1. General
1.1 These general terms and conditions apply to every offer from Miyagami and agreement between a third party and Miyagami, whereby Miyagami is the contractor.
1.2 Miyagami means the private company with limited liability under Dutch law Miyagami BV, with its registered office in (1016EV) Keizersgracht 264 with Chamber of Commerce number 83283927.
1.3 These general terms and conditions can only be deviated from by using a written agreement signed by the parties.
1.4 If any provision of these terms and conditions should be deemed illegal, invalid, void or voidable or unenforceable by any judicial or arbitral body, such provision will have no effect and will be replaced as far as possible by a valid provision that does have the effect intended by the parties and will be the other provisions of this agreement shall remain in full force and effect.
1.5 Miyagami may unilaterally change these terms and conditions at any time. Any changes will be announced by posting the new terms and conditions on Miyagami's website.
2. Delivery
2.1 Times of delivery or delivery agreed between the parties are not strict deadlines, unless this has been expressly agreed in writing in derogation from this provision when the agreement was concluded. However, the parties undertake to make an effort to deliver at the agreed time.
2.2 If a strict deadline has been agreed in an agreement in derogation from these general terms and conditions, Miyagami will only be in default on expiry of this period after Miyagami has been granted a reasonable period in writing to still deliver.
2.3 If the agreed time is exceeded, Miyagami is not obliged to pay any (damage) compensation for this. Exceeding the term does not entitle a client of Miyagami to dissolve the agreement or to suspend its obligations towards Miyagami.
2.4 In the event that Miyagami makes a license available to the client, the client is entitled, unless otherwise agreed in the main agreement, to use the (copyright) protected works that are made and/or made available by Miyagami in the execution of the agreement for the client to be used for an indefinite period as long as the client fulfills its (financial) obligations and does not fail to comply with the agreement. The intellectual property rights always remain with Miyagami; the client is not permitted to sell, rent, alienate or grant limited rights to the licensed works made available or to make them available to a third party in any way or for any purpose whatsoever.
2.5 The client may only use the works realized and/or services provided by Miyagami for the benefit of its own organization, whereby the client is not permitted to allow third parties to use the service/work. Use by third parties that were not known to Miyagami when the agreement was concluded is only permitted after explicit written permission from Miyagami. If there is a justified suspicion at Miyagami that the client exceeds the scope of the license or the intended use of the work delivered, the contractor will grant access to buildings and systems of the client at Miyagami's first request and every cooperation will be provided to conduct research.
2.6 If the client does not complain about any defects or shortcomings within 8 days after the work and/or performance realized by Miyagami, the performance delivered will be deemed to have been approved.
2.7 The work realized by Miyagami and/or the performance delivered is also deemed to have been approved from the moment it has been put into use by the client.
2.8 If an acceptance test has been agreed, the application will be tested, contrary to the provisions of 2.6 and 2.7, during a period of 14 days after the application is available to the client. The client is then not allowed to use the application for the exploitation of the company or organization. During the period of 14 days, the client must test the application. The client is responsible for making sufficient resources available, including qualified personnel, to be able to carry out the test properly. The client must write no later than the14th day of the test period to Miyagami indicating to what extent the application meets the agreed functional and technical specifications. The work is considered accepted on the first day after the end of the test period if the client has not submitted a written test report to Miyagami. If a written test report has been submitted, the work is considered accepted on the day after Miyagami has corrected the errors included in the test report. Miyagami is only obliged to correct errors included in the test report, insofar as these errors relate to the originally agreed functional and technical specifications.
2.9 After the realized work and/or the delivered performance has been approved or is deemed to have been accepted, the client's right to address Miyagami for shortcomings or defects in the work lapses. Miyagami is released from liability for shortcomings that could reasonably have been discovered at the time of delivery from the moment the performance is accepted. Obligations on the part of Miyagami after acceptance only arise after a separate SLA agreement has been concluded between the parties.
3. Price and Payment
3.1 All prices are exclusive of VAT and any other levies imposed by the government.
3.2 If Miyagami is commissioned to perform additional work during the execution of an agreement, he can charge an additional amount for this. Where appropriate, Miyagami will consult with the client as much as possible to make additional price agreements.
3.3 If Miyagami is ordered to perform additional work without sufficient opportunity to make concrete additional price agreements, Miyagami is authorized to charge up to 20% of the entire project sum as an additional price. The Contractor undertakes in advance to owe the additional cost of up to 20% over the entire project sum.
3.4 If the circumstances under which the assignment must be performed deviate from the information provided to Miyagami by the client prior to the conclusion of the agreement, Miyagami will draw the client's attention to this and Miyagami is entitled to adjust the agreed price or to terminate the assignment without compensation for damage or reimbursement is required.
3.5 Payment of the amounts invoiced by Miyagami takes place within 14 days after the date of the invoice, without the client being authorized to set off, withhold or suspend.
3.6 If payment has not been made within the term referred to under 3.5, Miyagami is authorized to suspend its activities without being obliged to pay compensation for costs or damage to the client.
3.7 If, after an agreement has been concluded between the parties, any freight and forwarding costs, insurance premiums, import duties, taxes and other levies from government authorities, at home and abroad, to be paid by Miyagami under this agreement are increased in the interim, Miyagami has the right to pass on these increases in prices to the client.
3.8 In the event of a periodically agreed payment obligation of the client, Miyagami is entitled to increase the prices and rates annually on the basis of the price index figures (the service price index) as determined and published by Statistics Netherlands (CBS). The base year for the services price index is 2015 (2015=100).
3.9 Unless expressly stated otherwise, the prices are also based on the purchase prices applicable at the time of the conclusion of an agreement, market-based wages and exchange rates. In the event of an increase in one or more of the cost price factors, after the day of the conclusion of the agreement but before delivery of the work, Miyagami is authorized to increase the offered or agreed price accordingly, even if the increase occurs as a result of foreseeable circumstances. . This also applies if the products have become more expensive as a result of a change in the exchange rate. The prices applicable on the day of delivery are applicable.
3.10 If the customer does not pay the amounts owed or does not pay them on time, then the customer owes statutory interest for trade agreements on the outstanding amount, without the need for a reminder or notice of default. If the customer continues to fail to pay the claim after a reminder or notice of default, the supplier can hand over the claim and, in addition to the total amount owed, the customer is also obliged to pay all reasonable judicial and extrajudicial costs, including all costs of external experts.
3.11 Contrary to the provisions of this article, Miyagami will not be entitled to implement any price increase if the client is a natural person who does not act in the exercise of a profession or business during the first three months after the start of the agreement. Moreover, in that case, the client is entitled to cancel the agreement within 30 days after he/she has been informed about the upcoming price change, with effect from the date on which the price change takes effect.
4. Responsibilities of the client
4.1 If Miyagami is asked by the client to realize or place a work on location, the client is responsible for complying with legal working conditions, obtaining the necessary permission, permits and exemptions. The Client is also responsible for the necessary facilities, including network facilities. Miyagami is not liable for malfunctions or unavailability of these facilities.
4.2 If a third party, including governments and other inspection bodies, does not allow the placement/realization and/or use of a work realized by Miyagami on behalf of the client, this does not relieve the client in any way from its (payment) obligations towards Miyagami.
4.3 If Miyagami is asked by the client to realize or place a work on location, then the client is responsible for the suitability of the location and the required hardware for the execution of the assignment by Miyagami. If the location and/or hardware proves to be unsuitable or if it prevents Miyagami from fully performing the assignment, this does not release the client from its (payment) obligations towards Miyagami.
4.4 The client is responsible for managing, arranging, setting, checking and using the work delivered by Miyagami.
4.5 The client ensures that the correct required hardware, infrastructure and software has been installed, has been correctly set up and set up and is and remains up-to-date and that all required licenses and approvals from third parties have been obtained that are necessary for the execution of the services of Miyagami.
4.6 The client is not permitted to make changes to the work realized by Miyagami without Miyagami's prior written permission.
4.7 Miyagami bears the responsibility for the works realized by Miyagami and for the execution of the assignment, which is delivered by Miyagami at the location of the client. From the moment that the works realized by Miyagami and other necessary items, whether or not owned by Miyagami, are located at the client's location, the client bears the responsibility for this. The client undertakes to store the goods with due care and to insure the goods properly.
4.8 The client guarantees Miyagami that adequate insurance has been taken out for liability of the client, its personnel, by its engaged third parties, as well as for damage to or loss of property, for accidents, and for personal injury or death.
4.9 The client undertakes to use its insurance policies in the event that the client is held liable by Miyagami for damage suffered and/or to be suffered by Miyagami. Upon the first request, the client provides Miyagami with the name of the insurer, the policy, relationship, and file number as well as the contact details of the file handler.
4.10 The parties are obliged to make an effort to take sufficient measures for information security and the security of systems, whereby a level of security is met that is appropriate to the state of the art and in proportion to the project costs, the nature of the business operations and the nature, scope and context of the information to be protected.
5. Software as a service
5.1. If the application is offered purely as an online service, it is an application that serves a broad purpose and is purchased by several Miyagami customers. Miyagami is not obliged to provide functionality specifically desired by the client and/or to guarantee the continuous delivery of existing functionality. Changes to the application in the interest of the application's wider usability may be at the expense of the functionality desired by the client for use. Miyagami is not liable for this.
5.2. In the event of a change of functionality desired by the client and relevant to the business operations of the client, the client will be entitled to terminate the agreement at the end of a calendar month.
5.3. If this is necessary for the maintenance of the application, Miyagami is allowed to temporarily disable the online service. Miyagami is in no way liable for any consequences of this for the client or third parties.
5.4. Miyagami does not guarantee the error-free and uninterrupted functioning of the online service. Miyagami will make every effort to correct errors in the application, insofar as the source code has been developed entirely by Miyagami itself, within a reasonable period of time. Miyagami carries out repairs at its own discretion and is not obliged to carry out repairs at the request of the client.
6. Intellectual property
6.1 All rights related to the intellectual property resting on works developed by Miyagami or made available to the client, including, but not limited to, applications, websites, databases, files, training, test and exam materials, or other materials such as reports, (data) analyses, concepts, ideas, designs, documentation, quotations and comparable matter that was shared with the client in the pre-contractual phase, are exclusively owned by Miyagami, the client only obtains user rights insofar as this is based on the agreement concluded, these general terms and conditions or the law ensues. Rights granted to the client are non-exclusive, may not be transferred, may not be encumbered with limited rights, and may not be given to third parties for use.
6.2 The intellectual property will only be transferred by Miyagami if the parties have made explicit written agreements about this. In the event of a transfer of intellectual property by Miyagami, unless otherwise agreed, Miyagami remains entitled to use parts of the transferred intellectual property including, but not limited to, source code, ideas, designs, concepts, documents, etc. for other purposes for itself and for the benefit of third parties. In addition, the transfer of intellectual property in no way restricts Miyagami from developing similar applications or offering services for itself or others.
6.3 Without the written permission of Miyagami, the client is not allowed to change or remove or have removed the brands, trade names, references and indications about functionality or confidentiality from work realized by Miyagami
7. Data storage and hosting
7.1 In the event that the client wishes hosting of the work or other forms of data storage, or if this is necessary for the functioning of the work delivered or to be delivered by Miyagami, Miyagami acts exclusively as an intermediary and facilitates the conclusion of an agreement between the client and a third party, except insofar as other agreements are made about this in the main agreement. Miyagami expressly does not act as holder, guard, or custodian.
7.2 The risk associated with hosting and storage is exclusively borne by the client.
7.3 Miyagami does not guarantee the availability and functioning of data and work now that this is dependent on hosting and storage by a third party and only that third party has responsibilities and obligations towards the client within the limits of the agreements made between the client and that third party.
7.4 Unless expressly agreed in the main agreement, Miyagami does not back up data, work, or applications.
7.5 If it has been agreed that Miyagami provides back-ups, then Miyagami will, in accordance with the agreements made, provide for the periodic storage of the data of the client stored by Miyagami with a third party. If no specific agreements have been made, Miyagami will make weekly backups, which they will keep for a maximum of one year.
8. Liability and damage
8.1 Except in the event that a contracting party suffers loss or damage due to intentional acts on the part of Miyagami or through gross negligence or gross negligence on the part of Miyagami, any liability of Miyagami is excluded. Miyagami is in any case not liable for indirect damage and/or consequential damage, including trading loss, damage as a result of claims from customers of the client, and loss of profit. Also excluded is the liability of the supplier in connection with mutilation, destruction or loss of data or documents
8.2 In the event that a court considers that Miyagami cannot successfully invoke the exclusion included in Article 8.1, the liability is limited to the amount that is paid out in the relevant case under the applicable insurance(s) of Miyagami, to be increased by the amount of the deductible that arises in the relevant case from the applicable policy conditions, insofar as the deductible is not already included in the payment under the insurance policy(s). If and insofar as for whatever reason no payment should be made under the said insurance(s), any liability is limited to the price quoted by Miyagami in the relevant case for the assignment to which the liability relates.
8.3 Any claim against Miyagami lapses 6 months after the day on which the person whose claim it concerns was aware or could reasonably have been aware of the facts on which he bases his claim.
8.4 The client indemnifies Miyagami against all claims from third parties who claim to have suffered damage due to or in connection with the work that Miyagami has performed for the client.
8.5 Miyagami is not liable for the shortcomings of third parties engaged by it. Miyagami is entitled, without prior consultation with the client, (also) on behalf of the client to accept any limitation of liability on the part of third parties engaged by it.
9. Confidentiality
9.1 During the execution of the agreement concluded between the parties and after its termination, the Client will keep the information provided by Miyagami, including but not limited to concepts of products, ideas behind products, the development of products, source code, documentation, technical data, commercial, financial and legal information, to keep secret and not to disclose it (in whole or in part) in any way whatsoever to third parties and/or to reproduce it in any form and in any way, unless Miyagami has given explicit written permission for this.
10. Force Majeure
10.1 In the event of force majeure, neither party shall be liable for the failure to perform or delay in any obligation. Force majeure applies in the event of an act of war, hostilities, or sabotage, including but not limited to hacks, computer viruses, digital hijacking of systems and files, cryptoware, trojan horses, etc. In addition, force majeure is a violent or destructive natural phenomenon whereby a party loses influence on the possibility of (timely) fulfillment, pandemics, electrical, internet, or telecommunications failures that are not caused by the party due; government restrictions, including denial of permits; other circumstances beyond the reasonable control of the due party. Both parties will make all reasonable efforts to limit the consequences of a force majeure situation. If the force majeure situation continues for more than 30 days, either party may terminate the agreement in writing. The Client remains obliged to pay for the work performed by Miyagami until the termination.
11. Penalty clause
11.1. If the client fails to comply with what has been agreed in the agreement concluded with Miyagami, of which agreement these general terms and conditions form an integral part, it forfeits in favor of Miyagami, without notice of default or other prior notice being required, a fine of €10, 000.00 (in words: ten thousand euros), increased by €500.00 (in words: five hundred euros) for each day that the shortcoming continues, with effect from the day on which the shortcoming started.
11.2. Miyagami shall be entitled to the penalty without prejudice to all other rights and remedies available to it, including the right to claim statutory damages in addition to the contractual penalty.
11.3. The applicability of Article 92 of Book 6 of the Civil Code is expressly excluded.
12. Final provision
12.1. With regard to the performances performed by Miyagami and the amounts owed by the client, the administration of Miyagami provides compelling evidence. .
12.2. Dutch law applies to every legal relationship between Miyagami and third parties.
12.3. Disputes related to this agreement will be submitted for assessment exclusively to the District Court of the Central Netherlands, sub district sector, location Utrecht.