1.1 These conditions apply to every offer and every agreement insofar as the parties have not deviated explicitly from these conditions.
2.1 Highbiza is only bound by the quotations/cost estimates if the acceptance thereof is confirmed by the client in writing within thirty days.
2.2 The prices stated in an offer are exclusive of VAT, unless stated otherwise.
3.1 Highbiza shall execute the agreement 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 agreement requires this, Highbiza has the right to have certain work carried out by third parties.
3.3 The client ensures that all data, which Highbiza indicates are necessary or of which the client should reasonably understand that these are necessary for the execution of the agreement, are provided to Highbiza in time. If the data required to execute the agreement have not been provided to Highbiza in time, Highbiza has the right to suspend the performance of the agreement and/or to charge the client for the additional costs resulting from the delay in accordance with the usual rates.
3.4 Highbiza is not liable for damage, of whatever nature, caused by the fact that Highbiza has relied on incorrect and/or incomplete information provided by the client, unless these inaccuracies or incompleteness should have been known to Highbiza.
3.5 If it has been agreed that the agreement will be executed in phases, Highbiza can suspend the execution of those parts that belong to a following phase until the client has approved the results of the preceding phase in writing.
4.1 The agreement is entered into for the agreed period, or what has been agreed otherwise.
4.2 If a term has been agreed within the term of the agreement for the completion of certain activities, this is not a strict deadline, unless expressly agreed otherwise. In the event that the execution period is exceeded, the client must therefore give Highbiza a notice of default in writing.
5.1 If during the execution of the agreement it appears that for a proper execution it is necessary to change or supplement the work to be performed, the parties will adjust the agreement accordingly in time and in mutual consultation.
5.2 If the parties agree that the agreement is amended or supplemented, the time of completion of the execution can be influenced as a result. Highbiza will inform the client here as soon as possible.
5.3 If the change or addition to the agreement has financial and/or qualitative consequences, Highbiza will inform the client in advance. If a fixed fee has been agreed, Highbiza will indicate to what extent the change or supplement to the agreement will result in an excess of this fee.
5.4 Notwithstanding paragraph 3, Highbiza will not be able to charge any additional costs if the change or supplement is the result of circumstances that can be attributed to Highbiza.
6.1 6.1 Highbiza provides hosting services which it mainly purchases from third parties. Highbiza does not accept claims and other responsibilities and/or liabilities that these third parties have towards Highbiza.
7.1 Both parties are obliged to keep confidential all confidential information that they have received from each other or from another source within the framework of their agreement. Information is considered confidential if this has been communicated by the other party or if this results from the nature of the information.
8.1 Without prejudice to the provisions of Article 6 of these conditions, Highbiza reserves the rights and powers that accrue to it under the Copyright Act during the execution of the work.
8.2 After receipt of full payment for the work recorded in the agreement, the client has the right to obtain the source code of the delivered software under a free software license to be determined mutually.
8.3 All documents provided by Highbiza, such as reports, advice, designs, sketches, drawings, software, etc., are exclusively intended for use by the client and may not be reproduced, published or made known by him without prior permission from Highbiza.
8.4 Highbiza also reserves the right to use the knowledge gained through the execution of the work for other purposes, insofar as no confidential information is brought to the knowledge of third parties.
9.1 The client can terminate the agreement, provided that the cancellation takes place in writing and with reason. In that case, the client must observe a notice period which respects the contract period or otherwise at least one month. Highbiza can terminate the agreement with notice in a month.
9.2 In the event of early termination, Highbiza is entitled to a reasonable part of the fee, in addition to reimbursement of the costs incurred, with due observance of the work already performed, the benefit that the client has and the reason for the termination.
10.1 Highbiza's claims against the client are due immediately in the following cases: a. if after the conclusion of the agreement Highbiza becomes aware of circumstances giving Highbiza good grounds to fear that the client will not fulfill his obligations, b. if Highbiza asked the client at the conclusion of the agreement to provide security for the performance and this security is not provided or is insufficient.
10.2 In the aforementioned cases, Highbiza is authorized to terminate the further execution of the agreement, without prejudice to the right of Highbiza to claim compensation.
11.1 Complaints about the work performed must be reported in writing by the client to Highbiza within eight days of discovery, but no later than thirty days after completion of the activities concerned.
11.2 If a complaint is well-founded, Highbiza will still perform the work as agreed, unless this has become useless for the client. The latter must be made known by the client.
12.1 For offers and agreements in which a fixed fee is offered or agreed, paragraph 2 of this article applies. If no fixed fee is agreed, paragraphs 3, 4 and 5 of this article apply.
12.2 Parties can agree on a fixed fee when the agreement is concluded. The fixed fee is exclusive of VAT, travel hours and travel and accommodation costs.
12.3 If no fixed fee is agreed, the fee will be determined on the basis of hours actually spent. The fee is calculated according to the usual hourly rates of Highbiza, applicable for the period in which the work is performed, unless a deviating hourly rate has been agreed upon.
12.4 Any cost estimates are exclusive of VAT, travel hours and travel and accommodation costs.
12.5 For orders with a duration of more than three months, the costs owed will be charged periodically.
13.1 Payment must be made within fourteen days of the invoice date. After the expiry of fourteen days after the invoice date, the client is in default. From the moment of default, the client owes interest of five percent per month on the due and payable amount.
13.2 In the event of liquidation, bankruptcy or suspension of payment of the client, the obligations of the client will be immediately due and payable.
13.3 Payments made by the client always serve firstly to settle all interest and costs owed, and secondly to claimable invoices that have been outstanding the longest, even if the client states that the payment relates to a later invoice.
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 court shall be at the expense of the client.
15.1 If during the performance of the assignment an event (including a failure to act) occurs that leads to liability for Highbiza, any liability of Highbiza will be limited to a maximum of one time the order value of the costs charged per year by Highbiza to the client, with a maximum of € 25,000.00.
15.2 Claims for payment of compensation lapse one year after the day on which the client became aware of the damage and the possible liability of Highbiza for this damage.
15.3 Highbiza is only liable insofar as the client suffers damage directly attributable to the imputable failure to comply with the agreement by Highbiza and there is intent and gross negligence on the part of Highbiza and the client also has no fault of its own concerning incident.
15.4 The client indemnifies Highbiza against claims from third parties who claim to have suffered damage or related to the product delivered by Highbiza on behalf of the client, as well as against the costs of legal proceedings connected with a possible claim.
15.5 The client indemnifies Highbiza from (damage) claims relating to IP rights to materials or data provided by the client that are used in the execution of the assignment.
15.6 In no event shall Highbiza be liable for indirect damage, such as -but not limited to- loss of turnover.
15.7 Highbiza expressly accepts no liability for damage resulting from, but not limited to: * repair and/or modification of (products or services resulting from) the work performed by or on behalf of the client* inadequate cooperation, materials and/or incorrect or incomplete information provided by the client* conflicting IP rights of third parties on the work delivered and/or infringement of patents and/or industrial secrets* errors or shortcomings in the work if the client has given its approval or has been given the opportunity to carry out an inspection and has not made use of it * force majeure.
In addition to what has been determined in this regard in law and jurisprudence, this also includes all external causes, foreseen or not foreseen, on which Highbiza can not exert influence, but as a result of which Highbiza is unable to meet its obligations, such as force majeure from Highbiza suppliers, government measures, electricity failures, computer network failures or telecom facilities, job occupation, strike, general transport problems etc.
15.8 Any possibility of recourse to liability by the client will lapse within one year after completion of the assignment.
15.9 The limitations and exclusions set out in the preceding paragraphs of this article are only applicable to the extent permitted by applicable mandatory law.
16.1 During the force majeure, the obligations of Highbiza are suspended. If the period in which fulfillment of the obligations by Highbiza is not possible due to force majeure lasts longer than two months, both parties are entitled to dissolve the agreement without any obligation to pay compensation in that case.
16.2 If Highbiza has already partially fulfilled its obligations on the occurrence of the force majeure, or can only partly meet its obligations, Highbiza is entitled to invoice the already executed or executable part separately and the client is obliged to pay this invoice as if it concerned a separate contract. However, this does not apply if the already executed or executable part does not have an independent value.
17.1 In case of publicity around the result, the client will ensure that the contribution of Highbiza will be clearly visible. If it has been agreed that third parties will be involved in a change or elaboration of the result, the client will also oblige these third parties to clearly state the contractor's contribution in the event of publicity surrounding (an elaboration of) the result.
17.2 Highbiza is entitled to include its own name in the result in a modest way. The manner in which this name will be given, will be determined in mutual consultation.
17.3 With due regard for the interests of the client, Highbiza has the freedom to use the result for its own publicity or promotion.
18.1 Dutch law applies to every agreement between Highbiza and the client.