General Terms and Conditions
Webshopimporter / Magdeveloper
Established on April 11, 2018.
Located at Emmastraat 119, 7547AB, in Enschede, registered with the Chamber of Commerce under number 08160787.
Article 1 Defintions
In these General Terms and Conditions, the following terms are used in the following meanings, unless expressly stated otherwise.
General Termsand Conditions: The general terms and conditions as stated below
Magdeveloper: Magdeveloper, also known as Webshopimporter, registered with the Chamber of Commerce under number 08160787.
Service: All work, in whatever form, performed by Magdeveloper for or on behalf of the Other Party.
Fee: The financial compensation agreed upon with the Other Party for the execution of the assignment.
Assignment: The agreement to provide services.
Other Party: The person who has accepted the validity of these general terms and conditions and has given the order to perform the service.
Agreement: Any agreement entered into between Magdeveloper and the Other Party
Article 2 Scope
- These General Terms and Conditions apply to every offer, quotation and Agreement concluded between Magdeveloper and the Other Party, unless these General Terms and Conditions have been explicitly deviated from by the parties in writing.
- These General Terms and Conditions are also applicable to agreements with Magdeveloper, the execution of which requires the involvement of third parties.
- The applicability of any purchase or other General Conditions of the Other Party is expressly rejected.
- If it appears that one or more provisions of these General Terms and Conditions are void or voidable, the General Terms and Conditions shall remain in effect in all other respects. In such a situation Magdeveloper and the Other Party will consult with a view to agreeing on new provisions to replace the null and void provisions.
- Deviations from the Agreement and General Terms and Conditions are valid only if expressly agreed in writing with Magdeveloper.
Article 3 Offers and/or tenders
- Offers and/or quotations are made in writing and/or electronically, unless urgent circumstances make this impossible.
- All offers and/or quotations by Magdeveloper are without obligation unless a period for acceptance has been specified in the offer and/or quotation. If the offer and/or quotation stipulates a period for acceptance, the offer and/or quotation will lapse when this period expires.
- Magdeveloper cannot be bound by its offers and/or quotations if the Other Party should have understood, according to the principles of reasonableness and fairness and according to the usual criteria in social and economic life, that the offer and/or quotation, or part thereof, contains an obvious mistake or error in writing.
- If the acceptance, whether or not on minor points, deviates from the offer included in the quotation and/or offer, Magdeveloper is not bound by this. The Agreement will then not be concluded in accordance with this different acceptance, unless Magdeveloper indicates otherwise.
- A composite quotation shall not oblige Magdeveloper to perform part of the Order at a corresponding part of the quoted price.
- Offers and/or quotations do not automatically apply to future orders or repeat orders.
Article 4 Subscription
- The Other Party has the option to take out a trial subscription for one month.
- The Other Party’s trial subscription will be automatically renewed for an indefinite period after the expiration of the trial subscription.
- Before Magdeveloper renews the subscription, Magdeveloper will explicitly state to the Other Party that the subscription is being renewed for an indefinite period of time.
- The Other Party may terminate the subscription subject to a two-month notice period, unless otherwise stated in the Agreement. In case of termination, the subscription continues until the end of the month.In case of termination, there will be no compensation and/or settlement.
Article 5 Development, maintenance of software and/or web shop
- The Other Party shall provide Magdeveloper in a timely manner with all data, instructions, materials, passwords and the necessary access to the software system concerned that are necessary for the development and/or maintenance of the software and/or webshop or that the Other Party should reasonably understand are necessary for the execution of the Agreement.
- If the foregoing information and instructions are not provided or not provided on time, Magdeveloper shall be entitled to suspend the performance of the Agreement. The additional costs incurred due to the delay shall be borne by the Other Party.
- If the materials provided by the Other Party are protected by intellectual property, the Other Party guarantees that he or she has the required licenses.
- Magdeveloper will endeavour to keep the Other Party informed of the latest news and most recent developments to the best of its ability.
Article 6 Delivery and warranty software
- If the Agreement concerns the development of software, the Other Party will be obliged to investigate within one week after delivery whether the quality and quantity of what is delivered corresponds to what was agreed, or at least meets the requirements that apply to it in normal business life.
- Delivery of the software takes place as Magdeveloper provides the Other Party with access to the software. After delivery, the risk of the item passes to the Other Party.
- Magdeveloper guarantees that the software will function in accordance with the specifications.
- Magdeveloper guarantees that the granting of rights of use to the Other Party as referred to in this Agreement will not conflict with the rights of third parties.
- The warranty indicated in these General Terms and Conditions applies to use within and outside the Netherlands.
- User shall be entitled to repair Defects free of charge during the warranty period. Magdeveloper will resolve Defects at the next Update.
- The guarantee lapses if and insofar as Magdeveloper demonstrates that the Defects concerned have arisen as a result of error repairs, maintenance or changes carried out by or on behalf of the User.
- Any form of warranty shall lapse if a defect has arisen as a result of inexpert use or lack of care, or if it is a result of changes that the User or third parties have made to the delivered item. Nor does Magdeveloper guarantee any damage arising from these defects.
- The Other Party must report defects and shortages to Magdeveloper within 1 week of their discovery.
- If the Other Party reports a defect or shortcoming, Magdeveloper will endeavour to remedy this defect or shortcoming within 14 days at the latest.
- The right to (partial) refund of the price, repair or replacement shall lapse if defects are not reported within the prescribed period, unless the nature of the work or the circumstances of the case dictate a longer period.
- The obligation to pay will not be suspended if the Other Party and Magdeveloper notify the defective item within the specified period.
- The Other Party does not acquire ownership of the software developed by Magdeveloper. Magdeveloper grants the full and non-transferable use of the software to the Other Party.
- The right of use has the following restrictions, among others:
- – The Other Party is not permitted to give the software and documentation in use to third parties or to use them for the benefit of third parties;
- – The Other Party is not allowed to change or modify the software and documentation.
- The User is not permitted to remove any indication of copyrights, brands, trade names or other rights of (intellectual) property from the software and the documentation.
Article 8 Installation software
- The Product shall be installed by Magdeveloper at a location or locations designated by Magdeveloper. Magdeveloper shall ensure at the time of delivery that sufficient competent personnel are made available. The Other Party will provide such facilities for this personnel as may reasonably be required by the Magdeveloper.
- After installation, an inspection and test will take place in the presence of the Other Party. Magdeveloper undertakes to continue to make expert personnel available until the testing has led to a result satisfactory to both parties.
- The foregoing shall not apply if the use, maintenance and repair is known or should be expected to be known to the Other Party.
Article 9 Intellectual property software
- Magdeveloper reserves the rights and powers accruing to it under the Copyright Act and other intellectual legislation and regulations.
- The intellectual property rights for the Software and the Updates to the Software shall belong to Magdeveloper.
- The intellectual property rights of the data, information and data entered into the software by the User shall belong to Magdeveloper.
- Magdeveloper reserves the right to use any knowledge acquired during the execution of the work for other purposes, to the extent that this does not involve the disclosure of confidential information to third parties.
Article 10 Delivery of webshop
- The testing and verification of the webshop is the joint responsibility of the Other Party and Magdeveloper. After testing, verification and your approval, the product is delivered.
- The Other Party is obliged to examine the developed and delivered webshop at the time of delivery, but in any case within 14 days of delivery, and to provide feedback. The first round of feedback is included in the fee and there is no additional charge for this. The Other Party may only provide feedback on the technology at this stage.
- If the Other Party provides feedback after the first round of feedback, this will be considered additional work.
- Magdeveloper shall charge for additional work the hourly rate used by it. Before Magdeveloper proceeds with additional work, the Other Party will be informed in advance.
Article 11 Web shop contents
- Magdeveloper is not responsible for the content and information of the Other Party’s Web shop.
- Magdeveloper is entitled to put the domain registration on hold and/or delete it if the content:
- – is in conflict with (inter)national legislation;
- – has a violent character or refers to a location with violent content;
- – Discriminates on the basis of race, sex, political affiliation, religion or belief;
- – is of a pornographic, erotic nature or refers to a location with pornographic content;
- – Encourages, promotes or advertises illegal activities.
- If one of the above situations arises, Magdeveloper is also entitled to dissolve the Agreement with immediate effect and without judicial intervention.
- Magdeveloper is never liable for damage because the Web shop of the Other Party contains unlawful content unless Magdeveloper was aware of this content.
Article 12 Malware and/or viruses
- The Other Party will not place any malware and/or viruses on its web shop which could cause damage.
- If the Other Party has placed malware and/or viruses on its webshop, the malware and/or virus will be removed immediately.
- If the placed malware and/or viruses have caused damage on the part of Magdeveloper, Magdeveloper is entitled to claim the costs of this damage from the Other Party.
- If it repeatedly occurs that the Other Party intentionally places malware and/or viruses on its website, Magdeveloper is entitled to terminate the Agreement and put the webshop out of business.
Article 13 Backup
- Magdeveloper keeps standard backups up to 2 days back.
- Magdeveloper and the Other Party may agree to keep the backups for a longer retention period.
- The Other Party can also create and manage its own backups from within the software.
Article 14 Hosting and associated backups
- The Other Party may purchase hosting from Magdeveloper.
- On the website www.magdeveloper.com, various (hosting) packages are offered. Services may vary by package, as specified on the website. Each package has a data traffic limit. It is not possible to exceed the data traffic limit.
- Magdeveloper is not permitted to delete a hosting account without the service expiring, being terminated or such a request being made. On the other hand, it is permitted to put a hosting account or the user on suspension if the Other Party does not comply with the general social views as usual in reasonableness and fairness for normal use.
- Warranty with respect to hosting is provided by Magdeveloper.
- If scheduled maintenance will take place on the hosting server, Magdeveloper will notify the Other Party in a timely manner.
- Magdeveloper offers a 99% web hosting server uptime guarantee with the exception of scheduled maintenance or force majeure situations.
- If Magdeveloper is in default of the foregoing provisions of this article, a one-time discount on the invoice is negotiable.
- Magdeveloper shall never be liable for damage resulting from failure, malfunction, shutdown or other circumstances beyond its control.
- The Other Party is responsible for making and managing backups. Magdeveloper only retains data up to 2 days back. Consequently, Magdeveloper can never be held liable for the loss of data and/or information.
- Magdeveloper creates backups up to 2 days back for in-house management. In principle, the Other Party does not have access to these backups. In consultation, access may be provided if necessary.
Article 15 Domain registration
- The application and use of the domain name of the Other Party is subject to the applicable rules and procedures of the relevant registering authorities. The registering authorities are responsible with respect to the application of the domain name. Magdeveloper is not responsible for honoring the domain name request.
- The Domain Registration will be in the name and responsibility of the Other Party.
- The Domain Registration is per calendar year and cannot be changed.
- Changing the domain registration counts as a new domain registration.
- Magdeveloper shall never be liable and responsible for any damage arising from the content and use of the domain and domain name.
Article 16 Data and information
- The sending and storing of (reference) data and information via data communication lines such as telephone lines, cable or wireless connections, is done under the responsibility and at the risk of the User using that communication method.
- If the User uses data communication lines, its risk is limited to the warranties and liabilities provided and covered by the network provider in this regard, unless due to demonstrable wrongdoing by one of the parties, the liability lies with the responsible party.
- User shall ensure compliance with the conditions imposed on the processing of personal data under the General Data Protection Regulation and other regulations.
- User shall only provide access to the personal data to its employees to the extent necessary for the performance of its work.
- User is liable for all damages resulting from or related to the violation of the General Data Protection Regulation.
Article 17 Design
- The Other Party and Magdeveloper agree that the Other Party is responsible for the correct delivery of the content and information for the design.
- Magdeveloper shall design and deliver the design in accordance with the guidelines and wishes of the Other Party, unless otherwise agreed.
- The Other Party is not permitted to provide content and information if the content:
– is in conflict with (inter)national legislation;
– has a violent character or refers to a location with violent content;
– Discriminates on the basis of race, sex, political affiliation, religion or belief;
– is of a pornographic, erotic nature or refers to a location with pornographic content;
– Encourages, promotes or advertises illegal activities.
- If one of the above situations occurs, Magdeveloper is entitled to terminate the Agreement with immediate effect and without judicial intervention.
- Magdeveloper will present the Other Party with one or a number of design proposals. From these proposals, the Other Party may choose one design of which it will acquire ownership after payment. The other design proposals remain the property of Magdeveloper.
- Unless otherwise agreed, the (originals of the) results produced by the Magdeveloper within the framework of the assignment (such as designs, design sketches, concepts, advice, reports, budgets, estimates, specifications, working drawings, illustrations, photographs, prototypes, scale models, moulds, prototypes, (partial) products, films, (audio and video) presentations, source codes and other materials or (electronic) files, etc.) will remain the property of the Magdeveloper, irrespective of whether they are made available to the Other Party or to third parties.
- After the completion of the assignment, neither the Other Party nor the Magdeveloper shall have an obligation to each other to retain the materials and data used, unless otherwise agreed.
Article 18 Content Enrichment
- Content enrichment is done on an invoice basis.
- If the Other Party engages Magdeveloper for Content enrichment, the Other Party and Magdeveloper will agree on the specifications of the assignment in the agreement
- Magdeveloper is entitled to rescind the agreement and/or claim damages in the amount of 50% of the agreed Honorarium if:
- – The Other Party structurally makes changes to the website without Magdeveloper’s permission;
- – the Other Party modifies the domain.
- Magdeveloper is entitled to terminate the agreement and/or demand compensation amounting to 50% of the agreed Fee if the result was achieved if the Other Party takes the website offline or moves it to another domain name.
- If the Other Party transfers and/or sells the Website to a third party, the Other Party is obliged to transfer the Content Enrichment agreement to the relevant third party. If the Other Party does not transfer the agreement, the Other Party shall owe Magdeveloper the full Fee if the result had been achieved.
Article 19 Fees
- The Fee and/or rates are expressed in Euros, excluding VAT and other government levies, unless otherwise indicated.
- If a Fee and/or rate is not expressly agreed upon, the Fee will be determined on the basis of the hours actually spent and Magdeveloper’s usual hourly rates.
- Magdeveloper will notify the Other Party of all additional costs in good time before the Agreement is concluded or provide information on the basis of which the Other Party can calculate these costs.
Article 20 Payment
- Payment is made by means of transfer to a bank account designated by Magdeveloper at the time of purchase or delivery, on the basis of direct debit by means of an authorization or by electronic (IDEAL) payment, unless otherwise agreed.
- Payment can be made either in advance or afterwards.
- Subsequent payment must be made within 14 days of the invoice date, in a manner to be indicated by Magdeveloper and in the currency of the invoice, unless otherwise agreed.
- After the expiry of 30 days from the invoice date, the Other Party shall be in default by operation of law without notice of default. The Other Party shall owe interest of 2% per month on the amount due and payable from the moment of entering into default, unless the legal interest rate is higher.
- In the event of bankruptcy, suspension of payments or receivership, Magdeveloper’s claims and the Other Party’s obligations towards Magdeveloper shall be immediately due and payable.
Article 21 Force Majeure
- A shortcoming cannot be attributed to Magdeveloper or the Other Party, as the shortcoming cannot be attributed to his fault, nor can it be attributed to him by virtue of law, legal action or generally accepted practice. In this case, the parties are also not bound to fulfill the obligations under the Agreement.
- In these General Terms and Conditions, force majeure is defined, in addition to the relevant definitions in the law and in case law, as all external causes, foreseen or unforeseen, over which Magdeveloper has no influence and as a result of which Magdeveloper is unable to fulfil its obligations.
Article 22 Liability
- The execution of the Order will be entirely at the risk and responsibility of the Other Party. Magdeveloper is only liable for direct damage caused by deliberate recklessness or intent on the part of Magdeveloper.
- Magdeveloper shall never be liable for indirect damage, including in any case consequential damage, loss of profit, lost savings, business interruption or immaterial damage suffered by the Other Party.
- Magdeveloper is not liable for damage of any nature whatsoever resulting from the fact that Magdeveloper has relied on incorrect and/or incomplete information provided by the Other Party, unless such incorrectness or incompleteness should have been known to Magdeveloper.
- Should Magdeveloper be liable for any damage, then Magdeveloper’s liability shall be limited to a maximum of the amount stated in the invoice or the amount covered by the insurance taken out by Magdeveloper, plus the excess borne by Magdeveloper in accordance with the insurance policy.
Article 23 Privacy and Cookies
- Magdeveloper will keep the data and information provided by the Other Party to Magdeveloper carefully and confidentially.
Article 24 Amendment of general conditions
- Magdeveloper is entitled to amend these General Terms and Conditions unilaterally.
- Changes will also apply with respect to agreements already entered into.
Article 25 Applicable law and disputes
- All legal relationships to which Magdeveloper is a party are governed exclusively by Dutch law.
- This also applies if an obligation is fully or partially performed abroad or if the Other Party has its residence abroad.
- The applicability of the Vienna Sales Convention is excluded.
- Disputes between Magdeveloper and the Other Party will be submitted exclusively to the competent court in the district of Overijssel, unless the law imperatively dictates otherwise.
Article 26 Location
- These General Terms and Conditions have been filed with the Chamber of Commerce under number 08160787.