The following definitions are used in these Terms and Conditions:
Dimpekt: Dimpekt (Chamber of Commerce number 77875958).
Customer: any (natural or legal) person who enters into an Agreement with Dimpekt.
Agreement(s): the agreement(s) between the client and Dimpekt.
Parties: Dimpekt and Client.
Social Media Platform: Online platform that enables communication and sharing of information between the users of the platform, such as LinkedIn, Facebook, YouTube and Instagram.
Software: software provided by Dimpekt for computers and mobile devices.
Terms and Conditions: these General Terms and Conditions.
Work: the work that Dimpekt has agreed with the Client.
2.1 The Terms and Conditions apply to all Dimpekt’s offers and Agreements.
2.2 No other conditions shall apply.
2.3 Deviations from the Agreement and the Terms and Conditions shall be valid only if agreed in writing.
2.4 If the Agreement and the Terms and Conditions contain mutually conflicting provisions, the terms and conditions contained in the Agreement shall apply.
2.5 If one or more provisions of the Terms and Conditions or the Agreement are null and void or destroyed, the remaining provisions shall continue to apply.
2.6 Dimpekt has the right to modify the Terms and Conditions. In case of modification, Dimpekt will provide the Client with the modified Conditions which will then apply to the Agreement.
3 Offer & Agreement
3.1 All offers and quotations of Dimpekt are non-binding, revocable and valid for 30 days after their issuance.
3.2 An Agreement is only established if Dimpekt accepts an order from the Client in writing and/or starts its execution.
4 Prices & Payment
4.1 The prices quoted by Dimpekt are exclusive of VAT and any legally based charges.
4.2 Dimpekt has the right to unilaterally increase prices if (a) one or more cost-determining factors, such as prices charged by suppliers of Dimpekt, change or (b) the client changes the assignment or related specifications and/or documents. If Dimpekt increases prices by more than 10%, the client has the right to terminate the agreement. If the Customer exercises that right, the Customer must terminate the Agreement in writing and within 14 days of Dimpekt notifying the Customer in writing of the price change.
4.3 Invoices from Dimpekt shall be paid within 14 days of the invoice date, in euros and without suspension or set-off against any claim that the client has or thinks to have against Dimpekt.
4.4 If the payment deadline is exceeded, the client must pay, in addition to the legal commercial interest rate, extrajudicial collection costs equal to 15% of the amount to be collected, with a minimum of €200.
5 Termination & suspension
5.1 The Agreement is entered into for the duration of at least 12 months. After the expiry of this period, the Agreement will be continued for an indefinite period.
5.2 The Agreement may only be terminated after the 12-month period referred to in Article 5.1 has expired by means of a registered letter. A notice period of 3 months must be observed.
5.3 Dimpekt has the right to suspend the fulfilment of its obligations or to dissolve the Agreement with immediate effect if (a) the client fails to comply with the Agreement or the Terms and Conditions and/or, (b) Dimpekt’s supplier ceases to supply goods to be supplied by Dimpekt to the client, such as Software, and/or (d) the client is in suspension of payments or bankruptcy or a request for such has been filed and/or (e) the company or business of the client is dissolved or liquidated and/or (f) the client dies.
5.4 In the cases mentioned in Article 5.3, all outstanding invoices of Dimpekt shall be immediately due and payable and Dimpekt shall be entitled to compensation for damages resulting from the circumstances mentioned in Article 5.3.
5.5 If Dimpekt chooses to dissolve the Agreement pursuant to Article 5.3, this shall not result in the undoing of any performance already received by the Parties.
6 Execution of the Agreement
6.1 Dimpekt may have the Work performed by third parties. Articles 7:404 and 7:407(2) of the Dutch Civil Code shall not apply. If any limitations of liability are applied by third parties engaged by Dimpekt, then Dimpekt may accept them also on behalf of the Client.
6.2 Deadlines specified by Dimpekt for the completion of the Work are indicative and not final. Exceeding these deadlines does not give the client the right to terminate the Agreement, suspend its obligations arising therefrom and/or to compensation.
6.3 The client provides Dimpekt with all information relevant to the execution of the Agreement. Customer guarantees the accuracy and completeness of that information and guarantees that Customer is authorized to provide that information to Dimpekt. The client indemnifies Dimpekt against any claims from third parties in this regard.
7 Changes to the contract & additional work
7.1 If Dimpekt performs work that goes beyond the content or scope of the Work and Dimpekt does so (a) at the request of or with the prior consent of the Client and/or (b) because it is necessary to prevent unforeseen difficulties or to resolve problems that have arisen, then the associated costs shall be paid by the Client as additional work.
7.2 The Customer accepts that the delivery/completion of the Work may be delayed by additional work.
8 Retention of title & (usage) rights/licences
8.1 All goods supplied by Dimpekt remain the property of Dimpekt and all (usage) rights and licenses granted by Dimpekt to the Client remain the property of Dimpekt until the Client has paid the claims of Dimpekt against the Client.
8.2 Dimpekt has the right to withdraw and/or block goods subject to retention of title and (usage) rights and licenses granted under reservation if Customer does not pay Dimpekt’s claims.
9 Liability & Statute of Limitations
9.1 In cases where the client has a right to compensation against Dimpekt, Dimpekt is not liable for more than for direct, demonstrable and actual damages suffered. Dimpekt is not liable for indirect or consequential damages, such as lost profits and damages suffered by third parties.
9.2 Dimpekt shall not be liable for (a) damages resulting from the exercise of the suspension and dissolution clauses in Art. 3 mentioned in the suspension and dissolution rights, (b) damages resulting from the fact that the Customer has processed or treated goods supplied by Dimpekt or has had them processed or treated, (c) damages resulting from the fact that after the conclusion of the Agreement it appears that goods cannot be delivered, (d) damages resulting from the failure or malfunction of websites and Software supplied by Dimpekt, (e) damages resulting from the shutdown of said websites and Software by Dimpekt or its suppliers in connection with maintenance work or the resolution of calamities, such as hacking, spamming or the spread of viruses and/or (f) damages resulting from the factors listed in Article 11.
9.3 If Dimpekt has any liability, this liability shall be limited to the amount paid out in the case in question under Dimpekt’s liability insurance. If no payment is made under that insurance, then any liability is limited to the amount of the invoice for the last 6 months, counting from the date when the damage-causing event occurred, up to a maximum of €5,000.
9.4 All claims by the client against Dimpekt expire after one year from the day after they became due and payable.
10 Force Majeure
10.1 In cases of force majeure, Dimpekt is not liable and Dimpekt has the right to suspend the execution of the Agreement or to terminate the Agreement.
10.2 Force majeure is understood to be any circumstance beyond the control of Dimpekt, including a failure by Dimpekt’s suppliers or auxiliary persons, disruptions in the supply of energy, internet, data, software and materials, traffic disruptions, fire, floods, strikes, disturbances, war, epidemics and pandemics.
10.3 Dimpekt can also invoke force majeure if the circumstance that prevents fulfillment occurs after Dimpekt should have fulfilled its obligations.
10.4 If the force majeure lasts longer than 60 days, the Parties may dissolve the Agreement without being liable for compensation.
11 Software and Social Media Platforms
11. 1 Dimpekt is not responsible for any reduced or deficient functionality of Software that is the result of (a) choices made by the Customer regarding internet/transmission speeds and amounts of data traffic, (b) internet outages, (c) outages in the Customer’s (wireless) network, (d) deficient functionality of goods not supplied by Dimpekt including Software, (e) failures resulting from or related to hardware, updates, browsers, operating systems, shareware, freeware, Social Media platforms or content management software, such as WordPress or Google used or installed by the Customer and/or (f) failure to comply with instructions provided by Dimpekt and/or its supplier(s).
11.2 Dimpekt takes care of the availability and security of Software, making every effort to provide optimal availability, functionality and security. However, Dimpekt does not provide any guarantee in this regard. The consequences of failure, defective or reduced functionality or inaccessibility of Software or websites due to reasonably unforeseeable circumstances or circumstances beyond the control of Dimpekt, such as hacking and virus attacks, are the responsibility of the Customer.
11.3 If a provider of a social media platform for any reason whatsoever (a) prohibits Dimpekt or the Customer from using Software or the product or the result of the work performed and/or to be performed by Dimpekt and/or (b) blocks the Customer’s social media account, Dimpekt shall not be responsible for this and the consequences shall be borne by the Customer.
11.5 Dimpekt is permitted to make changes (or have changes made) to Software or to temporarily take Software out of use (or have it taken out of use) for maintenance or to resolve emergencies, such as hacking, spamming and the spread of viruses.
11.6 The Customer is not allowed (a) to modify, copy or multiply the Software, (b) to make the Software available to and to use it for the benefit of third parties, for instance within the framework of Software-as-a-Service (Saas), (c) to deactivate or circumvent technical provisions intended to protect the Software against unlawful or unauthorized use, (d) to encumber the Software with limited rights, such as a pledge and/or (e) to give third parties – whether or not remotely – access to the Software.
11.7 Customer shall respect the restrictions prescribed by Dimpekt and/or its supplier(s), such as restrictions on the number of users of Software and purposes of use.
11.8 Customer has no right to the source code of Software provided by Dimpekt.
12.1 The client and Dimpekt are obliged to maintain the confidentiality of all confidential information obtained in the context of the Agreement. Information is considered confidential if this is stated by a Party or if it results from the information. With respect to licenses granted by Dimpekt for the use of Software, the Customer is aware that such Software may contain confidential information and trade secrets of Dimpekt and/or its supplier(s). The client is obliged to keep this software secret, not to disclose it to third parties and to use it only for the purpose for which it was made available to the client. The aforementioned third parties also include persons working in the Customer’s organization who do not necessarily need to use the Software.
12.2 Parties are authorized to disclose confidential information if this is necessary (a) pursuant to a statutory provision or a judicial decision or (b) if a government agency, such as the Tax Authorities, obliges them to do so or (c) if this is necessary to substantiate or defend claims that Parties have or think they have against each other.
12.3 If Parties do not comply with the obligations referred to in Article 12.1, they will owe an immediately payable penalty of € 10,000 per violation of Article 12.1. In addition, the Customer shall owe an amount of €5,000 for each day that the violation continues.
12.4 Dimpekt is authorized to refer to Agreement and the Work in promotional or publicity expressions, subject to Article 12.
13 Ban on taking over employees of Dimpekt
13.1 During the Agreement and subsequently for a period of one year after the termination of the Agreement, the Client is not allowed to hire, employ or contract with employees of Dimpekt, either directly or indirectly, to perform work that Dimpekt performs or is similar to. For each violation of this prohibition, the Client shall owe Dimpekt an immediately payable penalty in the amount of one gross annual salary of the employee(s) involved.
14 Intellectual property rights
14.1 Dimpekt expressly reserves all intellectual property rights. There shall only be any transfer of these intellectual property rights if the Parties expressly agree to this in writing.
15.1 In order to execute the Agreement, Dimpekt uses personal data from the Client. Dimpekt’s privacy statement specifies the manner in which this data is processed.
16 Law & Court
16.1 Dutch law is applicable to the Agreement.
16.2 Disputes between the Parties shall, at the discretion of Dimpekt, be settled by the competent court in Utrecht or by arbitration in accordance with the Arbitration Regulations of the Stichting Geschillenoplossing Automatisering, located in The Hague. Dimpekt’s possible choice of arbitration does not affect the right of the Parties to request a provision in (arbitral) summary proceedings or to lay down a precautionary attachment.