General Terms and Conditions Changefied BV

These General Terms and Conditions apply to all offers and agreements arising therefrom between Changefied BV in Heerhugowaard, Chamber of Commerce 90464559, and its counterparties ("Client").

Provisions or conditions stipulated by the Client that deviate from, or are not included in, these general terms and conditions are binding upon Changefied BV only if and to the extent that they have been expressly accepted in writing.

Quotation and acceptance

1. Changefied BV prepares a quotation in which Changefied BV indicates which activities ("the Services") Changefied BV offers to perform, what is included in the Services, and the amount to be paid for them. Only the description of the Services indicated in the quotation is binding.
2. In general, the Services include the provision of software licenses, the provision of hardware, the development of custom software, the configuration and installation of hardware, the configuration and installation of software, and all related activities. Other work will only be performed if stated in the quotation.
3. A quotation is entirely without obligation and valid for 30 days after dispatch, unless otherwise stated in the quotation. Changefied BV can never be obliged to accept an acceptance after this period, but if Changefied BV proceeds to do so, the quotation is nevertheless deemed accepted.
4. The agreement is concluded at the moment Changefied BV receives the notification containing the Client's acceptance of the offer. This notification may be sent by e-mail.
5. If the Client does not explicitly indicate agreement with the quotation, but nevertheless agrees to it, or creates the impression that Changefied BV is performing work falling within the description of the Services, the quotation shall be deemed accepted. This also applies when the Client requests Changefied BV to perform certain work without awaiting a formal quotation.
6. Modification of the Services is only possible with the consent of both parties, except to the extent otherwise provided elsewhere in these terms and conditions.
7. Changefied BV will submit a suitable quotation for requests for additional work.

Delivery and acceptance

1. Changefied BV shall deliver the result after the completion of work or parts thereof when, in its professional opinion, it meets the specifications or is fit for use.
2. The Client must subsequently evaluate the delivered work and approve or reject it within five working days after delivery. If the Client does not reject the delivered work within this period, the delivered work shall be deemed accepted.
3. If work is delivered in phases, the Client shall, after delivery of each phase, approve or reject the part of the work of that phase in the manner specified in the previous paragraph. The Client may not base an approval or rejection in a later phase on aspects that have been approved in an earlier phase.
4. If the Client rejects the delivered work in whole or in part, Changefied BV shall endeavor to remedy the reason for rejection as quickly as possible. Changefied BV may do this by revising the result or by providing a reasoned explanation as to why the reason is unfounded. The Client then has another five working days to approve or reject the revision or explanation.
5. If the Client has rejected the delivered work in whole or in part after the first revision or justification, a reasonable number of revision rounds will follow at the discretion of Changefied BV.
6. If a party indicates that further revisions are no longer considered meaningful, both parties shall be entitled to terminate the agreement for the Service in question. In that case, the Client shall reimburse Changefied BV for the hours actually worked, up to a maximum of the quoted amount for the rejected work. However, this does not entitle the Client to use the rejected work in any way whatsoever.
7. Upon acceptance of the delivered goods, all liability for defects in the delivered goods shall cease, unless Changefied BV knew or ought to have known of the defect at the time of acceptance. In any event, all liability for defects shall cease after the expiration of one year following the termination of the Agreement for any reason whatsoever.

Delivery of the Services

1. Once the agreement has been concluded, the Services will be performed by Changefied BV as soon as possible in accordance with the quotation, taking into account reasonable requests of the Client.
2. The Client is obliged to do and refrain from doing all that is reasonably desirable and necessary to enable the proper and timely execution of the Services. In particular, the Client shall ensure that all data which Changefied BV indicates are necessary, or which the Client ought reasonably to understand are necessary for the execution of the Services, are provided to Changefied BV in a timely manner.
3. The Client shall grant Changefied BV access to all locations, services, and accounts under its control (such as web hosting accounts) that Changefied BV reasonably requires to provide the Services.
4. Changefied BV guarantees that the Services will be performed carefully, thoroughly, and to the best of its ability.
5. Changefied BV is entitled, but never obliged, to examine the accuracy, completeness, or consistency of the source materials, requirements, or specifications made available to it and, upon discovering any imperfections, to suspend the agreed work until such time as the Client has remedied the imperfections in question.
6. Unless otherwise agreed, Changefied BV is not a party to the provision of third-party services, such as software licenses or hosting required for Services, even if Changefied BV procures these services on behalf of the Client. In the case of software licenses provided as a Service, it depends on the supplier whether Changefied BV or the supplier is the contractual counterparty of the Client. Changefied BV will provide adequate information regarding this.
7. Changefied BV has the right to (temporarily) not provide or to provide the Services in a limited manner if the Client fails to fulfill an obligation towards Changefied BV in respect of the agreement or acts in violation of these general terms and conditions.
8. Changefied BV will endeavor to respond as quickly as possible to a request from the Client, but cannot make concrete commitments regarding timelines, unless otherwise agreed in the quotation.

Sale of equipment

1. No warranties are given on equipment supplied in the context of the Services, except to the extent provided by the manufacturer or importer. The Client must invoke these warranties directly with that party. Changefied BV will mediate in these claims upon request, but shall not be liable if the manufacturer or importer refuses to proceed with repair or replacement, or charges costs for doing so.
2. The Customer must comply with the Manufacturer's Health and Safety Warnings for the supplied VR/AR/XR equipment.

Installation and configuration

1. Changefied BV will proceed with the configuration and installation of equipment and software for the Client in accordance with the quotation or further specification, in order to realize a working environment.
2. The selection, purchase, and management of the environment in which the configuration and installation will take place is the sole and full responsibility of the Client, except for equipment supplied under the article 'Sale of equipment'. Changefied BV will provide instructions regarding the desired configuration. If the designated environment does not meet the requirements of Changefied BV, Changefied BV is entitled to refuse installation or configuration.
3. At the request of Changefied BV, the Client shall grant Changefied BV employees and assistants all necessary access to the environment to enable installation, configuration, maintenance, and modifications. Physical access to the Client's equipment shall only take place when necessary, and only after prior consultation with the Client.
4. If third-party software is installed, the Client must possess adequate licenses for this and ensure that the provisions contained therein are strictly adhered to. The Client indemnifies Changefied BV against claims from third parties regarding the installation and licenses of the software, except insofar as the claims result from information or licenses provided by Changefied BV.

Development of works

1. If a Service involves the development, configuration, and/or modification of Works, Changefied BV has the right, unless otherwise agreed, to use images, software, and components from third parties in the development, configuration, or modification of Works.
2. Changefied BV is permitted to use open source software whose rights are held by third parties. This means, among other things, that Changefied BV may supply open source software to the Client and may incorporate open source software into Works that Changefied BV creates or modifies in the context of a Service. If the license of certain open source software entails that the Client may only distribute (parts of) the software as open source, Changefied BV shall adequately inform the Client of all applicable license conditions.
3. Upon delivery, the responsibility for the correct compliance with the relevant third-party licenses regarding the use of the developed Works lies with the Client.

 

 

intellectual property rights

1. All intellectual property rights to all Services or Works developed or delivered within the framework of the agreement vest exclusively in Changefied BV or its licensors. Rights may be transferred to the Client only if explicitly stated in the quotation or explicitly agreed separately.
2. The Client obtains exclusively the rights of use and powers arising from the scope of the agreement or granted in writing, and otherwise the Client shall not reproduce or make public the Works or other results of Services or materials. Any use, reproduction, or making public of the materials that falls outside the scope of the agreement or granted rights of use shall be considered an infringement of copyright. The Client shall pay Changefied BV an immediately due and payable penalty of € 900,000.00 per infringing act, which is not subject to judicial mitigation. This does not affect the right of Changefied BV to compensation for damages caused by the infringement or to take other legal measures to terminate the infringement.
3. The Client is not entitled to make changes to Works to which it acquires the right of use, unless this is necessary for the intended use or to correct errors.
4. The Client is not entitled to a copy of source files (such as image, website, or software source code) of the delivered Works unless this has been explicitly and unambiguously agreed in writing. Changefied BV may reuse the source files developed by it at all times.
5. The Client is not permitted to remove any indication regarding copyrights, trademarks, trade names, or other intellectual property rights from the materials, or to alter them from Works licensed to it, including indications regarding the confidential nature and secrecy of the materials.

Prices and payment

1. The Client purchases the Hardware, training, and Hours Worked in accordance with the quotation. Software licenses are provided on a subscription basis, meaning a fixed amount that must be paid in advance quarterly or annually.
2. Changefied BV will send an electronic invoice to the Client for the amounts owed by the Client.
3. The payment term for invoices is one month after the invoice date, unless a longer payment term is indicated on the invoice. If the Client fails to pay on time, the Client shall be in default by operation of law after the expiration of this period, without any notice of default being required. If an amount due is not paid within the payment term, statutory interest shall be due on the outstanding invoice amount.
4. If the Client believes that (part of) an invoice is incorrect, he must report this to Changefied BV within the payment term. The payment obligation for the disputed amount (but not the remainder) will be suspended until Changefied BV has investigated the report. If, after investigation by Changefied BV, it appears that the dispute was unfounded, the Client must still pay the disputed amount within seven days.
5. In the event of late payment, the Client shall be obliged, in addition to the amount due and the accrued interest thereon, to fully reimburse both extrajudicial and judicial collection costs, including the costs for lawyers, bailiffs, and collection agencies. In particular, Changefied BV is entitled to charge administrative costs of € 50 in this case.
6. The claim for payment is immediately due and payable in the event that the Client is declared bankrupt, applies for a suspension of payments, or if a general attachment is levied on the Client's assets, the Client dies, enters into liquidation, or is dissolved.

Confidentiality

1. The Parties shall treat as confidential any information they provide to each other before, during, or after the execution of the Agreement, when such information is marked as confidential or when the receiving party knows or ought to know that the information was intended to be confidential. The Parties shall also impose this obligation on their employees as well as on any third parties engaged by them for the execution of the Agreement.
2. Changefied BV shall endeavor to avoid gaining knowledge of data that the Client stores and/or distributes via the hardware or software to which the Services relate, unless this is necessary for the proper execution of the agreement or Changefied BV is required to do so pursuant to a statutory provision or court order. In that case, Changefied BV shall endeavor to limit access to the data as much as possible, insofar as this is within its power.
3. Changefied BV may use the knowledge gained in the execution of the agreement for other assignments, provided that no information of the Client becomes available to third parties in violation of confidentiality obligations.
4. The obligations under this article shall survive termination of the agreement for any reason whatsoever, and for as long as the party providing the information can reasonably claim the confidential nature of the information.

Liability

1. Changefied BV is liable to the Client only in the event of an attributable failure to perform the agreement and exclusively for compensatory damages, that is to say, compensation for the value of the performance that was not rendered.
2. Any liability of Changefied BV for any other form of damage is excluded, including but not limited to additional compensation in any form whatsoever, compensation for indirect or consequential damage, damage due to lost revenue or profit, damage due to loss of data, as well as damage due to exceeding deadlines as a result of changed circumstances.
3. In the event of liability under the first paragraph, the maximum amount that Changefied BV is obliged to reimburse shall be equal to the amount due for the relevant Service. This maximum amount shall lapse if and to the extent that the damage is the result of intent or gross negligence on the part of Changefied BV.
4. The liability of Changefied BV for an attributable failure to perform the agreement arises only if the Client immediately and properly notifies Changefied BV in writing of the default, setting a reasonable period to remedy the defect, and Changefied BV continues to fail to perform its obligations in an attributable manner even after that period. The notice of default must contain as detailed a description of the defect as possible, so that Changefied BV is able to respond adequately.
5. In the event of force majeure, which shall in any case be understood to mean disruptions or failures of the internet, the telecommunications infrastructure, power outages, domestic unrest, mobilization, war, transport disruptions, strikes, lockouts, business disruptions, supply chain stagnation, fire, flooding, import and export restrictions, and in the event that Changefied BV is unable to deliver due to its own suppliers, regardless of the reason, as a result of which performance of the agreement cannot reasonably be expected of Changefied BV, the execution of the agreement shall be suspended, or the agreement shall be terminated if the force majeure situation has lasted longer than ninety days, all without any obligation to pay compensation.

Duration and termination

1. The agreement is entered into for the term required for the delivery of the Services. The agreement may only be terminated prematurely as provided in these general terms and conditions, or with the consent of both parties. The Client may terminate the agreement prematurely upon payment of a termination fee equal to 50% of the total value of the parts of the agreement not yet delivered.
2. Upon cancellation, termination, or dissolution for any reason whatsoever, Changefied BV is entitled to delete all data stored by it for the benefit of the Client, effective immediately after the date on which the agreement expires. Changefied BV is not obliged to provide the Client with a copy of this data in that case.
3. The agreement terminates automatically if a party is declared bankrupt, applies for a suspension of payments, or has its assets seized in full, dies, enters liquidation, or is dissolved.

Changes to agreement

1. After acceptance, the agreement may only be amended by mutual consent.
2. However, if the agreement is a continuous agreement, Changefied BV is entitled to unilaterally amend or extend these general terms and conditions once per calendar year. To this end, it must notify the Client at least two months before the amendments or extensions take effect. However, changes to the general terms and conditions can never override a specific agreement.
3. If the Client objects within this period, Changefied BV will consider whether or not it wishes to withdraw the objectionable amendments or additions. Changefied BV will notify the Client of this decision. If Changefied BV does not wish to withdraw the objectionable amendments or additions, the Client has the right to terminate the agreement as of the date on which they take effect.
4. Changefied BV may make changes to these general terms and conditions at any time if these are necessary due to changed statutory regulations. The Client may not object to such changes.
5. The aforementioned regulation also applies to prices.

Final provisions

1. This agreement is governed by Dutch law. To the extent not otherwise prescribed by rules of mandatory law, all disputes arising in connection with this agreement shall be submitted to the competent Dutch court for the district in which Changefied BV is established.
2. If any provision of this agreement proves to be invalid, this shall not affect the validity of the entire agreement. In that case, the parties shall establish new provision(s) to replace it, thereby giving effect, as far as legally possible, to the intent of the original agreement and these general terms and conditions.
3. In these terms and conditions, "written" also includes email and communication by fax, provided that the identity of the sender and the integrity of the content are sufficiently established. The parties shall endeavor to confirm the receipt and content of communication by email.
4. The version of any communication received or stored by Changefied BV shall be deemed authentic, unless the Client provides evidence to the contrary.
5. Each party is entitled to transfer its rights and obligations under the agreement to a third party only with the prior written consent of the other party. Notwithstanding this, Changefied BV is always entitled to transfer its rights and obligations under the agreement to a parent, subsidiary, or sister company.