Legal

E-mail: support@totalpunch.nl
Website: totalpunch.nl
Drawn up on 01 October 2023.

Contents

1. Definitions
2. Applicability
3. Prices
4. Price indexing
5. Payments and payment term
6. Right of Withdrawal
7. Offers and quotations
8. Consequences of late payment
9. Suspension of obligations by the customer
10. Settlement
11. Insurance
12. Guarantee
13. Performance of the agreement
14. Maintenance
15. Duty to inform by the customer
16. Duration of the service agreement
17. Cancellation of the contract for an indefinite period of time
18. Indemnity
19. Complaints
20. Giving notice
21. Joint and several Client liabilities
22. Liability of TotalPunch Development
23. Expiry period
24. Dissolution
25. Force majeure
26. Retention of title, right of suspension and right of retention
27. Intellectual Property
28. Confidentiality
29. Penalty for breach of confidentiality obligation
30. Non-acquisition of staff
31. Modification of the agreement
32. Changes in the general terms and conditions
33. Transfer of rights
34. Consequences of nullity or annullability
35. Applicable law and competent court

1. Definitions

1. TotalPunch Development: TotalPunch Development, established in Groningen, Chamber of Commerce no. 90576543.
2. Customer or client: the party which TotalPunch Development has entered into an agreement with.
3. Parties: TotalPunch Development and customer together.
4. Consumer: a customer who is an individual acting for private purposes.
5. ToolHive is a product of TotalPunch Development any reference to ToolHive is also a reference to TotalPunch Development.

2. Applicability

1. These terms and conditions will apply to all quotations, offers, activities, orders, agreements and deliveries of services or products by or on behalf of TotalPunch Development.
2. Parties can only deviate from these conditions if they have explicitly agreed upon in writing.
3. The parties expressly exclude the applicability of supplementary and/or deviating general terms and conditions of the customer or of third parties.

3. Prices

1. All prices used by TotalPunch Development are in euros, are inclusive of VAT and exclusive of any other costs such as administration costs, levies and travel-, shipping- or transport expenses, unless expressly stated otherwise or agreed otherwise.
2. TotalPunch Development is entitled to adjust all prices for its products or services, shown in its shop, on its website or otherwise, at any time.
3. The parties agree on a total price for a service provided by TotalPunch Development. This is always a target price, unless the parties have explicitly agreed upon in writing on a fixed price, which cannot be deviated from.
4. TotalPunch Development is entitled to deviate up to 10% of the target price.
5. If the target price exceeds 10%, TotalPunch Development must let the customer know in due time why a higher price is justified.
6. If the target price exceeds 10%, the customer has the right to cancel the part of the order that exceeds the target price by 10%.
7. TotalPunch Development has the right to adjust prices annually.
8. TotalPunch Development will communicate price adjustments to the customer prior to the moment the price increase becomes effective.
9. The consumer has the right to terminate the contract with TotalPunch Development if he does not agree with the price increase.

4. Price indexing

1. The agreed-upon prices and hourly wages at the time of entering the agreement are based on the applicable price level. TotalPunch Development reserves the right to annually adjust the fees charged to the customer.
2. Revised prices, rates, and hourly wages will be promptly communicated to the customer.

5. Payments and payment term

1. TotalPunch Development may, at the conclusion of the agreement, require a down payment of up to 50% of the agreed amount.
2. The customer must have paid the full amount within 14 days, after delivery.
3. Payment terms are considered as fatal payment terms. This means that if the customer has not paid the agreed amount at the latest on the last day of the payment term, he is legally in default, without TotalPunch Development having to send the customer a reminder or to put him in default.
4. TotalPunch Development reserves the right to make a delivery conditional upon immediate payment or to require adequate security for the total amount of the services or products.

6. Right of Withdrawal

1. A customer can cancel an online purchase within a 14-day cooling-off period without providing any reason, as long as the service:
   1. does not relate to accommodation, travel, restaurant businesses, transportation, catering, or leisure activities,
   2. it does not include emergency repairs,
   3. it does not concern betting, or lotteries.
   4. The customer must not have waived their right of withdrawal.
   5. It does not apply to a service that is performed with the customer's complete consent within the 14-day cooling-off period and for which the customer has explicitly waived their right of withdrawal.
2. The cooling-off period of 14 days, mentioned in paragraph 1, begins as soon as:
   1. the consumer finalizes the service provision contract
   2. the consumer confirms the purchase of digital content through the Internet.
3. The consumer can inform TotalPunch Development of their intention to withdraw by emailing support@totalpunch.nl.

7. Offers and quotations

1. TotalPunch Development offers are valid for up to one month, unless otherwise specified in the offer for acceptance. The offer will expire if not accepted within such period.
2. Delivery times in offers serve as an estimate, and exceeding it does not entitle the customer to dissolution or damages. Unless the parties have a written agreement stating otherwise, the customer must accept the delay as a part of the agreed-upon terms.
3. Offers and quotes do not automatically apply to subsequent orders. The parties must explicitly and in writing agree.

8. Consequences of late payment

1. If the customer does not pay within the agreed term, TotalPunch Development is entitled to charge an interest of 2% per month for non-commercial transactions and an interest of 8% per month for commercial transactions from the day the customer is in default, whereby a part of a month is counted for a whole month.
2. When the customer is in default, he is also due to extrajudicial collection costs and may be obliged to pay any compensation to TotalPunch Development.
3. The collection costs are calculated on the basis of the Reimbursement for extrajudicial collection costs.
4. If the customer does not pay on time, TotalPunch Development may suspend its obligations until the customer has met his payment obligation.
5. In the event of liquidation, bankruptcy, attachment or suspension of payment on behalf of the customer, the claims of TotalPunch Development on the customer are immediately due and payable.
6. If the customer refuses to cooperate with the performance of the agreement by TotalPunch Development, he is still obliged to pay the agreed price to TotalPunch Development.

9. Suspension of obligations by the customer

1. The customer waives the right to suspend the fulfillment of any obligation arising from this agreement.

10. Settlement

1. The customer waives his right to settle any debt to TotalPunch Development with any claim on TotalPunch Development.

11. Insurance

1. The customer undertakes to insure and keep insured the following items adequately against fire, explosion and water damage as well as theft:
2. goods delivered that are necessary for the execution of the underlying agreement
3. goods being property of TotalPunch Development that are present at the premises of the customer
4. goods that have been delivered under retention of title
5. At the first request of TotalPunch Development, the customer provides the policy for these insurances for inspection.

12. Guarantee

1. When parties have entered into an agreement with services included, these services only contain best-effort obligations for TotalPunch Development, not obligations of results.
2. TotalPunch Development does not guarantee the uptime, availability, or uninterrupted operation of any services under this agreement. While aiming to maintain high availability and dependability, software and online services may experience occasional downtime or interruptions. Any service may become temporarily unavailable due to various reasons, including but not limited to maintenance, technical difficulties, or unforeseen circumstances.

13. Performance of the agreement

1. TotalPunch Development executes the agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship.
2. TotalPunch Development has the right to have the agreed services (partially) performed by third parties.
3. The execution of the agreement takes place in mutual consultation and after written agreement and payment of the possibly agreed advance by the customer.
4. It is the responsibility of the customer that TotalPunch Development can start the implementation of the agreement on time.
5. If the customer has not ensured that TotalPunch Development can start the implementation of the agreement in time, the resulting additional costs and/or extra hours will be charged to the customer.

14. Maintenance

1. TotalPunch Development can conduct maintenance on the application as necessary to ensure optimal performance and security, which may result in application downtime.
2. Maintenance with downtime will be scheduled outside of work hours (9:00 AM - 5:00 PM on weekdays) in the Central European Standard Timezone, if possible.
3. If maintenance is necessary during work hours, TotalPunch Development will promptly notify customer.
4. The customer will not be entitled to any refunds or compensation for any disruptions or loss of data caused by maintenance..
5. In case of critical issues or security vulnerabilities, TotalPunch Development retain the right to perform emergency maintenance without giving prior notice, to guarantee the safety and security of our service.

15. Duty to inform by the customer

1. The customer shall make available to TotalPunch Development all information, data and documents relevant to the correct execution of the agreement to in time and in the desired format and manner.
2. The customer guarantees the correctness, completeness and reliability of the information, data and documents made available, even if they originate from third parties, unless otherwise ensuing from the nature of the agreement.
3. If and insofar as the customer requests this, TotalPunch Development will return the relevant documents.
4. If the customer does not timely and properly provides the information, data or documents reasonably required by TotalPunch Development and the execution of the agreement is delayed because of this, the resulting additional costs and extra hours will be charged to the customer.

16. Duration of the service agreement

1. The agreement between TotalPunch Development and the customer is entered into for an indefinite period of time, unless it results otherwise from the nature of the agreement or the parties have expressly agreed otherwise in writing.
2. If a fixed-term contract has been entered into, it will be tacitly converted into an open-ended contract at the end of the term, unless 1 of the parties terminates the contract with due observance of a notice period of 2 month(s), or if a consumer terminates the agreement with due observance of a notice period of 1 month causing the agreement to end at the end of the fixed term.
3. If the parties have agreed upon a term for the completion of certain activities, this is never a strict deadline, unless specified explicitly otherwise in writing. If this term is exceeded, the customer must give TotalPunch Development a written reasonable term to terminate the activities, before it may either terminate the contract or claim damages.

17. Cancellation of the contract for an indefinite period of time

1. The customer can terminate an agreement that has been concluded for an indefinite period at any time with due observance of a notice period of 1 month.
2. A consumer has the right to terminate an agreement for an indefinite period with due observance of a notice period of 1 month.

18. Indemnity

1. The customer indemnifies TotalPunch Development against all third-party claims that are related to the products and/or services supplied by TotalPunch Development.

19. Complaints

1. The customer must examine a product or service provided by TotalPunch Development as soon as possible for possible shortcomings.
2. If a delivered product or service does not comply with what the customer could reasonably expect from the agreement, the customer must inform TotalPunch Development of this as soon as possible, but in any case within 1 month after the discovery of the shortcomings.
3. Consumers must inform TotalPunch Development of this within two months after detection of the shortcomings.
4. The customer gives a detailed description as possible of the shortcomings, so that TotalPunch Development is able to respond adequately.
5. The customer must demonstrate that the complaint relates to an agreement between the parties.
6. If a complaint relates to ongoing work, this can in any case not lead to TotalPunch Development being forced to perform other work than has been agreed.

20. Giving notice

1. The customer must provide any notice of default to TotalPunch Development in writing.
2. It is the responsibility of the customer that a notice of default actually reaches TotalPunch Development (in time).

21. Joint and several Client liabilities

1. If TotalPunch Development enters into an agreement with several customers, each of them shall be jointly and severally liable for the full amounts due to TotalPunch Development under that agreement.

22. Liability of TotalPunch Development

1. TotalPunch Development is only liable for any damage the customer suffers if and insofar as this damage is caused by intent or gross negligence.
2. If TotalPunch Development is liable for any damage, it is only liable for direct damages that results from or is related to the execution of an agreement.
3. TotalPunch Development is never liable for indirect damages, such as consequential loss, lost profit, lost savings or damage to third parties.
4. If TotalPunch Development is liable, its liability is limited to the amount paid by a closed (professional) liability insurance and in the absence of (full) payment by an insurance company of the damages the amount of the liability is limited to the (part of the) invoice to which the liability relates.
5. All images, photos, colors, drawings, descriptions on the website or in a catalog are only indicative and are only approximate and cannot lead to any compensation and/or (partial) dissolution of the agreement and/or suspension of any obligation.

23. Expiry period

1. Every right of the customer to compensation from TotalPunch Development shall, in any case, expire within 12 months after the event from which the liability arises directly or indirectly. This does not exclude the provisions in article 6:89 Dutch Civil Code.

24. Dissolution

1. The customer has the right to dissolve the agreement if TotalPunch Development imputably fails in the fulfillment of his obligations, unless this shortcoming does not justify termination due to its special nature or because it is of minor significance.
2. If the fulfillment of the obligations by TotalPunch Development is not permanent or temporarily impossible, dissolution can only take place after TotalPunch Development is in default.
3. TotalPunch Development has the right to dissolve the agreement with the customer, if the customer does not fully or timely fulfill his obligations under the agreement, or if circumstances give TotalPunch Development good grounds to fear that the customer will not be able to fulfill his obligations properly.

25. Force majeure

1. In addition to the provisions of article 6:75 Dutch Civil Code, a shortcoming of TotalPunch Development in the fulfillment of any obligation to the customer cannot be attributed to TotalPunch Development in any situation independent of the will of TotalPunch Development, when the fulfillment of its obligations towards the customer is prevented in whole or in part or when the fulfillment of its obligations cannot reasonably be required from TotalPunch Development .
2. The force majeure situation referred to in paragraph 1 is also applicable - but not limited to: state of emergency (such as civil war, insurrection, riots, natural disasters, etc.); defaults and force majeure of suppliers, deliverymen or other third parties; unexpected disturbances of power, electricity, internet, computer or telecoms; computer viruses, strikes, government measures, unforeseen transport problems, bad weather conditions and work stoppages.
3. If a situation of force majeure arises as a result of which TotalPunch Development cannot fulfill one or more obligations towards the customer, these obligations will be suspended until TotalPunch Development can comply with it.
4. From the moment that a force majeure situation has lasted at least 30 calendar days, both parties may dissolve the agreement in writing in whole or in part.
5. TotalPunch Development does not owe any (damage) compensation in a situation of force majeure, even if it has obtained any advantages as a result of the force majeure situation.

26. Retention of title, right of suspension and right of retention

1. TotalPunch Development retains ownership of goods and parts delivered to the client until payment for the entire agreed price is received. The TotalPunch Development has the right to repossess the goods using its retention of title until that time.
2. If the agreed amounts to be paid in advance are not paid or not paid on time, TotalPunch Development has the right to suspend work until the agreed portion is paid. This results in a question of creditor default. In such a case, a delayed delivery cannot be held against TotalPunch Development.
3. TotalPunch Development is not authorized to pledge or encumber the goods under its reservation of ownership in any manner.
4. If the customer has not yet paid the agreed advance payment or price, TotalPunch Development reserves the right of retention regarding undelivered goods. The goods will not be delivered until the client has made full payment in accordance with the agreement.
5. In the event of liquidation, insolvency, or suspension of payment by the ordering of the client, their obligations become immediately due and payable.

27. Intellectual Property

1. Unless explicitly agreed upon in writing, TotalPunch Development reserves all intellectual property rights, including copyright, patent, and trademark rights, as well as rights to drawings, models, and other forms of information, offers, images, sketches and software.
2. The intellectual property rights may not be reproduced, displayed, or shared with any third party without TotalPunch Development's written consent.
3. The client is only entitled to use of the materials as outlined in this agreement. Any usage rights granted are non-exclusive, non-transferable, non-assignable, and cannot be sublicensed.
4. The client agrees to maintain the confidentiality of the information shared by TotalPunch Development. Confidential information pertains to the subject matter discussed in this article and includes the company's data. Client agrees to implement a written confidentiality obligation on their employees and third parties participating in this agreement within the framework of this provision.
5. TotalPunch Development may implement technical measures to safeguard our software and other materials. Should we secure our software or materials through technical protection, it is imperative that the customer refrain from tampering with or bypassing such security measures.

28. Confidentiality

1. Each party must keep all information received from the other party, as well as any other information that is reasonably believed to be confidential or could harm the other party if disclosed, confidential and take appropriate measures to ensure their personnel keep such information confidential as well. No dissemination of such information may be made without the prior written consent of the disclosing party.
2. The duty of confidentiality stated in the initial paragraph of this article does not extend to the following information:
   1. which was already public or has since become public without the recipient violating any confidentiality obligations.
   2. which the receiving party can demonstrate was already in their possession when disclosed by the other party.
   3. which the recipient has received from a third party who was authorized to provide the information to the recipient.
   4. which is disclosed by the recipient party in compliance with a legal obligation.
3. The confidentiality obligation, as described in this article, applies throughout the entire agreement's duration and for three years following its termination.

29. Penalty for breach of confidentiality obligation

1. If the client breaches the confidentiality terms and conditions stated herein, the client shall be liable to pay a fine of € 10.000 for each violation, and an additional amount of € 1.000 for each day of continuous violation, without regard to the attribution of the breach to the client. No prior notice of default or court proceedings are necessary to implement this penalty and no damage claim is required.
2. Forfeiture of the penalty mentioned in the first paragraph of this article shall not impact the other rights of TotalPunch Development, which comprise the right to demand compensation in conjunction with the penalty.

30. Non-acquisition of staff

1. The client may not hire any employees of TotalPunch Development, or of companies enlisted by TotalPunch Development for this agreement and who participated in its execution. The client may not directly or indirectly engage them in work.
2. This restriction remains valid throughout the agreement's term and up to one year after its termination.
3. Parties may reach other agreements with each other through successful business consultation. Such agreements will only be applicable if they are recorded in writing.

31. Modification of the agreement

1. If, after the conclusion of the agreement and before its implementation, it appears necessary to change or supplement its contents, the parties shall timely and in mutual consultation adjust the agreement accordingly.

32. Changes in the general terms and conditions

1. TotalPunch Development is entitled to amend or supplement these general terms and conditions.
2. Changes of minor importance can be made at any time.
3. Major changes in content will be discussed by TotalPunch Development with the customer in advance as much as possible.
4. Consumers are entitled to cancel the agreement in the event of a substantial change to the general terms and conditions.

33. Transfer of rights

1. The customer cannot transfer its rights deferring from an agreement with TotalPunch Development to third parties without the prior written consent of TotalPunch Development.
2. This provision applies as a clause with a property law effect as referred to in Section 3:83 (2) Dutch Civil Code.

34. Consequences of nullity or annullability

1. If one or more provisions of these general terms and conditions prove null or annullable, this will not affect the other provisions of these terms and conditions.
2. A provision that is null or annullable shall, in that case, be replaced by a provision that comes closest to what TotalPunch Development had in mind when drafting the conditions on that issue.

35. Applicable law and competent court

1. Dutch law is exclusively applicable to all agreements between the parties.
2. The Dutch court in the district where TotalPunch Development is established is exclusively competent in case of any disputes between parties, unless the law prescribes otherwise.