General terms and conditions

September 2024 version

ReMarkAble Communicatie BV, referred to below as “Supplier” is registered with the Chamber of Commerce under number 52792358. Visiting and trading address Groningerstraat 21 at 7418 BX Deventer. You can visit us online via our website REMARKABLE.NL

These General Terms and Conditions of September 2024 replace all previously agreed terms of delivery for the provision of services. This also applies to already ongoing agreements.

These General Terms and Conditions apply to any agreement for the provision of services concluded between “Supplier”, also called contractor and the natural or legal persons who purchase them. Hereafter referred to as “Customer”.

Collectively, Supplier and Customer are referred to as ‘Parties’ or individually as ‘Party’.

For the execution of ReMarkAble’s services/orders, personal data may be processed. How this data is handled and processed is laid down in ReMarkAble’s Privacy Policy and, where applicable, in a processing agreement. These form an integral part of underlying General Terms of Delivery, hereinafter referred to as “General Conditions”.

Article 1. Definitions

1.1. Conditions: the provisions as described in the underlying document

1.2. Services: the products and/or services to be provided by Supplier to Customer pursuant to agreement.

1.3. Agreement: as agreed between Customer and Supplier and from which delivery of products and/or services follows and of which these General Terms and Conditions and appendices form a part. An Agreement may be preceded by an offer or a quotation. These also fall within the scope of the underlying General Terms and Conditions.

1.4. Data: all data and information stored for the purpose of executing the Agreement via or using the Services, which are made available to Supplier by Customer.

1.5 Materials: all components used to manufacture a product.

1.6. Work: all works, such as websites and (web) applications, software, house styles, logos, folders, brochures, leaflets, lettering, advertisements, marketing and/or communication plans, concepts, designs, design sketches, budgets, specifications, working drawings, illustrations, photographs, films, presentations, prototypes, scale models, images, texts, sketches, documentation, advice, reports and other products of the mind, as well as preparatory material thereof and (whether or not encoded) files or data carriers on which work-related material is located.

1.7. Intellectual Property: all rights of intellectual property and appurtenant rights, including but not limited to copyrights, database rights, rights to domain names, trade name rights, trademark rights, design rights, related rights, patent rights, as well as rights to professional knowledge.

1.8. SLA: with a Service Level Agreement a further agreement can be made between Parties in which agreements on the quality and performance of the Services provided are laid down.

1.9. Processing Agreement: a processing agreement regulates, to the extent not included in the AVG Annex, the handling and security of personal data.

Article 2. Applicability

2.1. These General Terms and Conditions apply to any offer or quotation by Supplier in respect of services and form an integral part of any agreement for their provision. This also applies to possible future quotations, offers or agreements where these Terms and Conditions have not again been made available to Customer.

2.2. Provisions or conditions set by Customer or other further agreements between Supplier and Customer that deviate from or do not appear in these General Terms and Conditions are only binding for Supplier if and insofar as they have been expressly accepted by Supplier in writing.

2.3. Any General (purchase) Conditions of Customer are explicitly not applicable.

2.4. Provisions pertaining to specific Services, if applicable, take precedence over general provisions pertaining to all Services in the event of contradictions.

2.5. To the extent not supplementary, in the event of contradictions between the applicable documents, the following order of precedence shall apply: 1. Agreement; 2. Service Level Agreement (when applicable); 3. supplementary terms and conditions (when applicable); 4. General Terms and Conditions; 5. Processing Agreement (when additionally applicable).

2.6. Products and/or services of third parties may be part of the Services. In those cases, (the use of) those products and/or services are additionally subject to the (General) Terms and Conditions of the third party in question, setting aside any deviating terms and conditions in these General Terms and Conditions.

Article 3. Conclusion of the Agreement

3.1. Unless otherwise agreed in writing, an offer signed (digitally) by Customer and Supplier shall be deemed to be the formation of an agreement. An agreement also comes into being at the moment of sending an e-mail from Supplier confirming acceptance of the request or confirmation of order when no offer was made or when a service concerns a (previously described) follow-up order. When, when a quotation is issued, no starting date of the services is included, the moment of (digital) drawing or sending of the aforementioned confirmation is considered the moment of starting the services.

3.2. In contrast to the provisions of Article 6:225 paragraph 2 of the Dutch Civil Code, Supplier shall not be bound by a deviating acceptance of an offer of Supplier made by a potential Customer.

3.3. Supplier is not obliged to accept a request or acceptance. Grounds for refusal include, for example: the absence of required information or documents necessary for the conclusion of the Agreement, errors in the quotation issued or legal incapacity of Customer.

3.4. In the event of a rejection of an acceptance or application by Supplier, Customer shall be notified in writing or electronically within fourteen days. Refusal or no response by Supplier shall never lead to liability for damage, directly or indirectly resulting therefrom.

3.5. If Customer is a Consumer, Customer has the possibility to dissolve the agreement in writing and free of charge during a period of fourteen days from the moment the agreement was concluded. Customer can exercise his right of withdrawal by sending an unambiguous statement to Supplier within the cooling-off period that shows this.

3.6. The right of withdrawal does not apply to Agreements to provide Services, after performance of the Agreement, if: a. the performance has started with the express prior consent of Customer and b. Customer has declared to waive his right of dissolution as soon as Supplier has fulfilled the Agreement.

3.7 In the case of tailor-made services where a Consumer, on the basis of information and instructions from the Consumer, passes them on to the supplier himself (either via the website or via telephone or personal conversation), the exceptions to the statutory right of withdrawal apply.

Article 4. Execution of the Agreement and additional work

4.1. Once the Agreement has been concluded, the Supplier shall make every effort to fulfill it to the best of its ability and with due care and skill. Delivery periods stated by the Supplier are always indicative in nature, except where and insofar as explicitly provided otherwise in writing.

4.2. Customer shall provide Supplier with all cooperation and support necessary and desirable to enable correct and timely delivery of the Services. In any case, Customer shall provide Supplier with all data and other information which Supplier indicates to be necessary, or which Customer should reasonably understand to be necessary for the performance of the Agreement. The period within which Supplier shall perform the Agreement shall not commence until all requested and required data have been received by Supplier.

4.5. If Customer knows or can suspect that Supplier will have to take certain (additional) measures to be able to comply with its obligations, Customer shall inform Supplier without delay. Unless expressly agreed otherwise in writing, all reasonable additional costs incurred in doing so may be charged to Customer.

4.6. If and to the extent required for the proper performance of the Agreement, Supplier shall be entitled to have certain activities performed by third parties. Any related unexpected additional costs shall only be for Customer’s account if agreed in writing in advance.

4.7. All amendments to the Agreement and all additional non-agreed work, whether at the request of Customer or as a result of any circumstances necessitating a different performance, when associated with additional costs, shall be considered additional work.

4.8. Customer may at any time request Supplier to perform work outside the Agreement. However, Supplier is not obliged to comply with such requests for additional work. Supplier may require a supplementary agreement for the performance of the additional work based on agreed, usual rates for performance.

4.9. Supplier shall inform Customer in advance about the related (estimated) costs in the event of additional work occurring. Additional work shall be performed after approval by Customer. However, the above does not apply to additional work that is necessary within the framework of the already agreed Services. In those cases, additional work will be carried out on the basis of subsequent calculation without the consent of Customer.

Article 5. Confidentiality

5.1. The information provided back and forth before, during or after the execution of the agreement shall be treated confidentially by the Parties and involved employees and hired third parties. Confidential information is designated as such or when the receiving Party knows or can reasonably suspect that the information was intended to be confidential.

5.2. The receiving Party shall ensure that Confidential Information receives the same level of protection against unauthorised access, dissemination or use as its own Confidential Information.

5.3. There is no duty of confidentiality in respect of confidential information if the receiving party: a. was already in possession of relevant information prior to its provision, b. information is available through public sources or from third parties without breaching the duty of confidentiality to the providing party and c. the receiving party has developed it without using the providing party’s information.

5.4. After termination of the agreement, the obligation of confidentiality shall remain for as long as the providing Party can reasonably claim the confidentiality of the information.

5.5. If a Party receives an order to surrender Confidential Information from a competent authority, it shall, unless not permitted, have the right to do so.

Article 6. Intellectual ownership

6.1. Customer only acquires the rights of use and powers explicitly granted in these General Terms and Conditions, the Agreement or otherwise in writing. Assignment and transfer of rights of intellectual property or parts of intellectual property will be laid down in the Agreement.

6.2. Intellectual Property Rights to all material developed or made available by the Supplier under the Agreement shall be vested exclusively in the Supplier or its licensors.

6.3. All intellectual property rights arising from the work, including patent rights, trademark rights, drawing or model rights and copyright on the results of the order shall belong to the Supplier. To the extent that such a right can only be obtained by filing or registration, only the Supplier is authorised to do so, unless otherwise agreed.

The parties may agree to transfer all or part of the rights referred to in the first paragraph to the Customer. This assignment and any conditions under which the assignment takes place shall be laid down in writing. Until transfer, a right of use is deemed to have been granted by the Supplier.

The Supplier has the right at all times to mention or remove his/her name on, near or in publicity surrounding the result of the assignment in the manner customary for that result. The Customer is not allowed to publish or duplicate the result without the prior consent of the Supplier.

6.4. Unless and to the extent agreed otherwise in writing, the (originals of the) results (such as designs, design sketches, websites, logos, house styles, concepts, advice, reports, budgets, estimates, specifications, working drawings, illustrations, photographs, prototypes, models, moulds, sub-products, films, presentations, source codes and other materials or electronic files) created by the Supplier within the scope of the order shall remain the property of the Supplier, irrespective of whether they have been made available to the Customer or to third parties.

6.5. Unless and insofar as agreed otherwise in writing, Customer is not allowed to remove or change any indication concerning Intellectual Property Rights from material of Supplier or its licensors, including indications concerning the confidential nature and secrecy of the material of Supplier or its licensors.

After completion of the work, neither the Customer nor the Supplier shall have any retention obligation towards each other with regard to the materials and data used, unless otherwise agreed.

Article 7. Use of the result of the assignment

7.1. When the Customer fully complies with the obligations pursuant to the agreement with the Supplier, he acquires the right to use the result of the order in accordance with the agreed destination. If no agreements have been made about the destination, the right of use shall be limited to that use for which the order was given. The right of use is exclusive, unless the nature of the agreement dictates otherwise or if otherwise agreed.

If the works are subject to third-party rights, the parties will agree on how their use will be regulated.

7.2. Any right of use granted to the Customer within the framework of the order shall lapse from the moment that the Customer fails to fulfill its payment obligations under the agreement or fails to do so in full or is otherwise in default or in the event of the Customer’s bankruptcy.

7.3. With consideration of the interests of the Customer, the Supplier is free to use the results for its own publicity and promotional matters.

7.4. Customer is obliged to carefully examine the printing and typesetting proofs received from Supplier, whether or not at its request, for defects and errors and to return these to Supplier corrected or approved without delay. Approval of the proofs by Customer shall be regarded as acknowledgement that Supplier has carried them out correctly. Supplier shall not be liable for deviations, errors and defects that went unnoticed in (proofs) approved or corrected by Customer.

Article 7. Customer data / customer details

7.1. All rights to Customer data or data, including any Intellectual Property Rights vested therein, are vested in Customer. Supplier shall make no ownership claims on them.

7.2 Customer grants a limited right of use to Supplier to use data provided by it during the term of the Agreement to the extent necessary for the purpose of providing the Services.

7.3. If and to the extent the Customer Data consists of personal data, it shall be subject to the arrangements as agreed in a processing agreement concluded between the Parties.

7.4. If the Agreement ends, regardless of the reason for termination, the Supplier shall destroy or delete the Customer’s data as soon as possible.

Article 8. Rates and prices

8.1. Unless an amount is explicitly stated otherwise, all rates and prices quoted by Supplier are exclusive of turnover tax and other government levies.

8.2. If a price is based on data provided by Customer and these data prove to be incorrect, Supplier shall be entitled to adjust the rates and prices accordingly, even after the Agreement has already been concluded.

8.3. In the case of multi-year Agreements, the Supplier is entitled to increase the prices used in this Agreement annually, using the relevant CBS price index, without this resulting in an option for Customer to terminate the Agreement.

8.4. In contrary to the preceding paragraph, Customer, if he is a Consumer, has the right to dissolve the Agreement if prices are increased within three months after the conclusion of the Agreement.

8.5. If Supplier wishes to reduce the applicable prices, Supplier is entitled to implement this reduction immediately, without the possibility of cancellation by Customer.

Article 9. Invoicing and payment

9.1. Supplier shall invoice Customer for the amounts owed by Customer. In doing so Supplier may issue electronic invoices. Supplier is entitled to charge periodically due amounts prior to the delivery of the Services.

9.2. The payment term of an invoice is fourteen days from the invoice date, unless otherwise agreed in writing.

9.3. If a Customer has not (yet) paid in full after the payment deadline, he is automatically in default without notice of default being required.

9.4. Without prejudice to the above, all costs related to the collection of outstanding debts, both judicial and extrajudicial (including the costs for lawyers, bailiffs and collection agencies), shall be for the Customer’s account without notice of default being required.

9.5. Recourse by Customer to suspension or set-off is not permitted.

9.7. If Customer is in default, statutory interest is due on the outstanding amount.

9.8. All claims of Supplier shall be immediately due and payable if Customer is declared bankrupt, Customer applies for or is granted suspension of payments, Customer’s operations are terminated or its business is wound up.

Article 10. Liability

10.1. The Supplier shall not be liable within the framework of the formation or performance of the Agreement except in the cases mentioned below, and at most up to the limits specified therein.

10.2. The total liability of Supplier for direct damage suffered by Customer as a result of an attributable shortcoming in the performance by Supplier of its obligations under the Agreement, explicitly also including any shortcoming in the performance of a guarantee obligation agreed on with Customer, or due to an unlawful act by Supplier, its employees or third parties engaged by it, shall be limited per event or a series of related events to an amount equal to the total of the fees (exclusive of VAT) paid by Customer under the Agreement in the last six (6) months. However, in no case shall the total compensation for direct damage exceed ten thousand (10,000) euros (excluding VAT).

10.3. Supplier’s liability for attributable failure in the performance of the Agreement shall only arise if Customer gives Supplier immediate notice of default in writing, setting a reasonable term for remedy of the failure, and Supplier continues to fail imputably in the performance of its obligations even after such term. The notice of default must contain as detailed a description of the failure as possible, so that Supplier is able to respond adequately. The notice of default must be received by Supplier within 30 days after the discovery of the damage.

10.4. The Supplier is explicitly not liable for indirect damages, including but not limited to consequential damages, lost profits, image damage, missed savings and damages due to business interruption.

10.5. The exclusions and limitations referred to in Article 11 shall lapse if and insofar as the damage is the result of intent or conscious recklessness of the Supplier’s management.

10.6. Any limitation of liability contained in these General Terms and Conditions does not apply towards Consumers. The statutory provisions on liability apply to Consumers.

10.7. Customer is liable to Supplier for damage caused by a fault or shortcoming attributable to him. Customer shall indemnify Supplier against claims regarding non-compliance with the Agreement when using the Services by or with the consent of Customer. This indemnification also applies with respect to persons who, although not employees of Customer, nevertheless used the Services under the responsibility or with the consent of Customer.

Article 11. Force majeure

11.1. Supplier is not obliged to fulfill the Agreement if fulfillment is prevented due to force majeure. Any liquidity problems on the part of Customer explicitly do not qualify as force majeure.

11.2. Force majeure of Supplier shall mean any circumstance independent of the will of Supplier as a result of which the fulfilment of its obligations vis-à-vis Customer is prevented in full or in part or as a result of which the fulfilment of such obligations cannot reasonably be required from Supplier, regardless of whether such circumstance could be foreseen at the time of entering into the Agreement. Such circumstances shall in any case include: a. emergencies (such as extreme weather conditions, fire and lightning strikes); b. faults in telecommunication infrastructure and the Internet which are beyond the Supplier’s control; c. shortcomings of suppliers of the Supplier which the Supplier could not foresee and for which the Supplier cannot hold its supplier liable, for example due to force majeure (also) on the part of the supplier concerned; d. defectiveness of items, equipment, software or Materials which Customer has prescribed Supplier to use; e. government measures; f. unavailability of staff members (due to illness or otherwise); g. general transport problems; h. natural disasters; and i. strikes, wars, terrorist attacks and civil commotion.

11.3. In case of force majeure, Customer is not entitled to any (damage) compensation.

11.4. If a force majeure situation lasts longer than three months, either Party has the right to terminate the agreement in writing, without any obligation to pay damages to the other Party.

Article 12. Duration and termination

12.1. Unless otherwise agreed in writing, the duration of the Agreement shall be as jointly agreed between Supplier and Customer. The Parties are not allowed to terminate the Agreement prematurely, except for the cases for which an exception is made in these General Terms and Conditions or in other parts of the Agreement.

12.2. Supplier has the right to suspend the Agreement with immediate effect (in full or in part) or to terminate or dissolve the Agreement (in full or in part) if: a. Customer does not fulfil the obligations under the Agreement or does not do so in time and does not remedy the shortcomings within a reasonable period after notice of default. However, a prior notice of default is not necessary in cases where the default commences by operation of law; b. Customer files for bankruptcy or is declared bankrupt, applies for a moratorium or is granted a moratorium, Customer’s company is liquidated or its business activities are discontinued; c. due to a delay on the part of Customer, Supplier can no longer be required to fulfil the Agreement under the originally agreed conditions; or d. circumstances occur as a result of which fulfilment of the Agreement becomes impossible, or as a result of which unaltered maintenance of the Agreement can no longer reasonably be required from Supplier.

12.3. The right of suspension in the above cases applies to all Agreements concluded with Customer simultaneously, even if Customer is only in default with regard to a single Agreement, and without prejudice to Supplier’s right to compensation for damage, lost profit and interest.

12.4. In the event of dissolution of the Agreement, amounts already invoiced for performances performed shall remain due, without any obligation to undo. In the event of dissolution by Customer, Customer may only dissolve that part of the Agreement which has not yet been performed by Supplier.

12.5. If Supplier suspends performance of its obligations, it retains its claims under the law and the Agreement, including the claim to payment for the Services that have been suspended. This does not apply if Customer is a Consumer. In that case, the statutory rights of suspension apply.

12.6. If a dissolution is imputable to Customer, Supplier shall be entitled to compensation for the damage caused directly and indirectly as a result.

12.7. If the Agreement is terminated or dissolved, Supplier’s claims against Customer shall be immediately due and payable.

12.8. If Customer can deactivate, disable or remove certain (parts of) Services himself, Customer is responsible for carrying this out before the date on which the Agreement ends. If Customer fails to do so, Supplier may charge for keeping the Services available and the Agreement shall be deemed to have been extended for the period that the Services are in use. Only at the express request of Customer will Supplier deactivate, disable or remove the relevant Services.

12.9. If Customer cancels all or part of the agreed order, Customer shall be obliged to reimburse Supplier for all costs incurred with a view to executing the order.

12.10. The order shall be deemed terminated at the time the final invoice is approved by Customer. The final invoice shall be deemed approved by Customer if within a period of seven days from the date of this invoice no notice has been received by the Supplier.

Article 13. Amendment

13.1. The Supplier reserves the right to amend or supplement the Services and these General Terms and Conditions. Amendments shall also apply with regard to Agreements already concluded subject to a period of one month after notification of the amendment. Amendments shall be announced in writing.

13.2. If Customer does not wish to accept a modification, Customer may object in writing within fourteen days of the announcement. If Supplier decides to implement the amendment despite Customer’s objection, Customer may terminate the Agreement in writing by and at the latest until the date on which the amendment takes effect.

13.3. The procedure described above does not apply to changes of minor importance, changes based on the law and changes for the benefit of Customer. Such changes may be made unilaterally and with immediate effect by Supplier.

Article 14. Choice of law and forum

14.1. Dutch law shall apply to the Agreement. If Customer is a Consumer he shall also enjoy the protection of the mandatory provisions of the law applicable where the Consumer is domiciled.

14.2. Unless otherwise prescribed by the rules of mandatory law, all disputes that may arise as a result of the Agreement shall be submitted to the competent Dutch court for the district in which the Supplier is established.

Article 15. Construction of website and domain registration

15.1. If and to the extent that the Supplier’s Services relate to the construction of a website for the Customer, this shall, unless otherwise agreed in writing, be deemed to be under the responsibility and risk of the Customer.

15.2. When providing or managing domain names, Supplier acts as an intermediary between Customer and the supplier of the domain name registration and domain name management services. Customer authorises Supplier to do so by entering into the agreement or accepting the offer made for that purpose.

15.3 The Supplier has no obligation to guarantee the continuity or existence of a registered domain.

15.4. Any action that takes place through the Customer’s Account or an Account created by the Customer is deemed to have taken place under the responsibility and at the risk of the Customer.

15.5. If Customer wishes to implement a modification to the software independently, this shall take place entirely at Customer’s own risk and responsibility, unless Customer has reported the desired modification to Supplier in advance and Supplier has approved it in writing. Supplier may attach conditions to this approval.

15.6. Supplier shall endeavour to keep the software used in the work up to date. However, in this respect the Supplier is in turn dependent on its supplier(s). Supplier is entitled not to install certain updates or plug-ins if, in its opinion, this will not benefit proper service provision.

15.7. Supplier shall make every effort to adjust used software where necessary to improve functionality and to rectify errors. In the event of new functionality or changes that may substantially change the functioning of the software, Supplier shall make every effort to inform Customer in advance.

15.8. Supplier shall endeavour to add changes and new functionalities requested by Customer to the software. However, Supplier is always entitled to refuse such a request if, in its opinion, it is not feasible or may impede proper operation, manageability or availability of the software.

15.9. When migrating the website and domain name to a subsequent hosting provider, Supplier shall make every effort to take care of this on behalf of the Customer. Supplier may charge Customer for this support.

15.10. The provision of updates for the benefit of “plug-ins” shall expire at the time when the subscription thereto is terminated or discontinued by operation of law or contract by Customer, by Supplier or by Licensee.

16.1. If any provision of the Agreement is found to be void or unenforceable, this shall not affect the validity of the Agreement as a whole. In such a case, the Parties shall agree on one or more new provisions to replace the invalid ones, reflecting the intent of the original Agreement and General Terms and Conditions as closely as legally possible.

16.2. In the event of any inconsistency between the content on the Supplier’s Website and the terms of the Agreement, the Agreement shall prevail.

16.3. The Parties shall promptly notify each other in writing of any changes to their name, postal address, email address, telephone number and, if requested, IBAN number.

16.4. Where the Agreement refers to ‘in writing’, this shall also include communication by email.

16.5. All legal claims by the Customer arising from the Agreement shall – unless otherwise provided by mandatory law – expire after one year, starting from the date on which the obligations under the Agreement between the Parties became enforceable. This provision does not affect the statutory limitation period for claims by the Supplier.

16.6. Each Party may only transfer its rights and obligations under the Agreement to a third party with the prior written consent of the other Party. However, such consent shall not be required in the event of a business acquisition or a takeover of the majority of shares of the relevant Party.

16.7. Any complaint regarding the execution or failure to execute any assignment must be submitted by the Customer to the Supplier in writing within fourteen days of publication and/or disclosure, failing which all claims shall lapse. The Supplier shall not invoke this deadline if the objections could not reasonably have been known within that period. Complaints will be handled as promptly as possible.