Terms and conditions

Article 1Definitions

Third parties: any other party involved in performing the agreement by BrandMonks or the client.
BrandMonks: the party that enters into the agreement with the client to perform an agreement. Located at Atoomweg 10, 9743 AK Groningen. Registered with the Dutch Chamber of Commerce under number 84721529.
Assignment: the assignment the client gives BrandMonks to perform work and/or deliver a product.
Client: the party that gives BrandMonks the assignment and commits to BrandMonks through an agreement for this assignment.
Agreement: the commitment concluded between BrandMonks and the client to carry out the assignment.
In writing: by email or by post.

Article 2General provisions

These general terms and conditions apply to all offers, quotes, agreements, invoices and other commitments of BrandMonks, unless they have been expressly deviated from in writing.
The general terms and conditions also apply if BrandMonks decides to engage third parties in performing the agreement.
If one or more provisions of these general terms and conditions are void, annulled or invalid, the remaining provisions remain in force.
BrandMonks expressly rejects other general terms and conditions, unless expressly agreed otherwise in writing.
If a situation arises that is not covered by these general terms and conditions, the concluded agreement prevails. If no agreement has been concluded, the arrangements made apply. In the absence of arrangements, the parties decide through mutual consultation what is reasonable and fair in the given situation.

Article 3Quotes from BrandMonks

Unless a quote from BrandMonks contains an acceptance period, all quotes from BrandMonks are non-binding. In any case, the offer expires after 30 days if no acceptance period has been set.
If the client reasonably understands and/or knows that the quote is incorrect and/or contains typing errors, BrandMonks is not bound by the quote it has issued.

Article 4The agreement

The agreement is concluded at the moment the client has confirmed the quote or offer of BrandMonks in writing.
If BrandMonks depends on information from the client to perform the work and/or deliver products as agreed in the agreement, BrandMonks is entitled to suspend performance of the agreement until it has received the required information from the client.
If (delivery) periods have been agreed in the agreement for performing work or delivering products, these are never strict deadlines.
If BrandMonks exceeds the agreed period, the client notifies BrandMonks of this in writing by means of a notice of default. The notice of default contains a detailed description of the shortcoming and a reasonable period within which BrandMonks can still perform.
The client provides all required information clearly and completely to BrandMonks so that it can perform the agreement correctly. In any case, the client cooperates with BrandMonks to perform the agreement properly.
BrandMonks is entitled to engage third parties in performing the agreement.
BrandMonks is not obliged to apply for a domain name for the website with the relevant authorities, unless expressly agreed otherwise in writing.
BrandMonks may require the client to enter into a written maintenance agreement if the parties agree that BrandMonks will provide the software and/or a ‘content management system’ needed for the use, maintenance and management of the website.

Article 5Duration and termination of the agreement

Maintenance agreements last at least 12 months. Unless the client terminates the agreement in writing with BrandMonks one month before the renewal takes effect, the agreement is tacitly renewed for a period of 12 months.
If the client does not fulfil its obligations, or does not fulfil them in full, BrandMonks is entitled to suspend its obligations under the agreement.
If BrandMonks has, or develops, well-founded fear that the client will not fulfil its obligations, or not on time, BrandMonks cannot be required to perform the agreement under the agreed conditions.
If, before starting to perform the agreement, BrandMonks has asked the client for security regarding the fulfilment of its obligations and this security is not provided, BrandMonks cannot be required to perform the agreement under the agreed conditions.
If BrandMonks is delayed in performing the agreement and the delay originates from the client, BrandMonks cannot be required to perform the agreement under the agreed conditions.
Claims of BrandMonks on the client become immediately due and payable if the agreement is dissolved.
BrandMonks retains its claims under the agreement and the law if the client suspends the fulfilment of its obligations.
Suspension of the agreement does not suspend the (payment) obligations of the client.
BrandMonks is entitled to dissolve the agreement immediately and with immediate effect if the client fails to fulfil its obligations under the agreement and this failure justifies dissolution. In this case BrandMonks is never obliged to pay damages or compensation to the client.
In the event of dissolution as described in the previous paragraph, the client, unlike BrandMonks, is obliged on the grounds of breach of contract to compensate any damage incurred and/or pay compensation.
If BrandMonks terminates the agreement prematurely, BrandMonks arranges the transfer of the remaining work to third parties. BrandMonks does this in consultation with the client.
If the transfer of the work to third parties, as described in the previous paragraph, entails additional costs for BrandMonks, the client is obliged to reimburse these costs to BrandMonks.
The additional costs, as described in the previous paragraph, are paid within a period stated by BrandMonks, unless expressly agreed otherwise in writing.
Work carried out for building a website or webshop, or for registering a domain name or web hosting, is charged to the client at the moment the client cancels the already confirmed/started assignment. The costs may be increased by reserved working time.

Article 6Prices

Prices in offers, quotes, agreements, invoices and other commitments of BrandMonks are stated in euros and exclusive of VAT, unless expressly agreed otherwise in writing.
If there is additional work, BrandMonks sends this invoice separately to the client and the invoice is considered a separate invoice.
When the client accepts the quote, or when BrandMonks starts the agreement, BrandMonks may require a down payment of at least 30% and at most 50% from the client. This down payment covers costs incurred in advance by BrandMonks.

Article 7Payment terms

The client pays the BrandMonks invoice within 14 days of the invoice date in accordance with the instructions BrandMonks has provided to the client.
The method of payment mentioned in the previous article may be deviated from if this has been expressly agreed in writing.
BrandMonks is entitled to invoice periodically (annually).
If the client does not pay the invoice within the payment term of 14 days, the client is in default by operation of law.
For the period in which the client is in default, it owes BrandMonks (statutory) interest. The interest is calculated on the outstanding amount from the moment the client is in default.
If BrandMonks has to incur other (collection) costs in addition to the (statutory) interest to ensure the client pays the outstanding items, BrandMonks is entitled to charge these costs to the client.
If it has been agreed that the agreement will be performed in parts, BrandMonks invoices these parts of the assignment separately. These partial invoices are regarded as independent invoices.
Should the invoice exceed the statutory payment terms, a reasonable penalty of an additional 2% of the total invoice amount will be charged.

Article 8Specifications and development of software/website

If specifications or a design of the software or website to be developed have not been provided to BrandMonks before or when entering into the agreement, the parties will specify in writing, in good consultation, which software or website will be developed and how the development will take place.
BrandMonks will develop the software and/or website with care, all in accordance with the expressly agreed specifications or the design and, where applicable, in accordance with the project organisation, methods, techniques and/or procedures agreed in writing with the Client. Before starting the development work, BrandMonks may require the Client to agree to the specifications or the design in writing.
If the parties use a development method characterised by the principle that the design and/or development of (parts of) the software or website takes place iteratively (for example Scrum), the parties accept that the work will not be carried out at the outset on the basis of complete or fully worked-out specifications, and also that specifications, whether or not agreed at the start of the work, may be adjusted by mutual agreement during the performance of the agreement in accordance with the project approach belonging to the development method concerned. During the performance of the agreement, the parties will jointly and by mutual agreement make decisions regarding the specifications that apply to the next phase of the project (for example a ‘time-box’) and/or to the next partial development. The Client accepts the risk that the software and/or the website will not necessarily meet all specifications. The Client will ensure permanent, active input and cooperation of relevant end users, supported by the Client’s organisation, including with regard to testing and with regard to (further) decision-making. The Client guarantees that the employees it deploys who are appointed to key positions have the decision-making powers required for that position. The Client guarantees the promptness of the progress decisions it is to take during the performance of the agreement. In the absence of timely and clear progress decisions on the part of the Client in accordance with the project approach belonging to the development method concerned, BrandMonks is entitled, but not obliged, to take the decisions it considers appropriate. The Client accepts the software and/or website in the state in which it is at the end of the last development phase (‘as is, where is’). After the last development phase, BrandMonks is not obliged to repair errors, unless expressly agreed otherwise in writing.
In the absence of specific arrangements, BrandMonks will start the design and/or development work within a reasonable period to be determined by it after entering into the agreement.
On request, the Client will give BrandMonks the opportunity to carry out the work outside normal working days and hours at the Client’s office or location.
The performance obligations of BrandMonks regarding the development of a website do not include providing a so-called ‘content management system’.
The performance obligations of BrandMonks do not include maintenance of the software and/or website, and/or providing support to its users and/or administrators. If, contrary to the above, BrandMonks must also provide maintenance and/or support, BrandMonks may require the Client to enter into a separate written agreement for this. This work is charged separately at BrandMonks’ usual rates.

Article 9Delivery, installation and acceptance

At its discretion, BrandMonks will deliver the software on a data carrier in the agreed format or, in the absence of arrangements, in a format to be determined by BrandMonks, or make the software available online to the Client for delivery. Any agreed user documentation is provided, at BrandMonks’ discretion, in paper or digital form in a language determined by BrandMonks.
Only if agreed will BrandMonks install the software at the Client. In the absence of arrangements, the Client will install, configure, parameterise and tune the software itself and, if necessary, adapt the equipment and user environment. Unless BrandMonks will ‘host’ the software and/or website on its own computer system for the Client under the agreement, BrandMonks will deliver the website to the Client on an information carrier and in a form to be determined by it, or make it available online to the Client for delivery.
The provisions on Acceptance in these general terms and conditions apply accordingly.

Article 10Acceptance

If the parties have not agreed on an acceptance test, the Client accepts the software in the state it is in at the time of delivery (‘as is, where is’), therefore with all visible and invisible errors and defects, without prejudice to BrandMonks’ obligations under the Warranty article in these general terms and conditions. In that case, the software will be deemed accepted by the Client upon delivery or, if installation by BrandMonks has been agreed in writing, upon completion of the installation.
If the parties have agreed on an acceptance test, the provisions of the following paragraphs apply.
Where these general terms and conditions refer to ‘errors’, this means that the software substantially fails to meet the functional or technical specifications expressly communicated in writing by BrandMonks and, if the software is wholly or partly custom software, the functional or technical specifications expressly agreed in writing. An error only exists if the Client can demonstrate it and it is reproducible. The Client must report errors without delay. BrandMonks has no obligation whatsoever with regard to defects in or to the software other than errors within the meaning of these general terms and conditions.
If an acceptance test has been agreed, the test period is fourteen days after delivery or, if installation by BrandMonks has been agreed in writing, fourteen days after completion of the installation. During the test period, the Client may not use the software for productive or operational purposes. The Client will carry out the agreed acceptance test with qualified staff and with sufficient scope and depth.
If an acceptance test has been agreed, the Client must check whether the delivered software meets the functional or technical specifications expressly communicated in writing by BrandMonks and, if and insofar as the software is wholly or partly custom software, the functional or technical specifications expressly agreed in writing.
The software will be deemed accepted between the parties:
a. if the parties have agreed on an acceptance test: on the first day after the test period, or
b. if BrandMonks receives a test report as referred to in this article before the end of the test period: at the moment the errors mentioned in that test report have been repaired, notwithstanding the presence of errors that under this article do not prevent acceptance, or
c. if the Client makes any use of the software for productive or operational purposes: at the moment it is put into use.
If the agreed acceptance test shows that the software contains errors, the Client will report the test results to BrandMonks in writing, clearly, in detail and comprehensibly, no later than the last day of the test period. BrandMonks will make every reasonable effort to repair these errors within a reasonable period, and BrandMonks is entitled to apply temporary solutions, workarounds or problem-avoiding restrictions.
The Client may not withhold acceptance of the software for reasons unrelated to the specifications expressly agreed in writing between the parties, nor because of minor errors, being errors that do not reasonably prevent the operational or productive use of the software, without prejudice to BrandMonks’ obligation to repair these minor errors under the warranty scheme of these general terms and conditions. Acceptance may also not be withheld because of aspects of the software that can only be judged subjectively, such as aesthetic aspects of user interfaces.
If the software is delivered and tested in phases and/or parts, non-acceptance of a particular phase and/or part does not affect the acceptance of an earlier phase and/or another part.
Acceptance of the software in one of the ways referred to in this article means that BrandMonks is discharged from its obligations regarding making available and delivering the software and, if installation of the software by BrandMonks has also been agreed, from its obligations regarding the installation. Acceptance of the software does not affect the Client’s rights under these terms regarding minor defects and the warranty.

Article 11Right of use

BrandMonks makes the software and/or website developed on the Client’s instructions, and any associated user documentation, available to the Client for use.
Only if agreed in writing will the source code of the software and the technical documentation created during development be made available to the Client, in which case the Client will be entitled to make changes to the software. BrandMonks is not obliged to make available the auxiliary software and program or data libraries required for the use and/or maintenance of the software.
Only if the written agreement expressly shows that all design and development costs are borne fully and exclusively by the Client are there no restrictions for the Client on the right to use the software and/or website.

Article 12Fee

In the absence of an agreed payment schedule, all amounts relating to the design and development of software and/or websites are due monthly in arrears.
The price for the development work also includes the fee for the right to use the software or website during the term of the agreement.
The fee for developing the software does not include a fee for the auxiliary software and program and data libraries required by the Client, any installation services and any adaptation and/or maintenance of the software. Nor does the fee include providing support to its users.

Article 13Warranty

Except for exceptions laid down by law, the Client is not entitled to modify the software in whole or in part without the prior written permission of BrandMonks. BrandMonks is entitled to refuse its permission or to attach conditions to it. The Client bears the full risk of all modifications made by third parties by or on behalf of the Client, whether or not with the permission of BrandMonks.
BrandMonks does not guarantee that the website it develops works properly with all types or new versions of web browsers and any other software. Nor does BrandMonks guarantee that the website works properly with all types of equipment.

Article 14Additional work

A request for additional work is submitted by the client to BrandMonks in writing.
BrandMonks only starts the additional work once it has confirmed and/or accepted the client’s request in writing.
Additional work carried out by BrandMonks is charged to the client, even if the client did not request it but BrandMonks did carry out additional work.
Additional work also includes changes to the end result agreed in advance.
If additional work arises or threatens to arise while the work is being carried out, BrandMonks will notify the client as soon as possible.

Article 15Support

To support the use and functioning of its services, BrandMonks provides advice by email or telephone.
BrandMonks may also provide information about the use and functioning of services by email or telephone.
If a malfunction occurs on the client’s side, the client informs BrandMonks as soon as possible by email or telephone.
Complaints about malfunctions, or the malfunctions themselves, can be reported to BrandMonks via the website, by email or by telephone. BrandMonks investigates complaints and takes measures where necessary.
BrandMonks endeavours to respond to complaints or malfunctions within a few hours when the complaint is reported on a working day between 09:00 and 17:00.
If a complaint is reported outside the days and/or times mentioned in the previous paragraph, BrandMonks endeavours to respond as soon as possible on the next working day.

Article 16Availability

The services relating to the applications, software, websites, data files, printed matter or other materials supplied by BrandMonks depend on services of third parties, malfunctions and necessary maintenance. As a result, BrandMonks’ work may be delayed. The client acknowledges this.
Because of the dependency described in the previous paragraph, BrandMonks cannot guarantee absolute availability. This also includes cybercrime attacks.
BrandMonks may take its services out of use, in whole or in part, temporarily or otherwise, and/or restrict their use if it considers this necessary. This may be, for example, for preventive, corrective or adaptive maintenance or alleged infringements of intellectual property rights. BrandMonks will inform the client of this as soon as possible, in writing or by telephone.

Article 17Liability

Damage caused by malfunctions or unavailability of computer, data or telecom facilities (including the internet) is not at the expense of BrandMonks.
BrandMonks is not liable for damage caused by the client’s use of the services or by the inaccuracy and/or incompleteness of the information supplied or entered by the client.
BrandMonks is not liable for damage caused by loss of or damage to (stored) data.
BrandMonks is not liable for the consequences of hacking, a DDoS attack or any other loss of functionality and forms of cybercrime.
BrandMonks is not liable if intellectual property rights of third parties are infringed with regard to graphic designs.
The client indemnifies BrandMonks against all damage and costs, including but not limited to damage resulting from (alleged) claims by third parties, collection costs, statutory commercial interest, loss of profit, forfeited penalties and costs of legal assistance, that BrandMonks suffers or incurs to ensure the client still fulfils its obligations. Damage and additional costs for BrandMonks arising from an unlawful act are also at the client’s expense.
BrandMonks is not liable for damage caused by software and/or infrastructure used by the client and/or third parties.
BrandMonks can only be held liable for direct damage, which exclusively means:
a. the costs the client incurs to ensure BrandMonks still fulfils its part of the agreement;
b. the costs incurred by the client to investigate the cause of the damage in the context of the agreement;
c. insofar as the client demonstrates that certain costs have limited or prevented the damage suffered, BrandMonks will reimburse these costs.
BrandMonks is only liable for damage suffered by the client if the client has informed BrandMonks of its shortcoming within the set period. This notice of default is sent to BrandMonks in writing, contains a detailed description of the shortcoming and a reasonable period for BrandMonks to still perform.
If the client is a consumer, the right to claim regarding liability expires after a period of twelve months.
Any compensation paid by BrandMonks will in no case exceed the principal amount stated on the invoice or the amount paid out by BrandMonks’ insurer.

Article 18Force majeure

Any liability arising from a force majeure situation is excluded.
Force majeure is in any case defined in accordance with what law and case law understand by force majeure.
Force majeure also includes:
a. all external causes, foreseen or unforeseen, over which BrandMonks has no influence;
b. force majeure at BrandMonks’ suppliers;
c. defective materials, equipment and/or software (including those of third parties);
d. government measures;
e. malfunctions such as those of the power grid, the internet, computer networks and/or telecommunication facilities;
f. war and mobilisation;
g. strikes in the company, industry or professional organisations of BrandMonks;
h. sickness and/or leave within BrandMonks;
i. general transport obstacles and problems.
If a force majeure situation arises, BrandMonks is entitled to suspend all its obligations under the agreement.
The client has the right to dissolve the agreement in writing if the force majeure situation lasts longer than three months.
In the event of dissolution in accordance with the previous paragraph, BrandMonks is not obliged to compensate any damage the client may suffer as a result of the dissolution.

Article 19Confidentiality

BrandMonks and the client in any case treat the existence and content of their relationship, as well as the information and data both parties provide to and use with each other, as strictly confidential.
Before, during and after performance of the agreement, both parties endeavour to handle, provide and use confidential information with appropriate responsibility and care.
Information and/or data is in any case confidential if this follows from its nature or if one of the parties marks it as strictly confidential.

Article 20Intellectual property

Intellectual property rights relating to graphic designs, software, applications, websites, data files or other materials such as analyses, designs, documentation, reports and quotes, as well as preparatory work for them, belong exclusively to BrandMonks and its licensors and/or suppliers.
The client is not entitled to change, supplement, transfer, trade, sell, copy, make available or use the intellectual property rights without express written permission from BrandMonks.
Graphic designs developed by BrandMonks may be used by BrandMonks for its own promotional purposes, unless expressly agreed otherwise in writing.
BrandMonks is entitled to request the intellectual property rights from the client, and the client will cooperate in carrying out this request.

Article 21Other responsibilities and obligations

BrandMonks makes every effort to the best of its ability to perform its part of the agreement in the agreed manner.
The client takes sufficient protective measures to secure its own information and data by means of a virus scanner, firewall and periodically changed passwords.
The client is at all times responsible for the accuracy of the stored data it uses and enters.
The client guarantees to BrandMonks the accuracy and completeness of the information and/or data it provides to BrandMonks for the performance of the agreement.
If the client discovers errors, it is obliged to report them to BrandMonks without delay. Errors in any case include substantially failing to meet the specifications expressly agreed in writing between the parties. An error only exists if the client can demonstrate it and it is reproducible.

Article 22Final provisions

All offers, quotes, agreements, invoices and other commitments of BrandMonks are governed exclusively by Dutch law.
If the client has started a complaints procedure, the client’s (payment) obligations are not suspended.
In the event of a dispute between the client and BrandMonks, BrandMonks always aims for settlement by mutual agreement.
Should settlement by mutual agreement not lead to a solution, the dispute will be submitted to the competent court.
BrandMonks is entitled at all times to change and/or supplement its general terms and conditions. If BrandMonks changes and/or supplements them, it will notify the client.
If the agreement was concluded under certain terms and these are changed and/or supplemented after the agreement was concluded, the original terms under which the agreement was concluded apply.