General terms and conditions Selva Digital (Noah Merlijn Winkelman) – hereafter; Selva Digital
The company Selva Digital is registered as autónomo under the name of Noah Merlijn Winkelman with the Chamber of Commerce under the number Y4843247J and has its registered office at the address Carrer Torrent Gran 1 (17253) in Vall-llobrega.
Article 1 – Definitions
- In these general terms and conditions, the following terms are used in the following sense, unless explicitly stated otherwise.
- Company: the natural or legal person who acts in the exercise of a profession or business.
- Client: the Company that enters into an agreement (at a distance) with Selva Digital.
- Services: the services offered by Selva Digital are the design and creation of websites and webshops, as well as the maintenance of websites and webshops, hosting services, ICT services, social media management, SEO and the registration of domain names.
- Subscription: the agreement for hosting, SEO, social media management and/or maintenance commissioned by the Client.
- Assignment: the execution of the assignment agreement by Selva Digital regarding the services requested by the Client.
- Website: The website used by Selva Digital is https://selva.digital/.
Article 2 – Applicability
- These general terms and conditions apply to every offer made by Selva Digital, every agreement between Selva Digital and the Client and to every service offered by Selva Digital.
- Before an agreement (at a distance) is concluded, Client will have the opportunity to read these terms and conditions on our website. The agreement will refer to these general terms and conditions on our website. Per acceptance of the agreement, either per signing of the agreement or confirmation per email, the general terms and conditions are considered to be accepted.
- Deviations from these general terms and conditions are in principle not possible. In exceptional situations, deviation from the general terms and conditions is possible if this has been explicitly agreed upon in writing between Selva Digital and the Client. The possible applicability of general terms and conditions of the Client is explicitly rejected.
- These general terms and conditions shall also apply to additional, amended and follow-up assignments from the Client. The agreed in the agreement are leading and take precedence over these general terms and conditions.
- If one or more provisions of these general terms and conditions are null and void or annulled in part or in full, the other provisions of these general terms and conditions shall remain in force and the null and void provision(s) shall be replaced by a provision having the same purpose as the original provision.
- Uncertainties about the content, explanation or situations not regulated by these general terms and conditions are to be assessed and explained in the spirit of these general terms and conditions.
Article 3 – The Offer
- All offers made by Selva Digital are without obligation, unless explicitly stated otherwise in writing. If the offer is limited or valid under specific conditions, this will be explicitly mentioned in the offer.
- Selva Digital is only bound to an offer if the acceptance of it by the Client is confirmed in writing within 14 days, unless another term has been agreed. Nevertheless Selva Digital has the right to refuse or change an offer with a potential Client for a valid reason for Selva Digital.
- The offer contains a complete and accurate description of the services offered. The description is detailed enough for the Client to be able to make a good assessment of the offer. Obvious mistakes or errors in the offer cannot bind Selva Digital. Any images and specific data in the offer are only an indication and cannot be a reason for any compensation or dissolution of the agreement. All offers are furthermore made on the basis of data provided by the Client. Offers are invalid if the data provided by the Client are incorrect or incomplete.
- Delivery times in the offer of Selva Digital are indicative and do not entitle the Client to dissolution or compensation when exceeding them, unless explicitly agreed otherwise.
- A composite quotation does not oblige Selva Digital to deliver part of the goods included in the offer or quotation at a corresponding part of the quoted price.
Article 4 – Conclusion of the Agreement
- The agreement comes into effect per acceptance of the quotation/offer, which is done by signing and returning the agreement.
- If the Client has accepted the offer by giving an order to Selva Digital, Selva Digital will confirm the order in writing by email. Each offer is valid for a maximum of 14 days, after which Selva Digital can no longer be held to this offer.
- Selva Digital is not bound to an offer if the Client could reasonably have expected or should have understood that the offer contains an obvious mistake or clerical error. The client cannot derive any rights from this error or mistake.
- Any verbal agreements are only valid when confirmed by email to the client by Selva Digital.
- The right of withdrawal is excluded for Companies. In particular, the right of withdrawal does not apply to subscriptions and the purchase of a domain name.
- If the Client cancels an order that has already been confirmed, the actual costs incurred shall be charged to the Client, unless expressly agreed otherwise.
Article 5 – Duration of the Agreement
- If and insofar as an agreement is concluded between the Client and Selva Digital, the duration of this agreement is in accordance with what the parties have agreed.
- The services relating to maintenance and hosting are entered into for an indefinite period, unless otherwise agreed in writing.
- The agreement to provide services relating to SEO, social media management and maintenance has a minimum duration of 3 months. After expiry of the agreement, the subscription will be tacitly renewed for a period of 6 months, unless the subscription has been cancelled in time and correctly. The notice period for cancelation of a SEO agreement is 30 days before the expiry date of the agreement.
- Both the Client and Selva Digital can dissolve the agreement based on an attributable failure in the fulfilment of the agreement if the other party has been put in default in writing, and has been given a reasonable term to fulfill its obligations, and has failed attributably in doing so. This also includes the Client’s payment and cooperation obligations.
- Selva Digital retains the right to terminate an agreement at all times if the Client does not provide material which is essential for the execution of the order, or does not do so on time, with due observance of a period of 10 calendar days after the material was requested. Material is in any case understood to mean: all requested texts, images and login data reasonably required for the execution of the order in question.
- Selva Digital can terminate the agreement prematurely if the Client has carried out maintenance independently or has had maintenance carried out by third parties on the websites created by Selva Digital (whether or not) using software which does not correspond to the systems recommended by Selva Digital, unless Selva Digital has given prior written consent.
- The dissolution of the agreement shall not affect the payment obligations of the Client if Selva Digital has carried out work or delivered services at the time of the dissolution. The Client must pay the agreed fee.
- The client is not entitled to terminate an agreement prematurely. Unless otherwise agreed; if the client terminates the agreement prematurely, the Client owes at least 50% of the agreed price, which may be increased by costs incurred by Selva Digital in the execution of the agreed order.
Article – 6 Subscriptions
- When entering into the agreement regarding the services maintenance and/or hosting, the agreement is entered into in the form of a subscription. A subscription is in principle concluded for an indefinite period of time, unless otherwise agreed in writing. A shared hosting subscription can only be entered into for the duration of one year. After the expiry of the subscription, the subscription will be tacitly renewed unless the subscription is terminated in a timely and proper manner.
- Notice of termination shall only be given in writing, including notice of termination by email. Cancellation by e-mail can be made to firstname.lastname@example.org by stating the name and contact details of the person as well as the reason for cancellation.
- Termination of a subscription for an indefinite period of time is only possible with due observance of a notice period of one month prior to the expiry of the next invoice date. Subscriptions for an indefinite period of time shall be invoiced on a monthly basis, starting on the day the agreement is concluded. Premature termination of an annual subscription is excluded.
- Selva Digital can dissolve the subscription immediately and without any compensation, for whatever reason, being due to the Client in the event that:
- Client is in suspension of payment or in a state of bankruptcy or in any other way according to Selva Digital has lost control over its assets;
- The client, in the sole opinion of Selva Digital, seriously fails to meet its obligations under this agreement and is in default;
- Client uses the server in violation of applicable laws and regulations or otherwise considered undesirable by Selva Digital.
- After the subscription has ended, the Client is obliged to return any documents and data to Selva Digital.
Article 7 – Additional work and changes
- If, during the execution of the agreement, it turns out that the agreement needs to be adjusted and/or supplemented, or if, at the request of the Client, further work is required in order to achieve the result desired by the Client, the Client is obliged to pay for this additional work in accordance with the agreed rate. Work in connection with adjustments of the website shall be performed free of charge for one month after the invoice date. After this period the agreed hourly rate will be charged. Selva Digital is not obliged to comply with this request and may require the Client to enter into a separate agreement for this.
- If a fixed price has been agreed for the service, Selva Digital shall inform the Client of the additional costs or financial consequences of the additional work.
- If there isn’t an agreed hourly rate, our regular hourly rate of €75,- excl. IVA will be applied.
Article 8 – Prices and payment
- All prices are exclusive value added tax (IVA) and other tax levies. In case it is required that Selva Digital performs the order (partly) on location of the Client, additional costs (travel and accommodation costs) shall be charged. The Client cannot derive any rights or expectations from an estimate issued in advance, unless the parties have explicitly agreed otherwise.
- All prices are in principle exclusive of expenses, travel and accommodation costs.
- If Selva Digital needs to carry out work on location at the request of the Client, the Client is obliged to make the necessary facilities available free of charge.
- Parties may agree that Client shall pay an advance. If an advance payment has been agreed, Client shall pay the remaining amount before the service is delivered.
- In case of a periodic payment obligation of the Client, Selva Digital is entitled to adjust the applicable prices and rates (only) in accordance with the conditions of the agreement in writing, taking into account a period of at least one month.
- Any invoice issued by Selva Digital has a payment term of 14 days. The Client is obliged to pay the agreed amount within 14 days from the invoice date to the account number and details of Selva Digital.
- In the case of subscriptions relating to the services of maintenance and hosting, the amount to be paid monthly shall be charged once a month.
- If and insofar as a fixed price has been agreed for the performance of certain services, and the performance of those services leads to extra work which cannot reasonably be considered to be included in the fixed price, Selva Digital is entitled to charge the Client for these costs, after prior notification to the Client.
- Selva Digital is entitled to change rates and conditions of offered services and products. The client will be informed about this 7 days before.
- If the Client does not, not timely or not completely fulfil its (payment) obligations, Selva Digital is entitled to suspend its obligations under the agreement until the Client has (demonstrably) fulfilled its (payment) obligations.
Article 8 – Collection policy
- If the Client does not fulfil its payment obligation within 14 days, the Client is in default.
- In cas the client has failed to pay within 14 days after the due date, Selva Digital shall, without further notice, charge an administrative fee of €40, and a statutory commercial interest will be effective from that day on.
- If Selva Digital has incurred more or higher costs which are reasonably necessary, these costs are eligible for compensation. The judicial and execution costs incurred shall also be borne by the Client.
Article 9 – Execution of services
- Selva Digital will endeavour to execute the agreement with the utmost care, as may be expected of a good contractor. All services are carried out on the basis of an obligation to perform to the best of one’s ability, unless a result has been explicitly agreed upon in writing and described in detail.
- During the execution of the services, Selva Digital is not obliged or required to follow the instructions of the Client if this changes the content or scope of the agreed services. If the instructions result in additional work for Selva Digital, the Client is obliged to pay the additional or supplementary costs accordingly.
- Selva Digital is entitled to use third parties for the execution of the services at its own discretion.
- If Selva Digital, on the basis of the agreement, also makes a back-up of the Client’s data, Selva Digital shall make a back-up in accordance with the agreement at fixed times and store it in accordance with the agreed term. However, the client is responsible for complying with the legal storage and administrative obligations applicable to him.
Article 10 – Delivery
- The delivery term is the term as stated in the agreement, unless Selva Digital explicitly states otherwise in the agreement. If the start, progress or delivery of the services or work is delayed because the Client has not or not timely provided all the requested information, provides insufficient cooperation, the payment or deposit has not been received on time by Selva Digital or due to other circumstances, which are at the expense and risk of the Client, a delay has occurred, Selva Digital is entitled to a reasonable extension of the delivery time. A reasonable extension of the delivery time is at least 14 days from the day of delivery as stated in the agreement.
- The client is obliged within 10 days to provide the requested information which is reasonably necessary for the execution of the agreement. If this term is exceeded, Selva Digital has the right to charge extra costs as far as reasonably necessary for the execution of the agreement.
- If there is a phased execution, or the Client needs to give approval, Selva Digital is entitled to suspend the execution of the agreement or the delivery until the Client has given its approval.
- Selva Digital makes an effort to realise the service within the agreed term, as far as this can be reasonably expected. In case of urgency, the client is obliged to pay an urgency fee.
- Selva Digital has the right to sign all results designed and/or developed by him, or to mention his name (or have it mentioned). He also has the right to use all his works, designs and all matters which are subject to his intellectual property rights for his own promotion and/or publicity without (prior) explicit permission from the Client.
Article 11 – Development and delivery of website
- The Client is obliged to provide all necessary information in time and in the desired form for the purpose of developing the website.
- Parties shall record in writing all features, functionalities, characteristics and more of the website to be developed. The website will only be created on the basis of these written agreements. If the agreements made are too brief to meet the Client’s wishes, the parties must consult with each other and amend the agreements or the agreement accordingly.
- The Client acquires a non-exclusive, non-transferable and non-sublicensable right to use the website from the moment that the Client has fulfilled his (payment) obligations in full, except in the case that the parties have explicitly agreed otherwise in writing. The source files are explicitly excluded from Client’s use. Unless parties have explicitly agreed otherwise in writing, source files will not be delivered to the Client.
- The website developed by Selva Digital is delivered when the Client has signed or explicitly approved the website with a maximum term of 1 month after the invoice date. To this end, the Client can check the written agreements. After the unused expiry of this term, the client is deemed to have approved of the delivered website. Parties can agree on a test period during which Client will note any errors and/or defects. These must be reported in writing to Selva Digital. The repair of these errors will be the responsibility of Selva Digital, unless they are the result of user errors or other errors which cannot be attributed to Selva Digital.
- If after the test period and/or delivery, changes will have to be made to the website, whether or not at the request of Client, which have not been previously agreed in writing, the changes must be made on the basis of a new agreement.
- The Client may, within the agreed arrangements, make changes to the tree structures and underlying pages, for example, for the daily use of the website.
- If explicitly agreed, the Client can only use a custom-made website in combination with the hosting services agreed by Selva Digital.
- If the Client wants to make a variation or derivative of the design of the website of Selva Digital, or elements of the website, Selva Digital must give prior and explicit written permission to do so. Without permission, every adjustment will be seen as an infringement of the Intellectual property rights of Selva Digital.
- If the client must give its consent to a request by Selva Digital, the deadline for responding to it is 10 calendar days. If the Client has not responded within this period, the Client is deemed to have tacitly agreed. If changes still have to be made after this, additional costs may be charged.
- Selva Digital is allowed to use already produced websites for promotional purposes. Under promotion is understood: the placement of a footer which refers to https://selva.digital and the right to include the delivered website in the own portfolio of Selva Digital.
Article 12 – Use and maintenance of website
- Selva Digital makes the website developed by order of the Client (and any accompanying user documentation) available to the Client for use.
- Only if agreed in writing, the source code and/or technical documentation shall be made available to client, only in that case client shall be entitled to make changes to the website.
- Selva Digital is not obliged to make available any (auxiliary) programmes or (data) libraries.
- If agreed, Selva Digital will perform maintenance on the website. The scope of the maintenance obligation extends to what has been explicitly agreed by the parties. Even if not explicitly agreed, Selva Digital can perform maintenance activities, or interrupt the execution of its services if it deems this necessary for the performance of maintenance. Performing maintenance can also cause interruptions in the execution of the services, which does not justify a right to compensation for the client.
- The Client is obliged to report any defects, errors or other faults in the website in writing to Selva Digital via the email address email@example.com, after which Selva Digital will, in accordance with its usual procedures, repair the faults to the best of its ability and/or make improvements. If desired Selva Digital is entitled to make temporary solutions first, after which a structural solution can be thought of and executed in consultation with the client.
- The client is obliged to give his cooperation to Selva Digital at first request.
- Despite the agreed maintenance obligations of Selva Digital, the Client has an independent responsibility for the management and use of the website.
- On behalf of the maintenance Selva Digital is authorised to check (data)files for amongst others computer attacks, computer viruses and unsafe and/or illegal actions, as well as to perform other actions necessary for the maintenance.
- Selva Digital is entitled to make changes in the technique of the data network or telecommunication network and other changes in the services offered by Selva Digital. These changes may possibly affect the peripherals used by the Client, for which Selva Digital cannot be held liable for any compensation.
Article 13 – Domain registration
- Selva Digital offers domain registration at the request of the Client at the applicable rates. The Client is responsible for being aware of the applicable laws and regulations. client is aware that a domain registration does not imply registration of trademark rights.
- The domain name registration, including the application, assignment, use and holding of a domain name is always subject to the rules of the registering authority concerned. Selva Digital only has a best efforts obligation and offers no guarantee about the assignment of a domain name.
- The Client is responsible for the correct delivery of a domain name and cannot hold Selva Digital liable for the registration of a wrong domain name due to a (typing) error by Selva Digital. It is up to the Client to check and if necessary adjust this.
- The client owes Selva Digital a fee for the registration, use and holding of the domain name. The Client enters into an agreement for one year (12 months), which is tacitly renewed by one year each year. The client is obliged to pay the fee for each year in advance.
- The client indemnifies Selva Digital for any claims by third parties resulting from infringement of intellectual property rights and all claims related to the use and holding of the domain name. This also includes all claims by third parties regarding the content of the website, where Selva Digital as holder and/or manager of the domain name is held liable. The client remains at all times responsible and liable for all claims by third parties. Selva Digital will exercise her right of recourse if possible.
- If the Client wishes to keep the domain name and the name of the website when terminating an agreement with regard to maintenance and/or hosting, the Client is responsible for the transfer of the domain name and data. If agreed, Selva Digital will perform the transfer. Transfer shall in this case be made at the hourly rate set out in the main agreement.
Article 14 – Hosting services
- If the agreed service extends to storage and/or transfer of material provided by the Client to third parties in the context of (web) hosting, the following is applicable. Even if Selva Digital manages the hosting account of the Client, and the access of the Client is limited to the management panel of the website, Selva Digital may set restrictions on the size of the hosting account.
- The Client is prohibited from publishing and distributing through its website information that violates laws and regulations, which in any case includes: information without the permission of the copyright holder, defamatory information, or information that insults, discriminates, threatens, is racist in nature, is hate-mongering, and information that contains child pornography or is otherwise punishable. Also, information that violates the privacy of third parties (including stalking), as well as torrents, spam and hyperlinks that link to such information on third-party websites.
- In case of (possible) criminal acts, Selva Digital is entitled to report this and to hand over the information provided by the Client to the competent authorities, as well as to perform all actions required of it in the context of the investigation.
- Selva Digital is entitled to dissolve and/or terminate the agreement with the Client in case of abuse as mentioned in the previous paragraph and/or possible criminal acts by the Client.
- The Client indemnifies Selva Digital for any damage as a result of the above. Selva Digital is not liable for any damage suffered by the Client as a result of its performance.
- The client shall refrain from inflicting any damage or actions of which the client may reasonably suspect to other internet users or to the servers. If the client sends spam, and is repeatedly warned about this, and is temporarily suspended, Selva Digital has the right to permanently deny the client access, without compensation for any damages. As a consequence, the Client can only use his e-mail when an external e-mail service is purchased which Selva Digital can link to the domain name c.q. website. The elimination of e-mail from the purchased (hosting) package for this reason does not result in a price reduction.
- The Client is prohibited from reselling and/or hiring out the services, unless explicitly agreed otherwise.
- Selva Digital can set a maximum on the amount of storage space the client may use in the context of the Service. If this maximum is exceeded, Selva Digital is authorised to charge an additional amount. No liability exists for consequences of not being able to send, receive, store or change data if an agreed limit for storage space is reached.
- The Client hereby grants Selva Digital an unrestricted license to distribute, store, transmit or copy all materials distributed by the Client through the systems of Selva Digital in any manner deemed appropriate by Selva Digital, but only to the extent reasonably necessary for the performance of the Agreement by Selva Digital.
- In case of extreme data traffic Selva Digital is entitled at its own discretion to temporarily take the website of the Client offline. This is understood to mean DDoS attacks, brute force attacks, overloading of the server or if the Client causes inconvenience to the server of Selva Digital in any other way.
- If the website(s) of the Client and/or Selva Digital is/are abused and/or if spam is distributed by the Client and/or third parties, Selva Digital is at all times entitled to deny access to the relevant website and/or email server, block it and if deemed necessary by Selva Digital take it offline. Selva Digital is in no case liable for any compensation to the Client and/or third parties.
- In addition to the obligations under the law, damage caused by incompetence or failure to act in accordance with the above points shall be at the expense and risk of the Client.
- The client is responsible for the proper security of his own computer, protection of passwords and more. In no case Selva Digital can be held responsible for this. This is for the risk and account of the client.
Article 15 – SEO
- If the Client is not satisfied with the result of the work of Selva Digital regarding the provision of SEO-related services, the Parties will consult with each other to come to a reasonable solution. Under no circumstances funds already paid will be refunded to the Client. Selva Digital explicitly does not guarantee any results regarding the provision of SEO related services. Selva Digital only applies a certain strategy which has proven to be effective.
- If Selva Digital sets up a SEO campaign on behalf of the Client, the budget for the SEO will first be determined before Selva Digital proceeds to carry out the work. If the Client wishes to carry out more work than is possible at the current rate, additional costs will have to be charged.
Article 16 – Connectivity
- Each month, the actual consumption of the Client will be checked. If the consumption differs from the expected package, the package can be adjusted retroactively. An increase in consumption will be implemented immediately. A reduction is only possible at the end of the period of this Agreement.
- Data traffic is not transferable to the next month and/or equipment, unless otherwise agreed.
- Data traffic is understood to mean all network traffic generated by client, incoming and outgoing. Incoming and outgoing traffic are added together to calculate data traffic. This also includes e-mail traffic. The client must refrain from sending mailings and/or newsletters via standard e-mail accounts. Special e-mail accounts are required for this purpose, which must be requested separately.
- Selva Digital can set a maximum amount of data traffic per month that the client may use in the context of the Service. When this maximum is exceeded Selva Digital is authorised to charge an extra amount, in accordance with the amounts for extra data traffic mentioned on the Website. No liability exists for consequences of not being able to send, receive, store or change data if an agreed limit for data traffic is reached.
Article 17 – Guarantees
- Selva Digital performs the services and works in accordance with the standards applicable in the sector. If any guarantee is given, it is limited to what has been explicitly agreed upon in writing. During the guarantee period Selva Digital guarantees the sound and usual quality of the delivered goods.
- The Client can only invoke the guarantee given by Selva Digital if the Client has fulfilled its payment obligations in full.
- If the client rightly appeals to the guarantee, Selva Digital is obliged to repair or replace the delivered goods free of charge. If there is any additional damage, the applicable liability provisions of these general terms and conditions shall apply.
- Selva Digital doesn’t guarantee that the website functions without errors and/or interruptions. Selva Digital makes an effort to repair errors within a reasonable period. The repair only applies to websites which have been developed by Selva Digital and the faults have been reported by the client. Selva Digital is entitled to postpone the repair until a new version of the website is put into use.
- The client must report the observed defects immediately and in detail in writing to Selva Digital per firstname.lastname@example.org in a way that Selva Digital is able to reproduce and repair the defects. The defect is reported at the moment that Selva Digital provides the client with a confirmation of the report.
- Repair also means providing temporary solutions. The warranty does not cover the recovery of mutilated or lost data. Selva Digital is not obliged to restore this data. If agreed, Selva Digital can cooperate within reason but is never responsible for the restoration of any mutilated or lost data. The client must at all times take measures to prevent and limit malfunctions, defects, mutilation and/or loss of data, whether or not based on information provided by Selva Digital.
- During the warranty period, the Client can only appeal to this warranty provision and Selva Digital is not obliged to pay any compensation for damages caused by the observed defects during the warranty period.
- If a defect during the warranty period is not covered by free repair, client shall reimburse the costs involved.
Article 18 – Privacy, data processing and security
- Selva Digital will handle the (personal) data of the Client of the website with care and will only use it in conformity with the privacy statement. If asked Selva Digital will inform the person involved about this. Questions about the processing of personal data and further information can be sent by e-mail to email@example.com.
- The client is responsible for the processing of data that is processed using a service of Selva Digital. The client also guarantees that the content of the data is not unlawful and does not infringe any rights of third parties. The client indemnifies Selva Digital against any (legal) claim related to this data or the execution of the agreement.
- If Selva Digital is required by the agreement to provide security for information, this security shall comply with the agreed specifications and a security level that is not unreasonable given the state of the art, the sensitivity of the data, and the costs involved.
Article 19 – Retention of title
- Selva Digital delivers all goods under retention of title until the client has paid all amounts due to Selva Digital in full.
- Selva Digital is entitled to retain the data, data files, websites and more received or created by it if the client has not yet fulfilled its payment obligations (in full), despite an obligation to transfer or hand them over by Selva Digital.
- Costs and other (consequential) damage as a result of keeping the purchased products in custody are for the account and risk of the client and shall be reimbursed by the client to Selva Digital at first request.
Article 20 – Suspension
- Selva Digital is entitled to retain the data, data files, websites and more it has received or realised if the Client has not yet fulfilled its payment obligations (in full).
- Selva Digital is entitled to suspend the fulfilment of its obligations as soon as the Client is in default with regard to the fulfilment of any obligation resulting from the agreement, including late payment of its invoices. The suspension shall be immediately confirmed to the Client in writing. Selva Digital is in that case not liable for damage, in whatever form, as a result of the suspension of its activities.
- Provided it is explicitly agreed in the agreement in advance, Selva Digital is in case of a shortcoming in the payment obligation resulting from the agreement, entitled to take the website offline and/or to withdraw the domain name and sell it to a third party or to put the domain name temporarily out of use. Selva Digital is in that case not liable for any damage, in whatever form, that the client suffers as a result of this.
Article 21 – Force majeure
- Selva Digital is not liable when it cannot fulfil its obligations under the agreement due to a force majeure situation.
- Force majeure on the part of Selva Digital shall include in any case, but is not limited to: (i) force majeure of suppliers of Selva Digital, (ii) failure to properly comply with obligations of suppliers, (iii) defectiveness of goods, equipment, software or materials from third parties, (iv) government measures, (v) power failure, (vi) failure of internet, data network and telecommunication facilities (for example by: cybercrime, hacking and DDoS attacks), (vii) natural disasters, (viii) war and terrorist attacks, (ix) general transport problems and (x) other situations which in the opinion of Selva Digital are beyond its control which temporarily or permanently prevent the fulfilment of its obligations.
- If a situation of force majeure lasts longer than 2 months, the agreement may be dissolved in writing by either party. If, on the basis of the agreement, any performances have already been carried out, in such a case settlement shall be effected proportionately without any obligation of either party towards the other.
- If Selva Digital has already partially fulfilled its obligations when the force majeure occurs, or can only partially fulfil its obligations, Selva Digital is entitled to separately invoice the part already delivered or the deliverable part and the client is obliged to pay this invoice.
Article 22 – Limitation of liability
- In the case of an attributable shortcoming by Selva Digital, Selva Digital is only obliged to pay compensation if the client has declared Selva Digital to be in default within 14 days of the discovery of the shortcoming, and Selva Digital has subsequently failed to remedy this shortcoming within the reasonable term stated in the notice of default. The notice of default must be in writing and contain such a precise description of the shortcoming or the defect that Selva Digital is able to respond adequately.
- If the execution of services and/or orders by Selva Digital leads to liability of Selva Digital, this liability is limited to the amount insured for liability. Direct damage is understood to mean: reasonable costs incurred to limit or prevent direct damage, to determine the cause of the damage, the direct damage, the liability and the manner of recovery as well as the costs of emergency provisions.
- Selva Digital is not liable for consequential loss, indirect loss, trading loss, loss of profit and/or suffered loss, missed savings, damage due to business stagnation and damage as a result of the use of services provided by Selva Digital, damage due to loss of data, damage due to exceeding delivery deadlines, consequential loss and delay damage and interest damage.
- Only an attributable failure in performance in case of guarantees agreed by Selva Digital regarding the result, functionality and quality of the delivered website, limited liability is accepted.
- Selva Digital is not liable for any damage which is or may be the result of any act or omission as a consequence of (incomplete and/or incorrect) information on the website or that of linked websites.
- Selva Digital is not responsible for errors and/or irregularities in the functionality of the website and is not liable for failures or unavailability of the website and services for whatever reason. This also includes the unavailability of the website of the Client due to an unforeseen malfunction or force majeure. Only if a malfunction lasts longer than 72 hours, Selva Digital can be held liable for the direct damage, which is maximised to the amount insured by Selva Digital.
- Selva Digital is not liable for the proper and complete transmission of the content of emails sent by or on behalf of Selva Digital, nor for the timely receipt of such messages.
- Liability of Selva Digital for (the functioning of) plug-ins of third parties is excluded.
- Selva Digital is furthermore not liable for any damage which has occurred as a result of, or in connection with changes made or work carried out in or on the websites created by Selva Digital which has taken place without the explicit permission of Selva Digital.
- The client is responsible for the correctness and completeness of the information and wishes provided by him/her regarding the order. Selva Digital explicitly excludes all liability for (consequential) damage which is the result of the use of the services delivered by Selva Digital and the designs designed and developed by her.
- All claims from the Client due to shortcomings on the part of Selva Digital lapse if they are not reported to Selva Digital in writing and with reasons within 72 hours after the Client became aware or could reasonably have become aware of the facts on which the claims are based.
- The liability of Selva Digital ends in any case after the expiry of six months from the termination of the agreement between the Parties.
Article 23 – Intellectual Property Rights
- All IP rights and copyrights of Selva Digital are vested in Selva Digital and will not be transferred to the Client, unless explicitly agreed otherwise. The intellectual property rights regarding the graphic designs of the website can be transferred to the Client by means of a private deed, where Selva Digital is entitled to charge costs for this.
- Outside the scope of the license, the Client is prohibited from publishing and/or multiplying, changing or making available (the source codes of) the website to third parties without the explicit prior written permission of Selva Digital. If the client wishes to make changes, Selva Digital must explicitly agree to the proposed changes. The Client is forbidden to use the products which are the intellectual property of Selva Digital in any other way than agreed in the agreement.
- All content provided by the Client remains the property of the Client, and is not transferred to Selva Digital.
- Any infringement by the Client of the intellectual property rights of Selva Digital will be punished by a single fine of €10,000 (in words: ten thousand euros) and a fine of €500 (in words: five hundred euros) for each day that the infringement continues up to a maximum of €10,000. This does not affect the right of Selva Digital to claim additional compensation if the damage suffered by it exceeds this amount.
Article 24 – Secrecy
- Selva Digital and the Client undertake to keep all confidential information obtained in the context of an assignment confidential. The confidentiality arises from the assignment or can reasonably be expected to arise from confidential information.
- If Selva Digital is obliged by a legal provision or a judicial decision to (co-) disclose confidential information to a third party indicated by the law or a competent judge, and Selva Digital cannot appeal to a right of non-disclosure, Selva Digital is not obliged to pay any compensation and the client is not entitled to dissolve the agreement.
- The obligation of secrecy is also imposed on Selva Digital and the Client on the third parties engaged by them.
Article 25 – Safeguarding and correctness of information
- The Client is responsible for the accuracy, reliability and completeness of all data, information, documents and/or records which it provides to Selva Digital in the context of an order. The client is also responsible if this information comes from third parties.
- The client indemnifies Selva Digital from any liability as a result of not fulfilling or not fulfilling in a timely manner the obligations mentioned in the previous paragraph.
- The Client indemnifies Selva Digital for claims by third parties, including but not limited to intellectual property rights on the data, information and content provided by the Client which can be used during the execution of the agreement.
- If the Client provides electronic files, software or information carriers to Selva Digital, the Client guarantees that these are free of viruses and defects.
Article 26 – Complaints
- If the Client is not satisfied with the service or products of Selva Digital or otherwise has complaints about the execution of his order, the Client is obliged to report these complaints as soon as possible, but at the latest within 2 weeks after the reason that led to the complaint. Complaints can be reported via firstname.lastname@example.org with the subject “complaint”.
- The complaint must be sufficiently substantiated and/or explained by the Client in order for Selva Digital to handle the complaint.
- Selva Digital will respond to the complaint as soon as possible, but at the latest within 7 days after receipt of the complaint.
- The parties will try to reach a solution together.
Article 27 – Applicable law
- Spanish law is applicable to the legal relationship between Selva Digital and the Client. The applicability of the Vienna Sales Convention (CISG) is explicitly excluded.
- Selva Digital can change these general terms and conditions unilaterally at any time. The most recent version can be found on the website.
- All disputes arising from or as a result of the agreement between Selva Digital and the Client shall be settled by the competent court of the Servicio Común Procesal Genaral, location Girona, unless provisions of mandatory law indicate another competent court.