Terms and conditions
Version 1.0, Oct 1st, 2018
- In the present Terms & Conditions, unless explicitly indicated otherwise, the following definitions shall apply:
- Bananats- shall mean Natalia Bourges Aguirre, a freelancer organized under the laws of the Netherlands.
- Client - shall mean the individuals or companies that have engaged Bananats for the services to be rendered by Bananats by separate agreement.
- Agreement - shall mean the Agreement between Bananats and Client for the services to be rendered by Bananats.
- Terms & Conditions - shall mean this document, the present Terms & Conditions, and as from time to time may be amended by Bananats.
- These Terms & Conditions are presented in English and shall be translated to Dutch upon request, however, should there be a conflict in interpretation of the meanings, the English version shall prevail.
- The Terms & Conditions shall apply to each and every offer, tender and Agreement whereby Bananats delivers services of any nature to the Client, insofar as parties have not explicitly deviated from the Terms & Conditions in writing.
- The Terms & Conditions shall also apply to all other agreements with Bananats, the performance of which calls for the services of third parties.
- Exceptions or waivers from the Terms & Conditions shall only be valid if given in writing by Bananats and have been explicitly agreed upon in writing by both parties.
- All intentions of purchase, engagement, offers, or conditions by the Client or by any third party shall not be deemed as an acceptance by Bananats, unless such purchase, engagement, offer, or condition is explicitly accepted by Bananats in writing.
- In case of conflict between the interpretation of these Terms & Conditions and the Agreement, the meaning of the Terms & Conditions shall prevail.
- If one or more stipulations in the Terms & Conditions should be null and void or declared null and void, then the other stipulations of the Terms & Conditions shall remain fully applicable and in full force. As for the provisions that have been determined to be null and void, Bananats and Client shall enter into negotiations to agree upon new stipulations replacing the null and void Conditions, or, as the case may be, the Conditions declared null and void, whereby the purpose and the meaning of the original Conditions shall be applied to the extent possible.
Agreement offers and tenders
- All offers and tenders of Bananats are non-binding and valid for a period of 15 days, unless indicated otherwise. Bananats shall only be bound by the offers if the acceptance thereof is confirmed by signature within 15 days from the offer, unless indicated otherwise.
- The prices given in above-mentioned offers and tenders shall be exclusive of VAT and other government levies, as well as of the other expenses to be incurred within the scope of the Agreement, including shipping and administrative costs, unless Bananats indicates otherwise.
- If the Client changes the terms of the offer in its acceptance (on secondary items) from the offer given, Bananats shall not be bound by the changes made and the acceptance shall be deemed to only reflect the original offer, unless Bananats indicates otherwise.
- A quotation which includes break-downs shall not oblige Bananats to execute part of the assignment against a corresponding part of the given quotation. Upon acceptance, the Client is deemed to have accepted the entire offer.
- Offers and tenders are only applicable to the assignment being discussed and shall not apply to future assignments.
- Bananats shall execute the Agreement to the best of their knowledge and abilities. If required for the proper performance of the Agreement, Bananats shall have the right to have certain work done by third parties without prior consent from the Client, without additional costs to the Client.
- The Client shall ensure that Bananats shall be provided when due with all necessary items and information which Bananats has said to be necessary or which the Client must in all reasonableness understand to be necessary to perform the Agreement and client takes care that the items and information are usable by Bananats. If Bananats has not been provided in due time or not according to the arrangements made, with the items and information necessary to perform the Agreement or if Client will not observe its obligations in any other way, Bananats shall have the right to suspend the performance of the Agreement and/or to charge the Client for the additional costs resulting from the delay at the generally accepted rates.
- Bananats shall not be liable for damages caused by the fact that Bananats worked on the basis of incorrect and/or incomplete information and/or items provided by the Client.
Changes to the agreement
- If it appears, while performing the terms of the Agreement, that the work to be done needs to be changed and supplemented in order to ensure its proper performance, Bananats shall inform the Client and explain why the changes are necessary and the parties shall amend the Agreement accordingly in due time and through mutual consultations. If the Client does not agree with the necessary changes, then Bananats has the right to terminate or suspend the Agreement in accordance with Cancellation or Suspension and Dissolution sections of this Agreement.
- The Client accepts that as a result of any change in or extension of the Agreement, at the request of or with the prior consent of the Client, the agreed or expected time of completion of the obligations may be extended. Bananats shall inform the Client thereof as soon as possible the new expected time of completion.
- The Client accepts that as a result of any change in or extension of the Agreement, Bananats may incur financial consequences and/or quality variations. Bananats shall inform the Client thereof on a timely basis of any changes in this effect. Bananats shall not be able to charge additional costs if the change or supplement is caused solely by Bananats.
- If a fixed fee has been agreed upon, then Bananats shall indicate the degree to which the change or supplement to the Agreement will result in an increase of said fees.
- In the event that Bananats, at the request of or with the prior consent of the Client has undertaken any work which are outside the content or scope of the agreed activities, these performances or deliveries shall be reimbursed by the Client to Bananats in accordance with the usual tariffs charged by Bananats.
- In the event of any cost-increasing circumstances, Bananats shall notify the Client thereof as soon as possible.
- Any cost-increasing circumstances that are not caused by Bananats shall be deemed as additional work. Amendments to the Agreement shall only be done by prior written consent of both parties where the change in the scope of the products or services to be delivered and the increase in fees can be determined or estimated.
- Notwithstanding what is stated in the conditions of paragraph 3, Bananats shall not be able to charge additional costs if the change or supplement is caused solely by Bananats.
- The Agreement between Bananats and a Client shall be entered into for an indefinite period of time, unless the nature of the Agreement dictates otherwise or if parties have explicitly agreed otherwise in writing.
- If a term has been agreed upon to complete certain work within the term of the Agreement and if the term has been exceeded by Bananats, then this shall never be deemed a default per se by Bananats. The agreed-upon term shall not be a term to be observed on penalty of forfeiture of rights. If the term of execution is exceeded, the Client must consequently declare Bananats to be in default in writing.
Dependancies and considerations
- Client will provide content as needed, appropriately formatted, and will manage content changes as well as accounts and credentials for content administrators.
- During development, Bananats will use their own infrastructure for hosting and deployment.
- Post-development hosting, deployment, and provisioning is beyond the scope of this agreement. Bananats will be prepared to continue supporting the pilot, or to provide assistance with migration to the Client at reasonable cost.
- Parties can agree upon a fixed fee upon the execution of the Agreement. This fixed fee will be based on normal working hours, unless otherwise stated.
- If no fixed fee has been agreed upon, the fee shall be determined on the basis of the number of hours actually spent on the work. The fee shall be calculated in accordance with Bananats’ usual hourly rates, valid for the period in which the work is being done, unless a different hourly rate has been agreed upon. Invoicing shall take place in arrears on the basis of actual costs and time actual spent.
- All fees, rates, offers and estimated expenses shall be exclusive of VAT.
- The nature of expenses charged will be outlined in each Agreement and approved by the client therein. Expenses due and payable shall be charged periodically, unless otherwise stated. Expense receipts will be submitted to the client for reimbursement.
- With respect to assignments with a duration of more than one month, the costs due and payable shall be charged periodically.
- Bananats shall be allowed to charge the Client on fee increases, if changes in fees have occurred between the time of offer and the time of delivery with respect to circumstances dictated by law (e.g., salaries, wages, and any other changed circumstances if such increase is allowed by law or if Bananats is obligated to increase the price by (virtue of) law. Bananats shall notify the Client in writing of the increase in fees.
- Bananats shall furthermore be able to increase the fee when it is shown during the performance of the work that the volume of work initially agreed upon or expected when the Agreement was concluded increased, and this increase in volume is not caused by Bananats. In that case Bananats shall consult with the Client upon discovery and agree on permission to increase fees or a reduction of work volume to that initially agreed upon.
Payment and collection
- Payment terms are set within each Agreement and should be paid in accordance with the way indicated by Bananats and in the currency in which the invoice was made. Contestation of the amount of the statements of expenses shall not suspend the fulfillment of the payment obligation.
- If Client fails to fulfill his payment obligation within the terms set forth, Bananats must declare Client to be in default in writing. In that event, Client shall owe an interest of 3% per month, unless the statutory interest rate is higher, in which case the statutory interest rate shall apply. The interest on the amount due and payable shall be calculated as from the day the Client is in default until the moment has paid the amount in full.
- Bananats’ claims against Client shall become due on demand in the event that Client’s company is wound up, attached, declared bankrupt, or if a suspension of payment is granted.
- Bananats has the right to charge a credit limitation surcharge of 3% on the principal sum. This surcharge will be charged if payment is not made within 42 days from the date of invoice.
- If the Client fails to pay (in due time) or defaults on them, then Client shall be responsible for all reasonable out-of-pocket costs and expenses, including but not limited to legal fees and disbursements, extrajudicial fees and disbursements and any expenses incurred in the effort to collect and enforcing the debt). The Client shall be responsible for all judicial and execution costs incurred by Bananats and shall owe interest over the collection charges.
Retention of title
- All goods delivered by Bananats, including designs, sketches, drawings, films, software, (electronic) files, etc., shall remain the sole and exclusive property of Bananats (the “Retention of Title”) until the Client has fulfilled all of their obligations as listed in the Agreement.
- Client shall not be authorized to pledge or encumber in any way the goods falling under the Retention of Title.
- If third parties seize goods delivered subject to Retention of Title or wish to establish or assert a right to the goods which still belong to Bananats, Client shall have the obligation to inform Bananats thereof immediately.
- Bananats shall reserve the right to display all goods delivered, as mentioned under the first paragraph of this section, as part of Bananats’ portfolio.
Inspection and complains
- The Client must notify Bananats in writing of complaints about the work done within 8 days following their detection, but no later than within 14 days following completion of the work concerned. The notice of complaint must give as much detailed a description as possible of the shortcoming, so that Bananats is in a position to respond adequately.
- If a complaint proves to be well-founded, Bananats shall do the work as agreed upon, unless such has become demonstrably useless in the meantime to the Client. The Client must notify Bananats in writing if the latter is the case.
- If it is no longer possible or useful to still do the work with respect to the provision of services agreed upon, Bananats shall only be liable within the limits as stated in the Liability section.
- Both parties shall be entitled to terminate the Agreement at all times in writing with a notice period of one month.
- The Client shall be liable to pay for all the invoices for the work done up and until the termination, even in the case of early termination of the Agreement.
- If an early termination of the Agreement is made by Bananats, Bananats shall cooperate with the Client to ensure that the work still to be done be transferred to third parties, unless the termination is based on facts and circumstances which can be attributed to Client.
- If the transfer of the work still to be done entails extra costs for Bananats, said costs shall be charged to Client.
- Bananats shall be authorized to suspend the fulfillment of the obligations under the Agreement or to terminate the Agreement with immediate effect, in part or sin whole, in the event that:
- The Client does not fulfill or does not fully fulfill their obligations resulting from the Agreement;
- after the Agreement has been signed, Bananats learns of circumstances giving good ground to fear that the Client will not fulfill their obligations;
- the Client was asked to furnish an advance to guarantee the fulfillment of their obligations when the Agreement was signed and that this advance is not provided or proves to be insufficient.
- Bananats shall furthermore be authorized to terminate the Agreement (have the Agreement terminated) if circumstances arise of such a nature that fulfillment of the obligations becomes impossible or can no longer be demanded in accordance with the requirements of reasonableness and fairness, or if other circumstances arise of such a nature that the Agreement can no longer be demanded in all reasonableness.
- If the Agreement is terminated, Bananats's claims against the Client shall be forthwith due and payable. If Bananats suspends fulfillment of their obligations, they shall retain their rights under the law and the Agreement.
- Bananats shall always retain the right to claim complementary damages.
- Should Bananats be liable, then said liability shall be limited to the stipulations of the present conditions stated in this section.
- Bananats' liability based on the shortcoming in the performance of an agreement will only arise if the Client notifies Bananats immediately and properly of such shortcomings, stating a reasonable term to rectify the shortcoming. A default by Bananats can only occur if the shortcomings stated by Client can reasonably be rectified and within the obligations of the Agreement and that Bananats continues to not comply or refuses to comply with such obligations.
- Bananats total liability, for whatever reason, shall be limited to the payment of the direct damages up to a maximum of twice the amount of the statement of expenses as invoiced, at any rate the fee of that part of the assignment to which the liability relates, at any rate to a maximum of Ten Thousand Euros (€ 10 000). Bananats' liability shall at all times be limited to a maximum equal to the amount of the payment to be made by Bananats' insurer in the occurring event.
- In the event of an assignment with a duration of more than 6 months, the liability shall, contrary to the stipulations under paragraph 3 of the present article, furthermore be limited to the part of the fee still due for the last six months, at only to the part of the assignment to which the liability relates.
- Direct damage shall be understood to be exclusively:
- The proven reasonable costs incurred to establish the cause and the volume of the damage, in so far as said establishment relates to direct damage in the sense of the Agreement;
- the proven reasonable costs possibly incurred to have Bananats' faulty performance meet the Conditions of the Agreement, unless such faulty performance cannot be attributed to Bananats. This damage, however, shall not be compensated for in the event that the agreement is terminated;
- the proven reasonable costs incurred to prevent or limit the damage, in so far Client demonstrates that said costs have led to the limitation of direct damage as meant in the present Agreement.
- Bananats shall never be liable for indirect damage, including consequential damage, loss of profit, lost savings and damage due to business stagnation.
- The limitations of liability for direct damage contained in the Agreement shall not apply if the damage is due to intentional act on the part of Bananats or their subordinates.
- The condition for the creation of any right to the payment of damages shall be that the Client notifies Bananats of such damage as soon as possible and at the latest, within one year from the occurrence of the claimed damages.
Afeguarding and indemnification
- The Client shall indemnify Bananats against any and all claims filed by third parties concerning intellectual property rights on material or data provided or items by the Client, which shall be used for and during the performance of the Agreement.
Transfer of risk
- The risk of loss of, or damage to the goods being the subject of the Agreement, shall be transferred to Client the moment said goods are judicially and/or actually delivered to Client and therefore fall into the power of Client or of third parties to be appointed by Client.
- Parties shall not be obligated to fulfill any of their obligations if they are hindered to do so due to a circumstance through no fault of their own and which cannot be attributed to them by virtue of law, a legal action, or generally accepted practice.
- In addition to the provisions of the law and the judge-made laws, in this respect, force majeure shall in the Agreement furthermore be understood to be any external circumstance, be it envisaged or not, on which Bananats cannot have any influence but which prevents Bananats from fulfilling his obligations.
- Throughout the duration of the circumstances of force majeure, parties shall be entitled to suspend the fulfillment of their obligations. If this period lasts for more than two months, either of the parties shall be entitled to terminate the Agreement without any obligation to pay the opposite party damages and the parties shall be released immediately of all obligations under the Agreement, unless otherwise stated.
- Insofar as Bananats has already partially fulfilled his obligations resulting from the Agreement at the moment the circumstance of force majeure commenced, Bananats shall be entitled to submit a separate statement of expenses of the part already fulfilled or still to be fulfilled respectively.
- The Client shall be held to pay this statement of expenses as if it were a separate Agreement.
- Both parties shall be bound to secrecy of all confidential information they have received within the scope of their Agreement from each other or from another source. Information shall be considered to be confidential if the other party has indicated so or if the confidential character results from the nature of the information. The obligation to confidentiality shall end five years after the termination of the agreement, unless agreed upon otherwise.
- The Contracting Parties shall not disclose or have disclosed in any way directly or indirectly any information and/or data from the other Party or make such information and/or data available to any third party without the other Party’s prior and explicit consent. If a statutory provision or a judicial decision compels parties to convey confidential information to third parties designated by law or by the court and the parties cannot for that purpose invoke a legal right to refuse to give evidence or such a right acknowledged or allowed by the competent court, the other party shall be informed immediately about this and the party shall not be held to pay damages or compensation and the opposite party shall not be entitled to demand the dissolution of the Agreement on the ground of any damage resulting from said circumstance.
Intellectual property and copyrights
- Without prejudice to the other stipulations of the Agreement, Bananats shall reserve the rights and authorities to which Bananats is entitled under the Copyright Act.
Samples and models
- If a sample or model has been given to Client, then the assumption is that such has been given by way of indication only, unless parties agree explicitly that the product to be delivered shall correspond with it.
- The Dutch Court located in the Bananats’ city of business shall have exclusive jurisdiction to hear actions, unless the District Court is the competent Court. Bananats shall nevertheless be entitled to submit the dispute to the Court deemed competent by the law.
- Dutch law shall apply to each and every Agreement between Bananats and the Client.
Changes, interpretation and location of the terms and conditions
- The Terms and Conditions have been filed at the office of the Chamber of Commerce in Amsterdam under Chamber of Commerce (KVK) number 72155965.
- The English version of these Terms and Conditions prevails at all time in case of disputes with regard to the interpretation and purpose of these Terms and Conditions.
- The version valid at the time the Agreement was concluded shall always apply.