General business terms and conditions

Applicability and General Terms

1.1. These general terms and conditions apply to all offers and agreements whereby Fozzels.com B.V. (hereinafter: “Fozzels”) performs services and/or other work for a client, of any kind and under any name.

1.2. Insofar as Fozzels makes third-party products or services available to the client or grants access to them, the (license or sales) terms of those third parties apply to the relationship between Fozzels and the client, superseding any conflicting provisions in these general terms and conditions, provided that Fozzels has informed the client of the applicability of those third-party conditions.

Offers and Agreements

2.1. All offers and other expressions by Fozzels are non-binding unless explicitly stated otherwise in writing.

2.2. The client guarantees the accuracy and completeness of the data provided by or on behalf of the client to Fozzels, upon which Fozzels bases its offer, except for obvious typographical errors.

2.3. An agreement is concluded upon (digital) signing of a designated document by both parties.

Fozzels’ Duty of Care

3.1. Fozzels shall perform its work with the care that may be expected from a professional IT service provider and will make every reasonable effort to deliver its services. All services are performed based on a best-efforts obligation.

3.2. Fozzels will make reasonable efforts to meet agreed (delivery) deadlines. However, deadlines are target dates only. If Fozzels fails to meet a deadline, the client must notify Fozzels in writing and set a reasonable period for compliance. Only if Fozzels remains in default after that period does Fozzels enter into default.

3.3. If Fozzels’ performance is hindered due to insufficient cooperation from the client, Fozzels will inform the client and attempt to meet its obligations as much as possible. Fozzels is not responsible for delays or damages resulting from a lack of cooperation from the client.

Client Responsibilities and Obligations

4.1. The client must always provide timely and reasonable cooperation and information.

4.2. Unless explicitly agreed otherwise, the client is responsible for supplying the necessary equipment, hosting, infrastructure, and supporting software, installing, configuring, tuning, and maintaining this environment to ensure interoperability with Fozzels’ services.

4.3. Accounts, access or identification codes, certificates, or other security features provided by Fozzels are confidential and must be treated as such. They may only be shared with authorized personnel within the client’s organization. Fozzels has the right to change assigned access or identification codes and certificates. The client is responsible for authorization management and timely withdrawal of access rights. Fozzels is not liable for damages resulting from misuse of such accounts unless such misuse results directly from intentional misconduct or recklessness by Fozzels’ management.

Services from Third Parties

5.1. Where Fozzels’ services involve connecting to third-party services (e.g., ChatGPT), the client must arrange a subscription with the third party and pay any related fees. The client understands that acceptance of third-party contractual terms may be required.

5.2. Fozzels accepts no responsibility or liability regarding third-party services, including availability, speed, quality, functionality, or usability.

5.3. If explicitly agreed, Fozzels may act as an intermediary in billing third-party services, passing on related costs to the client. The client remains responsible for compliance with third-party conditions.

Fees and Payment

6.1. Unless otherwise agreed, Fozzels’ services are provided based on subsequent costing at Fozzels’ standard rates.

6.2. Fozzels may adjust its rates annually in accordance with the Consumer Price Index (CPI) of CBS. Additionally, Fozzels may adjust fees if subcontractors or suppliers increase their prices. The client will be informed in advance of such changes. If interim price changes exceed 5%, the client is entitled to terminate the relevant agreement with a 30-day notice period, provided the client exercises this right no later than 30 days after the price change takes effect.

6.3. Unless otherwise agreed, fees are invoiced monthly in arrears. Invoices must be paid within 30 days of the invoice date. If a client disputes an invoice, they must submit a written and reasoned dispute before the payment term expires. The undisputed portion must still be paid, and payment of the disputed portion may be suspended for 30 days while parties attempt to resolve the dispute.

6.4. The client is not entitled to suspend any payment (except regarding a disputed part of an invoice) or to offset amounts owed.

6.5. If the client fails to meet its payment obligations even after written notice granting 10 days to remedy, Fozzels is entitled to suspend its services, without prejudice to its other rights.

6.6. In certain cases, Fozzels uses a prepayment system. In that case, Fozzels will automatically collect a predetermined amount from the client, which will be settled against the actual use of services, including third-party services. If Fozzels is unable to collect the set amount, it is entitled to temporarily suspend the relevant services. The payment obligation for the Fozzels license remains in force; Fozzels will separately invoice the associated license costs.

Intellectual Property Rights and Data Ownership

7.1. Data processed by the client through a webshop developed and/or hosted by Fozzels is owned by the client.

7.2. All intellectual property rights on software, webshops, websites, databases, equipment, training, examination material, or any other material developed or made available under the agreement rest exclusively with Fozzels, its licensors, or its suppliers. The client only obtains the usage rights explicitly granted under these general terms, the written agreement, and mandatory law.

7.3. Any right of use granted to the client is non-exclusive, non-transferable, non-sublicensable, and limited to the term of the agreement unless otherwise specified by third-party conditions.

7.4. The client must strictly comply with any agreed limitations on the right of use.

7.5. Upon request, the client must cooperate immediately with an audit by or on behalf of Fozzels regarding compliance with the agreed usage rights, including granting access to buildings and systems.

7.6. Fozzels indemnifies the client against claims by third parties alleging that Fozzels-developed software, webshops, websites, databases, or equipment infringe intellectual property rights, provided the client promptly informs Fozzels and fully cooperates in the defense. The indemnity lapses if the infringement is due to materials provided by the client or modifications made without Fozzels’ written consent.

7.7. When Fozzels’ services enable content creation or modification, the client remains fully responsible for the content and any required third-party rights. The client indemnifies Fozzels against any third-party claims regarding such content.

7.8. The client guarantees that providing equipment, software, materials, databases, and designs to Fozzels does not infringe third-party rights and indemnifies Fozzels against related claims.

7.9. If a third party requests that Fozzels take a hosted client website offline, Fozzels may do so after informing the client. Fozzels is not liable for resulting damages.

Confidential Information

8.1. Both the client and Fozzels must ensure that confidential information received from the other party remains confidential, except where disclosure is legally required or necessary for proper contract execution.

8.2. The client acknowledges that software made available by Fozzels is always confidential and may contain trade secrets of Fozzels or its suppliers.

Security

9.1. If Fozzels is required to implement security measures, these will meet the agreed specifications. If no specific method is agreed upon, Fozzels will implement security measures appropriate given the state of technology, implementation costs, known risks, and intended use.

9.2. Fozzels may modify its security measures at any time.

9.3. The client is responsible for securing its own systems and infrastructure.

9.4. Security codes and certificates provided by Fozzels must be kept confidential and only shared internally with authorized personnel.

9.5. When Fozzels provides hosting services, security is provided by the specified supplier under their conditions (e.g., Hetzner, see: https://www.hetzner.com/legal/terms-and-conditions).

Privacy

10.1. The client indemnifies Fozzels against claims by individuals whose personal data are processed under the client’s responsibility, unless the client proves that the underlying facts are attributable to Fozzels.

10.2. The client is responsible for the data processed using Fozzels’ services and guarantees that the content, use, and processing of the data are lawful and do not infringe any third-party rights. The client indemnifies Fozzels against all third-party claims in connection with this data or the performance of the agreement.

10.3. If Fozzels acts as a processor under applicable data protection laws, the client must, at Fozzels’ first request, sign a data processing agreement conforming to Fozzels’ model.

Liability

11.1. Fozzels’ total liability for attributable failures or under any legal ground, including breach of a warranty obligation or unlawful act, is limited as set out in this article.

11.2. Direct damages are limited to the amount of the price stipulated for the agreement (excluding VAT). If the agreement is mainly a continuing performance contract with a duration of more than one year, the price is set at the total of the fees payable for one year. In any event, Fozzels’ total liability for direct damage shall not exceed €50,000.

11.3. Indirect damages, including but not limited to consequential damages, lost profits, missed savings, reduced goodwill, business stagnation damages, and damages resulting from client’s customer claims, are excluded.

11.4. Fozzels is never liable for damages caused by or attributable to third parties, including software vendors and hosting parties.

11.5. Unless performance is permanently impossible, Fozzels’ liability for an attributable failure arises only if the client promptly sends a written notice of default, granting a reasonable period to remedy the failure, and Fozzels still fails to comply after that period.

Force Majeure

12.1. Neither party is obliged to fulfill any obligation, including any agreed warranty obligation, if prevented by force majeure. Force majeure on Fozzels’ side includes:

• (i) force majeure of suppliers,

• (ii) non-compliance by suppliers prescribed by the client,

• (iii) defects in goods, equipment, software, or materials of third parties prescribed by the client,

• (iv) government measures,

• (v) power outages,

• (vi) failures in internet, data network, or telecommunications facilities,

• (vii) cybercrime, cyber vandalism, war, terrorism,

• (viii) and general transport problems.

Duration and Termination

13.1. If and insofar as the agreement between parties is a continuing performance contract, it is entered into for the agreed duration, or if no duration is specified, for one year.

13.2. The duration of a fixed-term agreement is automatically extended for the original duration, up to a maximum of one year, unless terminated in writing with three months’ notice before the end of the relevant period.

13.3. Either party may only dissolve the agreement for an attributable failure if the other party fails to cure a breach after a detailed written notice of default with a reasonable remedy period. Payment obligations are always material obligations.

13.4. If the client has already received performances at the time of dissolution, these performances and the associated payment obligations remain unaffected and are immediately due.

13.5. Agreements for an indefinite period may be terminated by either party by written notice with due observance of a three-month notice period. Fozzels shall never be obliged to pay any compensation upon termination.

13.6. The client is not entitled to prematurely terminate fixed-term assignments. Fozzels may terminate such an agreement with three months’ written notice without being liable for any damages.

13.7. Upon termination (not caused by the client), Fozzels may, at the client’s request and at applicable rates, assist in transferring the services to another provider or the client.

Miscellaneous Provisions

14.1. The client may not sell, transfer, or pledge its rights and obligations under an agreement without prior written consent from Fozzels. Fozzels may assign its claims for payment to a third party.

14.2. If any provision of these general terms and conditions is null and void or annulled, the remaining provisions shall remain fully effective. Fozzels and the client will consult to agree on new provisions with the same purpose.

14.3. The applicability of any purchasing or other client conditions is expressly rejected.

Governing Law and Disputes

15.1. Agreements between Fozzels and the client are governed by Dutch law. The applicability of the 1980 Vienna Sales Convention is excluded.

15.2. Disputes will be submitted to the competent court of the District Court of Midden-Nederland, Utrecht location.