noelp.dev, a sole proprietorship (eenmanszaak), established at Texelstroom 12, 5032 ZA Tilburg, registered with the Dutch Chamber of Commerce under number 98902830, is referred to in these terms as: “Contractor” (Opdrachtnemer).
The other party is referred to as: “Client” (Opdrachtgever).
These terms apply exclusively to agreements with Clients acting in the exercise of a profession or business (B2B).
Article 1 – Definitions
In these terms and conditions the following definitions apply:
- Services: all work to be performed by the Contractor, including (but not limited to): developing, producing and releasing software; developing and building websites and (web) applications; (technical) consultancy, advice and support; hiring/secondment as a developer/consultant on site or remotely; hosting, maintenance, support, migrations, integrations; search engine optimisation (SEO) and other online optimisation services.
- Works / Results: all (digital) products developed or delivered by the Contractor, such as source code, (web) applications, websites, scripts, configurations, designs, documentation, reports, advice and other materials.
- Agreement: any agreement between the Contractor and the Client regarding the delivery of Services and/or Works, including any changes and additions thereto.
- In writing: by letter, email or other electronic means of communication, provided that the sending or receipt thereof can be demonstrated by the other party.
- Defect: a demonstrable, reproducible and material deviation from the specifications agreed in writing.
Article 2 – Applicability
These terms and conditions apply to all offers, quotations, Agreements and other legal relationships between the Contractor and the Client.
General (purchasing) terms or other terms of the Client expressly do not apply and are hereby rejected, unless the Contractor has expressly accepted them in writing. A mere reference by the Client to its own terms is insufficient.
Deviations from and/or additions to these terms are only valid if recorded in writing and apply solely to the Agreement concerned.
If one or more provisions of these terms are void or annulled, the remaining provisions remain fully in force. In that case the parties will agree a replacement provision that reflects as closely as possible the purpose and intent of the original provision.
Once these terms have been declared applicable to a legal relationship between the parties, the Client is deemed to consent to their applicability to later Agreements.
Article 3 – Quotations and formation of the Agreement
All quotations and price indications from the Contractor are without obligation, unless expressly stated otherwise in writing.
Quotations are valid for 14 days from their date, unless a different period is stated in the quotation.
The quotation contains a description of the Services to be performed and/or Works to be delivered, the working method and, where applicable, an (indicative) planning. Only the scope described in the quotation is binding.
The Agreement is formed as soon as: a. the Client has accepted the quotation in writing (including by email), or b. the Contractor has, with the Client’s consent, actually started performing the Services.
Verbal commitments bind the Contractor only insofar as they have subsequently been confirmed in writing by the Contractor.
Obvious errors or mistakes in quotations, correspondence or on the Contractor’s website do not bind the Contractor.
Article 4 – Services and performance
The Contractor will perform the Agreement to the best of its insight and ability. The Contractor’s obligation has the character of a best-efforts obligation and not of a result, unless expressly agreed otherwise in writing.
The Contractor is entitled to engage third parties in performing the Services. The Contractor remains responsible for coordination towards the Client.
The Client ensures that all information, data, decisions, accounts, access, materials and cooperation reasonably required for the performance of the Agreement are provided to the Contractor in a timely, complete and correct manner.
If performance requires access to systems, hosting, repositories or other environments of the Client or third parties, the Client provides such access in a timely and secure manner and in accordance with the applicable security guidelines.
If the information or access required for performance is not provided on time or not in full, the Contractor is entitled to suspend the work and to charge the Client for the additional time and/or costs arising as a result.
If the Contractor works on site at the Client, the Client remains responsible for a safe workplace, compliance with applicable (occupational health and safety) regulations, and (timely) notification of house rules, safety protocols and IT policy.
The Client is fully and independently responsible for: the (legal) admissibility of all data, content and materials supplied by it or published via the Works; compliance with applicable laws and regulations (including but not limited to privacy legislation and consumer law); internal authorisation management (who may access what and what may be changed).
Fines, claims or damage of third parties resulting from the Client’s content, use or actions are entirely for the account and risk of the Client. The Client indemnifies the Contractor against these.
Article 5 – Hiring / on-site consultancy
If the Client hires the Contractor as a developer, consultant or specialist, on site or remotely, the Contractor always acts as an independent contractor. No employment relationship arises between the Contractor and the Client (or a party affiliated with the Client).
The Client may not give instructions that conflict with laws and regulations or with the professional and ethical standards of the Contractor.
The Client is responsible for: providing a clear and timely briefing of the work; making available the necessary resources (hardware, software, accounts, access); informing the Contractor about relevant internal rules and procedures.
Article 6 – Deadlines, planning and phasing
Delivery deadlines and planning stated in quotations and Agreements are indicative, unless expressly designated in writing as a “strict deadline”.
Exceeding an indicative deadline does not entitle the Client to compensation or termination of the Agreement, unless the Contractor, after a written notice of default with a reasonable period for performance, is attributably in default.
The Services may be performed in phases. The Contractor may postpone the start of a subsequent phase until the Client has accepted the results of the previous phase in writing and the associated invoices have been paid in full.
Article 7 – Delivery and acceptance of Works
Delivery of Works (software, websites, modules etc.) takes place through notification by the Contractor that the Work is ready for acceptance or use, or through actual provision (for example via a test or production environment).
After delivery, the Client has a period of 7 calendar days to test the Work and to report any Defects to the Contractor in writing, specifically and reproducibly.
If the Client does not report any Defects within this period, or takes the Work (partly) into regular business use, the Work is deemed fully accepted.
Minor Defects that do not materially prevent the normal, business use of the Work do not constitute grounds for refusing acceptance. The Contractor will resolve these in consultation in a subsequent release or update.
Acceptance, whether explicit or implied, means that the Client has checked and approved the Work and constitutes a discharge of the Contractor for the delivery, without prejudice to the warranty period referred to in paragraph 6.
After acceptance a warranty period of 30 days applies, within which the Client may report hidden Defects that could not reasonably have been discovered during the acceptance test. This period does not serve as an extended test period. Requests for changes, extensions or adjustments after acceptance always qualify as additional work.
Article 8 – Changes and additional work
All work not explicitly included in the quotation or Agreement qualifies as additional work and is charged additionally.
Additional work also includes, among other things: extra work resulting from incorrect, incomplete or changed information from the Client; changes in the Client’s wishes, scope, specifications or priorities; work made necessary by changes in the systems or environments of the Client or third parties.
Additional work is in principle carried out at the Contractor’s hourly rate applicable at that time. Where possible, the Contractor will inform the Client in advance of the estimated time and costs required.
Refusing an additional-work proposal does not entitle the Client to free extra work, a discount or termination of the original Agreement.
Article 9 – Rates and payment
Unless stated otherwise, all rates are: in euros; excluding VAT; excluding other government levies; excluding third-party costs (such as licences, external APIs, cloud services, payment providers).
The Contractor may send an advance invoice before starting the work and/or invoice in instalments (for example per phase, per month or per sub-phase), as stated in the quotation or order confirmation.
The payment term is 14 days from the invoice date, unless agreed otherwise in writing.
If the payment term is exceeded, the Client is in default by operation of law and statutory (commercial) interest is due from the due date until the day of full payment.
All reasonable (extra)judicial collection costs are for the account of the Client, with a minimum of € 90.00.
The Client is not entitled to suspension or set-off, unless mandatory law expressly permits this.
The Contractor is entitled to suspend the performance of the Services, to block access to (test or production) environments or to temporarily disable Works for as long as the Client fails to fulfil, or fully fulfil, its payment obligations.
Article 10 – Hosting, domain and external services
The Contractor may – if agreed – arrange hosting services, domain registration and other external services for the Client. These services are provided by third parties.
The Contractor is not a party to the legal relationship between the Client and these third parties, unless expressly agreed otherwise. Any terms of these third parties apply directly between the Client and that third party.
The Contractor will make efforts to facilitate the most uninterrupted hosting possible, but gives no guarantees regarding uptime, performance, response or loading times, or the absence of disruptions.
The Contractor is not liable for disruptions, changes, outages, delays, data loss or security incidents at hosting providers, registrars, cloud providers, telecom providers or other engaged third parties.
For simple websites the Contractor applies a monthly hosting fee in accordance with the rate applicable at that time as stated in the quotation or order confirmation. For larger or resource-intensive (web) applications, custom rates apply.
If the Client opts for its own hosting provider, the Contractor’s responsibility is limited to correct delivery within the possibilities offered by that environment. Problems caused by configurations, limitations or disruptions at the Client’s own provider fall entirely outside the Contractor’s responsibility.
The Client is itself responsible for the timely payment of hosting and domain costs to the relevant supplier, unless agreed otherwise in writing. Outages due to non-payment to a third party are entirely for the account and risk of the Client.
Article 11 – Intellectual property and rights of use
All intellectual property rights, including in any event copyrights, in all Works developed or delivered by the Contractor rest exclusively with the Contractor or its licensors, unless expressly agreed otherwise in writing.
After full payment of all invoices relating to the assignment concerned, the Client obtains a non-exclusive, non-transferable and non-sublicensable right of use to use the Works developed specifically for it for the purpose described in the Agreement and within the agreed environment.
Unless expressly agreed otherwise in writing, the right of use does not include: transfer of source code, design, project or source files; the right to reproduce, adapt, reverse engineer, sell, rent out or in any way make the Works available to third parties (whether itself or through third parties), other than for the Client’s normal internal use.
Transfer of any intellectual property right or delivery of source code takes place only on the basis of a separate written agreement against a separate fee. Without such an agreement, all rights remain entirely with the Contractor.
The Client warrants that all materials supplied by it (such as texts, logos, images, data files and software) do not infringe the rights of third parties, and fully indemnifies the Contractor against all third-party claims in connection therewith.
Unless agreed otherwise in writing, the Contractor may use the name and logo of the Client, as well as screenshots and descriptions of the delivered Works, for its own promotional, reference and portfolio purposes, with due regard for reasonable confidentiality.
Article 12 – Maintenance, support and updates
Article 12a – Security and cyber risks
The Contractor develops software, websites and (web) applications with due regard for common development practices, but is not a specialised cybersecurity company and does not perform penetration tests, security audits or certification, unless expressly agreed otherwise in writing.
The Contractor strives for a careful technical implementation, but does not guarantee that the Works it delivers or the infrastructure used are fully secure, contain no vulnerabilities (bugs, exploits, zero-days) or will never be the target of a successful attack, hack, data breach or other infringement.
The Client is itself responsible for: a. setting and managing strong passwords, 2FA and access rights; b. keeping operating systems, browsers, plug-ins, integrations and other software in its environment up to date; c. limiting rights for users and third parties (least privilege); d. having additional security audits / penetration tests carried out in good time by specialised parties if the nature of the application or data so requires (for example when processing sensitive or large volumes of personal data).
The Contractor is not liable for damage resulting from: a. misconfigurations, weak passwords, unsecured accounts or careless use by the Client or its users; b. vulnerabilities in, or attacks on, software, plug-ins, libraries, frameworks or infrastructure of third parties (such as hosting providers, cloud platforms and SaaS services), provided the Contractor acted carefully in their selection and implementation; c. new vulnerabilities or attack techniques that were not reasonably known or not generally known at the time of delivery.
Only if specific security measures have been agreed in writing (for example certain encryption standards, roles/rights, logging) can the Contractor be liable for direct damage that demonstrably and directly results from a deficient implementation of those explicitly agreed measures, subject to the limitations of liability in Article 15.
Article 13 – Privacy and data processing
If, within the framework of the Agreement, the Contractor processes personal data on behalf of the Client, the parties are obliged to comply with the General Data Protection Regulation (GDPR).
In that case the parties act as processor (Contractor) and controller (Client) respectively, and – if required – conclude a separate data processing agreement in which further arrangements are laid down regarding purposes, security measures, retention periods and the rights of data subjects.
The Client is responsible for the lawfulness of the processing of personal data supplied by it to the Contractor or processed via the systems provided by the Contractor. The Client indemnifies the Contractor against third-party claims in this respect.
Article 14 – Confidentiality
The parties are obliged to maintain strict confidentiality of all information they obtain from each other within the framework of the Agreement and of which they know, or can reasonably suspect, that it is of a confidential nature.
The confidentiality obligation also applies to the parties’ employees and engaged third parties.
The confidentiality obligation does not apply where a party is required to provide confidential information on the basis of a statutory provision or court order; the party concerned will, insofar as legally permitted, inform the other party of this as soon as possible.
The confidentiality obligation remains fully in force after the expiry or termination of the Agreement.
Article 15 – Liability
The Contractor is only liable for direct damage resulting from an attributable failure to fulfil an obligation arising from the Agreement, if the Client has given the Contractor written notice of default without delay, with a clear description of the failure, the Contractor has been granted a reasonable period to remedy the failure, and the Contractor remains attributably in default even after that period.
Direct damage is understood to mean solely: reasonable costs to determine the cause and extent of the damage, insofar as the assessment relates to direct damage within the meaning of these terms; reasonable costs necessary to remedy the failure; reasonable costs to prevent or limit further direct damage.
The Contractor is in no event liable for indirect damage, including but not limited to: consequential damage, lost profit, missed savings, reduced goodwill, reputational damage, loss or corruption of data, damage due to business stagnation, or damage as a result of third-party claims against the Client.
The Contractor’s total liability, on whatever ground, is per event (whereby a series of related events counts as one event) limited to the amount the Client has paid to the Contractor under the relevant Agreement in the three months preceding the event causing the damage, with an absolute maximum of € 2,000.00 (two thousand euros).
The Contractor’s total liability per calendar year is in all cases limited to a maximum total amount of € 2,000.00 (two thousand euros), regardless of the number of events, claims or Agreements involved.
The limitations set out in this article do not apply if the damage is the result of intent or deliberate recklessness on the part of the Contractor, or insofar as liability cannot be limited or excluded by law.
Any claim for compensation against the Contractor lapses if it is not submitted to the Contractor in writing and with reasons within 30 days after the Client discovered or should reasonably have discovered the damage, and in any event one year after the event from which the damage directly or indirectly arises.
Article 16 – Force majeure
Force majeure is understood to mean any circumstance beyond the Contractor’s control that temporarily or permanently prevents performance of the Agreement, including in any event, but not limited to: disruptions or outages at hosting providers, registrars, cloud providers or telecom providers, internet or power outages, cyberattacks (such as DDoS), pandemics, fire, government measures, strikes, absence of staff or engaged third parties, and other circumstances over which the Contractor has no decisive influence.
During a situation of force majeure the Contractor’s obligations are suspended for as long as the force majeure continues.
If the force majeure situation continues for more than 60 days, both parties are entitled to terminate the Agreement in writing, without either party being entitled to compensation.
Insofar as, at the time the force majeure situation arises, the Contractor has already partly fulfilled obligations under the Agreement, and that part has independent value, the Client owes the fee due for it.
Article 17 – Duration and termination
Project agreements apply until the moment the agreed work has been delivered and accepted and the last associated invoice has been paid in full.
Ongoing services (such as hosting, maintenance and support contracts) are, unless agreed otherwise in writing, entered into for a term of 12 months and thereafter tacitly renewed each time for the same period.
Termination of ongoing services must be done in writing, observing a notice period of 2 months before the end of the current contract period.
Either party may terminate the Agreement in whole or in part with immediate effect if the other party: despite written notice of default, attributably fails to fulfil a material obligation and does not remedy this failure within the reasonable period stated therein; applies for or obtains (provisional) suspension of payments, is declared bankrupt or otherwise becomes insolvent; ceases or liquidates its business activities.
Termination of the Agreement does not release the Client from its obligation to pay in full for all work already performed and costs incurred up to the termination date.
Article 18 – Amendment of these terms and conditions
The Contractor is entitled to amend these terms and conditions unilaterally.
Amendments take effect 30 days after written notice to the Client or publication on the Contractor’s website, unless a later effective date is stated.
If a material amendment is unacceptable to the Client, the Client is entitled to terminate an ongoing Agreement in writing, observing the periods referred to in Article 17, provided the termination takes place before the date on which the amended terms take effect.
Article 19 – Applicable law and competent court
All Agreements between the Contractor and the Client, and these terms and conditions, are governed exclusively by Dutch law.
The parties will first try to resolve any dispute by mutual consultation.
If the parties fail to settle a dispute amicably, only the competent court of the district in which the Contractor is established has jurisdiction, unless mandatory law designates another court.
This is a translation for convenience; in case of any discrepancy, the Dutch version prevails.