Terms

1. General

1.1. Webswing internet solutions (hereinafter Webswing) provides services in IT, more specifically the development of software applications and the delivery of (software) products from third parties.

1.2. These general terms and conditions apply to all offers and services of Webswing.

1.3. Provisions of these general terms and conditions can only be deviated from in writing, in which case the remaining provisions remain in full force.

2. Definitions

In these General Terms and Conditions the following definitions apply:

2.1. Customer: every consumer or legal entity that contacts Webswing about an offer or the realization of an agreement.

2.2. Order: every order from the Customer to Webswing.

2.3. Documentation: the documentation and manuals made available by or on behalf of Webswing.

2.4. Agreement: every agreement made between Webswing and the Customer, every modification or supplement thereto, as well as all acts in preparation and execution of that Agreement.

2.5. Force majeure: every circumstance beyond the control of Webswing, as a result of which the fulfillment of its obligations towards the Customer is fully or partially prevented or as a result of which the fulfillment of its obligations cannot reasonably be demanded of Webswing, regardless of whether the circumstance was foreseeable at the time the Agreement was made. Such circumstances also include: strikes and lockouts, stagnation or other problems at Webswing or its suppliers.

2.6. Product: any service, product or good delivered by Webswing, including among other things consultancy, secondment, software, hardware, custom software, project management and support.

3. Applicability

3.1. These General Terms and Conditions are part of all Agreements and apply to all related (legal) acts of Webswing and the Customer. The General Terms and Conditions have been made available to the other party prior to the conclusion of the Agreement.

3.2. Without prejudice to the provisions in the previous subsection the Customer can also read these General Terms and Conditions on the website of Webswing (www.webswing.nl) or request Webswing to provide a copy free of charge and without delay.

3.3. These terms and conditions prevail at all times over the terms and conditions of the Customer. To the extent necessary Webswing hereby explicitly rejects the applicability of the terms and conditions of the Customer.

3.4. If any provision of these terms and conditions is annulled, void or otherwise found to be unenforceable, the terms and conditions shall otherwise remain in force. The nullified, void or unenforceable part shall be replaced by a provision that reflects the intentions of that original provision.

4. Quotations

4.1. An offer of Webswing is an invitation to make an offer.

4.2. Tenders have a validity of 30 days unless otherwise indicated in the offer.

4.3. Quotations are entirely without obligation, unless otherwise indicated in the quotation.

4.4. Although Webswing will take the necessary care in formulating its offers, the work to be eventually performed or the costs thereof may deviate from these, except for printing errors.

5. Changes

5.1. The General Terms and Conditions can be changed unilaterally by Webswing. The changes will become effective 1 month after the changes have been announced or on a later date if the announcement states so. The changes will also apply to already existing Agreements.

5.2. Changes and additions to any provision in an Agreement and/or the general terms and conditions applicable to the Agreement are only valid if they are laid down in writing by Webswing and only apply to the Agreement concerned and therefore do not form part of these General Terms and Conditions.

6. Additional work and less work (estimated costs)

6.1. If an Agreement contains one or more provisional sums, the actual work performed will be charged.

7. Prices

7.1. All prices are exclusive of VAT, unless otherwise stated.

7.2. If after the conclusion of an Agreement and before the agreed time of delivery or completion of the work, the prices of auxiliary materials, wages or any other price-determining factors are changed, Webswing is entitled to pass on the prices that apply on the date of order. If the price change would be unacceptable according to standards of reasonableness and fairness, the Customer is authorized to terminate the Agreement.

7.3. If the circumstances resulting from additions and/or changes to the Agreement made at the request of the Customer change after the conclusion of the Agreement, Webswing has the right to pass on the resulting costs to the Customer.

7.4. The Customer must make any objections to any invoice known within 14 days after receipt thereof.

7.5. Discounts are considered to be granted only once. Previously granted discounts do not bind Webswing in any way for a later Agreement.

8. Payment

8.1. Webswing maintains a term of payment of 14 days unless explicitly agreed otherwise in writing. The Customer shall pay Webswing the amounts invoiced to him in full within the term of payment.

8.2. The Customer is not authorized to set off payments.

8.3. If at any time Webswing has reasonable doubt about the creditworthiness of the Customer, Webswing has the right, before carrying out (further) activities, to demand that the Customer pays in advance or that the Customer provides adequate security for the sums which Webswing has or will have to claim from the Customer on the basis of the Agreement, whether or not payable, such to be decided by Webswing.

8.4. With the mere expiration of a term of payment the Customer is immediately in default. In that case all claims, for whatever reason, of Webswing against the Customer are immediately due and payable.

8.5. If the Customer is in default, the Customer shall owe an interest of 1% per month (whereby a part of a month shall be regarded as a month) over the amount due until it is paid in full.

8.6. If Webswing, after the Customer is in default, addresses payment reminders or other requests for payment to the Customer, this does not affect previous provisions in this article.

8.7. The Customer is deemed to perform first.

8.8. All costs reasonably incurred by Webswing for the purpose of obtaining satisfaction outside a court of law from the Principal for all that he owes to Webswing shall be for the account of the Principal.

8.9. If Webswing has to take the Customer to court in order to enforce compliance with the Agreement, the Customer shall be obliged to pay all costs actually incurred in connection with the legal proceedings, such as the costs for legal assistance and counsel, if Webswing is wholly or partly successful.

9. Delivery time

9.1. The delivery times given are to be understood as an obligation of effort and are deemed to be approximate.

9.2. Changes to the Agreement may result in any previously stated delivery times being exceeded. In such a case, the delivery time shall be deemed extended by a non-fatal period in proportion to the agreed changes.

10. Retention of title

10.1. All products delivered by Webswing shall remain the property of Webswing until all amounts owed by the Customer to Webswing under any Agreement have been paid in full.

10.2. Intellectual property remains exclusively the property of Webswing and its suppliers.

10.3. If the Customer fails to fulfil his payment obligations within the scope of an Agreement or in case of seizure, (temporary) moratorium or bankruptcy, Webswing has the right to take back the property still at the Customer’s premises which was delivered under retention of title without prejudice to the other rights of Webswing.

11. Employees

11.1. It is prohibited for the Customer in any way, directly or indirectly, to employ, hire or otherwise -directly or indirectly- hire employees of Webswing or other employees seconded to the Customer by Webswing within twelve months after the employee last visited or contacted the Customer. All this is subject to forfeiture of an immediately payable and non-measurable fine of € 25,000 per violation as well as € 500 per day that the violation continues.

11.2. The Customer is aware that employees of Webswing and other employees seconded by Webswing are contractually bound by a relation clause, so that the employee commits a breach of contract towards Webswing or towards the employer of the employee not employed by Webswing.

12. Guarantee

12.1. Webswing guarantees the quality of the work performed by it or outsourced to third parties.

12.2. If Webswing delivers products to the Customer that have been acquired from third parties or makes use of third parties, Webswing shall never be liable for any further guarantees than those already given.

12.3. The warranty claim expires three months after a Product has been (re)delivered.

13. Liability

13.1. Every liability claim by the Customer must be reported to Webswing within a reasonable time after the Customer has established or reasonably could have established the liability. After two months this right of Customer to claim liability expires.

13.2. Webswing is not liable for indirect damage, including but not limited to consequential damage, loss of profit or any pre-contractual damage.

13.3. The liability of Webswing for any damage is limited to a maximum of the amount of the contract sum of the Agreement with a maximum liability of € 25.000.

13.4. The limitations of liability of Webswing as set out in this article are not applicable insofar as this is in conflict with applicable mandatory law or insofar as the damaging event was caused by intent or deliberate recklessness on the part of Webswing, its staff or staff seconded by it.

13.5. Webswing is not liable for theft or loss of goods of the Customer and/or third parties that Webswing has in its possession for whatever reason.

14. Force majeure

14.1. If Webswing cannot fulfill its obligations towards the Customer due to force majeure, the fulfillment of these obligations will be suspended for the duration of the force majeure situation.

14.2. Force majeure means: a shortcoming that cannot be attributed to Webswing because it is not due to its fault, nor by law, legal act or according to socially accepted notions, including the case where Webswing is not able to perform its services due to an (attributable) shortcoming or negligence of third parties. Force majeure includes:

• Business disruption or business interruption of any nature, and regardless of how it arose, including the departure of employees;
• Delayed or late delivery by suppliers of Webswing;
• War (danger) riots, sabotage, flooding, fire, lockouts, occupation, strikes and changed government measures;

14.3. In case of force majeure Webswing has the right to choose either to change the term of delivery or to dissolve the Agreement out of court, without being obliged to pay damages.

14.4. After termination of the Agreement Webswing has the right to compensation for the costs made and/or work done by him, which right in case of repair and maintenance Webswing has only insofar as the Customer benefits from this.

14.5. In case of force majeure the Customer has no right to any compensation, not even if Webswing would have any advantage as a result of the force majeure.

14.6. Webswing will inform the Customer as soon as possible about an (impending) force majeure.

15. Dissolution

15.1. Dissolution of an agreement has to be done by registered letter, after a prior written notice of default with the granting of a reasonable period of time to still comply or to repair deficiencies, whereby deficiencies have to be described accurately in advance.

15.2. If the Customer does not, not timely, not fully or not adequately comply with any obligation to pay as stated in article 8, Webswing has the right to terminate the agreement in whole or in part without formal notice and without judicial intervention.

15.3. The Customer shall be obliged to pay for the work performed by Webswing up to the moment of dissolution.

16. Settlement of disputes

16.1. Dutch law shall apply to legal proceedings.

16.2. All disputes shall, to the extent not otherwise required by mandatory law, be exclusively submitted to the competent court in The Hague.