Terms and conditions
Article 1. Parties
Krafters: Krafters B.V., registered with the Chamber of Commerce under number 92641091, with its registered office in Tilburg at Burgermeester Brokxlaan 32, 5041 SB, user of these terms and conditions.
Further details of Krafters:
Website: krafters.nl
Email: info@krafters.nl
Phone number: 088 500 4050
VAT identification number: NL866125474B01
The Client: The (potential) purchaser of the services offered by Krafters.
Article 2. Applicability
Krafters declares these terms and conditions applicable to every offer of Krafters and to any agreements resulting therefrom which the parties, or their successors in title, have entered into. In so far as the content hereof has not been amended and/or no more specific terms apply between the parties, these terms and conditions shall also apply to future contractual relationships between the parties or their successors in title.
Deviations from these terms shall apply only in so far as they have been expressly agreed in writing by the parties.
The Client’s general (purchasing) terms and conditions are expressly excluded from the agreement.
Third parties engaged by Krafters in the performance of the agreement may likewise invoke these terms and conditions.
If one or more (parts of) provisions of these terms and conditions are null and void or are annulled, the remaining provisions of these terms and conditions shall remain in force. The parties shall then consult to agree replacement provisions that reflect the purpose and intent of the null or annulled provisions as far as possible.
Article 3. Offer and agreement
Every offer, in the form of a quotation or otherwise, is entirely and unconditionally non-binding and revocable and valid for 30 days, unless Krafters has specified otherwise in writing.
The prices as stated on the website or in any other form of offer are in euros and exclusive of VAT and subject to levies, surcharges and other factors.
A composite quotation does not oblige Krafters to perform part of the assignment for a corresponding part of the quoted price.
All specifications by Krafters of numbers, dimensions, weight, size, colour and other specifications of goods and/or services to be supplied as shown in drawings, images, photographs or models provided are indicative only. A minor deviation in what is delivered does not constitute a shortcoming in the performance of the agreement on the part of Krafters.
Obvious clerical errors and mistakes in the offer are not binding on Krafters.
An offer does not automatically apply to subsequent assignments, repeat orders or extensions.
The agreement is formed after both parties have signed a written offer, after Krafters has confirmed acceptance in writing, or after Krafters or a third party on its behalf has commenced performance.
If an assignment is given by multiple Clients, all Clients are jointly and severally bound by the agreement. If Krafters accepts the assignment with multiple Clients, each Client is responsible for their own actions. Article 7:407(2) of the Dutch Civil Code is excluded.
Article 4. Performance by Krafters
Krafters shall represent The Client’s interests within the scope of the assignment given. Krafters shall perform the agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship. The Client acknowledges that Krafters has artistic freedom in the performance of the agreement insofar as no specific features, functions or wishes of The Client have been laid down in the main agreement/quotation. All services of Krafters are performed on the basis of a best-efforts obligation, unless and insofar as Krafters has expressly promised a result in the written agreement and the result in question has also been described with sufficient certainty.
Krafters shall endeavour to complete the assignment within the stated/estimated period. This period is not of the essence, so The Client must always first put Krafters in default, setting a reasonable period of at least 30 days, before any remedy can be pursued.
Krafters is free to have the assignment and/or delivery performed by third parties. Article 7:404 of the Dutch Civil Code is expressly excluded from the agreement.
The Client accepts that the scheduling of the assignment may be affected if the parties decide during the term to change approach, working method or scope of the assignment and the resulting work. When changes in the performance of the assignment become necessary at the request of The Client during the term, Krafters shall make the necessary adjustments on behalf of The Client. If this results in additional work, Krafters shall charge this to The Client as a supplementary assignment. Krafters may charge The Client the extra costs for changes to the assignment, unless the change or addition is due to circumstances attributable to Krafters. The latter situation does not lead to a reduction of the principal sum(s).
The Client shall ensure that all data which Krafters indicates are necessary or which The Client ought reasonably to understand are necessary for the performance of the agreement are provided to Krafters in good time in the manner and with the specifications indicated by Krafters. If the required data have not been provided to Krafters correctly or in good time, Krafters has the right to suspend performance of the agreement and/or to charge The Client the extra costs resulting from the delay at the usual rates.
The Client warrants that digitally supplied material does not infringe any rights of third parties, is secure and does not contain viruses or other harmful content that could in any way cause damage to the computer systems or computer programs of Krafters and/or third parties.
If and insofar as proper performance of the agreement so requires, or this follows from the nature of the agreement, Krafters has the right to instruct third parties to supply products or services on behalf of and for the account of The Client. If Krafters draws up a budget for the costs of engaging third parties, this budget is indicative only and no rights can be derived from it.
Krafters is at all times entitled to perform the agreement in partial deliveries/phases.
The Client is not permitted without Krafters’ prior written consent to sublicense or make available to third parties the services supplied by Krafters. The Client indemnifies Krafters against all claims by third parties arising from liability due to a defect in the services or supply of goods delivered by Krafters to The Client and which The Client has sublicensed to a third party.
Krafters reserves the right to take all services temporarily out of use for the purpose of maintenance, adjustment or improvement of Krafters’ computer systems. Krafters shall have such downtime take place as far as possible outside office hours. Krafters shall never be liable for any compensation to The Client in respect of such downtime.
Krafters is entitled to refuse, suspend, remove or block access to content such as website content and marketing and PR communications placed on a website for its own reasons in the event of an infringement or threatened infringement of the rights of third parties. This may be done on grounds of content, nature, tenor or form, technical objections, refusal of advance payment or evident conflict with Krafters’ own legitimate interests. The foregoing does not give The Client any right to compensation. When content is refused or removed because it does not meet the content requirements, Krafters has the right to charge The Client administrative costs of EUR 49 excluding VAT.
Krafters endeavours to publish its services, such as website (hosting) and content such as website content and marketing and PR communications, in the best possible quality and to keep them active throughout the agreed period. However, Krafters does not guarantee the continued quality and quantity of the services. Krafters is in no way liable for any damage arising from the (temporary) unavailability (in full) of the services. Krafters therefore gives no guarantee regarding the availability of the services, such as the software technology used for developing e.g. the website and thus the visual representation of the end result. At some point after delivery it may transpire that the service delivered is no longer displayed or no longer functions fully optimally due to external circumstances, such as when the network operator no longer supports the service, Krafters’ supplier goes bankrupt or the template or plug-in used is no longer developed/supported.
Unless otherwise agreed, Krafters is never obliged to make or maintain backups for The Client. All backups made will be destroyed after termination of the agreement. The Client is therefore itself responsible for making and maintaining backups, for example before an update is carried out. The Client may request Krafters to do so.
Unless expressly agreed otherwise in writing, preventing or limiting reputational damage to The Client as a result of statements by third parties does not form part of Krafters’ work.
Without being in default, Krafters may refuse a request to amend the agreement if this could have qualitative and/or quantitative consequences, for example for the work to be performed in that context.
Work commissioned by The Client that falls outside the agreement is performed on the basis of post-calculation at Krafters’ usual hourly rate.
If the parties have not agreed a fixed fee, the fee shall be determined on the basis of the hours actually spent. The fee is calculated according to Krafters’ usual hourly rates, unless the parties have agreed a different hourly rate.
If and insofar as proper performance of the agreement so requires, or this follows from the nature of the agreement, Krafters has the right to instruct third parties to supply products or services on behalf of and for the account of The Client. If Krafters draws up a budget for the costs of engaging third parties, this budget is indicative only and no rights can be derived from it. Krafters shall charge this to The Client with a margin of 18%, being costs that Krafters must incur in connection with the work to be performed.
The work is delivered, and thereby approved, when Krafters has notified The Client that the assignment has been completed and The Client has accepted this work. Delivery shall also be deemed to have taken place when:
a) 10 days have passed after The Client received the notification that the work was completed and has failed to accept the work within that period but has also not rejected it;
b) The Client has put the work on or in which the assignment was performed back into use, it being understood that by putting part of the work into use that part shall be deemed delivered, and The Client has not rejected the result within 7 days;
c) The Client has paid the invoice in respect of the service or has not accepted the work within the payment period but has also not rejected it.
Article 5. Obligations of The Client
The Client shall enable Krafters to perform the assignment. The Client undertakes to provide the cooperation necessary for the performance of the agreement by Krafters. This includes in particular:
Ensuring that Krafters can have access in good time to the approvals required for the assignment and the data to be provided for the assignment;
Making available connection facilities for the energy required for the assignment. The cost of energy is for the account of The Client;
Ensuring that work and/or supplies to be performed by third parties that do not form part of Krafters’ assignment are carried out in such a way and in such good time that the performance of the assignment is not delayed as a result.
When the obligations in the previous paragraph are not (timely) fulfilled or are breached, The Client must inform Krafters of this in good time. Krafters is entitled to charge The Client the resulting extra costs, such as storage, travel or labour costs.
When the obligations in paragraph 1 are not (timely) fulfilled, Krafters is not obliged to compensate The Client for damage resulting from delay in (delivery and) performance.
The Client expressly bears the risk for damage caused by:
Inaccuracies in the structures and working methods required by The Client;
Defects in the (im)movable property on or in which the assignment is performed;
Defects in materials or tools made available by The Client.
The Client shall ensure that all data which Krafters indicates are necessary or which The Client ought reasonably to understand are necessary for the performance of the agreement are provided to Krafters in good time. The Client bears the risk of correct and timely supply of the content and/or other required information and its content, regardless of how The Client supplies it. If the required data have not been provided to Krafters in good time, Krafters has the right to suspend performance of the agreement and/or to charge The Client the extra costs resulting from the delay at the usual rates.
The Client is not entitled to have the agreed work also performed by a third party without consultation or consent of Krafters.
The Client is obliged to accept the services at the time they are made available to it. If The Client refuses to accept or is negligent in providing the information or instructions necessary for delivery, Krafters is entitled to delay or withhold the services at The Client’s expense and risk. The Client is also obliged to accept the services in the manner in which they are offered by Krafters.
If a period for the performance of the work has been agreed, The Client undertakes to ensure that it, or a third party designated by it, is readily available by telephone and electronically during this period.
The Client is obliged to follow Krafters’ instructions regarding communication online and on social media.
The Client is obliged to credit Krafters’ name on what is delivered by Krafters.
Article 6. Prices, payment and suspension
The offer has been drawn up in mutual consultation. By entering into the agreement the parties deem the prices reasonable and fair.
Unless otherwise agreed, The Client must have paid the full amount in full directly prior to performance.
If payment is by invoice, payment must be made within 14 days of receipt of the invoice by bank transfer.
If the agreed payment term is exceeded, Krafters is immediately entitled to charge The Client default interest of 1% of the principal sum per month as well as an amount for extrajudicial collection costs. The latter costs amount to 15% of the principal sum due with a minimum of EUR 125 excluding VAT.
Without Krafters’ express written consent, The Client is not permitted to apply set-off and/or suspension and/or deduction in respect of payment obligations.
Krafters has the right to (temporarily) take delivered services out of use and/or restrict their use for the period that The Client is in default in the performance of any obligation under the agreement with Krafters. Reinstatement or lifting of the suspension shall take place when The Client has complied with its obligations within a period set by Krafters and has paid the reactivation costs specified by Krafters.
Upgrading of hosting packages and other services is possible at any time. The Client owes Krafters payment for (the part of) the period in which the upgraded service was delivered in accordance with the rates applicable to that service. Downgrading of an existing service is only possible under a new contract.
Krafters reserves the right to apply an annual inflation adjustment to its hourly rates.
Article 7. Term and (early) termination of the agreement
Article 7:408 of the Dutch Civil Code is expressly excluded from the agreement. The Client may therefore not terminate the agreement early unless otherwise provided below or elsewhere.
Contracts for a definite period that end by expiry of time cannot be terminated early by The Client and therefore end only upon expiry of the agreed term as stated in the main contract. If nothing is specified therein, a term of indefinite duration applies. Termination of a contract for a definite period must be in writing with due observance of a notice period of three months.
Krafters has the right to terminate the agreement with The Client with immediate effect for the future by written notice without (further) prior notice of default if:
The Client wholly or partly discontinues its business or otherwise liquidates and/or fundamentally changes or transfers its business activities to a third party without Krafters’ prior written consent;
The Client is granted (whether or not provisional) suspension of payment or is declared bankrupt, The Client applies for a debt restructuring scheme or The Client is placed under guardianship or administration;
Attachment is levied on a right due to The Client.
In the event of termination of the agreement, all payments owed by The Client to Krafters become immediately due and payable in full. In addition, Krafters is entitled to invoice a proportionate part of the agreed sum in relation to the completed part of the assignment, with a minimum of 50%.
Article 8. Guarantee and liability
Unless otherwise agreed, Krafters does not give any other guarantees or compensate any other damage than as set out in these terms and conditions.
The Client must check every delivery and performance, in phases or otherwise, for conformity as to quantity and quality as soon as possible but within 48 hours. When the performance does not conform to the agreement and there is therefore a defect, The Client must inform Krafters thereof within five days after it discovered or could reasonably have discovered this.
After the notification referred to in the previous paragraph, Krafters shall repair or replace the defect free of charge as far as reasonable. When neither of the two remedies described above is sufficient to effectively remedy the defect, The Client has the right to terminate the agreement. The foregoing applies without The Client having any right to compensation from Krafters.
When the defect has arisen from an error attributable to The Client, The Client has informed Krafters of the defect too late, The Client has confirmed completion of a phase, The Client has given permission for the start of a next phase or The Client has put the delivered work into use or in any event three months have passed after delivery, its right to any remedy/guarantee lapses. The burden of proof regarding attribution of the error lies with The Client.
Any guarantee or other claim of The Client against Krafters lapses in any event if The Client or others on its instructions or with its approval have made changes to or in the website or the underlying server.
Krafters is entitled to postpone the start of services that form part of a phase until The Client has approved in writing the results of the preceding phase.
The existence of a defect does not suspend The Client’s payment obligation.
The Client never has any right to a remedy if incorrect or careless use is attributable to The Client or if The Client makes or has made changes to what was delivered by Krafters without Krafters’ prior written consent. The burden of proof that an error is not attributable to The Client lies with The Client. The Client is obliged to treat the services with due care and must properly instruct its staff and all other users of the service in the correct use, i.e. use in accordance with Krafters’ user instructions. These user instructions have been carefully drawn up or provided and are intended to prevent damage. Accordingly, Krafters cannot be held liable for (the part of) damage that would have been prevented if the user instructions or instructions had been followed.
If Krafters is liable to The Client, such liability is at all times limited to the amount covered by the professional or business liability insurance taken out by Krafters or, if an insurer does not pay out, to the amount of the fee that Krafters received for the work from which the damage arose, increased by 15%. For agreements with a term longer than six months, the liability referred to here is furthermore limited to a maximum of the invoiced amount over the last six months preceding the damage-causing event.
Krafters’ liability never includes consequential damage and, except in case of intent or gross negligence, also not property damage, immaterial damage or lost profit.
The Client indemnifies Krafters against damage to third parties in connection with the agreement arising from Krafters having acted, including by omission, on the basis of information, data and documents provided too late and/or incorrect or incomplete by The Client.
In all cases the period within which Krafters can be held liable for compensation is limited to 12 months.
Krafters is not liable for damage resulting from malfunctions or defects in and/or errors of the services/property of third parties or social media platforms used for the performance of the assignment, including but not limited to Facebook, Twitter, Instagram and Google.
Krafters is not liable for damage to The Client or parties connected to The Client resulting from statements by third parties both online and offline.
Krafters is not liable for damage resulting from publications of texts and other material supplied by The Client, approved by it or not rejected in time.
PR and communication activities may only be used for legal purposes (based on the legislation applicable in the Netherlands). The Client is itself responsible for, and indemnifies Krafters against, the lawful use of the PR and communication activities. The Client unconditionally indemnifies Krafters against all claims by third parties arising from or in connection with the PR and communication activities carried out by Krafters on behalf of The Client in the context of the performance of the agreement.
Krafters is not responsible for acts or omissions of The Client based on advice from Krafters. Except with Krafters’ written consent, The Client is not entitled to disclose the content of advice to third parties in any way and is therefore fully liable to third parties to whom it discloses such advice.
The Client is and remains at all times independently responsible for compliance with all (legal) administration and retention obligations applicable to it.
The Client is itself responsible for the lawful placing of content and use of a website, including the use of textual and graphic content, and indemnifies Krafters against claims by third parties resulting from unlawful use of the website and/or the content displayed on it.
Article 9. Privacy and intellectual property
If Krafters places and/or reads cookies on behalf of The Client, The Client guarantees that Krafters is authorised to do so under the applicable laws and regulations, including but not limited to the GDPR. The Client therefore indemnifies Krafters in and out of court against any liability/responsibility in this regard.
The Client is aware and agrees that Krafters processes (personal) data of The Client and third parties under its responsibility, including but not limited to contact details and use of the website including their activities on the website, such as pages visited, time spent on different parts of the website, the internet address of the website from which The Client or a third party came and the pages that The Client or the third party has visited. Krafters stores this data in a database used for the performance of the agreement and for public registration in the relevant registry. Performance of the agreement also includes measures to improve the service to The Client and the provision of information or offers to The Client.
The Client guarantees that all requirements for the lawful processing of the (personal) data under e.g. the GDPR that are entered or processed by The Client or third parties on the website or otherwise processed by Krafters are met. The responsibility for this data lies with The Client. The Client warrants to Krafters that the data are not unlawful and do not infringe any rights of third parties. The Client indemnifies Krafters against any legal action by third parties, on whatever grounds, in connection with this data or the performance of the agreement.
The Client may have obligations towards third parties under the legislation on the processing of personal data (such as the GDPR), such as the obligation to provide information and to grant access to, correct and delete personal data of data subjects. The responsibility for compliance with these obligations rests solely and exclusively with The Client. Krafters shall cooperate as far as technically possible and as can reasonably be expected of it in the fulfilment by The Client of its obligations. The costs associated with this cooperation are not included in the agreed prices and fees of Krafters and are fully for the account of The Client.
Krafters may use all developed and published or unpublished content etc. for its own publicity purposes.
The intellectual property arising from the performance of the agreement, such as ideas, concepts or (draft) designs provided by Krafters, belongs entirely to Krafters unless expressly agreed otherwise in writing. In the latter case Krafters may stipulate a fee for this. In the event of proven infringement of the said property, Krafters is entitled to charge a reasonable fee to be determined by it.
Krafters retains the right to use the knowledge gained from the performance of the work and other IP rights for other purposes, provided that no confidential information is disclosed to third parties in the process.
Krafters reserves the rights and powers that accrue to it under the Copyright Act and other intellectual property laws and regulations. Krafters is unrestricted in its right to reuse (parts of) the productions. In all cases ownership remains with Krafters.
When The Client itself supplies content or a design, Krafters assumes that The Client is entitled to start production of the relevant (figurative) mark, image or logo. It may therefore be that The Client, when it supplies a (figurative) mark, image or logo to Krafters, must have permission from a company, licence holder or other copyright holder. Krafters assumes that uploaded (figurative) marks, images and logos and similar materials are used lawfully. The Client is itself responsible for any infringement of intellectual property and indemnifies Krafters in and out of court against all claims that third parties may assert.
If there is or remains reasonable doubt as to the validity of the rights claimed by third parties as referred to in the previous paragraph of this article, Krafters is entitled but not obliged to suspend performance of the agreement until it has been irrevocably established in court that performance of the agreement by Krafters does not infringe these rights. Krafters shall then still perform the order within a reasonable period.
The Client is responsible for the handling of portrait rights of third parties. The same applies to the image rights of e.g. buildings, works of art or locations. The costs of registering and buying out these rights are for the account of The Client and will be invoiced additionally unless otherwise agreed.
Unless expressly agreed in writing, the assignment does not include conducting research into the existence of patent rights, trademark rights, design or model rights, copyrights and portrait rights of third parties. The same applies to any research into the possibility of such forms of protection for The Client.
Article 10. Force majeure
Force majeure means, in addition to what is understood as such in law and case law, all external causes, foreseen or unforeseen, over which Krafters cannot exert influence. This shall include: synflood, network attack, DoS or DDoS attacks, war, business disruptions, strikes, traffic disruptions, unforeseeable stagnation, disruptions or failures in the supply of energy, internet disruptions, shortcoming by parties on whom Krafters depends in the provision of the services, epidemics, more than 50% illness among staff and government measures.
During force majeure Krafters’ obligations are suspended. If performance is impossible due to force majeure for longer than two months or there are other circumstances that make it unreasonably onerous for Krafters to fulfil its obligations, Krafters is entitled to terminate the agreement in whole or in part by notice to The Client and without judicial intervention, without any obligation to pay compensation in that case.
If Krafters has already partially fulfilled its obligations when force majeure occurs, it is entitled to invoice the part already delivered or performed separately, or to give partial credit in the case of advance payments.
Article 11. Poaching
The Client is not permitted without Krafters’ prior written approval, before, during or until one year after the end of an assignment, to approach staff of Krafters and third parties engaged or hired by Krafters for the performance of the agreement, directly or indirectly, paid or unpaid, or to have them perform work in any way, or to be directly or indirectly involved in or have an interest in the performance of such work in any way.
If The Client acts in breach of this article, it shall forfeit to Krafters an immediately and fully due penalty of EUR 5,000 per breach and EUR 1,000 for each day or part of a day that the breach continues.
The penalty referred to above is without prejudice to The Client’s obligation to pay full compensation to Krafters if the damage exceeds the penalty amount stated.
Article 12. Amendments to the terms and conditions
In the case of contracts for a definite period that end by expiry of time, Krafters reserves the right to amend or supplement these terms and conditions. Amendments also apply to agreements already entered into, subject to a period of 30 days after notification of the amendment.
Amendments of minor importance may be made at any time.
If The Client does not wish to accept an amendment to these terms and conditions, it must have communicated this in writing before the date on which the new terms and conditions take effect.
Article 13. Forum, choice of law and assignment of rights
Krafters is entitled to transfer its rights and obligations under this agreement to a third party. The Client is only entitled to transfer its rights and obligations to a third party with Krafters’ written consent.
Dutch law exclusively applies to this agreement and other agreements entered into between the parties, with the exception of the Vienna Convention on the International Sale of Goods. If in the future an obligation arises between the parties other than from an agreement, Dutch law shall also apply to that obligation.
If a dispute arises from the agreement between the parties, the court in the district where Krafters has its (registered) office has exclusive jurisdiction. If a dispute arises between the parties concerning non-contractual obligations, the court in the district where Krafters has its (registered) office also has exclusive jurisdiction.