General Terms and Conditions Elk Solutions

These general terms and conditions apply to all offers and agreements resulting therefrom between Elk Solutions in Hillegom, Chamber of Commerce 09180729 and its counterparties ("Client").

Provisions or conditions set by the Client that deviate from, or do not appear in, these general terms and conditions are only binding for Elk Solutions if and to the extent that this has been expressly accepted in writing.

Quotation and Acceptance

Elk Solutions draws up a quotation in which Elk Solutions indicates which activities ("the Services") Elk Solutions offers to perform, what is included in the Services and what amount will be due for this. Only the description of the Services indicated in the quotation is binding.
In general, the Services include configuration and installation of hardware and software for the benefit of the Client, creating custom software at the request of the Client, providing remote support, providing on-site support to employees of the Client, and everything related thereto. Other activities are only performed if this is stated in the quotation.
A quotation is entirely without obligation and valid until 30 days after sending, unless stated otherwise in the quotation. Elk Solutions can never be obliged to accept an acceptance after this period, but if Elk Solutions proceeds to do so, the quotation is still accepted.
The agreement is concluded at the moment the notification containing acceptance of the quotation by the Client is received by Elk Solutions. The quotation must be signed by the Client and returned in writing or by e-mail.
If the Client does not explicitly indicate agreement with the quotation, but nevertheless agrees to it, or creates the impression that Elk Solutions performs activities that fall within the description of the Services, the quotation is considered accepted. This also applies when the Client requests Elk Solutions to perform certain activities without awaiting a formal quotation.
Changing the Services is only possible with the consent of both parties, except to the extent otherwise provided elsewhere in these terms and conditions.
Elk Solutions will issue a suitable quotation for requests for additional work.

Delivery of the Services

After the agreement has been concluded, the Services will be performed by Elk Solutions as soon as possible in accordance with the quotation, taking into account reasonable wishes of the Client.
The Client is obliged to do and omit everything that is reasonably desirable and necessary to enable a correct and timely execution of the Services. In particular, the Client ensures that all data, of which Elk Solutions indicates that these are necessary or of which the Client should reasonably understand that these are necessary for the execution of the Services, are provided to Elk Solutions in a timely manner.
The Client will give Elk Solutions access to all places, services and accounts under its management (such as web hosting accounts) that Elk Solutions reasonably needs to deliver the Services.
Elk Solutions guarantees that the Services are performed carefully, soundly and as well as possible. If a good execution of the Services requires this, Elk Solutions has the right to have certain activities performed by third parties. Elk Solutions is and remains responsible to the Client.
Elk Solutions is entitled, but never obliged, to investigate the correctness, completeness or coherence of the source materials, requirements or specifications made available to it and, upon finding any imperfections, to suspend the agreed activities until the Client has removed the relevant imperfections.
Unless otherwise agreed, Elk Solutions is not a party to the supply of services by third parties, such as software licenses or hosting required for Services, even if Elk Solutions purchases these services on behalf of the Client.
Elk Solutions has the right not to deliver the Services (temporarily) or to deliver them to a limited extent if the Client does not comply with an obligation towards Elk Solutions regarding the agreement or acts in violation of these general terms and conditions.
Elk Solutions will endeavor to respond as quickly as possible to a request from the Client, but cannot make concrete promises about times, unless otherwise agreed in the quotation.

Provisions regarding Remote Support

Remote support is provided by telephone, e-mail and other channels to be agreed jointly.
Elk Solutions will propose software at the request of the Client with which computers to be supported can be accessed remotely. It is the responsibility of the Client to ensure that its network and security environment allows this software to work.
If it appears that remote support does not lead to a satisfactory solution or is not feasible given the nature of the problem, Elk Solutions will consult with the Client to find an on-site solution.

Installation and Configuration

Elk Solutions will proceed with configuration and installation of hardware and software for the benefit of the Client in accordance with the quotation or further specification, in order to realize a new, working hardware and software system.
The choice, purchase and management of the hardware, software and network environment within which the configuration and installation will take place is solely and fully the responsibility of the Client. Elk Solutions will give instructions about the desired configuration. If the designated environment does not meet the requirements of Elk Solutions, Elk Solutions is entitled to refuse installation or configuration.
At the request of Elk Solutions, the Client will grant employees and auxiliary persons of Elk Solutions all necessary access to the environment to enable installation, configuration, maintenance and adjustments of the software. Physical access to hardware will only take place if this is necessary, and only after prior consultation with the Client.
If licenses from third parties are necessary for the use of software, the Client will purchase these licenses and ensure that the provisions contained therein are strictly observed. The Client indemnifies Elk Solutions against claims from third parties regarding installation and licenses of the software, except to the extent that the claims are the result of information or licenses supplied by Elk Solutions.

Development of Works

If a Service extends to the development, configuration and/or adaptation of Works such as websites, data files, software, documentation, advice, reports, analyses, designs, texts, photos, films, sound recordings, images, audiovisual material, logos or house styles (hereinafter: "Works"), Elk Solutions has the right, unless otherwise agreed, to use images, software and components of third parties in the development, configuration or adaptation of Works.
Elk Solutions is permitted to use open source software of which the rights lie with third parties. This means, among other things, that Elk Solutions may supply open source software to the Client and may process open source software in Works that Elk Solutions makes or adapts in the context of a Service. Elk Solutions will adequately inform the Client about all applicable license conditions.
After delivery, the responsibility for correct compliance with the relevant licenses of third parties when using the developed Works lies with the Client.

Delivery and Acceptance

Elk Solutions will deliver the result after performing activities or parts thereof when, in its professional opinion, it meets the specifications or is suitable for use.
The Client must then evaluate the delivered work within fourteen days after delivery and approve or reject it. If the Client does not reject the delivered work within this period, the delivered work is deemed to have been accepted.
If work is delivered in phases, the Client must give approval or rejection of the part of the work of that phase after delivery of each phase in the manner as determined in the previous paragraph. The Client may not base an approval or rejection in a later phase on aspects that were approved in an earlier phase.
If the Client rejects the delivered work in whole or in part, Elk Solutions will endeavor to remove the reason for rejection as soon as possible. Elk Solutions can do this by revising the result or by indicating with reasons why the reason does not apply. The Client then again has fourteen days to approve or reject the revision or motivation.
If the Client has rejected the delivered work in whole or in part after the first revision or motivation, a reasonable number of revision rounds will follow in the opinion of Elk Solutions.
If a party indicates that it does not (no longer) consider further revisions useful, both parties are entitled to terminate the agreement for the relevant Service. In that case, the Client will reimburse the hours actually worked by Elk Solutions, with the amount quoted for the rejected work as a maximum. However, the Client is not entitled to use the rejected work in any way.
After acceptance of the delivered work, any liability for defects in the delivered work lapses, unless Elk Solutions knew or should have known about the defect at the time of acceptance. In any case, any liability for defects lapses after one year after termination of the Agreement for whatever reason.

Intellectual Property Rights

All intellectual property rights to all Services or Works developed or supplied in the context of the agreement rest exclusively with Elk Solutions or its licensors. Rights can only be transferred to the Client if explicitly stated in the quotation or explicitly agreed separately.
The Client only acquires the rights of use and powers that arise from the purport of the agreement or that are granted in writing and for the rest the Client will not reproduce or make public the Works or other results of Services materials. Any use, reproduction or publication of the materials that falls outside the scope of the agreement or granted rights of use is considered a violation of copyright. The Client will pay an immediately due and payable fine of € 100,000 per infringing act to Elk Solutions, which is not subject to judicial mitigation. This does not affect the right of Elk Solutions to have its damage resulting from the infringement compensated or to take other legal measures to end the infringement.
The Client is not entitled to make changes to Works that it receives in right of use, unless this is necessary for the intended use or to correct errors.
Elk Solutions will make the source files (such as, but not limited to, PSD, HTML/CSS or PHP code) of Works developed as custom work available to the Client after payment of the relevant invoice or invoices.
The Client is not permitted to remove or change any indication regarding copyrights, trademarks, trade names or other intellectual property rights from the materials, including indications regarding the confidential nature and secrecy of the materials.

Prices and Payment

The Client owes the fixed amount(s) stated in the quotation for the Services. The Client owes 30% at the start of the activities and the remaining amount at the moment the work is performed. Down payments are due as soon as Elk Solutions reports that the work will begin. Other amounts are only charged if stated elsewhere in these general terms and conditions.
Elk Solutions will send an electronic invoice to the Client for the amounts owed by the Client.
The payment term of invoices is fourteen days after the date of the invoice, unless a longer payment term is indicated on the invoice. If the Client does not pay on time, he is in default by operation of law after the expiry of this period without a notice of default being required. If an amount due is not paid within the payment term, statutory interest is due on the outstanding invoice amount.
If the Client believes that (a part of) an invoice is incorrect, he must report this to Elk Solutions within the payment term. The payment obligation of the disputed (but not the remaining) is suspended until Elk Solutions has investigated the report. If after investigation by Elk Solutions it appears that the dispute was unjustified, the Client must still pay the disputed amount within seven days.
In the event of late payment, the Client is, in addition to the amount due and the interest accrued thereon, obliged to fully reimburse both extrajudicial and judicial collection costs, including the costs for lawyers, bailiffs and collection agencies. In particular, Elk Solutions is entitled in this case to charge administration costs of € 50.
The claim for payment is immediately due and payable if the Client is declared bankrupt, applies for a suspension of payments or if all assets of the Client are seized, the Client dies, goes into liquidation or is dissolved.

Confidentiality

Parties will treat information that they provide to each other before, during or after the execution of the agreement confidentially when this information is marked as confidential or when the receiving party knows or should know that the information was intended as confidential. Parties also impose this obligation on their employees as well as on third parties engaged by them for the execution of the agreement.
Elk Solutions will endeavor to avoid taking note of data that the Client stores and/or distributes via the hardware or software to which the Services relate, unless this is necessary for a good execution of the agreement or the Service Provider is obliged to do so pursuant to a statutory provision or court order. In that case, the Service Provider will endeavor to limit the knowledge of the data as much as possible, insofar as this is within its power.
Elk Solutions may use the knowledge we have gained in carrying out the agreement for other assignments, provided that no information from the Client becomes available to third parties in violation of obligations regarding confidentiality.
The obligations from this article also continue to exist after termination of the agreement for whatever reason, and for as long as the party providing the information can reasonably claim the confidential nature of the information.

Liability

Elk Solutions is only liable to the Client in the event of an attributable shortcoming in the fulfillment of the agreement and exclusively for replacement compensation, that is to say compensation for the value of the performance that was omitted.
Any liability of Elk Solutions for any other form of damage is excluded, including, among other things, additional compensation in any form whatsoever, compensation for indirect damage or consequential damage, damage due to lost turnover or profit, damage due to loss of data as well as damage due to exceeding terms as a result of changed circumstances.
In the event of liability pursuant to the first paragraph, the maximum amount that Elk Solutions is obliged to reimburse will be equal to the amount due for the relevant Service. This maximum amount will lapse if and to the extent that the damage is the result of intent or gross negligence on the part of Elk Solutions.
The liability of Elk Solutions due to an attributable shortcoming in the fulfillment of the agreement only arises if the Client immediately and properly gives Elk Solutions notice of default in writing, stating a reasonable period to remedy the shortcoming, and Elk Solutions continues to fail attributably in the fulfillment of its obligations even after that period. The notice of default must contain as detailed a description as possible of the shortcoming, so that Elk Solutions is able to respond adequately.
In the event of force majeure, which in any case includes disruptions or failures of the internet, the telecommunications infrastructure, power failures, domestic unrest, mobilization, war, obstruction in transport, strike, lockout, business disruptions, stagnation in supply, fire, flood, import and export barriers and in the event that Elk Solutions is not enabled to deliver by its own suppliers, regardless of the reason for this, as a result of which compliance with the agreement cannot reasonably be required of Elk Solutions, the execution of the agreement will be suspended, or the agreement will be terminated when the force majeure situation has lasted longer than ninety days, all without any obligation to pay compensation.

Duration and Termination

The agreement is entered into for the term necessary for the delivery of the Services.
The agreement can only be terminated prematurely as determined in these general terms and conditions, or with the approval of both parties. The Client can terminate the agreement prematurely against payment of a lump sum equal to 50% of the total value of the parts of the agreement not yet delivered.
After termination, ending or dissolution for whatever reason, Elk Solutions is entitled to immediately delete all data stored by itself for the benefit of the Client after the date on which the agreement expires. Elk Solutions is not obliged in that case to provide the Client with a copy of this data.
The agreement ends automatically if a party is declared bankrupt, applies for a suspension of payments or receives a general seizure of assets, dies, goes into liquidation or is dissolved.

Changes to Agreement

After acceptance, the agreement may only be changed with mutual consent.
If the agreement is a continuing performance agreement, Elk Solutions is entitled to unilaterally adjust or expand these general terms and conditions once per calendar year. It must notify the Client of this at least two months before the adjustments or expansions will take effect. However, changes to the general terms and conditions can never set aside a specific agreement.
If the Client objects within this period, Elk Solutions will consider whether it wishes to withdraw the objectionable adjustments or expansions or not. Elk Solutions will notify the Client of this decision. If Elk Solutions does not wish to withdraw objectionable adjustments or expansions, the Client has the right to terminate the agreement as of the date that these will take effect.
Elk Solutions may implement changes to these general terms and conditions at any time if these are necessary due to changed legal regulations. The Client cannot object to such changes.
The above arrangement also applies to prices.

Final Provisions

Dutch law applies to this agreement. To the extent that the rules of mandatory law do not prescribe otherwise, all disputes that may arise as a result of this agreement will be submitted to the competent Dutch court for the district in which Elk Solutions is established.
If any provision of this agreement proves to be void, this does not affect the validity of the entire agreement. In that case, the parties will establish (a) new provision(s) to replace it, with which the intention of the original agreement and these general terms and conditions is given shape as much as legally possible.
"In writing" in these terms and conditions also includes e-mail and communication by fax, provided that the identity of the sender and the integrity of the content are sufficiently established. Parties will endeavor to confirm the receipt and content of communication by e-mail.
The version of any communication received or stored by Elk Solutions applies as authentic, subject to proof to the contrary to be provided by the Client.
Each party is only entitled to transfer its rights and obligations from the agreement to a third party with the prior written consent of the other party. Notwithstanding this, Elk Solutions is always entitled to transfer its rights and obligations from the agreement to a parent, subsidiary or sister company.