case of termination, all services will be discontinued at the end of the term of the Agreement, and all stored data and files will also be deleted at the end of the Agreement. The Client has the option to store this data before the end of the Agreement.
8. All post-contractual obligations under these terms and conditions and the Agreement that by their nature are intended to continue even after dissolution of the Agreement shall continue after dissolution. This concerns in any case the provisions on confidentiality, intellectual property rights, liability and the dispute resolution and choice of law provision.
Article 6 – Execution of the Agreement
1. WP Maintenance will make every effort to execute the Agreement with the greatest possible care as may be required of a good contractor. All Services are performed on the basis of an obligation of best efforts, unless a result has been explicitly agreed in writing that has been described in detail.
2. If the Agreement has been entered into with a view to execution by a specific person, WP Maintenance will always be entitled to replace this person with one or more persons with the same qualifications.
3. In the performance of the Services, WP Maintenance is not obliged or obliged to follow the instructions of the Client if this changes the content or scope of the agreed Services. If the instructions result in additional work for WP Maintenance, the Client is obliged to reimburse the additional or additional costs accordingly.
4. WP Maintenance is entitled to engage third parties for the performance of the Services at its own discretion.
5. If, on the basis of a request or order from a government agency and/or a legal obligation, WP Maintenance performs work with regard to data of the Client, the associated costs will only be for the Client.
6. If there are changes, WP Maintenance may continue the performance of the Service with the modified version of the website. WP Maintenance is never obliged or obliged to maintain, change or add certain functionalities and/or specific properties.
7. Both the Client and WP Maintenance can make changes to the scope and/or content of the Services purchased. The additional costs associated with this will be borne by the Client. The Client will be informed of this as soon as possible. If the Client does not agree with this, the Parties must consult with each other. The Client can only terminate the Agreement in writing by the date on which the change takes effect, if the changes are not related to changes in relevant laws or regulations or WP Maintenance bears the costs of the change.
8. If WP Maintenance also makes a backup of the Client’s data on the basis of the Agreement, WP Maintenance will make a backup in accordance with the Agreement at fixed times and keep it in accordance with the agreed term. However, the Client is responsible for complying with the legal retention and administration obligations applicable to it. The backups are stored on an AWS Amazon environment, the conditions under which this happens can be found on the Amazon website. If desired, backups can be performed on another environment for an additional fee.
9. Restoring backups does not guarantee a correct or desired display of the website.
10. WP Maintenance is entitled, but never obliged, to examine the correctness, completeness or coherence of the source materials, requirements or specifications made available to it and, if any imperfections are found, to suspend the agreed work until the Client has removed the relevant imperfections.
11. WP Maintenance makes every effort to realize the service within the agreed period, insofar as this can reasonably be required of it. If there is an urgency, the Client is obliged to reimburse WP Onderhoud for the additional costs involved.
12. WP Maintenance makes every effort to provide the Services as much as possible in accordance with the Offer.
13.WP Maintenance is entitled to (temporarily) disable certain parts of the website during installation or maintenance. WP Maintenance will make every effort to keep this as short as possible and cannot be held liable for any damage suffered by the Client as a result of this.
14. WP Maintenance can carry out security work if ordered or if this is part of the chosen maintenance package. This work can be preventive or repressive. If, despite the preventive work of WP Maintenance, problems (such as a hack) occur on the Client’s website, WP Maintenance will act repressively.
15. WP Maintenance also carries out optimal work if ordered or if this is part of the chosen maintenance package. The speed and health of the website is measured through GTMetrix which offers an overview of potential improvements. WP Maintenance will implement these improvements to the best of its ability. The speed of the website depends on the plug-ins or themes used in the WordPress website. For that reason, WP Maintenance never guarantees that a website actually becomes faster and / or better after the optimization work.
Article 7 – Obligations of the Client
1. The Client is obliged to provide all information requested by WP Maintenance as well as relevant annexes and related information and data in time and/or before the start of the work and in the desired form for the correct and efficient execution of the Agreement. In the absence of this, it may happen that WP Maintenance is unable to realize a complete execution and / or delivery of the relevant documents. The consequences of such a situation are at all times at the expense and risk of the Client.
2. WP Maintenance is not obliged to check the accuracy and/or completeness of the information provided to it or to update the Client with regard to the information if it has changed over time, nor is WP Maintenance responsible for the accuracy and completeness of the information compiled by WP Maintenance for third parties and/or provided to third parties within the framework of the Agreement.
3. WP Maintenance may, if this is necessary for the execution of the Agreement, request additional information. Failing this, WP Maintenance is entitled to suspend its activities until the information has been received, without being obliged to compensate any compensation for any reason whatsoever towards the Client. In the event of changed circumstances, the Client must notify WP Maintenance immediately, or no later than 5 working days after the change has become known.
4. The Client must grant WP Maintenance the necessary access to all (computer) systems to enable maintenance and adjustments to the Website.
Article 8 – Maintenance WordPress Website
1. WP Maintenance can perform maintenance on the Client’s website if ordered. The extent of the maintenance obligation extends to what has been explicitly agreed by the Parties. Even if this has not been explicitly agreed, WP Maintenance can perform maintenance work, or interrupt the execution of its services if it deems this necessary for the purpose of being able to perform maintenance. Performing maintenance may also cause interruptions in the performance of the services, which does not justify the Client’s right to compensation.
2. The maintenance of the software of the website is carried out by WP Maintenance. This includes updating WordPress, installed plugins and themes. Changes are also made to the software if progressive insight into security makes it necessary.
3. The Client is obliged to report any defects, errors or other malfunctions in the website in writing, at least by e-mail, to WP Onderhoud, after which WP Maintenance will repair the errors or malfunctions to the best of its ability and / or make improvements in accordance with its usual procedures. If desired, WP Maintenance is entitled to first apply temporary solutions, after which a structural solution can be devised and implemented in consultation with the Client.
3. The Client is obliged to provide its cooperation to WP Maintenance on first request.
4. Despite the agreed maintenance obligations of WP Maintenance, the Client has an independent responsibility for the management and use of the website.
5. For the purpose of maintenance, WP Maintenance is authorized to check (data) files for, among other things, computer attacks, computer viruses and unsafe and / or illegal actions, as well as to perform other actions that are necessary for maintenance. The Client is also responsible for the instruction on and use of the Website by third parties engaged by the Client.
7. The maintenance shall in principle include the following Services: (i) corrective, (ii) preventive and (iii) adaptive maintenance. In the event of corrective, preventive and/or adaptive maintenance, WP Maintenance is entitled to (temporarily) put the Service out of use in whole or in part. The Client is not entitled to any compensation during this interruption. WP Maintenance will allow the interruption to take place outside office hours as much as possible and no longer than is necessary for maintenance.
8. WP Maintenance is entitled to make changes to the technology of the data network or telecommunications network and other changes to the services offered by WP Maintenance. These changes may possibly affect the peripheral equipment used by the Client, for which WP Maintenance cannot be obliged to pay any compensation.
9. WP Maintenance is also dependent on (sub)supplier(s) and third parties for maintenance. WP Maintenance is entitled not to install certain updates or plugins if, in the opinion of WP Maintenance, this does not benefit the correct functioning of the software.
10. WP Maintenance will make every effort to add changes desired by the client to the website after delivery. If, in the opinion of WP Maintenance, a requested change can negatively affect the functioning or security of the software, WP Maintenance will report this in writing to the Client. If the Client nevertheless insists on the change, WP Maintenance will implement it, at its own risk and at the expense of the Client and without any liability for WP Maintenance.
11. If the Client wishes to make a change to the website independently, or wishes to have this carried out by a third party, this will be done entirely at the Client’s own risk and responsibility, unless the Client has notified WP Maintenance of the desired change in advance and WP Maintenance has approved it in writing. WP Maintenance may attach conditions to this approval.
12. If WP Maintenance and the Client have agreed that WP Maintenance also performs the substantive maintenance of the website, WP Maintenance will make every effort to carry out these actions carefully. However, WP Maintenance can never be held responsible for any errors made and resulting damage.
13. Already installed paid plugins and / or themes are invoiced separately from the purchased service, the rates can be found on the website of the plugin / theme builder.
Article 9 – Reporting and/or Advice
1. WP Maintenance can, if commissioned, draw up an advice, plan of action, reporting, planning and/or reporting for the benefit of the service. The content of this is not binding and only advisory in nature, but WP Onderhoud will observe its duties of care. The client decides for himself and on his own responsibility whether it follows the advice.
2. The advice provided by WP Maintenance, in whatever form, can never be regarded as binding advice.
3. At WP Onderhoud’s first request, the Client is obliged to assess proposals it has provided. If WP Maintenance is delayed in its work, because the Client does not or does not provide an assessment in time on a proposal made by WP Maintenance, the Client is at all times responsible for the resulting consequences, such as delays.
4. The nature of the service means that the result is at all times dependent on external factors that can influence the reports and advice of WP Maintenance, such as the quality, correctness and timely delivery of the necessary information and data of the Client and its employees. The Client is responsible for the quality and for the timely and correct delivery of the required data and information.
5. The Client shall notify WP Maintenance in writing prior to the start of the work of all circumstances that are or may be important, including any points and priorities for which the Client wishes attention.
Article 10 – Hosting services
1. If the agreed service extends to storage and/or transfer of material supplied by the Client to third parties in the context of (web) hosting, the following applies. Even if WP Maintenance manages the hosting account of the Client, and the Client’s access is limited to the management panel of the website, WP Maintenance may place restrictions on the size of the hosting account.
2. The Client is prohibited from publishing and distributing data via its website, in violation of Dutch laws and regulations, which in any case means: data without the permission of the copyright holder, defamatory information, or information that insults, discriminates, threatens, is racist in nature, is hateful, and information that contains child or otherwise criminal pornography. Also information that violates the privacy of third parties (also stalking), as well as torrents, spam and hyperlinks that refer to such information on third-party websites.
3. In the event of (possible) criminal acts, WP Maintenance is entitled to report this and to hand over the information provided by the Client to the competent authorities, as well as to perform all actions that are required of it in the context of the investigation.
4. WP Maintenance has the right to dissolve and/or terminate the Agreement with the Client in the event of abuse as mentioned in the previous paragraph and/or possible criminal offences of the Client.
5. The Client must refrain from inflicting any damage or actions that he/she can reasonably suspect will be harmed to other Clients or the servers. If the Client sends spam, and has been repeatedly warned about this, and is temporarily suspended, WP Maintenance has the right to permanently refuse the Client access, without compensation for any compensation. As a result, the Client can only use his e-mail when an external e-mail service is purchased that WP Maintenance can link to the domain name or website. The loss of e-mail from the purchased (hosting) package for this reason does not result in a price reduction.
6. The Client indemnifies WP Maintenance against all damage as a result of the above. WP Maintenance is not liable for any damage suffered by the Client as a result of its actions.
7. The Client is prohibited from reselling and/or renting out the services, unless explicitly agreed otherwise.
8. WP Maintenance may set a maximum of the amount of storage space that the Client may use in the context of the Service. If this maximum is exceeded, WP Maintenance is authorized to charge an additional amount. No liability exists for consequences of not being able to send, receive, store or modify data if an agreed storage space limit has been reached.
9. In the event of extremely high data traffic, WP Maintenance is entitled to temporarily take down the Client’s website at its own discretion. This is understood to mean DDoS attacks, brute force attacks, overloading the server or if the Client causes nuisance to the server of WP Maintenance in another way.
10. In addition to the obligations under the law, damage caused by incompetence or failure to act in accordance with the above points is at the expense and risk of the Client.
Article 11 – Connectivity
1. Every month the current consumption of the Client will be examined. If the actual consumption differs from the expected use, the scope of the service purchased may be adjusted. An increase will be carried out immediately. A reduction is only possible at the end of the period of this Agreement.
2. Data traffic is not transferable to a subsequent month and/or other equipment, unless otherwise agreed.
3. Data traffic is understood to mean all network traffic generated by the Client, incoming and outgoing. Inbound and outbound traffic is added together for the calculation of data traffic. This also includes e-mail traffic. The Client must refrain from sending mailings and/or newsletters via standard e-mail accounts.
4. WP Maintenance can set a maximum amount of data traffic per month that the Client may use in the context of the Service. If this maximum is exceeded, WP Maintenance is entitled to charge an additional amount, in accordance with the amounts for extra data traffic stated on the Website. No liability exists for consequences of not being able to send, receive, store or change data if an agreed limit for data traffic has been reached.
Article 12 – Notice and takedown
If and insofar as there is an infringement of the rights of WP Maintenance or third parties and/or unlawful acts by the Client, WP Maintenance is entitled to immediately close that part of the Service or to exclude the Client from the use. WP Maintenance will remove any infringing/harmful information immediately. As a result, it may happen that the Client cannot or does not make full use of the WP Maintenance Service. Under no circumstances is WP Maintenance liable for the damage suffered of any nature whatsoever, as a result of the (temporary) closure of the Service and / or the removal or passing on of the data placed by the Client.
Article 13 – Online marketing and SEO
1. WP Maintenance does not guarantee results regarding the provision of online marketing services and SEO. WP Maintenance only applies a certain strategy that has yielded results in the past. Nor can WP Maintenance make any commitments about this, but WP Maintenance will make every effort to obtain an improved position for the Client.
2. If WP Maintenance sets up an SEO on behalf of the Client, the budget for the SEO will be determined by the Client. If the Client wishes to carry out more work than is possible on the basis of the current rate, more costs must be charged for this.
3. If WP Maintenance sets up SEO on behalf of the Client, the services to be provided in the context of SEO are clearly recorded in writing. The Client may provide content and/or information for this purpose.
4. WP Maintenance can provide SEO texts for the Client itself. WP Onderhoud uses its own approach and style with regard to the SEO services. If the Client has agreed to the execution of SEO services by WP Maintenance, the Client has also agreed to the approach used by WP Maintenance and the texts drawn up by WP Maintenance. The Client must make further agreements with WP Maintenance about this.
5. The implementation of the SEO services also depends on guidelines, rules and policies of third parties such as eg. Google. The services are performed by WP Maintenance in compliance with the restrictions set by the relevant third parties.
6. If agreed, the Client must first give an agreement before the advertisement can be further drawn up and/or placed.
Article 14 – Additional work and amendments
1. If during the execution of the Agreement it appears that the Agreement needs to be adjusted, or at the request of the Client further work is necessary to achieve the desired result of the Client, the Client is obliged to reimburse these additional activities according to the agreed rate. WP Maintenance is not obliged to comply with this request, and may require the Client to conclude a separate Agreement for this.
2. The Client may make changes or have made changes to the scope and/or content of the SaaS service. The additional costs associated with this will be borne by the Client. The Client will be informed of this as soon as possible. If the Client does not agree with this, the Parties must consult with each other. The Client can only terminate the Agreement in writing by the date on which the change takes effect, if the changes are not related to changes in relevant laws or regulations or WP Maintenance bears the costs of the change.
Article 15 – Prices and payment
1. All prices are shown for the Client excluding turnover tax (VAT), unless otherwise agreed.
2. WP Maintenance performs its services in accordance with the agreed (hourly) rate. The costs of the work are calculated afterwards on the basis of the time registration drawn up by WP Maintenance (subsequent calculation).
3. If the Agreement is entered into for one year, this fee will be paid in advance per year.
4. If the Agreement is entered into for one month, this fee will be paid in advance per month.
5. The Client is obliged to fully reimburse the costs of third parties, which are used by WP Maintenance after approval of the Client, unless expressly agreed otherwise.
6. The parties may agree that the Client must pay an advance. If an advance has been agreed, the Client must pay the advance in full before the execution of the service is started.
7. The Client cannot derive any rights or expectations from a budget issued in advance, unless the Parties have expressly agreed otherwise.
8. WP Maintenance is entitled to increase the applicable prices and rates annually in accordance with the applicable inflation rates. Other price changes during the Agreement are only possible if and insofar as they are expressly stipulated in the Agreement.
9. The Client must pay these costs at once, without set-off or suspension, within the specified payment term of no later than 14 days as stated on the invoice to the account number and details of WP Maintenance made known to it.
10. In the event of liquidation, insolvency, bankruptcy, involuntary liquidation or request for payment towards the Client, the payment and all other obligations of the Client under the Agreement shall become immediately due and payable.
Article 16 – Debt collection policy
1. All payment terms set by WP Maintenance are strict deadlines. If the Client does not meet its payment obligation, and has not fulfilled its obligation within the set payment term, the Client being a Company is in default by operation of law.
2. From the date that the Client is in default, WP Maintenance will claim the statutory (commercial) interest from the first day of default until full payment without further notice of default, and reimbursement of the extrajudicial costs in accordance with Article 6:96 of the Dutch Civil Code to be calculated according to the scale from the decree on compensation for extrajudicial collection costs of 1 July 2012.
3. If WP Maintenance has incurred more or higher costs that are reasonably necessary, these costs are eligible for reimbursement. The judicial and enforcement costs incurred are also at the expense of the Client.
Article 17 – Privacy, data processing and security
1. WP Maintenance handles the (personal) data of the Client and Clients of the website with care and will only use them in accordance with the privacy statement. If requested, WP Maintenance will inform the person concerned about this.
2. The Client is responsible for the processing of data that is processed using a WP Maintenance Service. The Client also guarantees that the content of the data is not unlawful and does not infringe any rights of third parties. In this context, the Client indemnifies WP Maintenance against any (legal) claim related to this data or the execution of the Agreement.
3. If WP Maintenance must provide security of information on the basis of the Agreement, this security will meet the specifications and a level of security that is not unreasonable given the state of the art, the sensitivity of the data, and the associated costs.
4. Parties must act in accordance with the General Data Protection Regulation and comply with the resulting obligations as well as other applicable laws and regulations. The parties must conclude a processing agreement for this.
5. The Client has obligations towards third parties on the basis of the General Data Protection Regulation. This includes, but is not limited to, the obligation to provide information, provide access, correct and delete personal data of data subjects. The Client is solely and fully responsible for the correct fulfilment of these obligations. WP Onderhoud is “Processor” with regard to this personal data within the meaning of the GDPR. WP Maintenance will provide support as much as is technically possible.
Article 18 – Suspension
1. WP Maintenance has the right to keep the data, data files, software and more received or realized by it if the Client has not yet (fully) fulfilled its payment obligations, even if it had been paid, would be obliged to do so.
2. WP Maintenance is entitled to suspend the fulfilment of its obligations as soon as the Client is in default of fulfilling any obligation arising from the Agreement, including late payment of its invoices. The suspension will immediately be confirmed in writing to the Client. In that case, WP Maintenance is not liable for damage, in any form whatsoever, as a result of the suspension of its activities.
Article 19 – Force majeure
1. WP Maintenance is not liable if it is unable to fulfil its obligations under the Agreement as a result of a force majeure situation.
2. Force majeure on the part of WP Maintenance is in any case understood, but is not limited to: (i) force majeure of suppliers of WP Maintenance, (ii) failure to properly perform supplier obligations prescribed or recommended by Customer to WP Maintenance, (iii) defect of goods, equipment, software or materials of third parties, (iv) government measures, (v) power failure, (vi) failure of internet, data network and telecommunications facilities (e.g. due to: cybercrime, hacking and DDoS attacks), (vii) natural disasters, (viii) war and terrorist attacks, (ix) general transport problems, and (x) other situations that, in the opinion of WP Maintenance, fall outside its sphere of influence that temporarily or permanently prevent the fulfillment of its obligations.
3. If a force majeure situation lasts longer than two months, the Agreement can be dissolved in writing by either of the Parties. If any services have already been performed under the Agreement, in such a case payment shall be made proportionately without any liability on the part of each party to each other.
4. If WP Maintenance has already partially fulfilled its obligations at the onset of the force majeure, or can only partially meet its obligations, it is entitled to invoice the already delivered or the deliverable part separately and the Client is obliged to pay this invoice. However, this does not apply if the already delivered or deliverable part has no independent value.
Article 20 – Limitation of liability
1. If there is an attributable shortcoming of WP Maintenance, WP Maintenance is only obliged to pay any compensation if the Client has given WP Maintenance notice of default within 14 days after discovery of the shortcoming, and WP Maintenance has subsequently not corrected this shortcoming within the reasonable period stated in the notice of default. The notice of default must be submitted in writing, and contains such a precise description of the shortcoming or defect that WP Maintenance is able to respond adequately.
2. If the provision of Services by WP Maintenance leads to liability of WP Maintenance, this liability is limited to the costs charged in connection with the Service (but a maximum of 12 months prior to the notice of default) with regard to direct damage. Direct damage is understood to mean: reasonable costs incurred to limit or prevent direct damage, the determination of the cause of damage, direct damage, liability and the method of repair as well as the costs of emergency provisions.
3. WP Maintenance is not liable for consequential damage, indirect damage, business loss, loss of profit and/or loss, missed savings, damage due to business interruption and damage as a result of use of Services provided by WP Maintenance, damage due to loss of data, damage due to exceeding delivery times, consequential and delay damage and interest damage.
4. WP Maintenance is not liable for damage that is or may be the result of any act or omission as a result of (imperfect and/or incorrect) information on the website or that of linked websites.
5. WP Maintenance is not responsible for errors and/or irregularities in the functionality of the website and/or the Website, software, malfunctions or the unavailability of the website and/or software and Website for any reason.
6. Liability of WP Maintenance for (the functioning of) third-party plug-ins is excluded. WP Maintenance is furthermore not liable for damage that has arisen as a result, or in connection with changes made or work performed in or on the Website of WP Maintenance that has taken place without the express permission of WP Maintenance.
7. The Client indemnifies WP Maintenance against all claims from third parties as a result of a defect as a result of a service provided by the Client to a third party and also consisting of Services provided by WP Maintenance, unless the Client can demonstrate that the damage was caused exclusively by the service of WP Maintenance.
8. Any advice provided by WP Maintenance on the basis of incomplete and/or incorrect information provided by the Client is never grounds for liability of WP Maintenance.
9. The content of the advice delivered by WP Onderhoud is not binding and only advisory in nature. The Client decides for itself and on its own responsibility whether it follows the proposals and advice of WP Maintenance mentioned herein. All consequences resulting from the follow-up of the advice are at the expense and risk of the Client. The Client is at all times free to make its own choices that deviate from the (delivered) advice of WP Maintenance. WP Maintenance is not obliged to provide any form of refund if this is the case.
10. If a third party is engaged by or on behalf of the Client, WP Maintenance is never liable for the actions and advice of the third party engaged by the Client as well as the processing of results (of drawn up advice) of the third party engaged by the Client in WP Maintenance’s own advice.
11. The Client is responsible for the correct security of its own computer, security of passwords and more. Under no circumstances is WP Maintenance liable.
12. WP Maintenance does not guarantee the correct and complete transmission of the content of and e-mail sent by/on behalf of WP Maintenance, nor the timely receipt thereof.
13. The Client guarantees the accuracy and completeness of the information and wishes provided by him with regard to the Service.
14. All claims of the Client due to shortcomings on the part of WP Maintenance lapse if they have not been reported to WP Maintenance in writing and with reasons. Any claim for compensation against WP Maintenance must always be reported in writing, but no later than one year after the Client was aware or could reasonably be aware of the facts on which he bases his claims. The liability of WP Maintenance ends in any case after the expiry of one year after termination of the Agreement between the Parties.
Article 21 – Confidentiality
1. WP Maintenance and Client undertake to maintain the confidentiality of all (confidential) information obtained in the context of an Agreement. The confidentiality arises from the Agreement or can reasonably be expected to be confidential information. The parties shall observe strict confidentiality with regard to all information they obtain about each other and from each other. All information and data carriers of the other Party will not be made available to third parties and must remain strictly confidential, unless the other Party has given prior express written permission to do so.
2. The Client is obliged to keep all Website and other materials provided by WP Maintenance secret, not to disclose or to use them to third parties, unless WP Maintenance has expressly given permission for this.
3. If WP Maintenance is obliged on the basis of a legal provision or a court decision to (partly) provide the confidential information to a third party indicated by law or competent court, and WP Maintenance cannot invoke a right of non-disclosure, WP Maintenance is not obliged to pay any compensation and the Client is not entitled to dissolve the Agreement.
4. WP Maintenance and the Client also impose the confidentiality obligation on third parties to be engaged by them.
Article 22 – Intellectual Property Rights
1. All intellectual property rights of WP Onderhoud, including websites, data files, software, equipment and/or other materials made available to the Client, including but not limited to designs, texts, analyses, reports, documentation and quotations as well as all preparatory material thereof, rest exclusively with WP Maintenance, and/or third parties or suppliers if these rights already belonged to others than WP Maintenance.
2. The Client is prohibited from disclosing and/or multiplying, modifying or making available to third parties all documents and software on which the IP rights and copyrights of WP Maintenance rest without the express prior written consent of WP Maintenance and an agreed monetary compensation. If the Client wishes to make changes to items delivered by WP Maintenance, WP Maintenance must explicitly agree to the intended changes.
3. The Client is prohibited from using the products on which the intellectual property rights of WP Maintenance rest other than as agreed in the Agreement.
4. Furthermore, the Client is not permitted to change or remove any indication regarding the confidential nature, copyrights, trade names, brands, or any other intellectual property right from the website, documentation and/or other materials.
5. The parties will inform each other and take joint action against any infringement of the IP rights of WP Maintenance.
6. The Client indemnifies WP Maintenance against claims from third parties with regard to (possible) infringements and/or claims from third parties with regard to what has been made available to the Client within the framework of the Agreement. The Client shall immediately inform WP Maintenance of these infringements and/or claims.
7. Any infringement by the Client of the IP rights (and copyrights) of WP Maintenance will be punished with a one-off fine of € 10,000 euros (in words: ten thousand euros) and a fine of € 500 euros (in words: five hundred euros) for each day that the infringement continues.
Article 23 – Safeguarding and accuracy of information
1. The Client is responsible for the accuracy, reliability and completeness of all data, information, documents and/or documents that it provides to WP Maintenance in the context of the Agreement. Even if this data comes from third parties, the Client is responsible for this.
2. The Client indemnifies WP Maintenance against any liability resulting from non-fulfilment or late fulfilment of the obligations under the previous paragraph.
3. The Client indemnifies WP Maintenance against claims from third parties with regard to intellectual property rights to the data and information provided by the Client, which can be used in the execution of the Agreement, as well as with regard to the content of the advice and reports drawn up by WP Maintenance.
4. If the Client provides electronic files, Website or information carriers to WP Maintenance, the Client guarantees that these are free of viruses and defects.
5. The Client indemnifies WP Maintenance against all claims of the Client and third parties engaged by him or working under him, based on the failure to obtain (timely) any permissions required in the context of the execution of the Agreement.
Article 24 – Complaints
1. If the Client is not satisfied with the service or products of WP Maintenance or otherwise has complaints about the execution of the Agreement, the Client is obliged to report these complaints as soon as possible, but no later than 14 days after the relevant reason that led to the complaint. Complaints can be reported orally or in writing via [email protected] with the subject “Complaint”.
2. The complaint must be sufficiently substantiated and/or explained by the Client in order for WP Maintenance to be able to handle the complaint.
3. WP Onderhoud will respond to the complaint as soon as possible, but no later than 14 days after receipt of the complaint.
4. The parties will try to reach a solution together.
Article 25 – Applicable law
1. The legal relationship between WP Maintenance and the Client is governed by Dutch law.
2. WP Maintenance may unilaterally change these general terms and conditions. The most current version can be found on the website.
3. In the case of translations of these general terms and conditions, the Dutch version shall prevail.
4. All disputes arising from or as a result of the Agreement between WP Maintenance and the Client will be settled by the competent court of the District Court of Central Netherlands (location Utrecht), unless provisions of mandatory law designate another competent court.
Nieuwegein, 16 October 2020
