Terms and Conditions

Article 1 General

1. These terms and conditions apply to every offer and agreement between Enkodo, registered with the Chamber of Commerce under number 59119217, hereinafter referred to as: "Enkodo", and a client to which Enkodo has declared these terms and conditions applicable, insofar as these conditions have not been expressly and in writing deviated from by the parties.

2. The present terms and conditions also apply to agreements with Enkodo, for the execution of which third parties must be involved by Enkodo.

3. These general terms and conditions are also written for the employees of Enkodo and its management.

4. The applicability of any purchase or other conditions of the Client is expressly rejected.

5. If one or more provisions in these general terms and conditions are at any time wholly or partially null and void or should be annulled, the remainder of these general terms and conditions shall remain fully applicable. Enkodo and the client will then enter into consultation in order to agree on new provisions to replace the null and void or annulled provisions, whereby the purpose and meaning of the original provisions will be taken into account as much as possible.

6. These conditions apply to all services of Enkodo, including but not limited to web development, app development for iOS and Android, team support as a freelance developer, WordPress maintenance and security, and migration of email and websites.

Article 2 Offers and quotations

1. All offers and quotations from Enkodo are without obligation, unless a term for acceptance has been set in the offer.

2. Enkodo cannot be held to its offers or quotations if the client can reasonably understand that the offers or quotations, or a part thereof, contain an obvious mistake or clerical error.

3. The prices stated in an offer, contract or quotation are exclusive of VAT.

4. If the acceptance (whether or not on minor points) deviates from the offer included in the offer or the quotation, then Enkodo is not bound by it. The agreement will then not be concluded in accordance with this deviating acceptance, unless Enkodo indicates otherwise.

Article 3 Contract duration; delivery terms, execution and amendment of agreement

1. The agreement between Enkodo and the client is entered into for an indefinite period, unless the nature of the agreement dictates otherwise or if the parties expressly agree otherwise in writing.

2. If a term has been agreed or specified for the completion of certain activities or for the delivery of certain services, this is never a strict deadline. In the event of exceeding a term, the client must therefore give Enkodo written notice of default. Enkodo must be offered a reasonable term to still execute the agreement.

3. If Enkodo requires information from the client for the execution of the agreement, the execution period will not commence until after the client has made this information available to Enkodo correctly and completely.

4. As soon as Enkodo has the required data, Enkodo will proceed with the execution of the agreement as soon as possible.

5. Enkodo has the right to have certain work performed by third parties.

6. Enkodo is entitled to execute the agreement in different phases and to invoice the thus executed part separately.

7. If the agreement is executed in phases, Enkodo can suspend the execution of those parts that belong to a following phase until the client has approved the results of the preceding phase in writing.

8. If during the execution of the agreement it appears that it is necessary for a proper execution to change or supplement it, then the parties will proceed to adjust the agreement in a timely manner and in mutual consultation. If the nature, scope or content of the agreement, whether or not at the request or instruction of the client, of the competent authorities, etc., is changed and the agreement is thereby changed in qualitative and/or quantitative terms, this may also have consequences for what was originally agreed. As a result, the originally agreed amount can be increased or decreased. Enkodo will provide a price quote in advance as much as possible. Furthermore, by a change to the agreement, the originally specified term of execution can be changed. The client accepts the possibility of changing the agreement, including the change in price and term of execution.

9. Without being in default, Enkodo can refuse a request to change the agreement if this could have qualitative and/or quantitative consequences, for example for the work to be performed or services to be delivered in that context.

10. All work that falls outside the agreed work, and cannot be qualified as a change to the agreement, falls outside the scope of the agreement and is designated as additional work. This work is scheduled separately by Enkodo and charged separately.

11. If the client should fail to properly fulfill that to which he is obliged towards Enkodo, then the client is liable for all damage (including costs) on the part of Enkodo that arises directly or indirectly as a result.

12. If Enkodo agrees a fixed price with the Client, then Enkodo is nevertheless entitled at all times to increase this price without the client being entitled to dissolve the agreement for that reason, if the increase in the price arises from a power or obligation pursuant to the law or regulations or finds its cause in an increase in the price of raw materials, wages, etc. or on other grounds that were not reasonably foreseeable when entering into the agreement.

13. If the price increase other than as a result of a change to the agreement exceeds 10% and takes place within three months after the conclusion of the agreement, then only the client who is entitled to appeal to Title 5 Section 3 of Book 6 of the Dutch Civil Code is entitled to dissolve the agreement by a written statement, unless Enkodo is then still willing to execute the agreement on the basis of what was originally agreed, or if the price increase arises from a power or an obligation resting on Enkodo pursuant to the law or if it has been stipulated that the delivery will take place more than three months after the purchase.

Article 4 Suspension, dissolution and interim termination of the agreement

1. Enkodo is authorized to suspend the fulfillment of the obligations or to dissolve the agreement, if:

• the client does not, not fully or not timely fulfill the obligations from the agreement;
• after the conclusion of the agreement, circumstances that have come to the knowledge of Enkodo give good grounds to fear that the client will not fulfill the obligations;
• due to the delay on the part of the client, Enkodo can no longer be required to fulfill the agreement under the originally agreed conditions.

Article 5 Force majeure

1. Enkodo is not obliged to fulfill any obligation towards the client if he is hindered as a result of a circumstance that is not due to fault, and neither under the law, a legal act or generally accepted views comes at his expense.

2. In these general terms and conditions, force majeure is understood to mean, in addition to what is understood in this respect in law and jurisprudence, all external causes, foreseen or unforeseen, such as - but not limited to - downtime of the website, over which Enkodo has no influence, but as a result of which Enkodo is unable to fulfill its obligations. Work strikes in the company of Enkodo or of third parties included. Enkodo also has the right to invoke force majeure if the circumstance that prevents (further) fulfillment of the agreement occurs after Enkodo should have fulfilled its obligation.

3. Enkodo can suspend the obligations under the agreement during the period that the force majeure continues. If this period lasts longer than two months, then each of the parties is entitled to dissolve the agreement, without obligation to compensate damage to the other party. Enkodo is also entitled to adjust the planning of the development process of the website during the period that the force majeure continues.

4. Insofar as Enkodo at the time of the occurrence of force majeure has meanwhile partially fulfilled its obligations under the agreement or will be able to fulfill them, and the part fulfilled or to be fulfilled respectively has independent value, Enkodo is entitled to invoice the part already fulfilled or to be fulfilled separately. The Client is obliged to pay this invoice as if it were a separate agreement.

Article 6 Payment and collection costs

1. After completion of the work, the agreed fixed-price amount and/or hours worked will be invoiced. Invoicing is done by Enkodo. Payment must be made within 30 days after the invoice date, in a manner to be indicated by Enkodo in the currency in which the invoice was made, unless otherwise agreed in writing by Enkodo. Enkodo is also entitled to invoice periodically.

2. If the client fails to pay an invoice on time, then the client is legally in default. The client then owes, in addition to the invoice amount, the extra (administration) costs made and to be made by Enkodo.

3. Enkodo can refuse full repayment of the principal sum if the due and current interest and collection costs are not also paid.

4. Objections to the amount of an invoice do not suspend the payment obligation. The client who is not entitled to appeal to section 6.5.3 (articles 231 to 247 of Book 6 of the Dutch Civil Code) is also not entitled to suspend the payment of an invoice for any other reason.

5. If the client is in default or in breach in the (timely) fulfillment of his obligations, then all reasonable costs incurred to obtain satisfaction out of court are for the account of the client. The extrajudicial costs are calculated on the basis of what is customary in Dutch collection practice, currently the calculation method according to the Extrajudicial Collection Costs (BIK) Scale. However, if Enkodo has incurred higher costs for collection that were reasonably necessary, the actual costs incurred are eligible for reimbursement. Any judicial and execution costs incurred will also be recovered from the client. The client also owes interest on the collection costs due.

Article 7 Retention of title

1. All services delivered by Enkodo in the context of the agreement remain the property of Enkodo until the client has properly fulfilled all obligations from the agreement(s) concluded with Enkodo. Work performed may not be transferred to third parties and/or be pledged or encumbered. An exception to the foregoing is when Enkodo is engaged as a third party for executive work. When Enkodo performs the hosting of the website, the website will be taken offline after termination of the service. If and insofar as the client has properly fulfilled all obligations from the agreement(s) concluded with Enkodo, the data can be transferred to the client upon termination of the agreement. Enkodo will agree with the client on how this transfer will take place.

2. Services delivered by Enkodo, which pursuant to paragraph 1 fall under the retention of title, may not be resold and may never be used as a means of payment. The client is not authorized to pledge or in any other way encumber that which falls under the retention of title.

3. The client must always do what can reasonably be expected of him to secure the property rights of Enkodo.

Article 8 Liability

1. If Enkodo should be liable, then this liability is limited to what is regulated in this provision.

2. Enkodo is not liable for damage, of whatever nature, arising because Enkodo relied on incorrect and/or incomplete information provided by or on behalf of the client.

3. Enkodo makes use of the server of a third party. Enkodo has no influence on any downtime of the website, which is caused by maintenance by this third party, or a downtime that is caused by other reasons. Enkodo is not liable for any downtime of the website and the damage suffered by the client as a result. In the event of downtime, Enkodo will take all measures that can reasonably be expected from Enkodo to limit the damage to the client.

4. If Enkodo should be liable for any damage, then the liability of Enkodo is limited to a maximum of the invoice value of the order, at least to that part of the order to which the liability relates.

5. Enkodo is only liable for direct damage.

6. Direct damage is exclusively understood to mean the reasonable costs to determine the cause and extent of the damage, insofar as the determination relates to damage within the meaning of these terms and conditions, any reasonable costs incurred to have Enkodo's defective performance conform to the agreement, insofar as these can be attributed to Enkodo, and reasonable costs incurred to prevent or limit damage, insofar as the client demonstrates that these costs have led to limitation of direct damage as referred to in these general terms and conditions.

7. Enkodo is never liable for indirect damage, including consequential damage, lost profit, missed savings and damage due to business stagnation.

8. The limitations of liability included in this article do not apply if the damage is due to intent or gross negligence of Enkodo or its managerial subordinates.

Article 9 Indemnification

1. The Client indemnifies Enkodo against any claims from third parties, who suffer damage in connection with the execution of the agreement and whose cause is attributable to others than to Enkodo.

2. If Enkodo should be addressed by third parties in this respect, then the client is obliged to assist Enkodo both outside and in court and to immediately do everything that may be expected of him in that case. Should the client fail to take adequate measures, then Enkodo is entitled, without notice of default, to proceed to do so itself. All costs and damage on the part of Enkodo and third parties arising as a result, are fully for the account and risk of the Client.

Article 10 Intellectual property

1. Enkodo reserves the rights and powers that accrue to him on the basis of the Copyright Act and other intellectual property laws and regulations. The website/web application developed and supplied by Enkodo, the associated content management system (CMS) have been established by Enkodo as intellectual property and therefore also fall under the aforementioned retention of title (article 7).

2. If the provisions in paragraph 1 are violated in any way by the client, or by a party with which the client cooperates, or another party that performs work for the client, or another third party, the client will be imposed a penalty of € 10,000.00 per violation, with a maximum of € 50,000.00.

Article 11 Confidentiality and privacy

1. Enkodo commits itself to confidentiality of all confidential information that has been obtained in the context of the agreement from the client or from another source. Information is considered confidential if this has been communicated by the client or if this results from the nature of the information.

2. Enkodo will only use the confidential information for the purpose for which it has been provided and will take appropriate technical and organizational measures to protect the confidential information against unauthorized access or use.

3. Enkodo will oblige its employees or third parties engaged by him, who are involved in the execution of the agreement, to comply with this confidentiality obligation.

4. The confidentiality obligation does not apply if Enkodo is obliged to disclose the confidential information as a result of legislation and/or regulations or a court ruling.

5. After termination of the agreement, the confidentiality obligation remains in force for a period of two years, unless the parties agree otherwise.

6. Some data may be processed outside the European Economic Area (EEA). Enkodo only selects service providers that offer adequate levels of protection in accordance with GDPR requirements, such as through EU model contract clauses.

Article 12 Applicable law and disputes

1. Dutch law exclusively applies to all legal relationships to which Enkodo is a party, even if an obligation is wholly or partly performed abroad or if the party involved in the legal relationship resides there. The applicability of the Vienna Sales Convention is excluded.

2. The court in the place of business of Enkodo has exclusive jurisdiction to hear disputes, unless the law prescribes otherwise. Nevertheless, Enkodo has the right to submit the dispute to the court competent according to the law.

3. Parties will only appeal to the court after they have made every effort to settle a dispute in mutual consultation.

Article 13 Location and change of conditions

1. These conditions can be consulted at all times on the website of Enkodo; enkodo.nl/algemene-voorwaarden

2. The most recently filed version or the version that applied at the time of the establishment of the legal relationship with Enkodo always applies.

3. The Dutch text of the general terms and conditions is always decisive for the interpretation thereof.