General Terms and Conditions of Whello

Version: October 2019

These General Terms and Conditions will apply to all quotes and the formation, content and performance of all agreements to be concluded between Whello as the contractor and clients. Deviations from these Terms and Conditions will only be valid if they have been agreed on in writing.

These General Terms and Conditions have been filed with the Chamber of Commerce in Amsterdam, the Netherlands, under number 55225446.

If there are questions about these Terms and Conditions, we can be contacted in the following ways:

E-mail: info@whello.nl

Telephone: (+31) (0)85 401 3416

Address: Moermanskkade 301, 1013BC  Amsterdam

Offers and quotes

All of our quotes will be without obligation, will apply for at most four weeks and will only be binding on Whello if they have been recorded in writing and agreed on with the client in a signed assignment confirmation or signed quote online. 

Continuing performance contracts

For certain services such as SEO, SEA, social media campaigns, website maintenance and the purchase of design time, Whello will work with continuing performance contracts in which agreements are made with the client that we will carry out a project for a specified period. The details of this project will be fleshed out in consultation for a number of hours specified in the quote, which will be spent on the project during a certain period. 

Such a contract may be terminated in writing in each case up to one month before the contract ends. If notice of termination is not timely given, the contract will continue in each instance for a new period of three (3) months until the contract is timely terminated.

Advertising sales rules

When advertisements are sold, an option will be to use cookies. If cookies must be placed and/or read out for clients, the clients themselves will

e fully responsible for complying with any relevant laws and the clients will indemnify Whello in the event of any assertions of liability or penalties. 

Clients will undertake to fully comply with the applicable laws about cookies and data analysis included, for example, in the Dutch Telecommunications Act, the Dutch Personal Data Protection Act and/or the European General Data Protection Regulation. At Whello’s request, this will be demonstrated in writing.

We will not be responsible or liable for the content of advertisements or campaigns devised by the client.

Delivery periods, modifications, contract extras and outsourcing

Assignments will usually be performed in phases. A phase will be considered completed if the client has approved it or if the client has failed to reject the phase within the period furnished by Whello. From that time, it will no longer be possible to implement changes in a previous phase. This may only occur after consultation and approval for any contract extras.

Whello will do its very best to meet the agreed delivery periods, except if instructions, cooperation or materials necessary for performance are not forthcoming or consultation with the client takes longer than anticipated, or in the event of illness or situations of force majeure. If an agreed period threatens to be exceeded, the client will be notified.

If an assignment (or major portion thereof) needs to be modified at the client’s request, the client must pay for this, the current assignment will then be terminated and a new quote will be drawn up. A new price for the additional work will be agreed on as well.

If contract extras are involved, the client will be contacted. Agreements will then be made on the amount of contract extras, the costs and the payment terms. 

Whello will reserve the right to outsource work to third parties. Whello will act as the principal contractor in that case.

If the product delivered by Whello contains deviations that are minor compared with what was agreed on, the client will not be entitled in

principle to reject the product or to obtain a discount, compensation or rescission of the agreement. After performing the assignment, Whello need not save the data or materials used.

Approval of design

With regard to design assignments, we will agree on a maximum number of proposals in the assignment confirmation or quote. The client must select from these proposals. Designing more proposals will result in contract extras, which the client will have to pay for.

For each separate design (or for websites and/or apps, for each separate page template), we will ask the client to give final approval for the design concerned. Approval will include the following elements:

• confirmation that the final design and all of the individual elements have been looked at and approved in this manner;
• confirmation that any modifications which must still be performed by us after such approval will be considered contract extras;
• confirmation that any approved elements will appear again in the final website (including text blocks, areas for videos, social media ‘share buttons’, Twitter feeds, menus, logos, standard images, contact forms or social media buttons).

Warranty

Whello will warrant the products and/or services for three (3) months after delivery. ‘Warranty’ will mean that any apparent and/or non-apparent defects will be fixed by Whello at no cost. A Service Level Agreement (‘SLA’) or time card may be agreed on after this period. If there are defects, we will, at the client’s request, do everything that we can to fix these within a reasonable period. The client may not invoke the warranty if:

• the defects observed have resulted from incorrect use by the client or third parties;
• changes have been made in any way to our products and/or services by the client or third parties;
• the client has not fulfilled its obligations under the agreement concluded with Whello (or has not timely or fully done so);
• data has been lost due to incorrect use by the client or third parties;
• products and/or services are involved for which a warranty cannot be given, such as work relating to external design;
• Whello has been indemnified by the client against any third-party claims in the case of defects;
• the defective items fall under the category ‘contract extras’, such as new functionalities.

Third parties

In providing services, Whello must sometimes depend on third-party services, the functionalities of these services and the degree to which these are compatible. 

Such services or functionalities may not work optimally with Whello’s own services. We will do everything possible to avoid this, but will not give any guarantee in this respect. Whello will not be responsible for this, such that we will not be obliged to find a solution for this non-optimal operation at no cost. We will not offer any warranties in this regard.

Complaints and support

If the client has a complaint, the client must report this to Whello as soon as possible. We will then do our best to resolve the complaint. Submission of a complaint will not in any way change the payment obligations, which the client has assumed towards us (or the applicability of these obligations).

Retention of title

Any items that Whello creates and/or delivers for the client will remain its property until all amounts that the client owes Whello for our products and/or services have been paid in full.

The client may not grant any pledges on items falling under this retention of title or otherwise encumber these items. If third parties attach items falling under the retention of title or want to create or assert certain rights to these items, the client must provide written notice to Whello within seven (7) days.

Intellectual property rights

Whello will own any intellectual property rights (‘IP rights’) attached to or arising with regard to any products or services delivered. If the IP rights are held by third parties, which have given us permission to use them, these IP rights will always be held by the third parties in question.

To nevertheless enable reasonable use of the products and services, Whello will grant the client a non-exclusive, non-transferable right to

use IP rights to or concerning these products and/or services. 

This will always occur subject to the condition subsequent that the client complies with the obligations under this agreement. Whello may only transfer IP rights in specific exceptional cases and after payment of extra compensation. 

Unless prior written permission is received from Whello, the results of assignments may not be modified or used more broadly or in a different manner than agreed, nor may third parties be enabled to do this. Whello may ask for additional compensation in such cases.

If the foregoing occurs without Whello’s permission, Whello will be entitled to compensation which amounts to at least three (3) times the normal rate and which is reasonably proportional to the particular use. This will not affect any other rights, such as the right to payment of compensation for the entire damage suffered as a result of this use.

If our products and our services come with designations indicating that the relevant IP rights are held by Whello or third parties engaged by it, these designations may not be removed and/or impaired. Whello will have the broadest right imaginable to state or remove its name (or have its name stated or removed) for or concerning publicity pertaining to an assignment and may indicate the result of the assignment on its own website or through other channels.

The client may not file or register IP rights concerning Whello’s products and/or services without prior written permission.

Confidential Information

The parties will agree to take as many preventive measures as possible to ensure that confidential information is kept secret.

Rates and payment terms

Whello will only conclude agreements if a fixed hourly or other rate has been agreed on beforehand or if a fixed price applies. Agreements made with Whello will not automatically apply to future follow-up or other assignments from the client.

With a fixed price, Whello will not in principle begin the work until payment of an advance

invoice in the amount of 40% of the agreed fixed price has been received. Depending on the progress or the phase of the assignment, Whello will draw up an invoice again during the work. The final portion of a fixed price must always be paid before completion of the project. Each project will be concluded with an itemized final account.

If there is a continuing performance contract, the monthly costs will always be charged to clients at the start of each calendar month.

If Whello procures certain items and/or services to perform the assignment from third parties, all of the associated costs must be paid in full by clients beforehand. This payment obligation will also apply to creating printed matter.

The rates used by Whello will always be exclusive of VAT. 

Whello’s hourly and other rates may be set again by it in January of each year. This may only be different if agreed on in writing by the parties.

Payment must be made in full no later than fourteen (14) days after the invoice date. Amounts invoiced by Whello may not be set off. If the 14-day period is exceeded, the client will automatically be in default without a notice of default. From that time, statutory interest on the amount outstanding must be paid. Any costs ensuing from late payment or non-payment by the client will be paid by the client. Such collection costs will always be at least 10% of the total invoice amount, with a minimum of €150, exclusive of VAT.

If payment is made in instalments, Whello may, in the event of late payment, temporarily or otherwise suspend the delivery of services or products. In such instances, Whello may apply a ‘freeze’, with the client being denied access to or disposal of certain services and/or products. The freeze will not be lifted until the parties have consulted with each other and agreements have been made about the follow-up. 

Client’s obligations

If Whello performs an assignment, the client must:

• timely provide Whello with any necessary data or information;
• fully cooperate with Whello;
• follow any explicit instructions given to it by Whello;
• offer Whello access to relevant third-party accounts, such as CRM systems, Google Adwords, Google Analytics accounts and the like;
• keep Whello fully apprised in writing of any regulations relevant to performing the assignment.

Termination options

If contact cannot be obtained with the client while the assignment is being performed, Whello will be entitled to terminate the agreement after having made three (3) attempts within at least two weeks to make contact in writing. The time spent on the assignment concerned up to that point, will then be charged in accordance with the normal hourly rates. The client may no longer derive any rights from the agreement with Whello after termination.

If the client does not furnish Whello the necessary data and information, or furnishes this late or not in accordance with the agreements, or if the client otherwise does not fulfil its obligation, Whello may, after having given the client written notice of this with a remedy period of fourteen (14) days, suspend performance (or further performance) of the assignment. If Whello must incur costs in this connection, Whello may charge these costs at the normal hourly rates.

Data furnished

Whello will not be responsible for the content, accuracy, currentness, layout or number of copies of materials delivered by the client to Whello. In addition, Whello cannot be expected to be fully aware of all the laws that are applicable within the client’s specific industry. Whello will assume that the materials delivered by the client are in accordance with the laws and regulations. The client will indemnify Whello against any claims by third parties or the authorities in this respect. 

If newsletters, mailings or the like are sent, the client will warrant the accuracy or validity of the e-mail or other addresses which have been provided by it to which these items are sent. 

Use of music, images and videos

If products developed by us, such as websites or applications, music, visual materials and/or

videos, are played and/or displayed, costs will usually be charged by collective management organizations, such as Buma/Stemra and/or SENA. These additional costs will not be included in our rates and prices and will always be paid separately by the client. Clients will indemnify Whello against these.

Exclusivity

Assignments provided to Whello will always be exclusive and will not be provided simultaneously to other parties, too. 

Non-solicitation clause

Further, the client will not enter into any contractual relationships with Whello’s employees while the assignment is being performed or for one year after this, and will therefore also not directly or indirectly employ them. This may only be deviated from with Whello’s prior written approval.

If the client violates the aforementioned provision, it will owe an immediately due and payable penalty of €20,000 for each violation and a penalty of €2,500 for each day that such a violation continues. The fact that penalties become owed will not affect Whello’s right to seek full compensation. This will also include enforcement costs, irrespective of whether legal measures are instituted. 

Privacy rules

The client will agree with Whello that it will comply with the applicable privacy rules as included in the Dutch and European laws specifically formulated for this, such as the Personal Data Protection Act and, from May 2018, the General Data Protection Regulation. Whello will not be responsible for any violations of the provisions under these regulations if it produces and sends newsletters, mailings or the like at the client’s request. Clients will indemnify Whello against these.

This will mean, for example, that the client will sufficiently inform third parties, will allow them to inspect data and, if necessary, correct or delete data, and will keep data technically and organizationally protected, doing so for no longer than necessary for the purpose for which the data was obtained. This purpose must always be disclosed to third parties prior to obtaining permission and may not be changed in the interim without renewed permission.

Whello will be prepared at all times to cooperate in whatever manner and where possible in order to conform to the aforementioned requirements and will enter into separate data processing agreements with the client to make this even more consistent with the laws and regulations.

By involving us in the processing of personal data, clients will thereby acknowledge that they have ascertained that our technical and organizational security measures are in order based on the state of the art, and they will thereby state that they will not hold Whello liable if a security incident nonetheless occurs. 

If the Dutch Data Protection Authority imposes a penalty on Whello as a result of processing of personal data at a client’s instruction, we will be indemnified by the client. Whello will also reserve the right to charge the client costs for work in this connection.

Liability by Whello

If there is a culpable breach of performance (Section 6:74, Dutch Civil Code), Whello will only be obliged to compensate damage insofar as this ensues from the law.

In those instances, the amount that Whello which must pay in compensation will never exceed the amount that Whello has received from the client to perform the agreement. This will not include VAT. If there is a continuing performance contract, the amount that Whello must pay in compensation on account of a breach of performance will never exceed the amount agreed on for our goods/services in the period three (3) months before Whello committed the breach.

If Whello, one or more of its employees, or a subordinate for which it is responsible has committed a general wrongful act (Section 6:162, Dutch Civil Code) towards the client, Whello will only be liable for the damage caused if this results from wilful misconduct or gross negligence by Whello. In this situation, Whello will not provide compensation for each event (or series of related events) in excess of the amount that it has received to perform the agreement. VAT will not fall under this. This amount will never exceed €5,000.

Whello cannot be held liable for matters that are outside its control. This will also include disappointing results from advertising campaigns. If Whello has made forecasts in this connection, these will always have been non-binding estimates and Whello will not be liable for this.

Liability must be asserted against third parties for damage resulting from their acts or omissions. If Whello is engaged to fix such damage, additional work for this will be charged separately.

Any amounts that Whello may have to pay the client in the form of damages will be subtracted from any debits furnished by Whello to the client previously.

Supplementary to the aforementioned items, Whello will never be liable for consequential damage, damage due to delays, damage as a result of lost profits, lost savings or business interruptions, the loss of data, damage as a result of not meeting a delivery period because of changed circumstances, damage as a result of insufficient cooperation or compliance with our instructions, or the provision of incorrect data or information. 

In all instances, Whello cannot be liable for damage until it has been given written notice of the damage as soon as reasonably possible after the damage arises. Whello’s liability will also not extend further than the amount that the insurer pays as benefits to it. Whello’s liability will be limited for everything in excess of this.

Any liability will be extinguished after two years have passed since the assignment ended through completion, termination or rescission.

Force majeure

‘Force majeure’ will refer to any external causes which were not reasonably foreseeable and which result in Whello’s not being able (or no longer being able) to fulfil its agreements in whole or in part. 

This will include strikes, sickness by both Whello’s own personnel and third parties which have been utilized, personnel shortages, fire, operational and technical breakdowns within the office or at the external parties engaged by the client, not having sufficient data or having

incorrect data, and insufficient cooperation being provided.

Whello’s delivery and other obligations will be suspended during the period of force majeure. If the period during which performance because of force majeure lasts longer than four (4) weeks, the parties may rescind the agreement without court intervention and without one of the parties thereby owing compensation to the other party.

If Whello has already performed work when the force majeure situation arises and/or rescission occurs, it may separately invoice this, with the client also being obliged to pay the invoice concerned. This invoice will then be deemed to ensue from a separate agreement with Whello.

Early termination of assignments

Independently of the right to compensation, either party may, without notices of default or decisions by courts being necessary, terminate the agreement in writing in some situations, in the event of:

• a suspension of payments;
• liquidation or a request for liquidation;
• winding-up or cessation of the business.

This will not apply to mergers, acquisitions or the like.

Independently of the right to compensation, either party may, without a decision by the court being necessary, terminate the agreement immediately in writing or suspend performance (or further performance) of the work if the other party has – always after having received a notice of default with a period of fourteen (14) days to remedy the situation – culpably breached its material obligations under the agreement.

Independently of the right to compensation, Whello may, without a decision by the court being necessary, terminate the agreement immediately in writing or suspend performance (or further performance) of the work if the client has transmitted false and/or incorrect personal data or concluded the agreement under false pretences.

Rescission, whether by the parties themselves or by the court, will never apply retroactively. Both if we suspend the work and if the agreement is rescinded, the client must compensate the preparatory and other work reasonably performed by us, which will also include obligations entered into with third parties. If a down payment has been made, this will be set off against the costs of such performance.

None of this will affect the rights accruing to Whello under the law or this agreement, including the right to compensation based on lost profits or damage ensuing from the rescission. Any claim that Whello has or will obtain against the client on this account will be immediately due and payable.

If the assignment is rescinded or terminated, any quantity discounts given will no longer apply. Specifically, these discounts will have been based on the fact that Whello would be given multiple assignments. In such cases, Whello may separately charge the client for the discount given.

Applicability

These General Terms and Conditions will apply to any offers made by us, quotes, assignments, agreements and work which occurs or is exchanged between Whello and the client. Whello’s ‘services’ will include all designs (such as logos and house styles), advertising, marketing (for example, SEO and online advertising), copywriting, printed matter, web development, hosting and consultancy services.

We will, as a rule, reject any purchasing or other terms and conditions which clients have. Deviations from these Terms and Conditions will only be possible in writing.

If, for whatever reason, a portion of these Terms and Conditions turns out to be invalid or is voided, all the other portions will remain in full force. The parties will consult with each other in that case to draw up an alternative provision. The point of departure will be that the purpose and effect of the portion no longer valid will be taken into account as much as possible.

Whello may modify or supplement these General Terms and Conditions, or delete portions from them, at any desired time, without announcing this beforehand. Changes will be indicated in writing or by e-mail and will take effect one month after such notice is given.

If clients do not wish to accept the General Terms and Conditions announced in this manner,

they may terminate the agreement, but only up to the date on which the new Terms and Conditions take effect. Notice of termination must be given by registered letter at Whello’s business address. 

Disputes and applicable law

Dutch law will apply to all of Whello’s services and the agreements that it makes in this regard. Disputes must be presented to the competent court in Amsterdam. Dutch law will apply. Disputes must be presented to the competent court in Amsterdam.