Article 1: General
1.1 These conditions are applicable to all offers, quotations and agreements concluded between Mediabirds and the Client.
1.2 The work is not performed on the basis of an employment contract, but on the basis of a commission contract in the sense of Dutch Civil Code 7:400.
1.3 The agreement is entered into by both parties in the exercise of their private lives, profession or business.
1.4 Should a situation arise between the parties which has not been provided for in these general conditions, then this situation should be judged according to the spirit of these general conditions.
1.5 Mediabirds reserves the right to place a reference to the Mediabirds website (Website: Mediabirds) on websites developed by Mediabirds.
Article 2: Offer and acceptance
2.1 The quotation shall contain the description of the work to be carried out by Mediabirds.
2.2 An offer made by Mediabirds is without engagement and valid for 30 days after it has been sent, unless otherwise indicated in the offer.
2.3 The prices given in an offer or quotation are exclusive of VAT and other government levies as well as any costs to be incurred within the framework of the agreement, including travel and accommodation, postage and administration costs, unless otherwise indicated.
2.4 The agreement between the Client and Mediabirds is concluded at the moment on which Mediabirds receives the communication of acceptance of the offer by the Client. The Client’s acceptance must be in writing.
2.5 If the Client does not explicitly indicate his agreement with the quotation but nevertheless agrees, or creates the impression, that Mediabirds is carrying out work within the scope of the description of the services, the quotation will be regarded as accepted. This also applies when the Client requests Mediabirds to carry out certain work without waiting for a formal quotation.
2.5 Changes in the services are possible only with the agreement of both parties, except as otherwise provided elsewhere in these terms and conditions. Mediabirds will perform requested additional work at the usual hourly rate.
2.6 Deadlines within which the work must be completed shall be regarded as deadlines only if this has been expressly agreed in writing. The agreement may not be dissolved by the Client on account of exceeding the deadline. Mediabirds shall not be liable for any damages on account of the failure to meet a deadline.
2.7 A composite quotation does not oblige Mediabrids to execute a part of the assignment at a corresponding part of the quoted price. Offers or quotations do not automatically apply to future orders.
2.8 If Mediabirds, at the request of the Client, carries out work or performs other services which fall outside the content or scope of the agreement, such work or services shall be reimbursed by the Client to Mediabirds according to Mediabirds’ usual rates.
2.9 The Client accepts that work or performance may influence the agreed or expected time of completion of the work.
Article 3: Execution of services
3.1 Mediabirds will endeavour to carry out the work as laid down in the arrangements agreed with the Client. The Client is entitled to give instructions about the work, but this does not affect Mediabirds’ freedom to carry out the work as it sees fit.
3.2 Client shall provide Mediabirds with access to all places, services and accounts under its control (such as web hosting accounts) that Mediabirds reasonably requires to provide the services. In special cases it may be agreed that the Client will place the necessary data or make adjustments to these services or accounts himself.
3.3 If it has been agreed that the agreement will be executed in phases, Mediabirds may suspend the execution of work belonging to a subsequent phase until the Client has approved and paid in writing for the work of the preceding phase.
3.4 If the Client has commissioned Mediabirds to carry out the work, Mediabirds is entitled to have a third party carry out the work. Article 7:404 of the Dutch Civil Code is not applicable.
3.5 Mediabirds reserves all rights with regard to products which it uses (has used) or develops or has developed in the context of the execution of the assignment.
3.6 Mediabirds is entitled to put certain parts of the website (temporarily) out of action during installation or in case of maintenance. Mediabirds will endeavour to keep this to a minimum and cannot be held liable for any damage suffered by the Client.
3.7 Mediabirds will make every effort to keep the website accessible and available, but cannot be held liable if the website is unavailable at any time unless the Client proves that this is due to Mediabirds.
3.8 Mediabirds has the right to (temporarily) suspend or limit the services if the Client fails to meet an obligation to Mediabirds in connection with the agreement or acts in contravention of these general conditions.
Article 4: Hosting
4.1 If the service includes hosting of the Client’s website, Mediabirds will make every effort to adjust the services concerned when the service is changed by third parties in order to realize an undisturbed continuation as much as possible. The costs for this will be invoiced to the Client as additional work.
4.2 Mediabirds is not liable for the consequences of events at a hosting provider, data center, domain name registrant or others over which Mediabirds has no influence.
4.3 The Client shall ensure that he is entitled to use the domain name and that its use is not unlawful towards third parties. The Client shall indemnify Mediabirds against any third party claims related to the domain name, even if the Client’s domain name is not registered by Mediabirds.
4.4 The Client shall behave carefully and refrain from unlawful conduct on its website. Such as violating intellectual property, distributing data which is prohibited by law or violating the privacy of third parties or other conduct contrary to public order and morality.
4.5 Mediabirds can never be held responsible for any unlawful behaviour by the Client.
Article 5: Website maintenance
5.1 In order to guarantee the security of the website as much as possible, all updates to software and plugins must be carried out as soon as possible after a release.
5.2 Mediabirds offers the Principal the possibility to arrange the maintenance referred to in point 1 in a maintenance subscription.
5.3 The maintenance of the software of the website will then be carried out by Mediabirds. Changes in the software will also be made if advancing insight on security makes them necessary. If these changes exceed the maintenance subscription, Mediabirds will carry them out as additional work after consultation with the Client.
5.4 Should the Client agree with Mediabirds that the Client will maintain the software himself, the Client is responsible for updating the software and installed Mediabirds as soon as a new version appears. The Client is responsible for all possible consequences of updating the software himself. Any problems resulting from this updating will be solved by Mediabirds at the applicable hourly rate.
5.5 The maintenance subscription may be cancelled by both parties in writing at the end of the agreed contract period subject to 30 days’ notice.
5.6 Mediabirds is also dependent on supplier(s) and third parties for maintenance. Mediabirds is entitled not to install certain updates or plug-ins if in Mediabirds’ opinion this will not benefit the correct functioning of the software.
5.7 If the use of the software requires licenses from third parties, Mediabirds will purchase these licenses and forward them directly to the Client. Client will ensure that the provisions of this license are strictly adhered to. The Client shall indemnify Mediabirds against any claims by third parties regarding compliance with these provisions of this license. In case of compulsory annual renewal of licenses Mediabirds will pass these on to the Client.
5.8 Should the Client wish to make any changes to the Web Site independently or have such changes made by a third party, such changes shall be made entirely at the risk and responsibility of the Client unless the Client has notified Mediabirds of the desired changes in advance and Mediabirds has approved such changes in writing. Mediabirds may attach conditions to this approval.
5.9 If Mediabirds and Client have agreed that Mediabirds will also carry out content maintenance on the website, Mediabirds will make every effort to carry out these operations carefully. Mediabirds can however never be held responsible for any mistakes made and resulting damage.
5.10 If a service requires the Client to provide source materials to Mediabirds the Client shall at all times guarantee that he holds all the licenses necessary for the provision to the intended use by Mediabirds. The Client shall indemnify Mediabirds against any claims by third parties in respect of violation of such rights.
5.11 Mediabirds will make every effort to add changes desired by the Client to the website after its completion. If in Mediabirds’ opinion a requested change may adversely affect the functioning or security of the software, Mediabirds will notify the Client in writing. If the Client nevertheless insists on the change, Mediabirds will make it, at the Client’s own risk and without any liability for Mediabirds. These changes or repairs to the website will be carried out by Mediabirds at applicable hourly rates.
5.12 Mediabirds will endeavour to keep up to date the knowledge about the software. If applicable Mediabirds will give advice to the Client.
Article 6: Delivery and acceptance
6.1 Mediabirds shall deliver any work or part of any work to be developed or adapted when in its professional opinion it meets the specifications or is suitable for use.
6.2 The Client must then evaluate or reject the delivered work within 14 days of its delivery. If the Client does not reject the work delivered within this period, the work delivered shall be deemed to have been accepted.
6.3 If an order is delivered in phases, the Client must approve or reject the part of the work of that phase after the completion of each phase in the manner stipulated in the previous paragraph. The Client may not base an approval or rejection at a later stage on aspects that were approved at an earlier stage.
6.4 Should the client disapprove of the work done in whole or in part, Mediabirds will make every effort to remove the reason for disapproval as soon as possible. Mediabirds may do this by revising the result or by giving reasons why the reason does not apply. The Client then has a period of 14 days to approve or reject the revision or motivation.
6.5 If after the first revision or motivation the Client has rejected the delivered work in whole or in part, a reasonable number of revision rounds will follow at the discretion of Mediabirds.
6.6 After acceptance of the work delivered, any liability for defects in the work delivered shall lapse unless Mediabirds knew or should have known of the defect at the time of acceptance. In any case, any liability for defects in a work shall lapse one year after the termination of the agreement for whatever reason.
Article 7: Intellectual property rights
7.1 Mediabirds uses for its work open source software of which the rights are held by third parties. For works created by Mediabirds itself, the rights are held by Mediabirds unless there is a written agreement with the Client that the rights will be transferred. In addition, rights to works made to measure for the Client shall in principle accrue to the Client upon acceptance of the agreement after all outstanding invoices and payments by the Client have been paid to Mediabirds in full and on time.
7.2 Should the licence of certain open source software imply that the Client may distribute (parts of) the software only as open source, Mediabirds shall advise the Client in good time.
7.3 The Client is entitled to make changes to works which it receives.
7.4 Unless otherwise agreed, the rights of intellectual property to works will be transferred to Mediabirds. This with due observance of article 7.1. In doing so, Mediabirds retains an unlimited and perpetual license to use the work and parts thereof in its business operations and to distribute them to others. This does not diminish Mediabirds’ obligation to treat confidential information from the Client as confidential.
7.5 The Client has an unlimited right of use on the CMS (pro cms), resale of the CMS is however explicitly excluded.
Article 8: Prices and payment
9.1 All prices are in euros, unless otherwise agreed with the Client.
9.2 A fixed price or price on an hourly basis will be agreed for an assignment (or phase or part thereof). Client will pay the amount due on the basis of invoicing.
9.3 Mediabirds will send an electronic invoice by e-mail to the Client by the amounts due by the Client.
9.4 The payment term of 14 days after the date of the invoice, unless a longer payment term is indicated on the invoice. If the Customer does not pay on time, he will be in default by operation of law from 14 days after the date of the invoice without any notice of default being required. If an amount due is not paid within the term of payment, statutory interest will be payable on the outstanding invoice amount and a one-off maximum amount of EUR 100.
9.5 If the Client believes that (part of) an invoice is incorrect, he must report this to Mediabirds within the payment term. The payment obligation of the disputed (but not other) part will be suspended until Mediabirds has investigated the report. If after investigation by Mediabirds it appears that the dispute was unjustified, the Client must pay the disputed amount within seven days.
9.6 In the event of late payment, the Client shall be obliged to pay in full both extrajudicial and judicial collection costs, including the costs of lawyers, bailiffs and collection agencies, in addition to the amount owed and the interest due thereon.
9.7 The claim for payment is immediately due and payable in case Client is declared bankrupt, applies for a moratorium or total attachment of Client’s assets is levied, Client dies and also if Client goes into liquidation or is dissolved.
9.8 Once per calendar year Mediabirds is entitled to adjust its rates on the basis of the then published consumer price index (CPI), whereby an increase may never exceed 5%. Mediabirds will inform the Client at least 2 (two) months in advance of any changes in rates. Client has the right to terminate the agreement in case of a price increase, respecting a notice period of 1 (one) month.
9.9 All prices invoiced by Mediabirds are exclusive of taxes (VAT) and other government imposed levies.
9.10 The Client is obliged to pay Mediabirds the amounts resulting from the agreement. If the principal consists of several natural and/or legal persons, each of these persons shall be severally liable for the payment obligations.
9.11 Should proof be required with regard to the services rendered and the amounts owed by the Client, all relevant documents and data from Mediabirds’ systems and administration will provide full proof, without prejudice to the Client’s right to provide proof to the contrary.
Article 10: Changes to the services
10.1 All changes in the services, either at the request of the Client or as a result of the fact that through whatever circumstances another execution is necessary, will be considered as extra work if they involve additional costs and if they involve fewer costs as less work. These will be invoiced accordingly to the Client.
10.2 If Mediabirds has to do more work than Mediabirds should have foreseen at the time of the quotation or has to work under more difficult circumstances than Mediabirds can foresee at the time of the quotation, Mediabirds may charge the Client for the extra costs resulting from this.
10.3 The right conferred by the preceding paragraph is subject to Mediabirds having informed the Client in good time of the circumstances and extra costs referred to therein. If the Client does not agree with the extra costs involved, he shall be entitled to cancel the part of the extra work which has not yet been carried out, without, however, being entitled to a refund or remission of the costs of the work already carried out.
Article 11: Confidentiality
11.1 Parties shall treat information which they provide to each other before, during or after the execution of the agreement as confidential if this information is marked confidential or if the receiving party knows or should know that the information was intended to be confidential. The parties shall also impose this obligation on their employees as well as on third parties brought in by them for the execution of the agreement.
11.2 Mediabirds may use the knowledge acquired in executing the agreement for other assignments in so far as this does not involve making information from the Client available to third parties in violation of obligations of confidentiality.
11.3 The obligations contained in this article will continue to exist after the termination of the agreement for whatever reason and for as long as the party providing the information can reasonably claim the confidential nature of the information.
Article 12: Liability
12.1 Mediabirds is only liable to the Client in the event of attributable shortcoming in the fulfilment of the agreement and exclusively for substitute damages, i.e. compensation of the value of the omitted performances.
12.2 Any liability on the part of Mediabirds for any form of damage is excluded, including additional compensation in any form whatsoever, compensation for indirect or consequential damage, damage for loss of turnover or profit, damage for loss of data as well as damage for exceeding deadlines as a result of changed circumstances.
12.3 In the case of liability under the preceding articles Mediabirds is only obliged to compensate the amount quoted.
12.4 Mediabirds’ liability on account of attributable shortcoming in the fulfilment of the agreement shall arise only if the principal immediately and properly serves Mediabirds with a written notice of default, whereby a reasonable time limit is given to remedy the shortcoming and Mediabirds remains attributable in the fulfilment of its obligations even after this time limit. The notice of default must contain as detailed as possible a description of the shortcoming so that Mediabirds is able to respond adequately. By the expiry of twenty-four months after the claim for compensation has arisen, the Client’s claim against Mediabirds shall lapse.
12.5 In the event of force majeure, which shall in any case be understood to mean malfunctioning or breakdown of the Internet, the telecommunications infrastructure, power failures, domestic disturbances, mobilization, war, traffic congestion, strikes, lockouts, business disturbances, stagnation in supply, fire, flood, import and export restrictions and in the event that Mediabirds is prevented by its own suppliers regardless of the reason, is not able to deliver so that fulfillment of the contract can not reasonably be demanded of Mediabirds, the execution of the contract will be suspended or the contract will be terminated when the force majeure situation has lasted longer than ninety days, all without any obligation to pay damages.
Article 13: Duration and termination
12.1 This agreement is entered into for the period required for delivery of the services. The agreement can only be terminated in the interim as provided for in these general terms and conditions, or with the consent of both parties.
12.2 The client may terminate a service for the development or adaptation of works in the interim on payment of a lump sum equal to the hours worked at Mediabirds’ current hourly rate.
12.3 If certain services are provided for an indefinite period (such as maintenance), the agreement for these services shall be deemed to have been entered into for periods of one year (12 months). Both parties may terminate the agreement in writing at any time towards the end of this period with a notice period of two months.
12.4 In the event of cancellation, termination or dissolution for any reason whatsoever Mediabirds shall be entitled to delete or make inaccessible all stored data and to close all accounts of the Client immediately after the date on which the agreement expires. In this case Mediabirds is not obliged to provide Client with a copy of these data.
Article 14: Amendments to Agreement
14.1 After acceptance the agreement may only be altered by mutual consent.
14.2 If the agreement is a long-term agreement, Mediabirds is however entitled to amend or extend these general conditions unilaterally once every calendar year. To this end, it must inform the Client at least two months before the adjustments or extensions will take effect. However, amendments to the general terms and conditions can never override a specific agreement.
14.3 If the Client objects within this period, Mediabirds will consider whether or not it wishes to withdraw the objectionable adjustments or extensions. Mediabirds shall notify the Client of this decision. If Mediabirds does not wish to withdraw objectionable adjustments or extensions, the Client shall be entitled to terminate the agreement as of the date on which they will take effect.
14.4 Mediabirds may at any time make changes to these general conditions if these are necessary due to changed legal regulations. The Client may not object to such changes.
14.5 All changes in the execution of a service, either at the request of the Client or as a result of the fact that due to whatever circumstances another execution is necessary, will be considered as additional work and when they involve extra costs as well as as as less work. When there are fewer costs as a result.
14.6 The Client understands that changes to the Agreement and/or the creation of additional work may affect the agreed or expected time of completion of all agreements made in the Agreement.
Article 15: Final Provisions
15.1 This Agreement is governed by Dutch law. Insofar as the rules of imperative law do not prescribe otherwise, all disputes which may arise in connection with this agreement shall be submitted to the competent Dutch court for the district in which Mediabirds has its registered office.
15.2 Should any provision of this agreement prove to be invalid, this will not affect the validity of the entire agreement. The parties will in that case. 15.2 Should any provision from this agreement prove void, this shall not affect the validity of the agreement as a whole and the parties shall in that case lay down (a) new provision(s) by way of replacement which will give shape to the intention of the original agreement and these general conditions as much as is legally possible.
15.3 “Written” in these terms and conditions also includes email and communication by fax, provided that the identity of the sender and the integrity of the content is sufficiently established. The parties will endeavour to confirm the receipt and content of communications by e-mail.
15.4 The version of any communication received or stored by Mediabirds shall be deemed authentic, subject to proof to the contrary to be furnished by the Client.
15.5 Each party is only entitled to transfer its rights and obligations under the agreement to a third party with the prior written consent of the other party. Notwithstanding this, Mediabirds is always entitled to transfer its rights and obligations under the agreement to a parent, subsidiary or sister company.