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Terms and Conditions

Terms and Conditions Visual Magician

KVK 81361033 | BTW NL003556941B29
Last updated on February 21, 2023
1. Parties

1.1 Visual Magician: registered under Chamber of Commerce number 81361033, is the owner of these general Terms and Conditions. Visual Magician is located at Hein-Smeetstraat 37, 6023 BT Budel-Schoot, the Netherlands.

1.2 Opdrachtgever: the buyer of the services/goods offered by Visual Magician.

2. Applicability of General Terms and Conditions

2.1 Visual Magician declares that these general terms and conditions apply to every current and future offer of Visual Magician and the agreements that the parties enter into with each other.

2.2 Deviations from these terms and conditions only apply insofar as they have been agreed upon by the parties and confirmed in writing.

2.3 General terms and conditions of the Client are expressly excluded from the agreement.

2.4 Third parties involved by Visual Magician in the execution of the agreement can also rely on these general terms and conditions.

3. Offer and Agreement

3.1 Visual Magician draws up an offer indicating which activities (hereinafter referred to as: Services) Visual Magician offers to perform, what is included in the Services and which costs will be due for this. Only the description of Services stated in the offer is binding.

3.2 In general, the Services offered include the design of websites, branding, layout, texts, designs, photos, films, sound recordings, images, logos and everything related to the graphic development thereof. Other Services will only be performed if they are explicitly stated in the offer.

3.3 An offer is entirely without obligation and valid for 30 days after dispatch, unless stated otherwise in the offer. Visual Magician can never be obliged to accept an acceptance after this period, but if Visual Magician proceeds to do so, the offer is still accepted.

3.4 The agreement between Visual Magician and the Client is concluded when the communication regarding the acceptance of the offer by the Client is received by Visual Magician. The quotation must be signed by the Client and returned by e-mail.

3.5 If the Client does not explicitly indicate that he agrees with the offer, but nevertheless agrees with it, or gives the impression that Visual Magician performs work that falls within the description of Services, the offer will be regarded as accepted.

3.6 Modifying the Services is only possible with the consent of both parties, except as otherwise provided elsewhere in these terms and conditions. Visual Magician will indicate to the Client in good time in advance that there is additional work and what costs are involved.

4. Execution by Visual Magician

4.1 After the agreement has been concluded, Visual Magician will perform the Services as soon as possible and to the best of its knowledge and ability and in accordance with the requirements of good workmanship.

4.2 All Services will be performed on the basis of a mutual effort obligation whereby Visual Magican enjoys complete artistic freedom.

4.3 Visual Magician will always make every effort to complete the assignment within the agreed term. However, this term is not fatal, so that the Client must always first give Visual Magician notice of default, after which a new term must be set before resuming the Services.

4.4 When an assignment consists of several phases, Visual Magician reserves the right to postpone a coming phase as long as the preceding phase requires acceptance from the Client.

4.5 Visual Magician reserves the right to use images, software and components of third parties in the development of the works. After delivery, the responsibility for correct compliance with the relevant third-party licenses lies with the Client.

4.6 Visual Magician reserves the right to temporarily decommission website-related services for maintenance, adjustment or improvement. Based on this temporary downtime, Visual Magician will never be obliged towards the Client to pay any compensation for damage or refund of monies paid. Visual Magician will inform the Client in good time of this temporary downtime.

4.7 Visual Magician will make every effort to keep the website online during the entire agreed period. However, Visual Magician does not guarantee the continuous quality and quantity of the content displayed on the website. Visual Magician does not guarantee the availability of the website and is therefore in no way liable for any damage resulting from the (temporary) downtime of the website.

5. Responsibilities of Client

5.1 The Client will give Visual Magician the opportunity to carry out the assignment. The Client therefore undertakes to provide the necessary cooperation for the execution of the agreed upon Services. This means the delivery of data, media and texts within the agreed period.

5.2 The Client shall ensure that all data, which Visual Magician indicates are necessary for the execution of the assignment, are provided in a timely manner. The Client itself bears the risk of correct and timely delivery of the web content and/or other required information and its content, regardless of how the Client supplies it. If the necessary information is not provided in time, Visual Magician reserves the right to suspend the execution of the agreement and/or to charge the additional costs resulting from the delay to the Client.

5.3 Hosting accounts, servers and domain names may only be used for legal purposes. The Client is fully liable for the information placed on the website. The Client unconditionally indemnifies Visual Magician against all third-party claims arising from or related to information placed on the website by the Client.

5.4 The Client shall ensure that digitally supplied material is safe and does not contain any viruses or other harmful content that could in any way cause damage to the computer systems and applications of Visual Magician and third parties.

5.5 If the Client does not (correctly) comply with the aforementioned obligations towards Visual Magician from paragraphs 5.3 and 5.4, the Client will forfeit an immediately payable fine of € 2500 per violation, without prejudice to the right to compensation for actual damage suffered. In addition, Visual Magician has the right in that case to (temporarily) put the domain and hostin account of the Client out of use or to remove the relevant data or the account in its entirety, without the Client being entitled to any compensation for damage or refund of monies paid.

6. Prices, Payment and Suspension

6.1 The offer has been made in good consultation. By concluding the agreement, or accepting the offer, both parties consider the prices discussed reasonable and appropriate.

6.2 Visual Magician reserves the right to change rates in the interim and will inform the Client of this by e-mail no later than thirty days in advance. In the event of an increase in the rates, the Client is authorized to terminate the agreement without judicial intervention by the date on which the change takes effect. There is no right to a refund of monies paid.

6.3 Each partial delivery, which also includes the delivery of goods of a composite order, can be invoiced.

6.4 Payment is made in the following agreed options:

  • The Client makes a down payment in advance of 30% for project costs lower than € 1000 and of 15% for project costs higher than € 1000.
  • An annual contract is entered into and the entire sum is paid immediately prior to the start of the project.
  • An annual contract is entered into and is paid in monthly installments. Delivery will be made/started at the first monthly installment.

6.5 If payment is made on invoice, payment must be made within 14 days after receipt of the invoice by means of a transfer.

6.6 Without the express consent of Visual Magician, the Client is not permitted to apply set-off, suspension and/or deduction in respect of its payment obligations.

6.7 Visual Magician has the right to (temporarily) decommission delivered services and/or to limit their use, for as long as the Client fails to fulfill an obligation towards Visual Magician with regard to the agreement, or acts contrary to these general terms and conditions. Commissioning or lifting of the suspension will take place if the Client has fulfilled its obligations within a period set by Visual Magician and has paid the costs of re-commissioning stated by Visual Magician.

7. Duration and (premature) termination of the agreement

7.1 Art 7:408 of the Dutch Civil Code is expressly excluded in this agreement.

7.2 Long-term agreements with regard to service and maintenance on websites have a term of one year and can only be canceled one month before the end of the term.

7.3 The agreement is tacitly extended every year by the originally agreed term, unless the Client or Visual Magician has terminated the agreement in writing with a notice period of one month before the end of the agreed period.

7.4 Visual Magician has the right to dissolve the agreement with the Client with immediate effect for the future by means of a written notification without (further) prior notice of default if:

  1. Client ceases or otherwise liquidates its business operations in whole or in part and/or substantially changes or transfers its business activities to a third party without the prior written consent of Visual Magician;
  2. The Client is granted (provisional or otherwise) suspension of payment or the Client is declared bankrupt, the Client submits a request for application of a debt rescheduling scheme or the Client is placed under guardianship or administration.
  3. A right accruing to the Client is seized.

7.5 In the event of dissolution of the agreement, all payments owed by the Client to Visual Magician are immediately due and payable in full.

7.6 In the event of dissolution of the agreement, Visual Magician is entitled to invoice a proportionate percentage of the agreed sum of money in relation to the completed part of the assignment, with a minimum of 30%.

8. Warranty and Liability

8.1 The Client is obliged to check every delivery and performance, in phases or otherwise, as soon as possible, but within 48 hours, for conformity with regard to quantity and quality. If the performance does not meet what may be expected of it, there is a defect. The Client must inform Visual Magician about this within 7 days after the defect has been established or could reasonably have been established.

8.2 After the provision of information as referred to in the previous section of this article, Visual Magician will reasonably repair or replace the defect free of charge. If the defect cannot be effectively remedied, the Client has the right to dissolve the agreement, however, this applies without the Client being entitled to any compensation for damage.

8.3 If the defect has arisen due to an error attributable to the Client, the Client has informed the defect too late, the Client has confirmed the completion of a phase, the Client has given permission for the start of a next phase or the Client has delivered the goods in used, his right to repair, replacement or possible dissolution as described in this article lapses. The burden of proof regarding the attribution of the error rests with the Client.

8.4 A circumstance that is for the account of the Client is the installation or access of viruses, such as 'Ransomware', as a result of which data of the Client can be encrypted by third parties (file hijacking), due to acts or omissions on the part of the Client. Services to combat viruses or the consequences thereof are at all times outside the agreement and will be charged additionally.

8.5 The existence of a defect does not suspend the Client's payment obligation.

8.6 The Client is never entitled to any repair work if the Client can be blamed for incorrect or careless use or in the event that the Client personally makes or has made changes to the goods delivered by Visual Magician without the prior consent of Visual Magician.

8.7 Visual Magician is in no way liable for data loss or damage to software, regardless of the cause.

8.8 Visual Magician's liability does not at all times extend to consequential damage and, except for intent or gross negligence, also not to property damage, immaterial damage or loss of profit.

8.9 The Client indemnifies Visual Magician against damage caused by third parties in connection with the agreement because Visual Magician has acted, including an omission, based on incorrect, incomplete or late information, data and documents provided by the Client.

8.10 In all cases, the term within which Visual Magician can be held liable for compensation of damage is limited to 12 months.

9. Hosting and Domain Names

9.1 Unless agreed otherwise, Visual Magician is not a party to the provision of services such as hosting that the Client takes out for the purpose of making Works or other agreed Services available, even if these Services refer to hosting or other provision to which such services are relevant.

9.2 Unless agreed otherwise, Visual Magician is not a party to the provision of services such as domain names that the Client takes out for the purpose of making Works or other agreed Services available, even if these Services refer to domain names or other provision to which such services are relevant.

10. Delivery and Acceptance

10.1 Visual Magician will deliver the Services to be developed or modified if, in Visual Magician's professional opinion, they meet the pre-discussed specifications or are suitable for use.

10.2 The Client must subsequently evaluate and approve or reject the Services provided within five working days after delivery. If the Client does not reject the delivered goods within this period, acceptance and invoicing of the assignment will be assumed.

10.3 When an assignment is delivered in phases, the Client must give approval or rejection after completion of each phase within the period set in advance in the agreement. The Client may not base an approval or rejection in a later phase on aspects that were approved in an earlier phase.

10.4 If the Client rejects the delivered part or all, Visual Magician will endeavor to remove the reason for rejection as quickly as possible. Visual Magician can do this by revising the result or by stating why the reason for rejection does not apply. The Client then has a period of five days to approve or reject the revision or motivation.

10.5 If the Client continues to reject the delivered whole or part after the revision or motivation, Visual Magician is entitled to charge additional costs for all subsequent revisions. Visual Magician will indicate with a revision whether additional costs will be due for subsequent revisions.

10.6 If a party indicates that further revisions are not (or no longer) useful, both parties are entitled to terminate the agreement with regard to the rejected item. In that case, the Client will reimburse the actual hours worked by Visual Magician, with a maximum of the amount quoted for the rejected offer. However, the Client is not entitled to use the rejected product in any way whatsoever. Visual Magician can only suspend the assignment after having indicated in a revision or motivation that it is the last one and the Client also rejects it in whole or in part.

10.7 After acceptance of the delivery, any liability for defects in the delivery will lapse, unless Visual Magician knew or should have known the defect at the time of acceptance. In any case, any liability for defects in the Services provided expires one year after termination of the agreement for whatever reason.