TERMS AND CONDITIONS DIGITAL WIZARDS B.V.

Article 1 Definitions

  1. These terms and conditions can also be viewed and downloaded on: Terms and Conditions.
  2. Digital Wizards B.V., established in Amstelveen, Chamber of Commerce number 72416939, is referred to as service provider in these general terms and conditions.
  3. The other party to the service provider is referred to in these general terms and conditions as the client.
  4. Parties are service provider and client together.
  5. The agreement refers to the service agreement between the parties.

Article 2 Applicability of general terms and conditions

  1. These conditions apply to all quotations, offers, work, agreements and deliveries of services or goods by or on behalf of service provider.
  2. Deviation from these conditions is only possible if the parties have explicitly agreed in writing.
  3. For the service provider, the agreement always contains the best efforts obligations, not result obligations.

Article 3 Payments

  1. Invoices must be paid within 30 days after the invoice date, unless the parties have made other arrangements in writing or a different payment term is stated on the invoice.
  2. Payments are made without any recourse to suspension or setoff by transferring the amount due to the bank account number specified by the service provider.
  3. If the client does not pay within the agreed period, he will be in default by operation of law, without any warning being required. From that moment on, the service provider is entitled to suspend the obligations until the client has fulfilled his payment obligations.
  4. If the client fails to do so, the service provider will proceed to collect. The costs with regard to that collection will be borne by the client. If the client is in default, he will owe the service provider legal and commercial interest, extrajudicial collection costs and other damages in addition to the principal sum. The collection costs are calculated on the basis of the Reimbursement for Extrajudicial Collection Costs Decree.
  5. In the event of liquidation, bankruptcy, seizure or suspension of payment of the client, the claims of the service provider on the client are immediately claimable.
  6. If the client refuses to cooperate with the execution of the assignment by the service provider, he is still obliged to pay the agreed price to the service provider.

Article 4 Offers and Quotes

  1. The offers of the service provider are valid for a maximum of 12 months unless a different period of acceptance is stated in the offer. If the offer is not accepted within that stated period, the offer will expire.
  2. Delivery times in quotations are indicative and do not give the client the right to dissolution or compensation if they are exceeded unless the parties have expressly agreed otherwise in writing.
  3. Offers and quotations do not automatically apply to repeat orders. Parties must agree explicitly and in writing.

Article 5 Prices

  1. The prices stated on offers, quotations, and invoices from the service provider are exclusive of VAT. and any other government levies, unless explicitly stated otherwise.
  2. The prices of goods are based on the known cost prices at that time. Increases in this, which could not have been foreseen by the service provider at the time of making the offer or the conclusion of the agreement, may give rise to price increases.
  3. With regard to the service provision, parties can agree on a fixed price when concluding the agreement.
  4. If no fixed price has been agreed, the rate with regard to the services can be determined on the basis of the hours actually spent. The rate is calculated according to the service provider’s usual hourly rates, valid for the period in which he performs the work unless a different hourly rate has been agreed upon.
  5. If no rate has been agreed based on the hours actually spent, a target price will be agreed for the service, whereby the service provider is entitled to deviate up to 10% from this. If the target price is going to be more than 10% higher, the service provider must know in good time why a higher price is justified. In that case, the client has the right to cancel part of the assignment that exceeds the target price plus 10%.

Article 6 Price indexing

  1. The prices and hourly rates agreed upon entering into the agreement are based on the price level applied at that time. The service provider has the right to adjust the fees to be charged to the client annually from 1 January.
  2. Adjusted prices, rates, and hourly wages are communicated to the client as soon as possible.

Article 7 Provision of information by the client

  1. The client makes all information that is relevant for the execution of the assignment available to the service provider.
  2. An obligation on the part of the client is to make all data and documents that the service provider believes necessary for the correct execution of the assignment available on time and in the desired form and in the desired manner.
  3. The client is responsible for the accuracy, completeness, and reliability of the data and documents made available to the service provider, even if they originate from third parties unless the nature of the assignment dictates otherwise.
  4. The client indemnifies the service provider against any damage in any form whatsoever arising from failure to comply with the provisions of the first paragraph of this article.
  5. If and insofar as the client requests this, the service provider returns the relevant documents.
  6. If the client does not make the data and documents required by the service provider available, or not in time or properly, and the execution of the order is delayed as a result, the resulting additional costs and additional fees will be borne by the client.

Article 8 Revocation order

  1. The client is free to terminate the assignment to the service provider at any time unless specified otherwise in the agreement.
  2. When the client withdraws the assignment, the client is obliged to pay the wage due and the expenses incurred by the service provider.

Article 9 Implementation of the agreement

  1. The service provider implements the agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship.
  2. The service provider has the right to have work performed by third parties.
  3. The implementation takes place in mutual consultation and after written agreement and payment of any agreed advance.
  4. It is the responsibility of the client that the service provider can start the assignment on time.

Article 10 Contract duration assignment

  1. The agreement between the client and the service provider is entered into for an indefinite period of time unless the nature of the agreement dictates otherwise or the parties have explicitly agreed otherwise in writing.
  2. If a period for the completion of certain activities has been agreed by the parties within the duration of the agreement, this is never a strict deadline. If this period is exceeded, the client must give the service provider written a notice of default.

Article 11 Amendment of the agreement

  1. If during the execution of the agreement it appears that for proper execution of the assignment it is necessary to change or supplement the work to be performed, parties will adjust the agreement accordingly in a timely manner and in mutual consultation.
  2. If the parties agree that the agreement will be amended or supplemented, the time of completion of the implementation may be affected. The service provider will inform the client of this as soon as possible.
  3. If the amendment or supplement to the agreement has financial and/or qualitative consequences, the service provider will inform the client about this in writing as soon as possible.
  4. If the parties have agreed on a fixed fee, the service provider will indicate to what extent the change or supplement to the agreement will result in this fee being exceeded.

Article 12 Force majeure

  1. In addition to the provisions of Article 6:75 of the Dutch Civil Code, a failure on the part of the service provider to fulfill any obligation towards the client cannot be attributed to the service provider in the event of a circumstance independent of the will of the service provider, as a result of which the fulfillment of its obligations towards the client is prevented in whole or in part or as a result of which the fulfillment of his obligations cannot reasonably be expected from the service provider. These circumstances include non-performance of suppliers or other third parties, power failures, computer viruses, strikes, bad weather conditions, and work interruptions.
  2. If a situation as referred to above occurs as a result of which the service provider cannot meet his obligations towards the client, those obligations will be suspended as long as the service provider cannot meet his obligations. If the situation referred to in the previous sentence has lasted 30 calendar days, the parties have the right to dissolve the agreement in whole or in part in writing.
  3. In the case, as referred to in the second paragraph of this article, the service provider is not obliged to pay compensation for any damage, even if the service provider enjoys any advantage as a result of the force majeure situation.

Article 13 Settlement

  1. Client waives its right to set off a debt to service provider against a claim on service provider.

Article 14 Suspension

  1. Client waives the right to suspend the fulfillment of any obligation arising from this agreement.

Article 15 Transfer of rights

  1. Rights of one party to this agreement cannot be transferred without the prior written consent of the other party. This provision applies as a clause with property law effect as referred to in Section 3:83 (2) of the Dutch Civil Code.

Article 16 Expiration of the claim

  1. Any right to compensation from the service provider expires in any case 12 months after the event from which the liability arises directly or indirectly. This does not exclude the provisions of Article 6:89 of the Dutch Civil Code.

Article 17 Insurance

  1. The client undertakes to adequately insure the delivered goods that are necessary for the implementation of the underlying agreement, as well as the services of the service provider that are present at the client and the goods delivered under retention of title, and to keep them insured against fire, explosion, and water damage, among other things. as well as theft.
  2. Client provides the policy of these insurance policies for inspection on the request.

Article 8 Liability damage

  1. The service provider is not liable for damage resulting from this agreement unless the service provider caused the damage intentionally or with gross negligence.
  2. In the event that the service provider owes compensation to the client, the damage is no more than the fee.
  3. Any liability for damage arising from or related to the implementation of an agreement is always limited to the amount that is paid out in the relevant case by the (professional) liability insurance policy/policies concluded. This amount is increased by the amount of deductible according to the relevant policy.
  4. The liability limitation also applies if the service provider is held liable for damage that results directly or indirectly from the malfunctioning of the equipment, software, data files, registers or other items used by the service provider in the performance of the assignment.
  5. The service provider’s liability for damage resulting from intent or willful recklessness on the part of the service provider or its managerial employees is not excluded.

Article 18 Client liability

  1. In the event that an order is issued by more than one person, each of them is jointly and severally liable for the amounts due to the service provider under that order.
  2. If an assignment is given directly or indirectly by a natural person on behalf of a legal person, this natural person can also be a private client. For this it is required that this natural person can be regarded as the (co-) policymaker of the legal person. In the event of non-payment by the legal person, the natural person is therefore personally liable for payment of the invoice, irrespective of whether or not at the request of the client, in the name of a legal person or in the name of the client as a natural person or both of them .

Article 20 Indemnification

  1. The client indemnifies the service provider against all claims from third parties that are related to the goods and/or services supplied by the service provider.

Article 21 Complaint obligation

  1. The client is obliged to immediately report complaints about the work performed to the service provider in writing. The complaint contains a description of the shortcoming that is as detailed as possible so that the service provider is able to respond adequately.
  2. A complaint cannot, in any case, result in the service provider being obliged to perform other work than agreed.

Article 22 Retention of title, suspension right and right of retention

  1. The goods present at the client and the goods and parts delivered remain the property of the service provider until the client has paid the entire agreed price. Until that time, the service provider can invoke his retention of title and take back the goods.
  2. If the agreed amounts to be paid in advance are not or not paid on time, the service provider has the right to suspend the work until the agreed part is still paid. There is then a default of creditors. Late delivery cannot, in that case, be invoked against the service provider.
  3. The service provider is not authorized to pledge or encumber the goods that fall under its retention of title in any other way.
  4. If goods have not yet been delivered, but the agreed advance payment or price has not been paid in accordance with the agreement, the service provider has the right of retention. The item will not be delivered until the client has paid in full and in accordance with the agreement.
  5. In the event of liquidation, insolvency or suspension of payment of the client, the obligations of the client are immediately claimable.

Article 23 Intellectual property

  1. Unless the parties have agreed otherwise in writing, the service provider retains all intellectual absolute rights (including copyright, patent law, trademark law, drawing and design rights, etc.) on all designs, drawings, writings, media with data or other information, quotations, images, sketches, models, models, etc.
  2. The aforementioned intellectual absolute rights may not be copied, shown to third parties and/or made available or used in any other way without written permission from the service provider.
  3. The client undertakes to maintain the confidentiality of the confidential information made available to him by the service provider. Confidential information means, in any case, that to which this article relates, as well as the company data. The Client undertakes to impose on its staff and/or third parties involved in the implementation of this agreement a written obligation of confidentiality regarding the scope of this provision.

Artikel 24 Secrecy

  1. Each of the parties keeps the information that it receives (in whatever form) from the other party and all other information concerning the other party that it knows or can reasonably suspect is secret or confidential, or information that it can expect that the dissemination thereof may cause harm to the other party, and shall take all necessary measures to ensure that its personnel also keep the said information secret.
  2. The confidentiality obligation mentioned in the first paragraph of this article does not apply to information:
  3. Who at the time the recipient received this information was already public or subsequently became public without a breach by the receiving party of a duty of confidentiality imposed on him;
  4. Of which the receiving party can prove that this information was already in his possession at the time it was provided by the other party;
  5. Who has received the receiving party from a third party whereby this third party was entitled to provide this information to the receiving party
  6. That is made public by the receiving party on the basis of a legal obligation.
  7. The obligation of confidentiality described in this article applies for the duration of this agreement and for a period of three years after the termination thereof.

Article 25 Fine for breach of confidentiality obligation

  1. If the client violates the article of these general terms and conditions regarding confidentiality, the client forfeits an immediately due and payable penalty of € 5,000 for each violation and an amount of € 500 for each day that the violation continues. This is regardless of whether the violation can be attributed to the client. Moreover, no prior notice of default or legal proceedings is required for the forfeiture of this fine. There is also no need for any form of damage.
  2. Forfeiting the fine referred to in the first paragraph of this article does not affect the other rights of the service provider, including its right to claim damages in addition to the fine.

Article 26 Non-takeover employees

  1. The client does not employ employees of service provider – or of companies that service provider has called upon to implement this agreement and who have been or have been involved in the implementation of the agreement. Nor does he otherwise let them work directly or indirectly for themselves. This prohibition applies for the duration of the agreement up to one year after its termination. One exception applies to this prohibition: parties can make different agreements with each other in good business consultation. These agreements apply insofar as they are recorded in writing.

Article 27 Dispute settlement

  1. Dutch law applies to these terms and conditions.
  2. All disputes arising from these general terms and conditions will be submitted exclusively to the competent court of the Amsterdam District Court.

VERSION 22-10-2018