Terms and conditions Nekoh Digital
Article 1 –Applicability
1 . These general terms and conditions apply to all offers, quotes and agreements between Nekoh Digital and the client to which Nekoh Digital has declared these terms and conditions applicable, to the extent that the parties have not expressly deviated from these terms and conditions by written.
2 .These terms and conditions also apply to agreements with Nekoh Digital in the event that Nekoh Digital must involve third parties in their execution.
3 . In these terms and conditions, Social Media means: all Internet applications with which it is possible to share information in the form of text, sound, images and music with each other, in a user-friendly way. Online marketing, in these terms and conditions means: the marketing of products or services through the Internet. Content in this context is: the content of expressions to be posted on social media, including image and sound material.
4 . Deviations and additions to these general terms and conditions are only valid if a written agreement is reached between the parties..
5 . The applicability of purchase or other conditions of the client is expressly rejected.
6 . If any provision of these general terms and conditions is null or void, the other provisions of these general terms and conditions will remain in full force and effect. Nekoh Digital and the client will subsequently enter into consultation to agree on new provisions to replace the null or void provisions, taking into account the purpose and intent of the original provisions as much as possible..
If there is a lack of clarity regarding the interpretation of one or more provisions of these general terms and conditions, the explanation must be in accordance with the spirit of these provisions..
8 . If a situation arises between the parties that is not regulated in these general terms and conditions, this situation must be evaluated in the spirit of these general terms and conditions..
9 . That Nekoh Digital does not always require strict compliance with these terms and conditions does not mean that the provisions of these terms and conditions do not apply, or that Nekoh Digital loses in any way the right to demand strict compliance with the provisions of these terms and conditions. . In other cases
Article 2 – Quotations and offers
1 . The client guarantees the accuracy and completeness of the information provided by or on its behalf to Nekoh Digital on which Nekoh Digital bases its offer. The client always takes maximum care that the requirements that the execution of Nekoh Digital must meet are correct and complete.
2 . All Nekoh Digital quotes and offers are without obligation, unless a term of acceptance has been established in the quote. If an acceptance period has not been established, no rights can be derived in any way from the quotation or offer if the product to which the quotation or offer refers is no longer available..
3 . Nekoh Digital cannot be bound by quotes or offers if the customer can reasonably understand that the quotes or offers, or a part thereof, contain an error or an obvious error..
4 . If the acceptance (whether in minor points or not) deviates from the offer included in the quote or offer, Nekoh Digital is not obliged to comply with it. Then, the agreement will not be concluded in accordance with this divergent acceptance, unless Nekoh Digital indicates otherwise..
5 . A compound quote does not oblige Nekoh Digital to make part of the allocation for a corresponding part of the indicated price. Offers or quotes do not automatically apply to future orders.
Article 3 – Price, payment and collection costs
1 . All prices do not include Volume Added Tax (VAT) and other government fees.
2 .If the client is made up of several individuals and/or legal entities, each of them is jointly and severally liable for the payment of the amounts owed under the contract..
3 . If the customer has a periodic payment obligation, Nekoh Digital is entitled to adjust the applicable prices and rates in writing, with due observance of a period of three months. If the client does not wish to accept such adjustment, the client has the right to terminate the agreement in writing within thirty days of the notification, from the date on which the adjustment will take effect. However, the customer does not have such a right to terminate, if it has been agreed between the parties that the applicable prices and fees may be adjusted with due observance of an agreed rate or other standard..
4 . All invoices must be paid by the customer in accordance with the payment terms stated on the invoice (such as currency). In the absence of specific conditions, the customer must pay within fourteen days after the invoice date by depositing the amount in a bank account number specified by Nekoh Digital, indicating the invoice number. Monthly fees are billed at the beginning of each month.
5 .The client has no right to compensate the amounts owed.
6 .If no fixed price has been agreed, Nekoh Digital will charge an hourly rate of EUR 100, excluding VAT, travel and accommodation expenses and any other expenses. If prices are increased by third parties outside Nekoh Digital’s sphere of influence, Nekoh Digital is entitled to pass on this price increase to the customer. This includes increased taxes, levies and material costs.
7 . If the client does not pay the amounts due or does not pay them on time, the client will have to pay the statutory commercial interest on the outstanding amount, without any reminder or notification of default being required. If the customer continues to fail to pay the claim after a reminder or notice of default, Nekoh Digital may deliver the claim, in which case the customer is also obligated to pay all judicial and extrajudicial costs in addition to the total amount due.
8 .Nekoh Digital has the right to transfer your claims for the payment of fees to a third party.
9 .Objections to the amount of an invoice do not suspend the payment obligation.
10 .If the client is in default in the (timely) fulfillment of its obligations, all reasonable costs incurred to obtain payment out of court shall be borne by the client. Extrajudicial costs are calculated on the basis of what is customary in Spanish tax collection practice.
However, if Nekoh Digital has incurred higher collection costs than were reasonably necessary, the costs actually incurred will qualify for reimbursement. Court and enforcement costs incurred will also be recovered from the client. The customer also owes interest on the collection costs due.
Article 4 – Execution of online marketing
1 . The client always guarantees the accuracy, integrity and consistency of the information provided to Nekoh Digital. Inaccuracies, incomplete data and inconsistencies are at the customer’s own risk..
2 .The client will ensure that all information that Nekoh Digital indicates is necessary or that the client should reasonably understand is necessary for the execution of the agreement, is provided to Nekoh Digital in a timely manner. If the information required for the execution of the contract has not been provided to Nekoh Digital on time, Nekoh Digital has the right to suspend the execution of the contract and/or pay the additional costs resulting from the delay to the client according to the usual rates..
The execution period does not start until after the client has made the data available to Nekoh Digital. Nekoh Digital is not responsible for damages, of any nature, for having been based on incorrect and/or incomplete data provided by the client..
3 . Nekoh Digital will perform the contract to the best of its ability and in accordance with the requirements of good workmanship. All this based on the state of science known at that time.
4 . To the extent necessary to carry out the correct execution of the agreement, Nekoh Digital has the right to have certain activities carried out by third parties.
Article 5 – Start, duration, modification and termination of the contract
1 . Unless a start date is included in the contract, the contract is concluded on the day Nekoh Digital receives the contract signed by the client..
2 . Unless a termination date is included in the agreement, an agreement for online marketing (support) has a minimum term of 3 months and is tacitly extended each month for one month, unless otherwise agreed. The agreement may be terminated in writing at any time after 3 months, subject to a one month notice period. This month starts on the date the next contract month starts. The contract between Nekoh Digital and the client is concluded for an indefinite period of time, unless the nature of the contract establishes otherwise or the parties expressly agree otherwise in writing..
3 . If during the execution of the contract it is observed, if necessary, for a correct execution, to modify or complement it, the parties will proceed to adjust the contract in a timely manner and in mutual consultation..
If the nature, scope or content of the contract is modified, either at the request or by indication of the client, the competent authorities, etc., and as a consequence the contract is modified in qualitative and/or quantitative terms, it may have consequences for what was originally agreed.
As a result, the originally agreed amount may also be increased or decreased. Nekoh Digital will provide a price quote as far in advance as possible. In addition, by changing the agreement, the originally established execution period can be changed. The client accepts the possibility of modifying the contract, including the change of price and term of execution.
4 . If a price increase of more than 30% is exceeded or if the activities of either party are contrary to law or good customs, both the client and the contractor have the right to terminate the contract with immediate effect..
5 . If the agreement is changed, including an addition, Nekoh Digital has the right to implement it only after the authorized person within Nekoh Digital has given its approval and the customer has accepted the price and other conditions established for the implementation, including the time for determine and when it will be implemented. Failure to execute or immediately execute the modified agreement does not constitute a breach of contract by Nekoh Digital and is not grounds for the customer to terminate or cancel the agreement..
6 . Without being in default, Nekoh Digital may reject a request to change the agreement, if this could have qualitative and/or quantitative consequences, for example, for the work to be carried out or items to be delivered in that context..
7 .If the client is in default in due compliance with what is obligated to Nekoh Digital, then the client is responsible for all damages as a result by Nekoh Digital, directly or indirectly..
8 . If the contract is executed in phases, Nekoh Digital may suspend the execution of those parts that belong to a subsequent phase until the client has approved in writing the results of the previous phase..
Article 6 – Confidentiality
The parties ensure that all information received from the other party that is known or reasonably should be known to be of a confidential nature will be kept secret. The party receiving confidential information will only use it for the purpose for which it was provided. In any case, the information is considered confidential if so designated by one of the parties..
Article 7 – Intellectual property rights
1 . Unless otherwise agreed, Nekoh Digital reserves the intellectual property of the texts, designs, images, drawings, sketches and all other plans and ideas that have come to the attention of the client in the context of the assignment.
Therefore, the customer must handle this data / information in such a way that it cannot be misused by third parties. In relation to this, the client is obliged to use the designs only in the agreed form and the client, to the extent applicable, will indicate the full name of the contractor in his publications / expressions..
3 . Nekoh Digital and any subcontractors (third parties) reserve the right to use the content developed for the client in whole or in part for promotional acquisition and/or demonstration purposes..
4 .The customer is responsible for ensuring that no third party rights prevent the provision of material to Nekoh Digital for the purpose of use, processing, installation or incorporation. The client will indemnify Nekoh Digital against third party claims regarding any infringement of the intellectual property rights of said third party..
Article 8 – Dissolution and termination of the contract
1 . If the client, after the conclusion of an agreement, cancels the assignment in whole or in part, Nekoh Digital is entitled to charge all costs incurred in connection with that assignment to the client, with a minimum of 50% of the outstanding amount ( total residual value of the order Nekoh Digital), after payment of the costs, will deliver to the client what has already been developed in the context of that order, all this with due observance of the other provisions of these terms and conditions.
2 . If the client does not comply with its obligations, Nekoh Digital has the right to totally or partially suspend the execution of the contract and charge the expenses caused by it, according to its usual rates, without prejudice to the right of Nekoh Digital to exercise any other right statutory and/or agreed.
3 .The mere exceeding of a (delivery) period or a (delivery) date does not put Nekoh Digital in default. In any case, Nekoh Digital will only incur in delay due to excess time after the customer has notified it in writing of the delay. The notice of noncompliance must contain a description of the deficiency that is as complete and detailed as possible. Nekoh Digital must be offered a reasonable period of time to further implement the agreement.
4 . If one of the parties, upon written summons from the other party, fails to fulfill an obligation, the other party is entitled, without notice of default or judicial intervention, to terminate the corresponding agreement with immediate effect and without compensation to the other party. and is obliged to dissolve any damage by means of a certified letter, without prejudice to the right of the terminating party to exercise other rights that correspond legally and without prejudice to the right of Nekoh Digital to pay for the goods already delivered, the work performed and/or services provided.
5 . Each party may terminate the agreement in writing with immediate effect, in whole or in part, without notice of delay, if a moratorium, whether temporary or not, is granted to the other party if bankruptcy is declared in respect of the other party, if the other party’s business is liquidated or terminated for purposes other than business reconstruction or merger, or if decisive control over the customer’s business changes.
Due to this termination, Nekoh Digital is never obliged to refund the money already received, nor to pay compensation. In case of bankruptcy of the client, the right to use software, websites and the like made available to the client expires by operation of law.
Article 9 – Responsibility of Nekoh Digital
1 . Facebook, LinkedIn, YouTube, Pinterest, Google, and Twitter, among others, are open source external web applications. Nekoh Digital is not responsible for errors in the relevant systems or functionalities.
2 . Any liability of Nekoh Digital due to an attributable deficiency in the performance of the contract or for any other reason is limited to compensation for direct damages up to a maximum of four times the value of the monthly invoice (excluding VAT), but in all cases only to the extent that the damage is covered by Nekoh Digital’s liability insurance.
3 . Direct damage is understood exclusively as the reasonable costs to determine the cause and extent of the damage, to the extent that the determination refers to the damage in the sense of these terms and conditions, any reasonable costs incurred to compensate for the defective performance of Nekoh Digital, agreement, to the extent that these can be attributed to Nekoh Digital and the reasonable costs incurred to prevent or limit damages, to the extent that the customer demonstrates that these costs have led to the limitation of direct damages to which referenced in these general terms and conditions.
For damages, such as, loss of profits and/or damages due to stagnation, among others, that are an indirect result of the goods and/or services delivered by Nekoh Digital, Nekoh Digital is only responsible, barring intent or gross negligence, for a maximum of the amount that the insurer of Nekoh Digital with respect to this damage.
4 . The exclusions and limitations to which this article refers expire if, to the extent that the damage is the result of intent or willful recklessness of Nekoh Digital employees or third parties hired by Nekoh Digital.
5 . Unless compliance by Nekoh Digital is permanently impossible, Nekoh Digital’s liability for an attributable deficiency only arises if the client notifies Nekoh Digital of the non-compliance without delay, for which a reasonable period is established for the rectification of the deficiency. , and Nekoh Digital also remains attributable after said term, the breach of its obligations. The notification of non-compliance must contain a detailed description of the deficiency, so that Nekoh Digital has the opportunity to respond appropriately..
6 . A condition for the existence of any right to compensation is that the customer reports the damage in writing to Nekoh Digital within 96 hours after it occurred..
7 . The provisions of this article, as well as all other limitations and exclusions of liability mentioned in these general terms and conditions, also apply for the benefit of all (legal) persons that Nekoh Digital uses in the execution of the agreement..
Article 10 – Force majeure
1 . Neither party is obliged to fulfill any obligation if it is prevented from doing so due to force majeure, that is, by default, which cannot be attributed to one of the parties and is not due to their fault or due to the law. , legal acts or in partnership on their own. In case of force majeure, the corresponding party will notify the other party in writing, indicating the cause, nature, expected duration of the force majeure and the provisions of the contract that cannot be fulfilled as a consequence. The application of the relevant provisions is suspended during force majeure.
2 . Force majeure also includes: (I) force majeure of Nekoh Digital suppliers (II) defects in goods, equipment, software or materials of third parties whose use has been prescribed to Nekoh Digital by the client, (III) government measures, (III ) power outage, failure of the Internet, computer network or telecommunication facilities, (IIII) war, job occupation, strike and general transportation problems.
3 .If the force majeure situation lasts for more than two months, the parties will try to reach an agreement on the modification of the provision(s) of the contract suspended due to force majeure. In the absence of such agreement within one month, either party may terminate this agreement without being liable to pay any compensation to the other party. However, Nekoh Digital reserves the right to pay for goods already delivered, work done and/or services provided..
Article 11 – Changes and additional work
1 . If Nekoh Digital has carried out work or other actions at the request or with the prior consent of the client that fall outside the content or scope of the agreed activities and/or actions, these activities or actions will be reimbursed by the client in accordance with the agreement. and failing that, at the usual rates of Nekoh Digital. Nekoh Digital is never obligated to comply with any such request and may require a separate written agreement to be entered into for this purpose..
2 . The work or execution referred to in this article may affect the agreed or expected time for the performance of the services and the mutual responsibilities of the parties. The fact that (demand for) additional work occurs during the performance of the contract is never a reason for the customer to terminate or dissolve the contract.
3 .Nekoh Digital will inform the client about the financial consequences of the extra work or performance referred to in this article..
Article 12 – Disclaimer
The client will indemnify Nekoh Digital against any claim from third parties that suffer damages in relation to the execution of the contract and whose cause is attributable to people outside Nekoh Digital..
If Nekoh Digital is to be directed by third parties for this reason, the client obliges Nekoh Digital to attend both in and out of court and to do everything that can be expected of him in that case without delay. If the client does not take the appropriate measures, Nekoh Digital has the right to do so itself without prior notice of breach. All costs and damages by Nekoh Digital and third parties arising as a result will be entirely at the expense and risk of the customer..
Article 13 Applicable law and disputes
1 . The agreements between Nekoh Digital and the client are governed exclusively by Spanish law.
2 . All disputes will be settled by the competent court in the district where Nekoh Digita is located.l.
3 . The parties will only appeal to the court after they have made every effort to resolve a dispute in mutual consultation..