Algemene voorwaarden van Whello Group

Whello B.V., gevestigd en kantoorhoudend te Amsterdam, KvK-nummer 72050764,

versie 2024

Bij vragen over deze voorwaarden zijn wij bereikbaar op:
e-mail: info@whello.nl
telefoon: +85 401 3416
adres: Moermanskkade 301, 1013 BC Amsterdam

 

1. Definities

1.1. In deze algemene voorwaarden hebben onderstaande begrippen de volgende betekenis:

Whello – The private limited company Whello B.V., established in Amsterdam, the Netherlands, registered in the Trade Register under number 72050764, trading under the name Whello or under any other name registered in the Trade Register, including Branding a Better World, SKIPP, Livestream solutions, and BureauTekst;

Deviations – Deviations in a Product from the specifications as included in an agreed Design Proposal;

Services – The services as listed in Clause 3.1;

Continuing Performance Agreement – Any agreement by which Whello continuously performs Services and that therefore qualifies as a continuing performance agreement;

Defects – All material defects in a Product resulting in the normal use of certain functionalities being impossible;

Intellectual Property Rights – All intellectual property rights accruing to Whello and to its licensors and attached to signs used to distinguish Whello and the Products and Services it provides, including brands and trade names, as well as intellectual property rights attached to Whello’s Products, including copyrights, related rights, moral rights, design rights, database rights, patent rights, and company secrets;

Client – The legal entity or natural person acting in the performance of its or their profession or business and that or who wishes to enter into or has entered into an Agreement with Whello;

Delivery Term – An indicative term for the provision of Products and/or Services, as communicated by Whello;

Extra Work – Work activities as listed in Clause 10.1;

Design Proposal – A proposal for the development of a Product based on the specifications provided by the Client, as presented by Whello to the Client, detailing, dependent on the type of Product, all visual, functional, and technical characteristics of the Product;

Quotation – A quotation for the provision of Services as presented by Whello to the Client;

Assignment – An assignment for the provision of Services given by the Client to Whello;

Agreement – Any agreement, including any Continuing Performance Agreement, concluded between the Client and Whello in connection with the Services and/or Products to be provided by Whello;

Products – Inter alia, the Products as described in Clause 3.1.a).

Revision Round – A round during which Whello implements changes on the basis of the Client’s feedback in order to align the Product with the Client’s wishes.

3. Services

3.1. Whello inter alia performs the following services on Assignment of the Client:

• the design, maintenance, and optimisation of Products, including campaign materials, texts, house styles, websites, videos, animations, livestreams, and apps;
• the conception, organisation and implementation of marketing and advertisement services, including (social media) campaigns, search engine optimisation and advertisement services, and hosting and consultancy services. 

4. Conclusion of Agreements

4.1. Whello submits a Quotation on the basis of the Services desired by the Client.

4.2. Unless expressly otherwise agreed, all Quotations have a validity period of eight weeks, counting from the date stated on the Quotation or, in case no date is stated, the date the Quotation is submitted. If the offer presented in the Quotation is accepted in time, an Agreement is concluded. If desired, Whello may confirm its acceptance of the Assignment to the Client.

4.3. If Whello did not submit a Quotation, Whello will confirm acceptance of an Assignment to the Client by submitting a written confirmation of assignment, by which action the Agreement is concluded.

4.4. Unless expressly otherwise agreed, the Client guarantees that the Assignment is given exclusively to Whello and is not simultaneously given to another party.

 

5. Delivery Terms

5.1. As Whello is also dependent on the Client when performing its Services, the Delivery Terms are always indicative, unless the Quotation provides otherwise.

5.2. Whello and the Client may agree on different Delivery Terms for the various Products, Services, or Product parts that can make up an Assignment.

5.3. If Whello is likely to fail to meet a Delivery Term, Whello will inform the Client accordingly.

5.4. A Delivery Term will at any rate be moved if:

• the Client acts contrary to the provisions of Clause 8.4;
• a situation of Force Majeure as referred to in Clause 16.6 exists;
• more work needs to be performed than was foreseeable in advance.

 

6. Continuing Performance Agreement

6.1. Whello performs certain Services on the basis of a Continuing Performance Agreement.

6.2. With respect to Services provided on the basis of a Continuing Performance Agreement, Whello and the Client will in advance establish the term of the Continuing Performance Agreement and the number of hours Whello will spend performing the Services during the term of the Continuing Performance Agreement. The term of a Continuing Performance Agreement can be no less than six months, unless another minimum term is laid down in the Continuing Performance Agreement.

6.3. Following the expiry of the term of the initial Continuing Performance Agreement, it will in each case be tacitly renewed for a similar period, covering the same number of hours.

 

7. Design Services

7.1. Indien Whello een ontwerp, website en/of tekst produceert en/of videodiensten levert, zijn er maximaal twee Revisierondes onderdeel van de voor de Opdracht overeengekomen prijs, tenzij anders is overeengekomen. Extra Revisierondes worden gefactureerd als Meerwerk tegen het standaard uurtarief.

7.2. The Client and Whello may agree that Whello submits one or more Design Proposals. Should the submission of multiple Design Proposals be agreed on, the Client will select one Design Proposal from the range.

7.3. Once the Client is satisfied with the Design Proposal, it can approve it. When approval is granted, this at any rate means that:

• the selected Design Proposal contains all separate elements desired by the Client;
• the Client understands that the adjustments to the Design Proposal made by Whello will be deemed to be Extra Work.

 

8. Performance of the Agreement

8.1. Whello will endeavour to perform the Assignment granted to it as carefully as possible and within the Delivery Terms.

8.2. Unless otherwise agreed upon, Whello will perform the work remotely, not at the Client’s site.

8.3. Whello may have third parties perform the Assignment or a part thereof.

8.4. During the performance of the Agreement, the Client must:

• provide Whello will all information and details required and provide all reasonable cooperation to allow Whello to perform the Agreement;
• grant Whello access to the third-party accounts required to perform the Agreement, including hosting services and online marketing services;
• inform Whello in writing of all legislation that may be relevant to the performance of the Agreement.

8.5. The Client is responsible for the use of Products and Services provided by Whello and for the correct application thereof within its organisation.

8.6. To the extent Whello provides projections or other estimates about its work activities (such as a campaign), such projections and/or estimates are indicative only and not binding for Whello.

 

9. Acceptance Term

9.1. The Client has twenty days to accept a Product designed by Whello, or a part thereof, unless the Agreement contains a different Acceptance Term. The Acceptance Term starts once Whello has shared a Product designed for the Client, or a part thereof, with the Client.

9.2. If the Client informs Whello in writing of the Product, or a part thereof, still deviating from the approved Design Proposal within the Acceptance Term, Whello will resolve the matter free of charge.

9.3. If the Client fails to inform Whello in writing of the Product, or a part thereof, still deviating from the approved Design Proposal within the Acceptance Term, resolving such Deviations will be deemed Extra Work as referred to in Clause 10 by Whello.

9.4. Minor Deviations from the approved design in the Product or part thereof supplied by Whello do not grant the Client any rights to rejection, discount, compensation, or termination.

 

10. Extra Work

10.1. Work activities not forming part of an agreed Assignment are deemed Extra Work.

10.2. The Client may request Whello to perform Extra Work. Whello is not required to agree to such a request. Whello may attach conditions to the performance of Extra Work.

10.3. Whello will inform the Client that its activities will be deemed Extra Work prior to performing them.

10.4. Whello and the Client are to agree on an hourly rate or a fixed sum for the work to be performed prior to the performance of the Extra Work

 

11. Rates and Payment

11.1. All (initially) applicable rates and prices are listed in the Quotation. Unless noted differently, all amounts listed by Whello are in euros and exclusive of VAT and other government levies. Whello is entitled to annually update its hourly rates and prices.

11.2. Whello is constantly entitled to draw up a risk profile of the Client, or to have it drawn up, in order to arrive at an estimate of the Client’s creditworthiness. The Client is obliged to provide Whello with the data it requires to do so. Should it become clear from the investigation that the Client’s creditworthiness is being threatened, Whello may adjust its payment conditions. Whello will consult with the Client in such a case.

11.3. Whello provides its Services against an hourly rate or a fixed sum agreed in advance. Should no such agreement have been made, Whello’s usual rates apply. Any agreements made with Whello are not automatically applicable to future Assignments by the Client.

11.4. Should it be agreed that the Client pays for a specific number of hours’ work and no term for such performance is agreed on, the Client must give Whello the opportunity to work these hours within a period of no more than 6 months. The hours bought will lapse after expiry of this term. The above term may be deviated from in the Agreement.

11.5. When Whello and the Client have agreed on a fixed price, the Client must make the deposit listed in the Quotation after having accepted that Quotation. If no deposit is listed in the Quotation, a deposit to the amount of 50% of the agreed fixed sum must be paid. Whello is only obliged to perform the Agreement once it has received the deposit.

11.6. If Whello and the Client have agreed on a fixed price and the Client terminates the Assignment before it is completed, the Client is as yet required to pay Whello the entire price agreed on.

11.7. In the case of a Continuing Performance Agreement, Whello will only invoice a fixed monthly amount, which is based on an hourly rate or fixed sum agreed upon in advance. Whello may have these hours worked by specialist it deems to be the most appropriate for the work activities.

11.8. In the case of a Continuing Performance Agreement, Whello will strive to work all agreed-on hours each month. If Whello works fewer hours in a certain month for reasons inside of Whello’s power to influence, the fixed sum will not be reduced. However, the Client will in such a case be entitled to require Whello to as yet work the hours not worked. This entitlement will lapse six months from the invoice date. If Whello fails to work all agreed-on hours in a month for reasons that are in the Client’s power to influence, such as ending a campaign, the fixed sum will not be reduced. Nor will the Client in such a case be entitled to require Whello to as yet work the hours not worked.

11.9. If Whello fails to meet a Delivery Term, Whello may still invoice the Products and Services provided from the date of the relevant Delivery Term. If Whello is unable to provide Services, or is in any other way unable to perform the Agreement, because of the Client’s actions, Whello may as yet invoice them from the date it would have been able to charge them if the Client would have cooperated.

11.10. In the case of a Continuing Performance Agreement, the monthly amount due by the Client will be charged at the start of each calendar month. Whello is also entitled to demand payment in advance or the issuance of a direct debit mandate for other Products and Services. All costs associated with the payment in advance or the direct debate mandate are borne by the Client.

11.11. All amounts listed in Quotations and Continuing Performance Agreements are exclusive of travel and accommodation expenses, which can be charged by Whello separately.

11.12. The Client is obliged to pay every invoice in euros within fourteen days of the invoice date, without any setoff taking place. If the invoice is not paid within this term, or not paid in full, the Client is in default by operation of law from the first day following the lapse of the payment term and owes statutory trade interest on the amount due for each month or part of the month. The Client is not entitled to suspend any payments owed to Whello.

11.13. All judicial and extrajudicial costs incurred by Whello to realise payment of its invoices are charged to the Client. The compensation for extrajudicial costs is fixed at an amount equal to 15% of the amount due (to a minimum of EUR 500, exclusive of VAT), unless higher costs have demonstrably been incurred.

11.14. If the Client disputes the invoice or a part therefore, it must inform Whello thereof in writing within fourteen days from the invoice date, stating reasons. The Client will lose its entitlement to dispute the invoice following the lapse of this term.

11.15. If Whello, in performing the Agreement and at the request of the Client, procures certain goods and/or services from third parties, the Client must pay all associated costs in advance.

 

12. Data, Data Protection, and Cookies

12.1. Whello for some of its Services, such as SEO services, offers the Client the option of reading cookies and conducting data analysis. The Client acknowledges that it is responsible for complying with all relevant applicable privacy legislation arising from, inter alia, the General Data Protection Regulation and the Dutch Telecommunications Act and that Whello has no responsibility in this connection.

12.2. The Client will, at Whello’s request, demonstrate in writing that the applicable legislation as referred to in Clause 12.1 is complied with.

12.3. If Whello in the context of the performance of the Assignment processes personal data for the Client in the capacity of processor, for example when the Client procures SEO services, these General Terms and Conditions will also apply to any processing agreement to be concluded in that framework. Whello has the right to change the processing agreement in conformity with the provisions of Clause 2.4.

12.4. The Client will only have access to those data concerning the Client stored with Whello or a third party for the term of the Agreement. Following the expiry of the Agreement, Whello is not obliged to provide these data to the Client or to grant the Client access to them.

 

13. Right of Use

13.1. All Intellectual Property Rights attached to the Products developed for the Client accrue to Whello and its licensors, if any. Whello may reuse the technical solutions used in the Products when developing new products. In principle, all Intellectual Property Rights remain vested in Whello and its licensors, if any, after the delivery of the Products.

13.2. Whello understands that the Client wishes to have as much freedom as possible to modify the Products or to transfer them to others. Whello happily complies with that wish. As soon as the Client has paid all amounts due, the Client will therefore receive a perpetual, non-exclusive, transferrable, pledgeable, sublicensable right to use the Products in accordance with the provisions of these General Terms and Conditions and the Agreement. The right of use is an exclusive one, except for Whello’s right to use Products for its own promotional objectives. The right of use can only be transferred or sublicensed with Whello’s written consent.

13.3. As soon as the Client has obtained the license right referred to in Clause 13.2, the Client is inter alia allowed to do the following, without requiring Whello’s consent:

• modifying the Products;
• allowing third parties to use the Products;
• transferring Products to third parties.

13.4. Nevertheless, in derogation from the provisions of Clause 13.1, Whello and the Client may agree that Whello will transfer – against payment or otherwise – the Intellectual Property Rights attached to Products or parts thereof, such as unique graphical elements of a Product, to the Client in conformity with the statutory requirements for the transfer of those Intellectual Property Rights.

13.5. In some cases, Intellectual Property Rights of Whello’s licensors are attached to the Products, or to parts thereof, supplied by Whello, or to distinguishing marks used to distinguish the Services or the services by third parties. In such cases, Whello will make sure that the Client will also receive a right to use those Products or the parts thereof.

13.6. Whello is never obliged to transfer Intellectual Property Rights accruing to its licensors, to the Client. In addition, Whello is never obliged to transfer Intellectual Property Rights attached to parts of software intended for generic use, to the Client.

13.7. Music or video or audio materials are sometimes used in Products, or parts thereof, developed by Whello. Collective control organisations, such as Buma/Stemra and/or SENA, will sometimes charge costs for such use. These costs will be for the account of the Client.

 

14. Retention of Title

14.1. Whello will retain ownership of all goods supplied to the Client until such time as the Client has fully paid all amounts owed to Whello.

14.2. The Client is not entitled to grant rights of pledge to goods this retention of title applies to or to encumber them in any other fashion.

14.3. Should third parties wish to attach any goods the retention of title applies to, to establish certain rights thereon, or wish to enforce such rights, the Client must inform Whello thereof in writing within no more than seven days.

 

15. Guarantee

15.1. Whello guarantees the soundness of the Products it has delivered and endeavours to rectify Defects within a reasonable term, provided such Defects have been reported to Whello in writing and in detail within three months from the lapse of the Acceptance Term.

15.2. Whello will perform the repairs at no cost, unless no fixed price has been agreed for the Assignment. In the latter case, Whello will conduct the repairs against the agreed-upon hourly rate and, should no such rate have been agreed upon, against its usual hourly rates.

15.3. The Client will at any rate not be entitled to free repairs if:

• a Defect is due to the Client’s misuse;
• a Defect is due to the modifications made by the Client;
• the Client fails to meet any obligation arising from the Agreement;
• the nature of the Product precludes any guarantees being given;
• Whello has been indemnified by the Client against any claims in case of Defects.

15.4. When performing its Services, Whello sometimes depends on the services provided by third parties, such as Google LLC. Whello endeavours to make sure these services and its own Services are as compatible as possible, but is unable to guarantee such compatibility.

 

16. Aansprakelijkheid en vrijwaring

16.1. Whello will only be liable for damage as detailed in Clause 16, except in case such damage results from a wilful act or gross negligence by Whello, in which case the limitation of liability does not apply.

16.2. Whenever Whello imputably fails to comply with the Agreement, Whello will only be liable for alternative compensation, i.e., for compensation up to the amount of the undelivered performance. Such compensation will at all times be limited to no more than fifty percent of the amount of the Products and Services delivered under that Agreement in the three preceding months.

16.3. Whello will never be liable for consequential loss, including lost profits and losses incurred by the Client, for losses due to delay, for damage due to data loss, or for damage resulting from information or advice given by Whello, the contents of which are not expressly covered by an Agreement.

16.4. In case of any wrongful act committed by Whello or one of its employees, which Whello is held liable at law for, Whello will only be liable for compensation of damage resulting from death or bodily harm, in which case its liability is limited to the amount paid out in that case under its liability insurance.

16.5. Should the Client hold Whello liable for any damage it suffered, it must report such damage to Whello in writing, stating sound reasons, within six weeks from the time the damage was suffered or became known. If the Client fails to do so, all rights to damages lapse.

16.6. Whello is not obliged to perform any obligation if such is not reasonably possible due to a circumstance outside its power to influence (Force Majeure). Such circumstances inter alia include malfunctioning of the communications infrastructure, disruptions due to viruses and causes related to programs not managed or developed by Whello, strikes, illness of both its own staff and of engaged third parties, staff shortages, fire, operational and technical failures at Whello’s offices or at third parties engaged by Whello.

16.7. Whello is not liable for any damage arising in connection with the contents, accuracy, up-to-dateness, layout, and storage of materials supplied to the Client.

16.8. The Client will indemnify Whello against all claims by third parties (including employees of and other staff at Whello) related to damage that can be attributed to the Client, including:

• damage caused by liability claims or sanctions due to a violation of privacy legislation;
• damage caused in connection with the performance of the Agreement, as a consequence of the acts or omissions of the Client;
• damage caused by a defect in the Products and Services supplied by Whello and used, modified, or resold by the Client with the addition of or in combination with the Client’s own products, programs, or services.

16.9. All claims the Client has on Whello will lapse if the Client has failed to institute a claim at law ultimately one year after the right to claim arose.

 

17. Confidentiality and Non-recruitment Clause

17.1. Whello and the Client mutually commit to maintain confidentiality with respect to all data and information about each other’s organisation, to each other’s customers, and in general to all information the parties become aware of when performing work for each other or for customers of the Client. Data and information may only be used for the performance of the Agreement.

17.2. Unless otherwise agreed upon in the Agreement, Whello may list the name and the logo of the Client on its website and/or a reference list and make such available to third parties.

17.3. During the term of the Agreement and for a period of twelve months from its expiry, the Client will not enter into any direct or indirect business relationship, employment relationship, or other similar relationship with any Whello employee without Whello’s written permission.

17.4. In case of a violation of any of the provisions of this Clause, the Client will, without notice of default being required, owe an immediately payable penalty of EUR 20,000 per violation and of EUR 2,500 for each day the violation continues, without prejudice to Whello’s entitlement to claim damages for the entire amount in damage suffered.

 

18. Suspension of the Agreement

18.1. Whello is entitled to suspend the performance of the Agreement whenever the Client acts contrary to the provisions of Clause 8.4 of these General Terms and Conditions or to any other provisions of the Agreement or these General Terms and Conditions.

18.2. Whello will only suspend the performance of the Agreement after having given the Client the opportunity, in writing, to rectify the actions as listed in Clause 19.1 within the term of fourteen days.

18.3. The Client is liable for the costs Whello has had to incur in connection with the suspension. Whello retains the right to charge the work activities related to the suspension at the usual rates.

 

19. Termination of the Continuing Performance Agreement

19.1. Any termination of a Continuing Performance Agreement must take place in writing and is possible only at the end of its term. This means that a Continuing Performance Agreement cannot be terminated in the interim. Unless agreed otherwise, a notice period of three calendar months applies to any Continuing Performance Agreement. This means that Whello must have received the notice of termination ultimately three calendar months prior to the end of the Continuing Performance Agreement.

19.2. The Client must fulfil all its obligations until the end of the notice period. This inter alia means that the Client’s payment obligations continue to be in force until the end of the term of the Continuing Performance Agreement.

 

20. Termination of the Agreement

20.1. Whello is entitled to immediately terminate an Agreement if, during the performance of the Agreement, it is unable to contact the Client within four weeks and having made three contact attempts. Whello is entitled to charge all hours spent on the Assignment to that point in time, against the agreed hourly rates or, should no such rates have been agreed, against the usual hourly rates.

20.2. Without prejudice to the provisions of Clause 6.4, Whello is entitled to immediately terminate an Agreement if any of the following situations occurs:

• the Client is in default of its payment obligations;
• the Client itself files for bankruptcy or a moratorium;
• the Client is declared bankrupt or the Client is granted a moratorium;
• the Client files a request to have the Dutch Debt Restructuring (Natural Persons) Act apply to it or has this Act apply to it;
• the Client or its company is wound up or terminated, except in the case of a merger or takeover.

20.3. Should the Agreement be terminated, any quantity discounts granted to the Client will lapse, as such discounts are based on the fact that multiple Assignments have been given to Whello. Whello is in such cases entitled to as yet charge the Client for the discounts granted.

21. Applicable Law, Disputes

21.1. The relationship between Whello and the Client is governed by Dutch law.

21.2. All disputes between the parties that cannot be resolved in mutual consultations will be resolved by the competent court in the judicial district of Amsterdam or by a court to be appointed by Whello.

21.3. Whenever any part of these conditions turns out to be void or are voided, for whichever reason, all other parts will remain in full force. In such a case, the parties will consult for the purpose of drawing up a substitute provision, such while adhering to the principle that the purport and object of the part that is no longer valid is to be preserved as much as possible.