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Our Terms and Conditions

General Information
1.1

These terms and conditions are the terms and conditions applicable to any Agreement made between Servus and the Client and comprising the Proposal and these terms and conditions whether for all or any of Website Development, Graphic Design, Photography and Film, or Website Hosting.

1.2

The Agreement shall comprise only the Proposal and these terms and conditions but may be amended by agreement in writing between the Parties. No other terms offered or proposed to be incorporated by the Client shall be of any effect.

Definitions
2.1

Agreement means the Proposal and these terms and conditions, and any other documents incorporated into the Agreement by agreement in writing.

2.2

Business Day means a day which is not a Saturday or Sunday or public or bank holiday in The Netherlands;

2.3

Business Hours means 9.00 to 18.00 on a Business Day;

2.4

Client means the acceptor of the Proposal.

2.5

Client Content means all materials, writing, images or other creative content provided by Client to be used in preparing or creating the Deliverables.

2.6

Client System means the Client’s computer system which is not on the Server and links with the Website or Client Website;

2.7

Client Website means a website and any associated “back office” functionality hosted for the Client by Servus on the Server;

2.8

Copyright means the intellectual property rights in original creative works anywhere in the World

2.9

Deliverables means the work product specified in the Proposal to be delivered by Servus to Client as specified in the Proposal.

2.10

Servus Tools means all design tools developed and/or used by Servus in performing the Services, including pre-existing and newly developed software including source code, Web authoring tools, type fonts, and application tools.

2.11

Servus means a company registered in the Netherlands with company number (KvK) 70651302 whose registered office is at Erich Salomonstraat 551, 1087GT, Amsterdam.

2.12

Fees means the charges for the Services.

2.13

Final Deliverables means the final versions of Deliverables provided by Servus and accepted by Client.

2.14

Final Works means all creative content developed by Servus, or commissioned by Servus, exclusively for the Project and incorporated in the Final Deliverables, including, but not limited to, any and all visual elements, graphic design, illustration, photography, animation, motion design, audio-visual works, sounds, typographic treatments and text, modifications to Client Content, and Servus’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials

2.15

Initial Period means the initial hosting period for the Client Website as set out in the Proposal.

2.16

Preliminary Works means all creative content including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Servus and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Works.

2.17

Project means the creation of the Deliverables.

2.18

Proposal means the costed proposal for services to be provided by Servus accepted in writing by the Client.

2.19

Server means a cloud-based server by Google Cloud Platform made available by Servus for use by the Client in connection with the Services from time to time

2.20

Services means all services to be provided to Client by Servus as described and defined in the Proposal.

2.21

Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustrations.

2.22

Trademarks means trade names, words, symbols, designs, logos or other devices or designs provided by the Client (or a logo for the same designed for the Client by Servus) and used in the Final Deliverables to designate the origin or source of the goods or services of Client.

2.23

Website means the software construct, content and visual elements and design as described in the Proposal and/or created by Servus for the Client.

2.24

Working Files means all underlying work product and digital files utilized by Servus to create the Preliminary Works and Final Works other than the material comprising the Final Deliverables.

Services
3.1

Servus shall perform the services set out in the Proposal.

Compensation
4.1

Fees: Client agrees to pay Servus the fees listed in the Project Proposal, including all taxes.

4.2

Expenses: Client will pay Servus expenses, including but not limited to: (a) Incidental and out-of-pocket expenses at cost plus Servus’s standard markup of 20 percent; (b) milage reimbursement, other than normal commuting, at 20 cents per km; (c) travel expenses, other than normal commuting, but including airfare and rental vehicles, with client approval.

4.3

Additional Costs: Pricing in the Project Proposal includes only Servus fees. Any other costs, such as hosting, licensing or photography, will be billed to Client if and when required.

4.4

Hosting Website: Servus will host the Website on Servus’s web space while the Project is under construction. If the Website is not completed by the completion date listed in the Proposal, and the delay is not caused by Servus, Client agrees to pay Servus 20.00€ per month for hosting until the Website is moved to its intended destination.

Payment For Website Development
5.1

Payment Schedule: Payment is due when Servus completes each milestone as listed in the Proposal, and Client accepts the Deliverables for that milestone.

5.2

Invoices: All invoices are payable within 30 days of receipt. Invoices shall list any expenses and additional costs as separate items. Unless otherwise agreed in writing the Project will not proceed to the next following milestone until all invoices applicable to all prior milestones have been paid in full.

5.3

Withholding Delivery/Live Website: Servus may withhold delivery and transfer of ownership of any current work and/or prevent the Website from going live whilst any accounts are overdue for payment.

Changes To Project Scope
6.1

Change Request: If Client wants to change the scope of the Project Client shall send Servus a written “Change Order” describing the requested changes in detail. Within seven (7) days of receiving a Change Order, Servus will respond with a statement setting out Servus’s availability, additional fees, changes to delivery dates or milestones, and any required modification to the Agreement. Servus will be entitled to charge for evaluating each Change Order at its standard rates.

6.2

Acceptance/Rejection: Client will have seven (7) days to respond in writing accepting or rejecting the new proposal. If Client rejects the proposal, Servus will not be obligated to perform any services beyond those in the original Agreement.

6.3

Servus response may be for a change to the Project price or for the additional work to be carried out on a time and materials basis.

6.4

Servus shall not begin work on the revised services until it receives written acceptance of its proposals for the change.

Timing And Delays
7.1

Timing: Servus will use commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Servus. Servus shall be entitled to request written clarification of any concern, objection or correction. Client acknowledges and agrees that Servus’s ability to meet any and all times is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in Client’s performance or changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of the Agreement by Servus.

7.2

Client Delays. Any delay by Client will result in a day-for-day extension of the due date for all Deliverables.

Evaluation And Acceptance
8.1

Approval Periods: Client, within seven days of receipt of each Deliverable, shall notify Servus, in writing, of any failure of such Deliverable to comply with the specifications or requirements in the Proposal, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment and Servus shall be entitled to request written clarification of any concern, objection or correction. Servus will correct any errors in a commercially timely manner. Any changes or amendments shall be subject to the terms of the Agreement. In the absence of such notice from Client, the Deliverable shall be deemed accepted.

Client Responsibilities
9.1

Client shall be responsible for performing the following in a reasonable and timely manner: (a) coordination of any decision making with parties other than Servus; (b) provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Proposal; (c) final proof-reading (and in the event that Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, Client shall incur the cost of correcting such errors); and (d) ensuring that any information and claims forming part of Client Content are accurate, legal and conform to applicable standards in Client’s industry.

9.2

Client shall co-operate, and ensure that Client’s staff and contractors cooperate with Servus’s staff and contractors and conduct itself at all times so as to ease the process of the Project.

Accreditation And Promotion

10.1

Servus shall be entitled to place designer/developer accreditation, as a hyperlink or otherwise, in the form, size and location as reasonably required by Servus on each page of the Website and for it to remain there whilst the Website is in use by Client.

10.2

Servus retains the right to reproduce, publish and display any elements of the Website in Servus’s portfolios and websites, in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of such elements to the extent created by Servus.

Accreditation And Promotion
10.1

Servus shall be entitled to place designer/developer accreditation, as a hyperlink or otherwise, in the form, size and location as reasonably required by Servus on each page of the Website and for it to remain there whilst the Website is in use by Client.

10.2

Servus retains the right to reproduce, publish and display any elements of the Website in Servus’s portfolios and websites, in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of such elements to the extent created by Servus.

Subcontractors And Staff
11.1

Servus shall be allowed to use third party independent contractors in connection with the Services (“Sub-contractors”). Servus shall remain fully responsible for Sub-contractors’ compliance with this Agreement.

11.2

During the term of the Agreement, and for a period of six (6) months after expiration or termination of the Agreement, Client agrees not to solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, or any other basis, any Servus employee or Subcontractor of Servus, whether or not said person has been assigned to perform tasks under the Agreement. In the event such employment, engagement or consultation occurs, Servus shall be entitled to receive from Client a commission of either (a) 50 percent of said person’s starting salary with Client if employed, or (b) 50 percent of any fees paid to said person in the twelve months following the commencement of any engagement if otherwise engaged. In the event of (a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the person performed services for Client.

Representations And Warranties
12.1

Client represents, warrants and covenants to Servus that (a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content, (b) to the best of Client’s knowledge, the Client Content is accurate, legal, conforms to ethical standards of the Client’s industry, does not infringe the rights of any third party, and use of the Client Content or any Trademarks in connection with the Project will not violate the rights of any third parties, and (c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials.

12.2

Servus represents, warrants and covenants to Client that Servus will provide the Services with reasonable care and skill and that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of Servus and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by Servus, Servus shall have secured agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for Servus to grant usage rights to the Client as provided in this Agreement, and (iii) to the best of Servus’s knowledge, the Final Works (but excluding any element of Client Content and any Trademarks) do not infringe the rights of any third party, and use of same in connection with the Project and as anticipated by the Proposal or the Agreement will not violate the rights of any third parties.

Rights In The Final Deliverables
13.1

Upon completion of the Services, and expressly conditional upon full payment of all fees and costs due, Servus hereby grants to Client a non-exclusive, perpetual and worldwide right and license to use, reproduce and display, sub-licence and adapt the Final Works as part of the Website for the purpose of promoting the business, product(s) or service(s) as anticipated by the Proposal. All other rights including Copyrights, save for Copyright in any Trademarks, are retained by Servus.

13.2

The rights granted to Client are for usage of the Final Works as part of the Website only. Client may not separately use any part of the Website without Servus’s consent.

13.3

Upon completion of the Services, and expressly conditional upon full payment of all fees and costs due, Servus assigns to Client all of Servus’s Copyright, in and to Trademarks created by Servus as part of the Services. Servus shall at Client’s request and cost execute any documents reasonably requested by Client to evidence such assignment. Client acknowledges its responsibility to satisfy itself that the Trademarks do not infringe the registered or common law trademarks of any third party and Client shall indemnify, save and hold harmless Servus from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party alleging trademark infringement, or arising out of Client’s failure to obtain trademark clearance or permissions, for use of Trademarks.

13.4

Intellectual property rights in Third Party Materials are normally owned by the respective third parties. Servus shall inform Client of all Third Party Materials to be procured by Servus that Client may need to license at Client’s own expense, and unless otherwise arranged by Client, Servus shall obtain a licence for Client to use the Third Party Materials. Client shall indemnify, save and hold harmless Servus from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand or action by a third party arising out of Client’s failure to obtain any necessary licence release or permission which it undertook to obtain or claimed to possess with respect to materials included in the Final Works at Client’s request.

13.5

Client Content, including pre-existing Trademarks, and any intellectual property therein shall remain the sole property of Client or its respective licensors. Client hereby grants to Servus a non-exclusive, nontransferable licence to use, reproduce, modify, display and publish the Client Content solely in connection with Servus’s performance of the Services and promotional uses of the Deliverables as authorized in this Agreement.

Rights Reserved To Servus
14.1

Servus retains all proprietary rights, including property ownership, intellectual property rights and Copyrights, in and to all Preliminary Works and Working Files, and Client shall return to Servus all Preliminary Works and Working Files in Client’s possession within thirty (30) days of completion of the Services.

14.2

All Servus Tools are and shall remain the exclusive property of Servus. Servus grants Client a non-exclusive, nontransferable, perpetual, worldwide license to use the Servus Tools solely to the extent necessary to enable the use of the Website.

14.3

Servus retains Copyright ownership in any original Graphic Design comprising Final Works, including all rights to display or sell the same. Client shall return all original Graphic Design to Servus within thirty (30) days of completion of the Services.

Support Services
15.1

During the first two (2) months following termination of the Agreement (“Warranty Period”), Servus shall provide up to four (4) hours of support services at no additional cost to Client. Support services means commercially reasonable technical support and assistance to maintain and update the Website including correcting any errors. Requests for additional support will be billed on a time and materials basis at Servus’s standard rate.

15.2

The services in the Warranty Period do not include enhancements to the Project or other services outside the scope of the Proposal.

Enhancements
16.1

During the Warranty Period, Client may request that Servus develop enhancements to the Website. Servus shall use commercially reasonable efforts to prioritise Servus’s resources to create such enhancements. Client understands Servus may have pre-existing obligations that may delay requested enhancements. Servus shall provide any enhancements on a time and materials basis at Servus’s standard rates.

Term And Termination Of Website Development Agreement
17.1

Unless the Agreement is terminated earlier in accordance with its terms, Servus will provide the Services until they are complete.

17.2

Servus may immediately terminate the Agreement by notice in writing to the Client if the Client fails to pay to Servus any sum due under the Agreement by the due date for payment.

17.2.1

Either party may terminate the Agreement forthwith by notice in writing to the other if the other party:

17.2.2

is in material breach of the Agreement and fails (where the breach is capable of remedy) to remedy the breach within 21 days of the receipt of a request in writing to remedy the breach, such request setting out the breach and indicating that failure to remedy the breach may result in termination of the Agreement;

17.2.3

is unable to pay its debts within the meaning of the Dutch law;

17.2.4

has a receiver, manager, administrator or administrative receiver appointed over all or any parts of its undertaking, assets or income, has passed a resolution for its winding-up, or has a petition presented to any court for its winding-up or for an administration order; or

17.2.5

has ceased or threatened to cease to trade.

Consequences Of Termination
18.1

Termination of the Agreement shall be without prejudice to the rights and duties of either party accrued prior to termination.

18.2

Those parts of the Agreement which expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination.

18.3

The Client will forthwith pay all outstanding invoices.

18.4

Each party shall return or, at the disclosing party’s request, destroy any confidential information of the other party.

18.5

Without prejudice to its liability for any breach of contract Client shall pay Servus for the Services up to and including the date of termination in the amount of a pro-rated portion of the fees due. Client shall pay all incurred expenses and other sums chargeable under the Agreement.

18.6

If Client terminates, and makes full payment pursuant to 18.5, Servus grants Client right and title as provided by this Agreement with respect to those Deliverables provided and accepted by Client as of the date of termination and shall provide copies of the said Deliverables.

18.7

Each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party.

Relevant Terms
19.1

The following provisions of the terms relevant to web design services are equally relevant to Graphic Design, Photography and Film:
Clauses 3, 4.1, 4.2, 6, 7, 8, 9.2, 11, 17, 18.

Costs And Payments
20.1

Additional Costs: Pricing in the Project Proposal includes only Servus fees. Any other costs, such as location hire or models, will be billed to Client if and when required.

20.2

Payment: Payment is due when Servus completes each milestone as listed in the Proposal, and Client accepts the Deliverables for that milestone. If there are no milestones then payment is due on delivery of the relevant Deliverable(s).

20.3

Invoices: All invoices are payable within 30 days of receipt. Invoices shall list any expenses and additional costs as separate items. Unless otherwise agreed in writing the Project will not proceed to the next following milestone (if any) until all invoices applicable to all prior milestones (if any) have been paid in full.

20.4

Withholding Delivery: Servus may withhold delivery of any current work whilst any accounts are overdue for payment.

Client Responsibilities
21.1

Client shall be responsible for performing the following in a reasonable and timely manner: (a) coordination of any decision making with parties other than Servus; (b) provision of locations and subjects; (c) approval of work in progress.

Promotion
22.1

Servus retains the right to reproduce, publish and display any elements of the Final Works in Servus’s portfolios and websites, in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of such elements to the extent created by Servus.

Representation And Warranties
23.1

Servus represents, warrants and covenants to Client that Servus will provide the Services with reasonable care and skill and that the Final Deliverables shall be the original work of Servus and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by Servus, Servus shall have secured agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for Servus to grant usage rights to the Client as provided in this Agreement, and (iii) to the best of Servus’s knowledge, the Final Works (but excluding any element of Client Content and any Trademarks) do not infringe the rights of any third party, and use of same in connection with the Project and as anticipated by the Proposal or the Agreement will not violate the rights of any third parties.

Rights In The Final Deliverables
24.1

Upon completion of the Services, and expressly conditional upon full payment of all fees and costs due, Servus hereby grants to Client a non-exclusive, perpetual and worldwide right and license to use, reproduce and display the Final Works for the purpose of promoting the business, product(s) or service(s) as anticipated by the Proposal. All other rights including Copyrights, are retained by Servus.

Rights Reserved To Servus
25.1

Servus retains all proprietary rights, including property ownership, intellectual property rights and Copyrights, in and to all Preliminary Works and Working Files, and Client shall return to Servus all Preliminary Works and Working Files in Client’s possession within thirty (30) days of completion of the Services.

25.2

Servus retains Copyright in and ownership of any original Graphic Design or photographic negatives forming part of the Final Works, including all rights to display or sell the same. Servus retains Copyright in photography and videography forming part of the Final Works. Client shall return all original Graphic Design to Servus within thirty (30) days of completion of the Services.

The Hosting Services
26.1

In consideration of the payment by the Client of the Fees, Servus agrees to provide the Services (host the Client Website on a cloud-server based within the European Economic Area) to the Client on the terms of the Agreement.

26.2

Servus will use its reasonable endeavours to commence the Services in accordance with any timescale set out in the Proposal or otherwise agreed with the Client, provided that but Servus shall not be liable to the Client for any failure to meet any such timescale.

26.3

Servus reserves the right, at any time and from time to time to change the services by, for example, changing the Server or the type or location of the server (within the EEA) provided only that such changes do not have a materially adverse effect on the quality of the Services.

26.4

The Client shall have no right of ownership over or physical access to the Server.

Client’s Obligations
27.1

Immediately notify Servus on becoming aware of any unauthorised use or incursion into the Client Website;

27.2

remove or prevent access to any material hosted on the Client Website which causes or is likely to cause the Client to be in breach of the Agreement;

27.3

ensure that it has all necessary consents, permissions and licences to make use of the Client Website including registration and appropriate consents and approvals under the Data Protection Act 1998 and/or the General Data Protection Regulation;

27.4

ensure that all material or data placed by the Client on the Client Website or communicated through such site is checked for viruses and other harmful code and has appropriate security patches applied;

27.5

be entirely liable for all activities conducted and charges incurred on or through the Client Website by persons using under the Client’s passwords and user names whether authorised by the Client or not, and the Client further acknowledges that Servus shall not be liable for any loss (whether financial or otherwise) arising from the Client’s inability to comply with the Agreement;

27.6

comply with any security policy notified to the Client from time to time by Servus and, in particular, ensure that all passwords and user names provided to the Client by Servus are at all times kept confidential, used properly and not disclosed to unauthorised people. If the Client has any reason to believe that any password or user name has become known to someone not authorised to use it or is being or is likely to be used in an unauthorised way or of any other breach of security then the Client will inform Servus immediately;

27.7

promptly provide to Servus and/or Servus’s consultants, employees and agents such information and assistance as they may reasonably require in order to be able to provide the Services and deal with them courteously and co-operatively; and

27.8

procure all necessary rights from third parties (including intellectual property licences of computer software and website content) which are from time to time required in order for Servus to be able legally to provide the Services to the Client.

27.9

use the Client Website, or allow it to be used, for any unlawful or fraudulent purpose or for the publication, distribution, copying, linking to, issue or display of any unlawful material (including any pirated software or any material which is obscene, pornographic, threatening, malicious, harmful, abusive, defamatory or which breaches the rights (including but not limited to intellectual property rights) of any third party or which is or encourages criminal acts or contains any virus, worm, trojan horse or other harmful code) under Dutch law or the laws of the Client’s country of domicile or any other place where the results of such purpose or the material in question are likely to be accessed;

27.10

use the Client Website, or allow it to be used, for the publication, linking to, issue or display of any material which in the absolute discretion of Servus may harm or bring into disrepute Servus or any of Servus’s associated companies, suppliers or clients.

27.11

use the Client Website, or allow it to be used, in a way which constitutes harassment or is in breach of generally accepted standards and codes of practice for use of the internet including but not limited to refraining from (i) sending bulk email (whether opt-in, unsolicited or otherwise), (ii) mail bombing and (iii) impersonating another person, organisation or website.

27.12

use any service provided by any third party (including an internet web site and/or email) for the publication, linking to, issue or display of any material which refers to an internet web site hosted by Servus or any products or services offered by Servus from time to time without Servus’s prior written consent; or

27.13

use the Client Website in any way which in the reasonable opinion of Servus is excessively wasteful of resource within the Server.

Suspension
28.1

Without prejudice to its other rights and remedies, Servus may suspend the provision of the whole or any part of the Services (temporarily or permanently) thus rendering the Client Website inoperative and will have no liability to the Client for such suspension on the occurrence of any of the following events:

28.1.1

any scheduled or unscheduled but necessary upgrade or maintenance of any relevant IT system used by Servus;

28.1.2

any requirement of any competent authority which affects Servus’s provision of the Services;

28.1.3

the Client fails to pay any Fees or any other sums owing to the Servus by the Client when they fall due;

28.1.4

if in Servus’s opinion it is necessary to do so to avert damage or loss to Servus or its other clients;

28.1.5

termination of the Agreement;

28.1.6

if the bandwidth, hard disk drive or computer memory used by the Client in relation to the Client Website exceeds any agreed or stipulated level and Servus determines in its sole discretion that suspension is necessary to protect all or any internet solutions then provided by Servus;

28.1.7

any failure, deficiency or incompatibility in the Client System including but not limited to hardware, server corruption and security breaches which has or may have a deleterious effect on the provision of services by Servus to other clients; or

28.1.8

any failure by the Client, or any of the Client’s employees, agents or other authorised representatives, to adhere to any of the provisions outlined in condition 27.

28.2

In the event that Servus suspends provision of the Services in accordance with condition 28.1 Servus will only be obliged to recommence provision during Business Hours and if the suspension was pursuant to 28.1.3 once the Client has paid all relevant outstanding sums in cleared funds.

Unlawful Content
29.1

If in Servus’s opinion, the Client is in breach of any of the provisions contained in condition 27 and as a consequence the Server contains unlawful content or (irrespective of any such breach) the Client Website is being used in a way that has the effect of gathering content that would be generally regarded as being undesirable, Servus may amend or remove any such content appearing on the Client Website or in the Server and may notify any relevant public authority (governmental or otherwise including the police or other enforcement authority) of any such material where Servus deems such notification to be appropriate.

Payment Terms
30.1

Subject to condition 30.2 the Fees are payable by the Client to Servus on the basis set out in the Proposal.

30.2

Servus shall be entitled to amend the Fees by giving the Client not less than 60 days’ written notice, such notice to expire at the end of the Initial Period or any anniversary of that date.

Term And Termination Of Website Hosting Agreement
31.1

Unless the Agreement is terminated earlier in accordance with its terms, Servus will provide the Services for the Initial Period and will continue to do so thereafter until terminated by either party serving not less than 30 days’ written notice on the other party expiring at any time after the end of the Initial Period.

31.2

Servus may immediately terminate the Agreement by notice in writing to the Client if the Client fails to pay to Servus any sum due under the Agreement by the due date for payment.

31.3

Either party may terminate the Agreement forthwith by notice in writing to the other if the other party:

31.3.1

is in material breach of the Agreement and fails (where the breach is capable of remedy) to remedy the breach within 21 days of the receipt of a request in writing to remedy the breach, such request setting out the breach and indicating that failure to remedy the breach may result in termination of the Agreement;

31.3.2

is unable to pay its debts within the meaning of Dutch laws;

31.3.3

has a receiver, manager, administrator or administrative receiver appointed over all or any parts of its undertaking, assets or income, has passed a resolution for its winding-up, or has a petition presented to any court for its winding-up or for an administration order; or

31.3.4

has ceased or threatened to cease to trade.

Consequences Of Termination Of Website Hosting Agreement
32.1

Termination of the Agreement shall be without prejudice to the rights and duties of either party accrued prior to termination.

32.2

Those parts of the Agreement which expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination.

32.3

Servus may without notice remove the Client’s data from the Server following termination thus “turning off” the Client Website.

32.4

The Client will forthwith pay all outstanding invoices.

32.6

Once the Client has discharged all its obligations to Servus, Servus shall for payment in advance at its normal time and materials rates create and provide to Client a back up of the Client Website suitable for deployment on another server provided that the other server and the software on it are compatible with the Client Website.

32.5

Each party shall return or, at the disclosing party’s request, destroy any confidential information of the other party.

Service Delivery
33.1

The Services are provided by Servus to the Client on an “as is” and “as available” basis and, except where otherwise stated in the Agreement, no warranty or representation (whether express or implied) of any kind is given by Servus in connection with the Agreement, including but not limited to any warranty as to satisfactory quality and fitness for a particular purpose of any Deliverables. In particular, Servus gives no warranty and makes no representation that:

33.1.1

the Services will meet the Client’s requirements;

33.1.2

the hosting Services will be provided on an uninterrupted, timely, secure or error-free basis or without failure;

33.2

Servus warrants that it will provide the Services with reasonable care and skill and within a reasonable time.

33.3

Servus represents that it shall use reasonable endeavours to provide hosting Services continuously except during scheduled maintenance of the Server and that should Servus become aware of a Server fault or any error or interruption affecting the hosting Services it will as soon as practicably possible during Business Hours repair the Server or provide an alternative server as a replacement.

Limitation Of Liability
34.1

The provisions of this condition 34 set out the entire liability of the Servus (including any liability for the acts or omissions of its consultants, employees, agents and authorised representatives) to the Client in respect of:

34.1.1

any breach of the Agreement; and

34.1.2

any representation, statement or tortious act or omission including negligence arising under or in connection with the Agreement.

34.2

Nothing in the Agreement shall exclude or limit the liability of Servus for death or personal injury caused by the negligence of Servus, fraud or a breach of Dutch law.

34.3

Subject to condition 34.2 the liability of Servus in contract, tort (including negligence or breach of statutory duty), misrepresentation (other than fraudulent misrepresentation) or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall:

34.3.1

not exceed the sum of €250,000 (two hundred fifty thousand euro) per claim or series of claims arising out of the same event for loss of or damage to tangible property; and

34.3.2

not exceed a sum equal to 125% of all sums paid by the Client to Servus pursuant to the relevant Agreement (excluding VAT and expenses) during the 12 month period immediately preceding the claim less any amounts paid by Servus in the same period pursuant to any claim under or in connection with the same Agreement; and

34.3.3

not include loss of profit, loss of business, loss of revenue, loss of contract, loss of goodwill (whether direct or indirect losses), or any indirect or consequential loss or damage, costs, expenses or any other claims for consequential compensation and whether or not caused by the negligence of Servus or its employees, agents or authorised representatives even if, Servus had been made aware of the possibility of such losses arising.

34.4

The Client acknowledges and agrees that Servus shall not be liable for:

34.4.1

Interruptions of service or down-time of the Server

34.4.2

Non-receipt or misrouting of email or for any other failure of email.

34.4.3

Loss or damage to any data stored on the Server or any backup medium.

34.4.4

Failure to correctly transfer any data, content or settings present on the Server where the Client Website is transferred to a different server.

34.4.5

Any claim unless the Client notifies Servus in writing of the claim within 10 days of the Client becoming aware of the facts or circumstances giving rise to the claim.

34.4.6

Failure of the Website to comply with relevant legislation in any jurisdiction.

34.4.7

Any act or omission carried out in accordance with Client’s instructions.

34.4.8

Servus’s failure to investigate third party rights where it is the responsibility of Client to obtain clearance.

Force Majeure
35.1

Neither party is under any liability to the other party in respect of anything which, apart from this provision, may constitute a breach of the Agreement arising by reason of force majeure which means, in relation to either party, acts of any governmental or supranational authority, war or national emergency, riots, civil commotion, fire, network failure, systems fault, unauthorised use of or access to any IT system owned, used or accessed by Servus or the Client (including but not limited to hacking), explosion, flood, epidemic, lock outs (whether or not by that party), strikes and other industrial disputes (in each case, whether or not relating to that party’s workforce), restraints or delays affecting shipping or carriers, inability or delay in obtaining supplies of adequate or suitable materials and currency restrictions, or by any act, event, omission or accident beyond that party’s reasonable control.

35.2

Any delay caused by conditions beyond the reasonable control of the parties shall not be considered a breach and will result in a day for day extension of any dates for performance. Each party shall use reasonable efforts to notify the other party, in writing, of a delay.

Indemnity
36.1

Client agrees to indemnify, save and hold harmless Servus against and from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s obligations, representations or warranties under the Agreement.

36.2

Servus shall promptly notify Client in writing of any third party claim or suit. Client, having adequately secured Servus against any costs, shall have the right to fully control the defence and any settlement of such claim or suit.

36.3

Servus agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party that elements of any Deliverables which Servus claims are its original work breach the third party’s Copyright, and it is determined that such infringement has occurred. In the case of a third party lawsuit or proceeding based on such a claim Servus may at its own expense, replace any infringing content with non- infringing content.

36.4

Client shall promptly notify Servus in writing of any third party claim or suit. Servus, having adequately secured Client against any costs, shall have the right to fully control the defence and any settlement of such claim or suit.

Late Payments And Tax
37.1

Any sums payable by the Client to Servus under the Agreement are exclusive of value added tax or any similar taxes, levies or duties, which will be added to such sums and be payable by the Client at the prevailing rate.

37.2

All sums payable to Servus under the Agreement shall be paid by the Client in full with no set off or deduction.

37.3

A monthly service fee of 1.5 percent, or the maximum allowed under the Dutch law, is payable on all overdue balances.

37.4

Payments will be credited to late payments first, then to unpaid balances.

37.5

Client shall pay all collection or legal fees caused by late payments.

37.6

All grants of any licence to use or agreements to transfer ownership of any intellectual property rights under this Agreement are conditional on full payment being made.

Confidential Information
38.1

Client’s “Confidential Information” means information provided to Servus concerning the business of Client that Servus should reasonably believe to be confidential. Servus’s “Confidential Information” means any Preliminary Works provided to Client. Any other material considered confidential by either party shall be designated as confidential before being provided.

38.2

Confidential Information shall not be disclosed to third parties and shall only used as needed to perform this Agreement.

38.3

The restriction in clause 38.2 shall not apply to any information that is already known by the recipient, becomes publicly known through no fault of the recipient, or is received from a third party without a restriction on disclosure.

General
39.1

The Agreement is the entire understanding of the parties and supersedes all prior understandings and documents relating to the subject matter of the Agreement. Client agrees that it has not relied on any warranty or representation that is not set out in these terms and conditions or in the Proposal or in any written agreement amending either these terms and conditions or the Proposal.

39.2

In the event of there being any conflict or inconsistency between the Proposal and these terms and conditions, the Proposal shall take precedence.

39.3

No variation or amendment to the Agreement shall be effective unless agreed in writing.

39.4

The Client shall not assign the benefit or delegate the burden of the Agreement or sub-license any of its rights under the Agreement without Servus’s prior written consent.

39.5

If any provision of the Agreement is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Agreement and the remainder of such provision shall continue in full force and effect.

39.6

Failure or delay by either party in enforcing or partially enforcing any provision of the Agreement will not be construed as a waiver of any of its rights under the Agreement.

39.7

Nothing in the Agreement confers on any third party any benefit or any right to enforce any provision of the Agreement.

39.8

Any waiver by either party of any breach of, or any default under, any provision of the Agreement by the other party will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Agreement.

39.9

Any notice required to be given in connection with the Agreement shall be in writing and shall be sent by email, posted or delivered by hand to the Registered Offices of the parties or in the event that there is no registered office, their principal place of business. Such notice shall be deemed to have been given when served if delivered by hand. If posted first class it shall be deemed given 48 hours following posting and if sent by email at the time transmission was fully completed.

39.10

The formation, existence, construction, performance, validity and all aspects of the Agreement shall be governed by Dutch law and the parties submit to the jurisdiction of the Dutch courts.

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