Article 1 Validity of these conditions
- These conditions will apply to all negotiations, offers, quotations, agreements and other (legal) acts entered into by Instant Magazine B.V. (hereinafter: “IM”), having its registered office in Amsterdam, the Netherlands.
- The client's assignment and/or licence acquisition will be deemed to constitute acceptance of IM's general conditions.
- Any special provisions, derogating from IM's conditions, will be binding only if agreed in writing.
- IM expressly rejects the applicability of any general conditions of the client.
- In the event of conflict between a provision in one or more agreements entered into between IM and the client and the General Conditions, the provisions of the agreement or agreements will prevail.
- If and to the extent that any provision of the General Conditions, or any part of a provision, is declared null and void or is nullified, the other provisions, or the other part of the null and void, or nullified, provision, of the General Conditions will remain in full force and effect. In such event IM and the client will consult on a new provision to replace the null and void/nullified provision, observing the purport of the null and void/nullified provision to the extent possible.
- These General Conditions will supersede any previously applicable General Conditions.
Article 2 Offers
- Any offers and/or quotations will be subject to contract, unless expressly stated otherwise, and based on the information provided in respect of enquiries, if any. Such offers and/or quotations will not become binding until after signing of the agreement.
- Agreements, and additions or amendments to agreements, will not become binding until after written confirmation by a member of the management of IM. Any communications by other staff members of IM will not be binding on it.
- Quotations by IM will be valid for the term indicated in the quotation. If no term has been indicated, the quotation will be valid until 30 days after the date of issue of the quotation.
- Unless expressly for internal purposes, offers by way of budgets, quotations, price lists or other records may not be reproduced or submitted to third parties for inspection.
Article 3 Delivery or completion periods
- Unless otherwise agreed in writing, the term of the agreement for the use of the software shall be for a fixed period of twelve (12) months. The Agreement shall automatically renew for an additional fixed period of twelve (12) months on the expiration date of the initial term, and on each successive anniversary date thereafter, unless either party gives written notice to the other party two months prior to expiry of the term.
- Any delivery or completion periods stated will be estimates only. The delivery or completion periods have been established based on the expectation that there will be no obstacles for IM to perform the services or to undertake the work.
- If IM is unable to perform its obligations in good time, IM will promptly notify the client, stating the expected period by which the said delivery or completion period will be exceeded.
Article 4 Contract variations
- Any written or oral changes to the original assignment, of any nature whatsoever, made by or on behalf of the client, that may lead to higher costs than could be counted on at the time of the quotation, will be charged to the client as additional costs.
Article 5 Subcontracting
- The client authorizes IM to cause a third party to be designated by it to perform the work at a time to be designated by it.
Article 6 Liability
- IM will not be liable for any costs, damage and interest that may arise as a direct or indirect result of:
- force majeure, as described in further detail below;
- any acts or omissions on the part of the client, its subordinates, or any other persons deployed by or on behalf of it;
- any errors and/or defects in a design that were not discovered by the client at the time of approval of the relevant design.
- In no event will IM be liable to compensate any trading loss and/or consequential damage suffered by a client. Trading loss and/or consequential loss will include, but not limited to, all and any damage or loss that is the result of the not, or not fully, being available of the website, the magazine or the application, damage due to the loss or temporary non- availability of data, damage as a result of third-party claims against the contractor on any basis whatsoever.
- The client will indemnify IM against any third-party claims in respect of infringement of such parties’ patent, trademark or copyrights (or any other intellectual property rights), wrongful act or default, as a result of or in connection with the agreement.
- In no event will IM be liable for damage of any nature whatsoever caused by third-party hacking.
- IM will not be liable for any viruses etc. causing damage to hardware or software of IM and/or the client.
- IM will maintain its own software, which is hosted on one or more server locations. The content of the website, the magazine and the application will be divided over various servers to limit the risks of failure to the extent possible and to warrant as high an uptime as possible. In no event will IM be liable for damage of any nature whatsoever caused by server downtime or the website, the magazine or the application being offline or inaccessible.
- In the event that, despite the provisions of this article 6, IM is still liable vis-à-vis the client, such liability will at all times be limited to the amount owed by the client under the agreement in respect of licence costs for one year.
Article 7 Responsible use
- The client accepts full responsibility for the content and use of the website, the magazine or the application.
- IM reserves the right, in the event of violation of the General Conditions, to disable the website, the magazine or the application either temporarily or permanently.
- The client grants IM consent to access the website, the magazine or the application at any time - without any prior written consent being required - for the purpose of technical support, the performance or maintenance work, or to verify that the use is in accordance with what has been agreed.
- The client will be fully responsible in respect of the access data and any direct or indirect consequences of unauthorized use. The client will ensure that the logins and passwords remain strictly confidential.
Article 8 Force majeure
- IM will not be deemed to be in default if the client is already in default in the performance of its obligation or in the event of force majeure on the part of IM.
Article 9 Intellectual and/or industrial property rights
- All intellectual property rights in the template, source code, designs, images, texts, etc., provided by IM, will vest in - and remain vested in - IM.
- The materials referred to in paragraph 1 of this article may be used by the client only for the agreed purpose. Any use outside the web environment of IM is not permitted. IM will be entitled to file an additional claim if the client uses, or wishes to use, the relevant services for any other purpose or allows third parties to use them. For any act in violation of this provision the client will forfeit a flat-rate penalty in the amount of EUR 5,000, without prejudice to IM's right to claim full damages.
- IM will be entitled to autograph its items or cause its name to be stated in the colophon, in rolling credits, or otherwise in the magazine published, provided in the usual manner.
- IM will be entitled to use any magazines published by the client for its own promotional and/or publicity purposes.
- IM also reserves the right to use the increased knowledge as a result of the performance of the services for other purposes, to the extent that this will not cause any confidential information to be disclosed to third parties.
- The client is and will remain the owner of the intellectual property rights in content added by the client, such as designs, images, texts, drawings, etc.
Article 10 Software licence
- The client will acquire a licence to use the website, the magazine and/or the application and the associated content management system. The licence will only apply to use by the client itself. Use of the licence by third parties will be permitted only with the prior written consent of IM.
- The client can use the login name and password provided by IM to access a management account with which the client can use the application.
- Furthermore, the client will have access to the IM support desk to the extent necessary. The agreement will state the level of support.
- The client will at all times remain responsible for the content of the magazines published by it.
- IM is entitled to take magazines offline without further notice in case of suspected infringements of third party rights or in case of prosecutable content.
- The magazines published will remain visible and online throughout the term of the agreement between the client and IM. After termination of the agreement, IM will not be under any obligation to retain information of any nature whatsoever. The published and unpublished magazines and other information will be removed, unless agreed otherwise in writing.
- The available bandwidth for the magazines is limited by a Fair Use Policy. In the event of excessive data traffic - all at IM's sole discretion - IM may take technical or other measures. Excessive data traffic will in any event be deemed to exist if the use has been five times the average of similar clients with the same type of licence for a period of 14 days.
- In the event that IM establishes excessive data traffic as referred to in paragraph 10-7 it will – in addition to taking technical or other measures, if any – charge the client EUR 0.15 per GB. Such charge will be subject to the payment periods, etc. as referred to in article 13 of these General Conditions.
Article 11 Confidentiality
- Either party will be under the obligation to keep secret all confidential information obtained from the other party or from another source in the course of their agreement. Information will be deemed to be confidential if the other party has communicated its confidential nature of if such confidentiality ensues from the nature of the information.
Article 12 Default and dissolution
- In the event of failure on the part of the client to perform any obligation whatsoever, it will be in default in that respect without any notice of default being required. Without prejudice to the provisions of the Dutch Civil Code [Burgerlijk Wetboek], IM will also be entitled to suspend the agreement entered into, or to consider all or part of such agreement dissolved, without any judicial intervention being required, all at IM's option, and to render the magazines offline without any further notice being required.
- IM will also have the rights referred to in paragraph 1 of this article if the client is declared bankrupt, or its bankruptcy is filed for, if the client has applied for, or been granted, a moratorium on payment of its debts, if the client's immovable property has been attached, its business is wound up or is, or has been, taken over by one or more third parties, or if the client intends to leave the Netherlands to take up residence elsewhere. In all such events all the claims that IM has against the client will be immediately due and payable.
Article 13 Payment
- If payment in instalments has been agreed, each instalment is to be paid 14 days after the day of despatch by IM of the relevant instalment invoice to the client, unless agreed otherwise in writing.
- Payment is to be made within 14 days of submission of the invoice, unless agreed otherwise in writing.
- Furthermore, IM will be entitled, in addition to the principal sum and interest, to claim compensation by the client of all judicial and extrajudicial costs incurred as a result of non- payment or late payment, including the costs of lawyers, legal counsel, attorneys, bailiffs and collection agencies.
- The extrajudicial costs will amount to 15% of the principal sum, increased by interest, subject to a minimum of EUR 35.
Article 14 Miscellaneous
- All negotiations, offers, quotations, agreements and other (legal) acts between IM and the client will be governed by the laws of the Netherlands, irrespective of the place where the agreement is performed. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (‘CISG’) is expressly waived.
- Any disputes between IM and the client as a result of, or in relation to, negotiations, offers, quotations, agreements and other (legal) acts will be submitted to the exclusive jurisdiction of the competent judge with the District Court for North Holland, including its preliminary relief judge.