General Terms and Conditions of Changefied B.V.
These general terms and conditions govern all offers and agreements between Changefied B.V., located in Heerhugowaard (the Netjerlands), Chamber of Commerce 90464559, and its clients ("Client").
Provisions or conditions set by the Client that deviate from or are not included in these general terms and conditions are only binding on Changefied B.V. if expressly accepted in writing.
- Quotation and Acceptance
1.1. Changefied B.V. prepares a quotation indicating the services ("the Services")
Changefied B.V. offers to perform, what is included in the Services, and the amount payable for them. Only the description of the Services indicated in the quotation is binding.
1.2. In general, the Services include the provision of software licenses, delivery of hardware, customization of software, configuration and installation of hardware, configuration and installation of software, and all related activities. Other services are only provided if specified in the quotation.
1.3. A quotation is entirely non-binding and valid for 30 days after dispatch, unless otherwise stated in the quotation. Changefied B.V. can never be obliged to accept an acceptance after this period, but if Changefied B.V. does so, the quotation is nevertheless accepted.
1.4. The agreement is concluded when the communication containing acceptance of the quotation is received by Changefied B.V. This communication can be made by email.
1.5. If the Client does not explicitly indicate acceptance of the quotation but nevertheless agrees, or gives the impression that Changefied B.V. is performing services that fall within the description of the Services, then the quotation is considered accepted. This also applies when the Client requests Changefied B.V. to perform certain services without awaiting a formal quotation.
1.6. Modifying the Services is only possible with the consent of both parties, unless otherwise stipulated elsewhere in these terms and conditions.
1.7. Changefied B.V. will provide a suitable quotation for requests for additional work.
- Delivery and Acceptance
2.1. Changefied B.V. will deliver the result after performing work or parts thereof when, in its professional opinion, it meets the specifications or is suitable for use.
2.2. The Client must then evaluate and approve or reject the delivered result within five working days after delivery. If the Client does not reject the delivered item within this period, it is deemed accepted.
2.3. If work is delivered in stages, the Client must, after delivery of each stage, approve or reject the part of the work of that stage in the manner specified in the previous paragraph. The Client may not base approval or rejection in a later stage on aspects approved in an earlier stage.
2.4. If the Client partially or fully rejects the delivered item, Changefied B.V. will endeavor to rectify the reason for rejection as soon as possible. Changefied B.V. may do this by revising the result or by providing motivated reasons why the reason is not valid. The Client then has another five working days to approve or reject the revision or motivation.
2.5. If the Client rejects the delivered item in whole or in part after the first revision or motivation, a reasonable number of revision rounds will follow at the discretion of Changefied B.V.
2.6. If a party indicates that further revisions are no longer considered meaningful, both parties are entitled to terminate the agreement for the respective Service. In that case, the Client shall reimburse Changefied B.V. for the actual hours worked, with a maximum of the amount quoted for the rejected item. However, the Client is not entitled to use the rejected item in any way.
2.7. After acceptance of the delivered item, any liability for defects in the delivered item expires, unless Changefied B.V. was aware of or should have been aware of the defect at the time of acceptance. In any case, any liability for defects expires after one year after termination of the Agreement for any reason whatsoever.
- Provision of Services
3.1. Once the agreement has been concluded, Changefied B.V. will carry out the Services as soon as possible in accordance with the quotation, taking into account reasonable requests from the Client.
3.2. The Client is required to do and refrain from all that is reasonably desirable and necessary to enable correct and timely execution of the Services. In particular, the Client ensures that all data, which Changefied B.V. indicates as necessary or which the Client reasonably understands to be necessary for the performance of the Services, are provided to Changefied B.V. in a timely manner.
3.3. The Client shall grant Changefied B.V. access to all places, services, and accounts under its management (such as web hosting accounts) that Changefied B.V. reasonably requires to provide the Services.
3.4. Changefied B.V. guarantees that the Services are performed carefully, properly, and to the best of its ability.
3.5. Changefied B.V. is entitled, but not obliged, to investigate the accuracy, completeness, or coherence of the source materials, requirements, or specifications provided to it, and in case of any deficiencies, to suspend the agreed work until the Client has rectified the relevant deficiencies.
3.6. Unless otherwise agreed, Changefied B.V. is not a party to the provision of third-party services, such as software licenses or hosting necessary for the Services, even if Changefied B.V. procures these services on behalf of the Client. In the case of software licenses provided as a Service, it depends on the supplier whether Changefied B.V. is the contractual counterparty of the Client or the supplier. Changefied B.V. will provide adequate information about this.
3.7. Changefied B.V. has the right not to or only partially deliver the Services if the Client fails to fulfill an obligation to Changefied B.V. regarding the agreement or acts in violation of these general terms and conditions.
3.8. Changefied B.V. will make efforts to respond as quickly as possible to a request from the Client but cannot make specific commitments regarding timing unless otherwise agreed in the quotation.
- Sale of Equipment
4.1. No warranties are given for equipment delivered as part of the Services, except to the extent provided by the manufacturer or importer. The Client must invoke these warranties directly with the relevant party. Changefied B.V. will mediate in these claims upon request but is not liable if the manufacturer or importer refuses to repair or replace or charges for it.
4.2. For the supplied VR/AR/XR equipment, the Health and Safety warnings of the Manufacturer must be complied with by the recipient.
- Installation and configuration
5.1. Changefied B.V. will proceed with the configuration and installation of equipment and software for the Client in accordance with the quotation or further specification, in order to establish a functional environment.
5.2. The choice, procurement, and management of the environment within which the configuration and installation will take place are solely and entirely the responsibility of the Client, except for equipment provided under the article 'Sale of Equipment'. Changefied B.V. will provide guidance on the desired configuration. If the designated environment does not meet Changefied B.V.'s requirements, Changefied B.V. reserves the right to refuse installation or configuration.
5.3. Upon request by Changefied B.V., the Client will grant employees and agents of Changefied B.V. all necessary access to the environment to enable installation, configuration, maintenance, and adjustments. Physical access to the Client's equipment will only occur if necessary, and only after prior consultation with the Client.
5.4. If third-party software is installed, the Client must possess adequate licenses and ensure that the provisions therein are strictly adhered to. The Client indemnifies Changefied B.V. against third-party claims regarding the installation and licensing of the software, except to the extent that the claims result from information or licenses provided by Changefied B.V..
- Development of Works
6.1. If a Service involves the development, configuration, and/or modification of Works, Changefied B.V., unless otherwise agreed, has the right to use images, software, and components from third parties in the development, configuration, or adaptation of Works.
6.2. Changefied B.V. is permitted to use open-source software owned by third parties. This means, among other things, that Changefied B.V. may deliver open-source software to the Client and incorporate open-source software into Works created or modified by Changefied B.V. in the context of a Service. If the license of certain open-source software requires that the Client (parts of) the software can only be distributed as open source, Changefied B.V. will adequately inform the Client of all applicable license terms.
6.3. Upon delivery, the responsibility for the correct compliance with the relevant third-party licenses for the use of the developed Works lies with the Client.
- Intellectual Property Rights
7.1. All intellectual property rights to all Services or Works developed or provided under the agreement are exclusively owned by Changefied B.V. or its licensors. Rights may only be transferred to the Client if explicitly stated in the quotation or separately agreed upon.
7.2. The Client only obtains the usage rights and powers arising from the scope of the agreement or explicitly granted in writing, and otherwise, the Client shall not reproduce or disclose the Works or other results of Services materials. Any use, reproduction, or disclosure of the materials that falls outside the scope of the agreement or granted usage rights shall be considered a copyright infringement. The Client shall pay Changefied B.V. an immediately enforceable and non-judicially modifiable fine of €900,000.00 per infringing act. This does not affect Changefied B.V.'s right to be compensated for its damages resulting from the infringement or to take other legal measures to terminate the infringement.
7.3. The Client is not entitled to make changes to the Works it receives usage rights for unless necessary for the intended use or to correct errors.
7.4. The Client has no right to a copy of the source files (such as image, website, or software source code) of the delivered Works unless explicitly and unequivocally agreed upon in writing. Changefied B.V. may reuse the source files developed by it at all times.
7.5. The Client is not allowed to remove or modify any indication regarding copyrights, trademarks, trade names, or other intellectual property rights from the materials in the Works it receives under license, including indications regarding the confidential nature and confidentiality of the materials.
- Pricing and payment
8.1. The Client shall acquire the Hardware, training, and Billable Hours as per the quotation. Software licenses are provided on a subscription basis, meaning a fixed amount that must be paid quarterly or annually in advance.
8.2. Changefied B.V. will send an electronic invoice to the Client for the amounts due from the Client.
8.3. The payment term for invoices is one month from the invoice date, unless a longer payment term is indicated on the invoice. If the Client fails to pay on time, they will automatically be in default after the expiration of this period without the need for formal notice. If a due amount is not paid within the payment term, statutory interest will be charged on the outstanding invoice amount.
8.4. If the Client believes that (a portion of) an invoice is incorrect, they must notify Changefied B.V. within the payment term. The payment obligation of the disputed amount (but not the remainder) will be suspended until Changefied B.V. has investigated the notification. If Changefied B.V. finds that the dispute was unjustified after investigation, the Client must pay the disputed amount within seven days.
8.5. In case of late payment, the Client, in addition to the overdue amount and the accrued interest, is liable for full compensation of both extrajudicial and judicial collection costs, including the costs for lawyers, bailiffs, and collection agencies. Specifically, in this case, Changefied B.V. is entitled to charge administrative costs of €50.
8.6. The payment claim becomes immediately due and payable if the Client is declared bankrupt, applies for a suspension of payments, has an attachment placed on its assets, dies, is liquidated, or is dissolved.
- Confidentiality
9.1. Parties shall treat information provided to each other before, during, or after the execution of the agreement as confidential when such information is marked as confidential or when the receiving party knows or should know that the information was intended as confidential. Parties also impose this obligation on their employees and third parties engaged by them to execute the agreement.
9.2. Changefied B.V. will endeavor to avoid accessing data stored and/or distributed by the Client via the hardware or software related to the Services unless necessary for the proper execution of the agreement or if Changefied B.V. is obligated to do so under a legal provision or court order. In such a case, Changefied B.V. will make efforts to limit access to the data as much as possible, to the extent within its power.
9.3. Changefied B.V. may use the knowledge gained during the execution of the agreement for other assignments, provided that no information from the Client becomes available to third parties in violation of confidentiality obligations.
9.4. The obligations under this article remain in effect after termination of the agreement for any reason, for as long as the party providing the information can reasonably claim the confidential nature of the information.
- Liability
10.1. Changefied B.V. is only liable to the Client in the event of an attributable failure to fulfill the agreement and only for compensatory damages, meaning compensation for the value of the omitted performance.
10.2 Any liability of Changefied B.V. for any other form of damage is excluded, including but not limited to additional compensation in any form, compensation for indirect or consequential damages, damages due to loss of revenue or profit, damages due to loss of data, as well as damages due to exceeding deadlines as a result of changed circumstances.
10.3. In case of liability under the first paragraph, the maximum amount that Changefied B.V. is obliged to pay shall be equal to the amount due for the respective Service. This maximum amount shall lapse if and to the extent that the damage results from intent or gross negligence of Changefied B.V.
10.4. Changefied B.V.'s liability for attributable failure to fulfill the agreement arises only if the Client notifies Changefied B.V. promptly and properly in writing of the default, setting a reasonable period for remedying the default, and Changefied B.V. continues to fail to fulfill its obligations after that period. The notice of default must contain as detailed a description of the default as possible, so that Changefied B.V. can respond adequately.
10.5. In the event of force majeure, including but not limited to disruptions or failures of the internet, the telecommunication infrastructure, power outages, domestic disturbances, mobilization, war, transport disruptions, strikes, lockouts, business disruptions, stagnation in supply, fire, flooding, import and export restrictions, and in the event that Changefied B.V., regardless of the reason, is prevented by its own suppliers from delivering, so that fulfillment of the agreement cannot reasonably be expected from Changefied B.V., the execution of the agreement will be suspended, or the agreement will be terminated if the force majeure situation has lasted longer than ninety days, without any obligation to pay damages.
- Duration and Termination
11.1. The agreement is entered into for the term necessary for the provision of the Services. The agreement may only be terminated prematurely as provided in these general terms and conditions, or with the consent of both parties. The Client may terminate the agreement prematurely upon payment of a buyout fee equal to 50% of the total value of the undelivered parts of the agreement.
11.2. After termination, expiration, or dissolution for any reason, Changefied B.V. is entitled to immediately delete all data stored for the Client. Changefied B.V. is not obligated to provide the Client with a copy of this data.
11.3. The agreement ends automatically if a party is declared bankrupt, applies for a suspension of payments, has a general attachment placed on its assets, dies, is liquidated, or is dissolved.
- Changes to the Agreement
12.1. Upon acceptance, the agreement may only be amended with mutual consent.
12.2 However, if the agreement is of a continuous nature, Changefied B.V. is entitled once per calendar year to unilaterally amend or expand these terms and conditions. To do so, it must notify the Client at least two months before the amendments or expansions take effect. Changes to the terms and conditions cannot override a specific agreement.
12.3. If the Client objects within this period, Changefied B.V. will consider whether to withdraw the contentious amendments or expansions. Changefied B.V. will inform the Client of this decision. If Changefied B.V. chooses not to withdraw the contentious amendments or expansions, the Client has the right to terminate the agreement as of the date they will take effect.
12.4. Changefied B.V. may make changes to these terms and conditions at any time if necessary due to changes in legal regulations. The Client cannot object to such changes.
12.5. The above provisions also apply to prices.
- Final Provisions
13.1. This agreement is governed by Dutch law. To the extent that mandatory legal rules do not prescribe otherwise, all disputes arising from this agreement shall be submitted to the competent Dutch court in the district where Changefied B.V. is established.
13.2. If any provision of this agreement is found to be void, it does not affect the validity of the entire agreement. In that case, the parties will establish a new provision(s) to the extent legally possible to reflect the intention of the original agreement and these terms and conditions.
13.3 In these terms and conditions, "in writing" also includes email and fax communication, provided that the identity of the sender and the integrity of the content are sufficiently established. Parties will make efforts to confirm the receipt and content of communication by email.
13.4. The version of any communication received or stored by Changefied B.V. shall be deemed authentic, unless the Client can prove otherwise.
13.5. Each party may only transfer its rights and obligations under the agreement to a third party with the prior written consent of the other party. However, Changefied B.V. is always entitled to transfer its rights and obligations under the agreement to a parent, subsidiary, or sister company.