General Terms and Conditions GetBright B.V.
Article 1. General
These terms and conditions apply to every offer, quotation and agreement between GetBright B.V. hereinafter referred to as: “GetBright”, and a Client to which GetBright has declared these terms and conditions applicable, insofar as the parties have not expressly deviated from these terms and conditions in writing.
The present terms and conditions also apply to agreements with GetBright for the execution of which third parties must be involved by GetBright.
The applicability of any purchase or other conditions of the Client is expressly rejected.
If one or more provisions in these general terms and conditions are at any time wholly or partially invalid or should be annulled, the other provisions of these general terms and conditions will remain fully applicable. GetBright and the Client will then enter into consultation in order to agree on new provisions to replace the void or voided provisions, taking into account as much as possible the purpose and intent of the original provisions.
If there is a lack of clarity regarding the interpretation of one or more provisions of these general terms and conditions, the interpretation must be made „in the spirit‟ of these provisions.
If a situation arises between the parties that is not regulated in these general terms and conditions, this situation must be assessed in the spirit of these general terms and conditions.
If GetBright does not always require strict compliance with these terms and conditions, this does not mean that the provisions thereof do not apply, or that GetBright would to any extent lose the right to demand strict compliance with the provisions of these terms and conditions in other cases.
Article 2. Quotations and offers
All quotations and offers from GetBright are without obligation, unless a term for acceptance has been set in the quotation. If no acceptance period has been set, no rights can be derived in any way from the quotation or offer if the product to which the quotation or offer relates is no longer available in the meantime.
GetBright cannot be held to its quotations or offers if the Client can reasonably understand that the quotations or offers, or a part thereof, contain an obvious mistake or error.
The prices stated in a quotation or offer are exclusive of VAT and other government levies, any costs to be incurred in the context of the agreement, including travel and accommodation, shipping and administration costs, unless indicated otherwise.
If the acceptance (whether or not on minor points) deviates from the offer included in the quotation or offer, GetBright is not bound by it. The agreement will then not be concluded in accordance with this deviating acceptance, unless GetBright indicates otherwise.
A composite quotation does not oblige GetBright to perform part of the assignment for a corresponding part of the stated price. Offers or quotations do not automatically apply to future orders.
Article 3. Contract duration; execution terms, transfer of risk, execution and amendment of the agreement; price increase
If the service extends to the periodic provision of services during a certain period, the Agreement is deemed to have been entered into for the minimum period indicated per service. If this minimum term has expired without a party expressing its wish to terminate at least one (1) month before the end date of the contract, the agreement will be automatically extended for the term indicated per service. If the Client is a natural person who does not act in the course of a profession or business and the Client has not notified the wish to terminate before the expiry of the minimum term, the agreement will be automatically converted to an indefinite period, subject to a notice period of one month.
If a term has been agreed or specified for the performance of certain activities or for the delivery of certain items, this is never a strict deadline. If a term is exceeded, the Client must therefore give GetBright written notice of default. GetBright must be offered a reasonable term to still implement the agreement.
GetBright will execute the agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship. All this on the basis of the state of science known at that time.
GetBright has the right to have certain activities performed by third parties. The applicability of article 7:404, 7:407 paragraph 2 and 7:409 of the Dutch Civil Code is expressly excluded.
If work is performed by GetBright or third parties engaged by GetBright in the context of the assignment at the location of the Client or a location designated by the Client, the Client will provide the facilities reasonably desired by those employees free of charge.
Delivery is Ex Works of GetBright. The Client is obliged to take delivery of the goods the moment they are made available to him. If the Client refuses to take delivery or is negligent in providing information or instructions necessary for the delivery, GetBright is entitled to store the goods at the expense and risk of the Client. The risk of loss, damage or depreciation is transferred to the Client at the moment when goods are available to the Client.
GetBright is entitled to execute the agreement in different phases and to invoice the part thus executed separately.
If the agreement is executed in phases, GetBright can suspend the execution of those parts that belong to a following phase until the Client has approved the results of the preceding phase in writing.
The Client ensures that all data, which GetBright indicates are necessary or of which the Client should reasonably understand that these are necessary for the execution of the agreement and that they will be provided to GetBright in a timely manner. If the information required for the execution of the agreement has not been provided to GetBright in time, GetBright has the right to suspend the execution of the agreement and/or to charge the additional costs resulting from the delay to the Client in accordance with the then usual rates. The execution period does not start until after the Client has made the data available to GetBright. GetBright is not liable for damage, of whatever nature, because GetBright relied on incorrect and/or incomplete information provided by the Client.
If during the execution of the agreement it appears that it is necessary for a proper execution to change or supplement it, the parties will proceed to adjust the agreement in good time and in mutual consultation. If the nature, scope or content of the agreement, whether or not at the request or direction of the Client, of the competent authorities, etc., is changed and the agreement is changed in qualitative and/or quantitative terms as a result, this may have consequences for what was originally agreed. As a result, the originally agreed amount can also be increased or decreased. GetBright will provide a price quote in advance as much as possible. Furthermore, by changing the agreement, the originally stated term of execution can be changed. The Client accepts the possibility of amending the agreement, including the change in price and term of execution.
If the agreement is changed, including an addition, GetBright is entitled to implement it only after approval has been given by the person authorized within GetBright and the Client has agreed to the price stated for the implementation and other conditions, including the time to be determined at which time the implementation will take place. Not or not immediately executing the amended agreement does not constitute a default on the part of GetBright and is no ground for the Client to terminate or cancel the agreement.
Without being in default, GetBright can refuse a request to amend the agreement if this could have qualitative and/or quantitative consequences, for example for the work to be performed or goods to be delivered in that context.
If the Client should default in the proper fulfilment of what he is obliged to towards GetBright, then the Client is liable for all damage on the part of GetBright that arises directly or indirectly as a result.
If GetBright agrees a fixed fee or fixed price with the Client, GetBright is nevertheless entitled at all times to increase this fee or price without the Client being entitled to dissolve the agreement for that reason, if the increase of the price arises from a power or obligation under the law or regulations or is caused by an increase in the price of raw materials, wages, etc. or on other grounds that were not reasonably foreseeable when the agreement was entered into.
If the price increases, other than as a result of an amendment to the agreement, exceeds 10% and takes place within three months after the conclusion of the agreement, then only the Client who is entitled to invoke Title 5 Section 3 of Book 6 of the Dutch Civil Code is entitled to terminate the agreement by a written statement, unless GetBright:
– Is then still willing to perform the agreement on the basis of what was originally agreed;
– if the price increase results from a power or an obligation resting on GetBright under the law;
– if it has been stipulated that the delivery will take place more than three months after the conclusion of the agreement;
– or, in the case of delivery of an item, if it has been stipulated that the delivery will take place more than three months after the purchase.
Article 4. Suspension, dissolution and early termination of the agreement
GetBright is authorized to suspend the fulfilment of the obligations or to dissolve the agreement, if the Client does not, not fully or not timely fulfil the obligations under the agreement, after the agreement has been concluded, GetBright becomes aware of circumstances give good grounds to fear that the Client will not fulfil its obligations if, when the agreement was concluded, the Client was requested to provide security for the fulfilment of its obligations under the agreement and this security is not forthcoming or is insufficient or if due to the delay on the part of the Client can no longer be expected of GetBright to fulfil the agreement under the originally agreed conditions.
Furthermore, GetBright is authorized to dissolve the agreement if circumstances arise of such a nature that fulfilment of the agreement is impossible or if other circumstances arise that are of such a nature that unaltered maintenance of the agreement cannot reasonably be expected of GetBright.
If the agreement is dissolved, GetBright’s claims against the Client are immediately due and payable. If GetBright suspends the fulfilment of its obligations, it will retain its claims under the law and the agreement.
If GetBright proceeds to suspension or dissolution, it is in no way obliged to compensate damage and costs incurred in any way.
If the dissolution is attributable to the Client, GetBright is entitled to compensation for the damage, including the costs, incurred directly and indirectly as a result.
If the Client does not fulfil its obligations arising from the agreement and this non-compliance justifies dissolution, GetBright is entitled to dissolve the agreement immediately and with immediate effect without any obligation on its part to payment of any compensation or indemnification, while the Client, on account of default, is obliged to pay compensation or indemnification.
If the agreement is terminated prematurely by GetBright, GetBright will arrange for the transfer of work still to be performed to third parties in consultation with the Client. This unless the termination is attributable to the Client. If the transfer of the work entails additional costs for GetBright, these will be charged to the Client. The Client is obliged to pay these costs within the aforementioned term, unless GetBright indicates otherwise.
In the event of liquidation, (application for) suspension of payments or bankruptcy, attachment – if and insofar as the attachment is not lifted within three months – at the expense of the Client, debt restructuring or any other circumstance as a result of which the Client can no longer freely can dispose of its assets, GetBright is free to terminate the agreement with immediate effect or to cancel the order or agreement, without any obligation on its part to pay any compensation or indemnity. In that case, GetBright’s claims against the Client are immediately due and payable.
If the Client cancels an order placed in whole or in part, the work that was performed and the items ordered or prepared for that purpose, plus any delivery, removal and delivery costs thereof and the working time reserved for the execution of the agreement, will be fully paid to be charged to the Client.
Article 5. Force majeure
GetBright is not obliged to fulfil any obligation towards the Client if it is prevented from doing so as a result of a circumstance that is not due to fault, and is not for its account under the law, a legal act or generally accepted standards.
In these general terms and conditions, force majeure is understood to mean, in addition to what is understood in the law and jurisprudence, all external causes, foreseen or unforeseen, over which GetBright cannot exercise any influence, but as a result of which GetBright is unable to fulfil its obligations. Work strikes in the company of GetBright or of third parties included. GetBright also has the right to invoke force majeure if the circumstance that prevents (further) fulfilment of the agreement occurs after GetBright should have fulfilled its obligation.
GetBright can suspend the obligations under the agreement during the period that the force majeure continues. If this period lasts longer than two months, each of the parties is entitled to dissolve the agreement, without any obligation to pay compensation to the other party. Insofar as GetBright has partially fulfilled or will be able to fulfil its obligations under the agreement at the time of the occurrence of force majeure, and the part fulfilled or to be performed has independent value, GetBright is entitled to fulfil the part already fulfilled or to be fulfilled, to be invoiced separately. The Client is obliged to pay this invoice as if it were a separate agreement.
Article 6. Payment and collection costs
Payment must always be made within 14 days of the invoice date, in a manner to be indicated by GetBright in the currency in which the invoice is made, unless otherwise indicated in writing by GetBright. GetBright is entitled to invoice periodically.
If the Client fails to pay an invoice on time, the Client is legally in default. The Client will then owe an interest of 1% per month, unless the statutory interest is higher, in which case the statutory interest is due.
The interest on the amount due and payable will be calculated from the moment that the Client is in default until the moment of payment of the full amount owed.
GetBright has the right to have the payments made by the Client go first of all to reduce the costs, then to reduce the interest due and finally to reduce the principal sum and the current interest. GetBright can, without being in default as a result, refuse an offer of payment if the Client designates a different order for the allocation of the payment. GetBright can refuse full repayment of the principal if the outstanding and current interest and collection costs are not also paid.
The Client is never entitled to set off the amount owed by it to GetBright. Objections to the amount of an invoice do not suspend the payment obligation. The Client who cannot invoke Section 6.5.3 (Articles 231 to 247, Book 6 of the Dutch Civil Code) is also not entitled to suspend payment of an invoice for any other reason.
If the Client is in default or in default in the (timely) fulfilment of its obligations, all reasonable costs incurred in obtaining payment out of court will be borne by the Client. The extrajudicial costs are calculated on the basis of what is customary in Dutch collection practice, currently the calculation method according to Rapport Voorwerk II. However, if GetBright has incurred higher costs for collection that were reasonably necessary, the costs actually incurred will be eligible for reimbursement. Any judicial and enforcement costs incurred will also be recovered from the Client. The Client also owes interest on the collection costs owed.
Article 7. Retention of title
The items delivered by GetBright in the context of the agreement remain the property of GetBright until the Client has properly fulfilled all obligations arising from the agreement(s) concluded with GetBright.
Items delivered by GetBright, which are subject to retention of title pursuant to paragraph 1, may not be resold and may never be used as a means of payment. The Client is not authorized to pledge or in any other way encumber that which falls under the retention of title.
The Client must always do everything that can reasonably be expected of it to secure the property rights of GetBright. If third parties seize the goods delivered under retention of title or wish to establish or enforce rights thereon, the Client is obliged to immediately inform GetBright thereof. Furthermore, the Client undertakes to insure and keep insured the goods delivered subject to retention of title against fire, explosion and water damage as well as against theft and to make the policy of this insurance available to GetBright for inspection on first request. In the event of a possible payment of the insurance, GetBright is entitled to these tokens. Insofar as necessary, the Client undertakes in advance towards GetBright to cooperate with everything that may (prove) be necessary or desirable in that context.
In the event GetBright wishes to exercise its property rights referred to in this article, the Client gives unconditional and irrevocable permission in advance to GetBright and third parties to be designated by GetBright to enter all those places where GetBright’s properties are located and to take them back.
Article 8. Warranties, research and complaints, limitation period
The goods to be delivered by GetBright meet the usual requirements and standards that can reasonably be set at the time of delivery and for which they are intended under normal use in the Netherlands. When used outside the Netherlands, the Client must verify whether its use is suitable for use there and whether it meets the conditions set for it. In that case, GetBright can set other conditions with regard to the goods to be delivered or work to be performed.
The Client is obliged to inspect the delivered goods (or have them examined), immediately at the moment that the goods are made available to him, or the relevant work has been carried out. In doing so, the Client should investigate whether the quality and/or quantity of the delivered goods corresponds to what has been agreed and meets the requirements that the parties have agreed in this regard. Any visible defects must be reported to GetBright in writing within seven days of delivery. Any non-visible defects must be reported to GetBright in writing immediately, but in any case, no later than fourteen days after discovery. The report must contain as detailed a description as possible of the defect, so that GetBright is able to respond adequately. The Client must give GetBright the opportunity to investigate a complaint or have it investigated.
If the Client makes a timely complaint, this does not suspend its payment obligation. In that case, the Client also remains obliged to purchase and pay for the items otherwise ordered and for what he has commissioned GetBright.
If a defect is reported later, the Client is no longer entitled to repairment, replacement or compensation.
If it is established that a good is defective and a complaint has been made in suitable time, then GetBright will replace the defective good within a reasonable term by the Client, at GetBright’s discretion, or arrange for its repair. In the event of replacement, the Client is obliged to return the replaced item to GetBright and to transfer ownership thereof to GetBright, unless GetBright indicates otherwise.
If it is established that a complaint is unfounded, the costs incurred as a result, including the investigation costs incurred by GetBright as a result, will be borne in full by the Client.
Contrary to the statutory limitation periods, the limitation period for all claims and defences against GetBright and the third parties involved by GetBright in the execution of an agreement is one year.
Article 9. Liability
If GetBright should be liable, this liability is limited to what is regulated in this provision.
GetBright is not liable for damage, of whatever nature, caused by GetBright acting by or on behalf of the Client provided incorrect and/or incomplete information.
If GetBright should be liable for any damage, then GetBright’s liability is limited to a maximum of twice the invoice value of the order, at least to that part of the order to which the liability relates.
GetBright’s liability is in any case always limited to the amount paid out by its insurer, where appropriate.
GetBright is only liable for direct damage. Direct damage is exclusively understood to mean the reasonable costs to determine the cause and the extent of the damage, insofar as the determination relates to damage within the meaning of these terms and conditions, any reasonable costs incurred to fulfil the defective performance of GetBright to the agreement. Insofar as these can be attributed to GetBright and reasonable costs incurred to prevent or limit damage, insofar as the Client demonstrates that these costs have led to limitation of direct damage as referred to in these general terms and conditions. GetBright is never liable for indirect damage, including consequential damage, lost profit, lost savings and damage due to business interruption.
The limitations of liability included in this article do not apply if the damage is due to intent or gross negligence on the part of GetBright or its executive subordinates.
Article 10. Indemnification
The Client indemnifies GetBright against any claims from third parties who suffer damage in connection with the execution of the agreement and the cause of which is attributable to others than GetBright. If GetBright should be held liable for this by third parties, the Client is obliged to assist GetBright both in and out of court and to immediately do everything that may be expected of him in that case. If the Client fails to take adequate measures, GetBright is entitled to do so itself without notice of default. All costs and damage on the part of GetBright and third parties arising as a result will be entirely at the expense and risk of the Client.
Article 11. Hosting and related services
If the service (also) extends to services relating to the storage and/or transfer of material supplied by the Client to third parties, such as in the case of web hosting or e-mail services, the provisions of this article also apply.
The Client will not publish or offer information via (the servers of) GetBright that is in violation of Dutch law. This includes, in particular, but not limited to, information provided without the permission of the copyright owner(s), information that is libellous, threatening, abusive, racist, hateful, or discriminatory, information containing child pornography, and information that violates the privacy of third parties or form of stalking, as well as hyperlinks, torrents or other references to such information on third party websites anywhere in the world (even if the information is legal in the relevant jurisdiction).
GetBright uses a complaints procedure with which third parties (hereinafter: reporters) can submit a complaint that in their opinion such a conflict has taken place. If a complaint is justified in the opinion of GetBright, GetBright is entitled to remove the material or make it inaccessible. In that case, GetBright is also entitled to provide the Client’s personal data to a reporter or to the competent authorities. GetBright will inform the Client about the course of this procedure.
In the event of potentially criminal information, GetBright is entitled to report this. GetBright can hereby hand over all relevant information about the Client and the information to the competent authorities and perform all other actions that these authorities request GetBright to perform in the context of the investigation.
In the event of repeated (well-founded) complaints about the information offered by the Client, GetBright is entitled to dissolve and/or terminate the Agreement.
The Client indemnifies GetBright against all damage as a result of the above. GetBright is not liable for any damage suffered by the Client as a result of an intervention by GetBright in the context of the complaint procedure, even if the complaint turns out to be unjustified and the information does not conflict with Dutch law.
The Client shall refrain from hindering other Clients or internet users or from causing damage to the servers. The Client is prohibited from starting up processes or programs, whether or not via the server, of which the Client knows or can reasonably suspect that this will hinder or cause damage to GetBright, other Clients or internet users. GetBright will inform the Client of any measures.
The Client will adhere to the generally accepted rules of conduct on the internet as laid down in (https://ftp.ripe.net/rfc/rfc1855.txt) and future amendments thereof.
The Client is prohibited from transferring the username or usernames and password or passwords provided by GetBright to third parties without GetBright’s permission.
GetBright can set a maximum to the amount of storage space or data traffic per month that the Client may use in the context of the service. If this maximum is exceeded, GetBright is authorized to charge an additional amount, in accordance with the amounts for additional data traffic stated on the website. No liability exists for the consequences of not being able to send, receive, store or change data if an agreed limit for storage space or data traffic is reached.
The Client hereby grants GetBright an unrestricted license to distribute, store, transmit or copy all materials distributed by the Client via GetBright’s systems in any manner that GetBright deems appropriate, but only to the extent that this is reasonably necessary for the benefit of the fulfilment of the Agreement by GetBright.
In addition to the obligations under the law, damage caused by incompetence or failure to act in accordance with the above points is at the expense of the Client.
Article 12. Domain names and IP addresses
If the service (also) serves the purpose of GetBright to mediate for the Client in obtaining a domain name and/or IP address, the provisions of this article also apply.
Application, allocation and possible use of a domain name and/or IP address depend on and are subject to the applicable rules and procedures of the relevant domain name suppliers, including Stichting Internet Domeinregistratie Nederland and RIPE. The relevant authority decides on the allocation of a domain name and/or IP address. GetBright only plays a mediating role in the application and does not guarantee that an application will be honoured.
The Client can only learn the fact of registration from the confirmation by e-mail from GetBright, in which it is stated that the requested domain name has been registered. An invoice for registration fees is not confirmation of registration.
The Client indemnifies and holds GetBright harmless for all damage related to (the use of) a domain name on behalf of or by the Client.
GetBright is not liable for the loss by the Client of its right(s) to a domain name or for the fact that the domain name is requested and/or obtained by a third party in the interim, except in the case of intent or gross negligence on the part of GetBright.
If GetBright registers a domain name in its name on behalf of the Client, GetBright will cooperate with requests from the Client for relocation, change of holder or cancellation of this domain name.
The domain name holder and the Client are deemed to be the same (legal) person. If the Client and the domain name holder are different (legal) persons, the provisions of this paragraph also apply, unless the domain name holder GetBright or a local contact person of GetBright is on behalf of the Client:
The Client undertakes to inform the domain name holder about and to conform to article 6, paragraph 8, which applies to the Client;
The Client remains responsible for compliance with all other provisions of the Agreement.
The Client must comply with all registration conditions, provisions and (dispute) regulations that Domain Name Suppliers set for the application, allocation or use of a domain name and/or IP address. The domain name conditions are part of the Agreement.
GetBright has the right to make the domain name and/or the IP address inaccessible or unusable, or to have it placed in its own name if the Client demonstrably fails to comply with the Agreement, but only for the duration that the Client is in default and only after a reasonable term for compliance has been stated in a written notice of default.
In the event of dissolution of the Agreement due to default on the part of the Client, GetBright is entitled to cancel the domain name and/or the IP address.
The Client takes note of GetBright’s privacy statement (https://www.getbright.nl/privacy-statement/) and agrees to the processing of personal data for domain names as described in the privacy statement.
If, at the request of the Client, data from the WHOIS is shielded or hidden, this does not mean that GetBright will no longer be able to provide (name and address) data to the competent authorities. If GetBright has a legal obligation to provide data to competent authorities, GetBright will comply with this obligation at all times.
Article 13. Intellectual property
GetBright reserves the rights and powers to which it is entitled under the Copyright Act and other intellectual laws and regulations. GetBright has the right to use the knowledge gained by the execution of an agreement for other purposes, insofar as no strictly confidential information of the Client is disclosed to third parties. All scripts, graphic design and code used for the services of the Client remain the property of GetBright. The latter properties are transferred to GetBright upon termination of an agreement.
The use by the Client of any maintenance system provided by GetBright is only valid at the time of the agreement and can be terminated by GetBright at any time and without notice if there is reason to do so. Damage to the maintenance system as a result of negligence or incorrect use will be at the expense of the Client. It is prohibited for the Client to transfer the provided username and password to third parties without GetBright’s permission.
Article 14. Applicable law and disputes
All legal relationships in which GetBright is involved are exclusively governed by Dutch law, even if an agreement is wholly or partially performed abroad or if the party involved in the legal relationship is domiciled there. The applicability of the Vienna Sales Convention is excluded.
The court in GetBright’s place of business has exclusive jurisdiction to hear disputes, unless the law prescribes otherwise. Nevertheless, GetBright has the right to submit the dispute to the competent court according to the law.
The parties will only appeal to the court after they have made every effort to settle a dispute in mutual consultation.
Article 15. Location and change of conditions
These terms and conditions are published on the GetBright website.
The most recently filed version or the version that applied at the time of the establishment of the legal relationship with GetBright is always applicable.
The Dutch text of the general terms and conditions is always decisive for the explanation thereof.