Terms and Conditions

Note: This text is automatically translated from Dutch. The original Dutch document is legally the only valid document. This translation is provided solely to aid comprehension. For legal purposes, please consult a lawyer to translate the original Dutch document.

Article 1. - Applicability.

1.1. These general terms and conditions apply to all legal relationships, including offers and agreements between Frank Spin and the other party, unless parties have expressly agreed otherwise in writing.

1.2 These conditions also apply to all agreements for the execution of which Frank Spin engages third parties.

1.3 The applicability of any other general terms and conditions to which the other party refers in any way is hereby expressly rejected, unless Frank Spin has agreed to deviating conditions in writing.

1.4 If Frank Spin has agreed in writing to deviating conditions, these general terms and conditions shall remain in force for the rest, even if this is not expressly stated.

1.5 In case of conflict between the agreement and the aforementioned deviating conditions, the agreement prevails.

1.6 Frank Spin has the right to unilaterally change these general terms and conditions. Changes also apply to already concluded agreements. Changes will be announced in writing or by e-mail to the other party and will take effect 30 days after the announcement, unless a different date is indicated at the announcement. If the other party does not wish to agree to a change in the general terms and conditions, he has the right to terminate the agreement, with due observance of a notice period of 30 days. The termination must be in writing.

1.7 If the agreement or the general terms and conditions and/or one or more separate provisions thereof prove to be null and void, this does not affect the validity of the entire agreement. In that case, Frank Spin has the right to replace it with a provision that in terms of content and meaning has a meaning that is as similar as possible to the void provision.

Article 2. Offers and conclusion of agreements.

2.1 All offers from Frank Spin are without obligation, unless explicitly stated otherwise by Frank Spin.

2.2 All offers are valid for 2 weeks unless otherwise indicated. Frank Spin is only bound by the offer if acceptance is confirmed in writing by the other party within 2 weeks. If acceptance takes place after 2 weeks, Frank Spin has the right to adjust the execution period or changed amounts or to make a new offer.

2.3 If the other party does not deliver the components needed for making a website or for optimization or any other work within a period set by Frank Spin after the order confirmation, Frank Spin is nevertheless entitled to invoice the agreed price. The other party is obliged to pay the relevant invoice(s).

Article 3. Rates.

3.1 Frank Spin delivers service(s) and goods on the basis of the prices and rates as included in the agreement(s)

3.2 Frank Spin reserves the right to revise the rates used based on wage and price developments. Frank Spin will inform the other party of this at least 30 days before the price and rate change takes effect.

Article 4. Additional work.

4.1 Frank Spin has the right to adjust the price for the services provided by it in case of changes in the approved project proposal or offer, among other things with regard to the setup, functionality, content, method, scope, analysis and/or reporting that take place in consultation with or at the request of the other party.

4.2 Frank Spin has the right to charge for extra additions, work, tests, discussions and/or executions that take place at the request of the other party.

Article 5. Execution and suspension.

5.1 Frank Spin will execute the agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship. Frank Spin will endeavor to perform the work properly. However, Frank Spin cannot guarantee that the desired result will always be achieved with the work. Frank Spin always has the right to have certain work carried out by third parties. Frank Spin’s obligations towards the other party are characterized as best efforts obligations and are never a result obligation.

5.2 The other party ensures that all data of which Frank Spin indicates that these are necessary or of which the other party should reasonably understand that these are necessary for the execution of the agreement, are provided to Frank Spin in a timely manner. If the data required for the execution of the agreement are not provided to Frank Spin in time, or if the other party fails to fulfill any obligation arising from the agreement or these general terms and conditions, Frank Spin has the right, without becoming liable for damages towards the other party, to suspend the execution of the agreement and/or to charge the extra costs resulting from the delay according to the usual rates to the other party.

5.3 If it has been agreed that the agreement would be executed in phases, Frank Spin can suspend the execution of those parts that belong to a next phase, until the other party has approved and/or paid for the results of the preceding phase in writing.

Article 6. Completion.

If a term has been agreed within the term of the agreement for the completion of certain work, this only concerns an indicative term and never a fatal term.

Article 7. Changes in the agreement.

7.1 Changes to concluded agreements and deviations from these General Terms and Conditions after this conclusion are only valid if they have been agreed in writing between Frank Spin and the other party.

7.2 As long as Frank Spin has not confirmed the acceptance in writing to the other party, Frank Spin can revoke or change the offer. If a revocation or change leads to a new offer from Frank Spin, the provisions of Articles 2 and 3 and paragraph 1 of this article apply mutatis mutandis.

7.3 If parties agree that the agreement will be amended or supplemented, the time of completion of the execution may be affected as a result. Frank Spin will inform the other party of this as soon as possible and will never lead to any liability.

7.4 Frank Spin is authorized to pass on increases due to changes or additions to the agreement to the other party

7.5 If a fixed amount has been agreed, Frank Spin will indicate to what extent the change or addition to the agreement results in an exceeding of this amount.

7.6 In case the agreement referred to in this article is concluded with multiple contractors, they are in all cases jointly and severally liable to Frank Spin, if the obligations towards Frank Spin are not or only partially fulfilled by one of the contractors.

Article 8. Confidentiality.

8.1 Parties hereby commit themselves to confidentiality of all confidential information that they obtain from each other or from another source in the context of the agreement. Information is considered confidential if this has been communicated by one of the parties or if this follows from the nature of the information, with the exception of information that is publicly freely available. Parties also impose this obligation on any employees as well as on third parties engaged by them for the execution of the agreement.

8.2 Frank Spin reserves the right to use the name of the other party as a reference and to make this public as such.

8.3 The (personal) data provided to Frank Spin via Frank Spin’s sites are treated confidentially. The provided data are recorded in a file. This data is not made available to third parties.

Article 9. Exclusivity.

For the duration of the agreement and with due observance of the provisions of the agreement, the other party grants Frank Spin the exclusive right to fulfill the assigned assignment.

Article 10. Intellectual property.

10.1 All rights of intellectual property on all software, equipment or other materials developed or made available under the agreement, such as analyses, designs, documentation, reports, offers as well as preparatory material thereof, rest exclusively with Frank Spin or its licensors. The other party only acquires a non-exclusive and non-transferable right of use with regard to the intellectual property and only for the duration of the agreement.

10.2 The other party acknowledges these rights and will refrain from reproducing and/or making public and/or distributing the software and the associated other materials, unless this is permitted in writing by Frank Spin and/or follows from the nature or purpose of the agreement with Frank Spin.

10.3 All documents delivered by Frank Spin for the fulfillment of the assignment such as documents, reports and optimized pages remain the property of Frank Spin. After termination or cancellation of the agreement, the other party is obliged to remove or have removed optimized pages from its website and return them to Frank Spin.

10.4 Frank Spin reserves the right to use the knowledge gained for the execution of the work for all purposes, insofar as no confidential information of the other party is brought to the knowledge of third parties.

10.5 The other party indemnifies Frank Spin against all claims by third parties with regard to intellectual property rights with regard to the publication of texts, images or other data provided to it by or on behalf of the other party. In this regard, it will apply between parties that digital images from third-party networks do not belong to the other party, unless proven otherwise by the other party.

Article 11. Duration and termination of the agreement.

11.1 The agreement is entered into for an indefinite period, unless parties have expressly agreed otherwise in writing.

11.2 An agreement for a definite period cannot be terminated prematurely.

11.3 An agreement for a definite period is always automatically extended after the expiry of the period stated in the contract for the same period, unless terminated by registered post against the end of the (extended) contract period and with due observance of a notice period of two months.

11.4 If the other party does not, not timely or not properly fulfill his obligation arising from any ground of these General Terms and Conditions or the agreement concluded with Frank Spin, Frank Spin is entitled to dissolve the agreement, or a part thereof that still has to be executed, without notice of default and without judicial intervention being required, whether or not partially, and to take back what he has delivered, insofar as not yet paid, or to suspend the execution of the agreement. This, without prejudice to Frank Spin’s right to compensation for any loss, loss of profit and other damage that has arisen or will still arise as a result of that shortcoming.

11.5 The provisions of paragraph 4 apply mutatis mutandis in case of: suspension of payments, application for or granting of suspension of payment, declaration of bankruptcy or the application of the debt restructuring scheme or liquidation of the other party’s affairs or his death or if the other party loses the disposal of his assets through seizure or otherwise. If these circumstances occur, the other party is obliged to report this to Frank Spin immediately in writing.

11.6 In the cases mentioned in paragraphs 4 and 5 of this article, any claim that Frank Spin has on the other party is immediately and fully due and payable.

Article 12. Unlawful use.

12.1 The other party is not permitted to use the service(s), or to have them used, consciously or unconsciously, for actions or behaviors that are in violation of Dutch law, the agreement, these general terms and conditions and in general the standards of decency and reasonableness that apply in internet traffic, including but not limited to the following actions and behaviors: a. infringing on the property rights of third party(ies) or acting unlawfully towards third party(ies); b. the public disclosure or distribution of child pornography; c. being guilty of distributing information that is discriminatory with regard to appearance, race, religion, gender, culture, origin or any other form of discrimination.

12.2 In the cases as referred to in Article 12.1, Frank Spin is entitled without prior notice to the other party to suspend the delivery of the service(s) and to give instructions to the other party. If the other party fails to follow the instructions, Frank Spin has the right to terminate the agreement with immediate effect, without thereby becoming liable for any damage that the other party suffers or will suffer. Frank Spin also reserves this right to immediate termination without giving instructions to the other party and suspending the service(s) to him.

12.3 Without prejudice to the foregoing, Frank Spin has the right at all times without prior notice to remove information from its systems that reasonably establishes that it infringes the rights of third party(ies) or is unlawful towards third party(ies).

Article 13. Payment.

13.1 Payment must be made within 21 days after the invoice date in a manner to be indicated by Frank Spin.

13.2 After the expiry of this fatal payment term of 28 days after the invoice date, the other party is in default without further notice being required; the other party owes interest of 1.5% per month on the claimable amount from the moment of default, unless the statutory interest is higher, in which case the statutory interest applies.

13.3 In the event of liquidation, bankruptcy or suspension of payment, Frank Spin’s claims and the other party’s obligations towards Frank Spin will be immediately due and payable.

13.4 Payments made by the other party always serve to settle all interest and costs due and subsequently those invoices that have been outstanding the longest. This also applies if the other party has stated that the payment relates to a later invoice.

Article 14. Collection costs.

Collection costs. If the other party is in default or in breach of fulfilling one or more of its obligations, all reasonable costs incurred to obtain satisfaction in or out of court are for the account of the other party. The extrajudicial costs for a business other party amount to at least 15% of the invoice amount with a minimum of € 250.00. If it concerns a private other party, the extrajudicial collection costs apply in accordance with the scale of extrajudicial collection costs.

Article 15. Domain names in case of mediation.

15.1 If Frank Spin mediates for the other party in obtaining a domain name, the following applies.

15.2 The rules and procedures of the authorities responsible for the registration of domain names, including, but not limited to, the Foundation for Internet Domain Registration Netherlands, also apply to the application and use of a domain name. The authority responsible for registering domain names decides on the ultimate granting of the domain name. Frank Spin only has a mediating role in this procedure and does not guarantee that an application will be honored.

15.3 The registration of the domain name takes place in the name of the other party’s general terms and conditions Frank Spin. The other party is fully responsible for the use of the domain name. The other party indemnifies Frank Spin against any claim by third parties in connection with the registration and use of the domain name.

15.4 If a domain name is rented by the other party through Frank Spin, Frank Spin is entitled to immediately terminate the use and rental of the domain name when the other party is in default with his payment obligations. If a domain name is purchased by the other party through Frank Spin, the seller reserves ownership of the domain name until the fee due for this has been paid in full.

15.5 If Frank Spin rents or sells a domain name with website to the other party that it owns, the following applies.

15.6 The registration of the domain name with website takes place in the name of the other party. The other party is fully responsible for the use of the domain name and the website. The other party indemnifies Frank Spin against any claim by third parties in connection with the registration and use of the domain name and the website.

15.7 If a domain name with website owned by Frank Spin is rented by the other party from Frank Spin, Frank Spin is entitled to immediately terminate the use and rental of the domain name and the website when the other party is in default with his payment obligations.

15.8 Any changes in the design and texts of the websites belonging to the domain name become the property of Frank Spin after termination of the rental agreement between Frank Spin and the other party. In that case, Frank Spin is therefore entitled to use the relevant changes.

15.9 If a domain name is purchased by the other party from Frank Spin, Frank Spin reserves ownership of the domain name until the fee due for this has been paid in full.

Article 16. Retention of title.

16.1 All goods delivered and still to be delivered remain exclusively the property of Frank Spin, until all claims that Frank Spin has or will acquire on the other party, including in any case the claims mentioned in BW 3:92 paragraph 2, have been paid in full.

16.2 As long as the ownership of the goods has not passed to the other party, he may not pledge the goods or grant any other right thereon to third parties, except within the normal exercise of his business. The other party undertakes at Frank Spin’s first request to cooperate in establishing a right of pledge on the claims that the other party acquires or will acquire from its customers by virtue of resale of goods.

16.3 The other party is obliged to store the goods delivered under retention of title with due care and as recognizable property of Frank Spin.

16.4 Frank Spin is entitled to take back the goods delivered under retention of title and still present at the other party if the other party is in default with the fulfillment of its payment obligations or is in financial difficulties or threatens to get into financial difficulties. The other party will grant Frank Spin free access to its grounds and/or buildings at all times to inspect the goods and/or to exercise Frank Spin’s rights.

16.5 The provisions mentioned under 16.1 to 16.4 do not affect the other rights accruing to Frank Spin.

Article 17. Complaints.

17.1 Complaints are understood to mean: an appeal by the other party to the fact that the goods delivered or services performed by Frank Spin do not correspond to the agreement that has been concluded, including visible and not directly visible defects in the delivered goods.

17.2 The other party is obliged to check the services and goods delivered by Frank Spin (including packaging) immediately for external deficiencies, damages and other visible defects and as soon as possible thereafter, being within 72 hours after receipt, to check for non-directly visible defects.

17.3 If the goods referred to in paragraph 2 must be installed or assembled by Frank Spin before they can be put into use, the other party is obliged to carry out the check for external/visible defects referred to in paragraph 2: immediately after the installation or assembly has been completed and within 72 hours thereafter to check those goods for non-directly visible defects.

17.4 The other party is obliged to notify Frank Spin in writing of any complaints regarding visible defects within 72 hours after receipt, with a clear description of the defects or complaints. Frank Spin does not need to process complaints as referred to in the first sentence that are submitted after the 72-hour period has expired.

17.5 With regard to non-(directly) visible defects in the delivered or supplied goods, it applies that the other party must submit complaints in writing to Frank Spin within 72 hours after these defects have been detected by the other party, or could reasonably have been detected. The provisions in paragraph 4, last sentence, apply mutatis mutandis.

17.6 Complaints submitted to Frank Spin in a timely manner (and in the correct manner) do not give the other party the right to suspend payment of the purchase price/fee or to set it off, nor the authority to dissolve the concluded agreement in whole or in part.

17.7 If Frank Spin and the other party disagree on whether a complaint submitted by the other party to Frank Spin in a timely and correct manner is justified or not, this is first submitted to an expert to be appointed by Frank Spin. The costs of engaging the expert are borne by the party that is (for the most part / predominantly) proved wrong by this expert.

17.8 In case the complaint is declared well-founded by Frank Spin or by the expert referred to in paragraph 7, Frank Spin is only obliged to deliver replacement goods or comparable (new) services, or to credit the invoice with return of the purchase price, one and the other at Frank Spin’s discretion. Return shipments are not permitted without Frank Spin’s prior consent or do not in any way obligate Frank Spin to automatically proceed to replacement, repair or crediting.

17.9 Any legal actions and defenses based on submitted complaints must - on pain of forfeiture of this right - be instituted within one year after the complaint has been submitted or the expert has given his definitive / final judgment as referred to in paragraph 7.

Article 18. Liability.

18.1 Frank Spin is only liable for damage suffered by the other party or third parties that is a direct and exclusive result of intent or gross negligence of Frank Spin or its managing subordinates or third parties engaged by it, subject to the provisions hereinafter.

18.2 Only that damage for which Frank Spin is insured is eligible for compensation and only to the extent that the insurance company proceeds to payment. If Frank Spin’s insurer does not proceed to payment, Frank Spin’s liability is limited to the net invoice amount of the specific part of the agreement to which the liability relates, as stated in Frank Spin’s order confirmation to the other party, with a maximum of € 10,000.00. In this regard, the following limitations and situations apply where there is in any case no question of intent or gross negligence as referred to in paragraph 1: a. Frank Spin is never liable for damage to the other party or third parties that directly or indirectly results from the fact that the advice given orally or in writing by or on behalf of Frank Spin has not been followed, not been followed in time or not been followed properly by the other party, its representative or third parties; b. in case of information provided orally by or on behalf of Frank Spin, Frank Spin is never liable for damage resulting from misunderstandings or incorrectly transmitted information; c. the no longer and/or not timely availability of reports, news sources, (deep)links or clippings at the time of monitoring; d. texts, images or other data provided by the other party or unlawful use thereof by the other party; e. the unauthorized nature of the services offered by Frank Spin or the manner in which the services are provided by Frank Spin; f. disruptions in the electronic services of Frank Spin and of third parties such as providers, network operators or other telecommunication networks; g. not timely registering domain names; h. the hosting going down or defects of any nature to the server causing the website to be unavailable for some time or completely and/or data to be lost. i. the damage to be compensated by Frank Spin will be moderated if the price or fee to be paid by the other party is small in relation to the extent of the damage suffered by the other party.

18.3 Frank Spin is in no case liable for consequential damage, indirect damage, business damage or damage caused by auxiliary persons and/or third parties that Frank Spin has engaged in the execution of the agreement. The same exclusion for liability applies to the managers of Frank Spin, except if and insofar as there would be intent, gross negligence or gross fault on the part of the managers of Frank Spin to be proven by the other party.

18.4 Damage for which Frank Spin is liable on the basis of paragraph 2 of this provision only qualifies for compensation if the other party has brought this to the attention of Frank Spin within 30 days after its occurrence, unless the other party can make it plausible that he could not reasonably have reported this damage earlier.

18.5 Any complaint regarding the execution or omission of the execution of any assignment must be submitted by the other party to Frank Spin in writing within 30 days after the damage has occurred on forfeiture of any claim.

18.6 The other party is obliged to indemnify Frank Spin, as well as the third party(ies) engaged by it, against any claims from third parties for compensation of damage as a result of the use or application of the delivered goods or performance(s) by the other party.

18.7 If the other party fails to comply with one or more obligations arising from the agreement concluded with Frank Spin or these General Terms and Conditions, not in time or not properly, the other party is - without further notice of default - in default and fully liable for all damage that Frank Spin and the third party(ies) engaged by it suffer as a result, without prejudice to the other rights and powers of Frank Spin on the basis of the Law or on the basis of these General Terms and Conditions.

Article 19. Force majeure.

19.1 In case of force majeure, Frank Spin is not liable. Force majeure is understood in these general terms and conditions to mean, in addition to what is understood in this regard in law and jurisprudence, all external causes, foreseen or unforeseen, on which Frank Spin can exert no influence, but as a result of which Frank Spin is unable to fulfill its obligations. Force majeure includes in any case: a. strike; b. excessive sick leave of staff; c. a (temporary) shortage of staff; d. fire; e. business and technical disruptions within the office or at the external parties engaged by Frank Spin; f. at our discretion not having sufficient data or providing incorrect data or the lack of sufficient cooperation by the other party.

19.2 If Frank Spin has not been able to fulfill its obligations in time and/or properly due to force majeure, Frank Spin is entitled to execute the agreement at a later time, to consider the agreement, in whole or in part, as dissolved or to dissolve it, or to cancel the assignment without being obliged to pay any compensation to the other party. In that case, Frank Spin is obliged to immediately notify the other party.

19.3 If Frank Spin can partially fulfill its obligations at the onset of the force majeure, it is entitled to invoice the already executed or executable part separately. In that case, the other party is obliged to pay this invoice as if it were a separate agreement.

Article 20. Equipment and software.

The other party must ensure, at its own risk, that it has proper equipment and other proper facilities that provide access to a network on which it can receive the services provided by Frank Spin. The other party must take care of the payment of the communication costs incurred.

Article 21. Applicable law and competent court.

21.1 Dutch law applies to all agreements between Frank Spin and the other party.

21.2 The competent court in Almelo has exclusive jurisdiction to hear all disputes that may arise as a result of any agreement, or the execution of any agreement, between Frank Spin and the other party, as well as all disputes in connection with these general terms and conditions, unless on the basis of a provision of mandatory law another court would be competent.