Here are the general terms and conditions of Fozzels.com B.V., Chamber of Commerce number 89124898.
Table of Contents
Applicability and general terms and conditions
- These general terms and conditions apply to all offers and agreements whereby Fozzels.com BV (hereinafter: “Fozzels”) performs services and/or other work for a client, of whatever nature and under whatever name. If and insofar as Fozzels makes products or services of third parties available to the client or grants access to them, the (license or sales) conditions of the relevant third parties apply to those products or services in the relationship between Fozzels and the client, with the exception of the deviating provisions in these general terms and conditions, provided that the applicability of the (license or sales) conditions of those third parties has been communicated to the client by Fozzels.
Offers and agreements
- All offers and other expressions from Fozzels are without obligation, unless Fozzels indicates otherwise in writing.
- The Client guarantees the accuracy and completeness of the information provided by or on behalf of him to Fozzels on which Fozzels has based its offer from 2.1, with the exception of obvious typographical errors.
- An agreement is concluded by (digital) signing of a document intended for this purpose by both parties
Duty of care Fozzels
- When carrying out the work, Fozzels will exercise the care that can be expected of a professional IT service provider, and will make every effort to carry out the services to the best of its ability. All services are provided on the basis of a best efforts obligation.
- Fozzels makes reasonable efforts to achieve agreed (delivery) times. However, deadlines are always target deadlines. If Fozzels does not meet a deadline, the client can give Fozzels notice of default, setting a reasonable period within which to comply. Only Fozzels is still in default after the expiry of that period, it will be in default.
- If Fozzels’ compliance is hindered because the client provides insufficient cooperation, Fozzels will inform the client and attempt to comply as much as possible. Fozzels is not responsible for delays and damage resulting from a lack of cooperation from the client.
Responsibilities and obligations of the client
- The Client will always provide all reasonable cooperation and information in a timely manner.
- Unless explicitly agreed otherwise, the client will provide the necessary equipment, hosting, infrastructure and supporting software and install, set up, parameterize, tune the (auxiliary) software required on its own equipment and, if necessary, the equipment used, other (assistance) adapt the software and user environment and keep it up to date and achieve the interoperability desired by the client in order to use the services provided by Fozzels. The accounts, access or identification codes, certificates or other security resources provided to the client by or on behalf of Fozzels are confidential and will be treated as such by the client and will only be granted access and/or made known to authorized staff members from the client’s own organization. Fozzels is entitled to change assigned accounts, access or identification codes and certificates. The Client is responsible for managing authorizations and issuing and withdrawing access and identification codes in a timely manner. Fozzels is not liable for damage or costs resulting from use or misuse of the aforementioned accounts, access or identification codes, certificates or other security resources, unless the misuse is the direct result of intent or deliberate recklessness on the part of Fozzels management.
Third Party Services
- To the extent that Fozzels’ services consist of making a connection with third-party services, such as in the case where it has been agreed that a connection must be made with ChatGPT, the client must arrange for a subscription with that third party and payment of the costs. any subscription fees due. The Client understands that this may require the Client to accept the contractual conditions of those third parties, which may include provisions relating to, for example, rights of use, personal data, intellectual property, liability and/or applicable law that deviate from the conditions of these general terms and conditions.
- Fozzels cannot accept any responsibility or liability towards the client for the services of third parties, such as with regard to availability, speed, substantive quality, functionality or usability.
Fees and Payment
- Unless otherwise agreed, Fozzels’ work is carried out on the basis of subsequent calculation at Fozzels’ standard rates.
- Fozzels can index its rates annually in accordance with the CBS Consumer Price Index (CPI). In addition, Fozzels can adjust Reimbursements in the meantime in case subcontractors or suppliers increase their prices. The Client will be informed in advance of such changes. In the event of interim price changes of more than 5%, the client is entitled to terminate the agreement in question subject to a notice period of 30 days, which right of termination must be exercised no later than 30 days after the price change becomes effective.
- Unless otherwise agreed, fees are invoiced monthly in arrears. Invoices must be paid within 30 days of the invoice date. In the event of a dispute about an invoice, which dispute must be stated in writing before the end of the payment term, the client must pay the undisputed part and the client may suspend payment of the disputed part for 30 days, during which period the parties will attempt to settle the invoicing dispute. unload.
- The Client is not entitled to suspend any payment (except as provided above with regard to a disputed part of an invoice) nor to settle any amounts due.
- If the client does not fulfill its payment obligations, even after a written reminder in which it is given 10 days to comply, Fozzels is entitled to suspend its services, without prejudice to its other rights.
Intellectual property rights and ownership data
- The data that the client processes with an online store developed and/or hosted by Fozzels are the property of the client.
- All intellectual property rights to the software, web shops, websites, data files, databases, equipment, training, test and examination materials or other materials such as analyses, designs, documentation, reports, developed or made available to the client under the agreement quotations, as well as preparatory material thereof, rest exclusively with Fozzels, its licensors or its suppliers. The Client only obtains the rights of use that are expressly granted by these general terms and conditions, the written agreement concluded between the parties and by mandatory law.
- A right of use accruing to the client is non-exclusive, non-transferable and non-sublicensable and limited to the duration of the agreement that the parties enter into in this context, except insofar as conditions of third parties apply and a different duration results from this. . The Client may only use the right of use in and for the benefit of its own company or organization and only to the extent necessary for the intended use and never for the benefit of third parties.
- The Client will always strictly comply with the agreed restrictions, of whatever nature or content, on the right of use.
- If requested, the Client will immediately cooperate in an investigation to be carried out by or on behalf of Fozzels regarding compliance with the agreed user rights. The Client will grant access to its buildings and systems at Fozzels’ first request.
- Fozzels indemnifies the client against a claim from a third party based on the fact that software, web shops, websites, databases, equipment or other materials developed by Fozzels itself infringe an intellectual property right of that third party, on the condition that the client immediately informs Fozzels in writing informs you about the existence and content of the claim and leaves the handling of the case, including making any settlements, entirely to Fozzels. The Client will provide Fozzels with the necessary powers of attorney, information and cooperation to defend itself against these claims. This obligation to indemnify lapses if the alleged infringement is related (i) to works or materials made available to Fozzels by the client for use, processing, processing or maintenance, or (ii) to changes that the client makes in the work without written permission from Fozzels. has installed or had installed software, online stores, websites, databases, equipment or other works or materials. If it has been irrevocably established in law that the software, web shops, websites, databases, equipment or other materials developed by Fozzels itself infringe any intellectual property right belonging to a third party or if, in the opinion of Fozzels, there is a reasonable chance that such an infringement occurs, Fozzels will, if possible, ensure that the client can continue to use the delivered or functionally equivalent other software, web shops, websites, databases, equipment or materials. any other or more far-reaching indemnification obligation of Fozzels due to infringement of an intellectual property right of a third party is excluded.
- The Client guarantees that no rights of third parties oppose the provision to Fozzels of equipment, software, material intended for web shops and websites, data files and/or other materials, designs and/or other works for the purpose of use, maintenance, processing. (including further development at the request of the client), installation or integration, including having the correct licenses. The Client indemnifies Fozzels against any claim from a third party based on the fact that such provision, use, maintenance, processing, installation or integration infringes any right of that third party.
- The Client and Fozzels ensure that all information received from the other party that is known or reasonably should be known to be of a confidential nature remains secret. This prohibition does not apply if and insofar as provision of the relevant data to a third party is necessary pursuant to a court decision, a legal regulation, on the basis of a legally issued order from a government agency or for the proper execution of the agreement. The party that receives confidential information will only use it for the purpose for which it was provided. Data will in any case be considered confidential if it has been designated as such by one of the parties.
- The Client acknowledges that the software made available by or through Fozzels always has a confidential nature and that it contains trade secrets of Fozzels, its suppliers or the manufacturer of the software.
- If Fozzels is obliged under the agreement to provide a form of information security, that security will comply with the specifications regarding security agreed in writing between the parties. Fozzels does not guarantee that information security is effective under all circumstances. If an expressly described method of security is missing in the agreement, the security will meet a level that, taking into account the state of the art, the implementation costs, the nature, scope and context of the information to be secured, the purposes known to Fozzels. and the normal use of its products and services and the likelihood and severity of foreseeable risks is not unreasonable.
- Fozzels is entitled to unilaterally adjust the security measures from time to time and to make technical and organizational changes.
- The Client is responsible for and will adequately secure its systems and infrastructure and keep it adequately secured.
- The access or identification codes, certificates or other security resources provided to the client by or on behalf of Fozzels are confidential and will be treated as such by the client and will only be made known to authorized staff members from the client’s own organization. fozzels is entitled to change assigned access or identification codes and certificates. The Client is responsible for managing authorizations and issuing and withdrawing access and identification codes in a timely manner.
- Where Fozzels has agreed with the client to provide hosting services, security will be provided by the supplier specified in the agreement. The terms and conditions of the relevant supplier (including its security policy) apply in this context in the relationship between fozzels and the client, with the exception of any deviating provisions in these general terms and conditions. The supplier’s terms and conditions are available via [hypernode.com]. Fozzels will hold the supplier accountable for correct compliance with its contractual obligations towards Fozzels.
- The Client indemnifies Fozzels against claims from persons whose personal data have been or are being processed for which the Client is responsible under the law, unless the Client proves that the facts underlying the claim are attributable to Fozzels.
- The responsibility for the data processed by the client using a fozzels service lies with the client. The Client guarantees to Fozzels that the content, use and/or processing of the data is not unlawful and does not infringe any right of a third party. The client indemnifies Fozzels against any legal claim from a third party, on whatever grounds, in connection with this data or the execution of the agreement.
- If Fozzels, as a processor, as referred to in the legislation in the field of personal data protection, performs services for the client, the client will, at Fozzels’ first request, conclude a processing agreement in accordance with the Fozzels model.
- The total liability of Fozzels due to attributable shortcomings in the performance of the agreement or on any legal basis whatsoever, expressly including any shortcoming in the fulfillment of a warranty or indemnification obligation agreed with the client or unlawful actions, is limited to compensation for damage as stated in elaborated on this article.
- Direct damage is limited to a maximum of the amount of the price stipulated for that agreement (excl. VAT). If the agreement is mainly a continuing performance agreement with a term of more than ΘΘone year, the price stipulated for that agreement is set at the total of the fees (excl. VAT) stipulated for ΘΘone year. However, under no circumstances will Fozzels’ total liability for direct damage, on whatever legal basis, exceed €50,000.
- Indirect damage, including but not limited to consequential damage, lost profits, lost savings, reduced goodwill, damage due to business stagnation, damage as a result of claims from customers of the client, is excluded.
- Fozzels is never liable for damage caused by or attributable to third parties – whether or not part of the services and/or other work provided by fozzels – including but not limited to software suppliers and hosting parties.
- Unless compliance by Fozzels is permanently impossible, the liability of Fozzels due to an attributable shortcoming in the performance of an agreement only arises if the client immediately gives Fozzels notice of default in writing, setting a reasonable period for the correction of the shortcoming, and Fozzels also after that term continues to fail in the fulfillment of its obligations.
- Neither party is obliged to fulfill any obligation, including any legal and/or agreed warranty obligation, if it is prevented from doing so as a result of force majeure. Force majeure on the part of Fozzels includes: (i) force majeure of Fozzels’ suppliers, (ii) failure to properly fulfill obligations of suppliers prescribed to Fozzels by the client, (iii) defectiveness of goods, equipment, software or materials from third parties, the use of which has been prescribed to Fozzels by the client, (iv) government measures, (v) electricity disruption, (vi) disruption of the internet, data network or telecommunications facilities, (vii) (cyber) crime, (cyber) vandalism, war or terrorism and (viii) general transport problems.
Duration and Termination
- If and insofar as the agreement between the parties is a continuing performance agreement, the agreement has been entered into for the agreed duration, failing which the duration of ΘΘone year applies.
- The duration of a fixed-term agreement is each time tacitly extended for the duration of the originally agreed period with a maximum of 1 year, unless the client or Fozzels terminates the agreement in writing, taking into account a notice period of three months before the end of the agreement. the relevant period.
- Each of the parties is only entitled to terminate the agreement due to an attributable shortcoming in the performance of the agreement if the other party, in all cases, after a written notice of default that is as detailed as possible, setting a reasonable period for clearing the shortcoming, attributable failure to fulfill essential obligations under the agreement. Payment obligations of the client apply in all cases as essential obligations under the agreement.
- If the client has already received performances for the execution of the agreement at the time of dissolution, these performances and the associated payment obligations will not be subject to cancellation. Amounts that Fozzels has invoiced before the dissolution in connection with what they have to perform of the agreement has already been properly performed or delivered, remain fully due and become immediately due and payable at the time of termination.
- If an agreement which, by its nature and content, does not end upon completion, has been entered into for an indefinite period, it can be terminated in writing by either party after proper consultation and stating reasons. If no notice period has been agreed between the parties, a period of three months must be observed when giving notice. Fozzels will never be obliged to pay any compensation due to termination.
- The Client is not entitled to prematurely terminate an assignment agreement that has been entered into for a fixed period, or an agreement that ends upon completion. Fozzels is permitted to terminate such an agreement in writing, subject to a notice period of three months. Fozzels will never be obliged to pay any compensation due to termination.
- If an agreement ends, not due to the actions or omissions of the client, at the request of the client Fozzels can choose to support the client on the basis of the rates applicable at that time to ensure that a new supplier or the client itself can take over the execution of the agreement (in whole or in part).
- The Client will never sell, transfer or pledge the rights and obligations it has under an agreement to a third party without prior permission from Fozzels. Fozzels is entitled to sell, transfer or pledge its claims for payment of compensation to a third party.
- If any provision of these general terms and conditions is void or annulled, the other provisions of these general terms and conditions will remain in full force. In that case, fozzels and the client will enter into consultation with the aim of agreeing on new provisions of the same scope as much as possible to replace the void or annulled provisions.
- The applicability of purchasing or other conditions of the client is expressly rejected.
Governing Law and Disputes
- The agreements between Fozzels and the client are governed by Dutch law. Applicability of the Vienna Sales Convention 1980 is excluded.
- Disputes will be submitted to the competent judge of the Central Netherlands District Court, Utrecht location.