Terms and Conditions
These general terms and conditions apply to all offers and agreements arising therefrom between Game Tailors (also known as Orbit Games) located in Delft, Chamber of Commerce number 66250285, and its counterparts ("Client").
Provisions or conditions set by the Client that deviate from, or are not included in, these general terms and conditions are only binding for Game Tailors if and to the extent that they have been expressly accepted in writing.
1. Quotation and acceptance
1.1. Game Tailors will prepare a quotation indicating the services ("the Services") Game Tailors offers to perform, what is included in the Services, and the amount due for them. Only the description of the Services indicated in the quotation is binding.
1.2. Generally, the Services include maintenance of the Client's hardware and software, configuration and installation of hardware and software for the Client, creating custom software upon the Client's request, delivery of hardware, provision of software under license, providing remote support, providing on-site support to the Client's employees, and everything related to this. Other services are only performed if specified in the quotation.
1.3. A quotation is entirely without obligation and valid for 30 days after sending, unless otherwise indicated in the quotation. Game Tailors can never be obliged to accept an acceptance after this period, but if Game Tailors proceeds, the quotation is nonetheless accepted.
1.4. The agreement is established at the moment Game Tailors receives the notice of acceptance of the quotation from the Client. This notice can be given by email.
1.5. If the Client does not explicitly indicate agreement with the quotation but nevertheless agrees to it, or gives that impression, that Game Tailors performs services that fall within the description of the Services, then the quotation is considered accepted. This also applies when the Client requests Game Tailors to perform certain tasks without waiting for a formal quotation.
1.6. Changing the Services is only possible with the consent of both parties, except as otherwise provided elsewhere in these conditions.
1.7. Game Tailors will carry out the requested additional work at the usual hourly rate that is subject to an annual inflation correction.
1.8. If the proper execution of the Services requires it, Game Tailors has the right to have certain tasks performed by third parties. Game Tailors is and remains responsible to the Client.
2. Performance of the Services
2.1. Once the agreement has been established, Game Tailors will carry out the Services as soon as possible in accordance with the quotation, taking into account the reasonable wishes of the Client.
2.2. The Client is obligated to do and permit all that is reasonably desirable and necessary to enable a correct and timely execution of the Services. In particular, the Client shall ensure that all data, which Game Tailors indicates are necessary or which the Client should reasonably understand to be necessary for the performance of the Services, are provided to Game Tailors in a timely manner.
2.3. The Client will grant Game Tailors access to all locations, services, and accounts under their control (such as web hosting accounts) that Game Tailors reasonably need to deliver the Services. In special cases, it can be agreed that the Client will place the required data themselves or make adjustments to these services or accounts.
2.4. Game Tailors guarantees that the Services will be performed carefully, competently, and as well as possible. If proper execution of the Services requires it, Game Tailors has the right to have certain tasks performed by third parties. Game Tailors is and remains responsible to the Client.
2.5. Game Tailors is entitled, but never obliged, to investigate the accuracy, completeness, or consistency of the source materials, requirements, or specifications provided to it and, upon discovering any imperfections, to suspend the agreed tasks until the Client has rectified the imperfections.
2.6. Unless otherwise agreed, Game Tailors is not a party in the delivery of third-party services, such as software licenses or hosting required for Services, even if Game Tailors procures these services for the benefit of the Client. With software licenses provided as a Service, it depends on the supplier whether Game Tailors is the contractual counterparty of the Client or the supplier. Game Tailors will provide adequate information about this.
2.7. Game Tailors has the right not to deliver or to limit the delivery of the Services (temporarily) if the Client does not fulfill an obligation towards Game Tailors in respect of the agreement or acts in violation of these general terms and conditions.
2.8. Game Tailors will endeavor to respond as quickly as possible to a request from the Client but cannot make concrete commitments about timings unless otherwise agreed in the quotation.
3. Development of Services
3.1. If a Service involves the creation of Works, such as but not limited to the development, configuration, and/or adaptation of Works such as websites, databases, software, documentation, advice, reports, analyses, designs, texts, photos, films, sound recordings, images, audiovisual material, logos, or house styles (hereinafter: "Works"), the provisions of this article apply.
3.2. Game Tailors provides no guarantees regarding functioning with the use of non-current or outdated operating systems, browsers, plugins, scripts, other software, and hardware unless otherwise stated in the quotation.
3.3. Game Tailors is entitled, but not obliged, to examine the accuracy, completeness, or coherence of the source materials, requirements, or specifications provided to it and, upon finding any imperfections, to suspend the agreed tasks until the Client has remedied the imperfections.
3.4. If a Service requires the Client to supply source materials to Game Tailors, the Client guarantees at all times that they have all the licenses necessary for the provision to and the intended use by Game Tailors. The Client indemnifies Game Tailors against claims from third parties concerning the infringement of these rights.
3.5. Game Tailors has the right, unless otherwise agreed, to use images, software, and components from third parties, including stock photos and open-source software, in the development, configuration, or adjustment of Works.
3.6. After delivery, the Client is responsible for the correct compliance with the respective third-party licenses when using the developed Works. Game Tailors will adequately inform the Client about the applicable licensing conditions.
3.7. The Client indemnifies Game Tailors against claims from third parties concerning the installation and licenses of the software, except to the extent that the claims result from information or licenses provided by Game Tailors.
3.8. Game Tailors will make the Works available electronically in an appropriate manner.
3.9. Game Tailors will never provide the source files (such as, but not limited to, PSD, HTML/CSS, or PHP code) of the delivered Works to the Client or third parties.
3.10. Game Tailors will retain source files of the Works for as long as Game Tailors performs Services for the Client or it is plausible that Game Tailors will perform Services for the Client. Game Tailors is entitled to delete the source files after this period. If the Client places follow-up orders for these Works after this period, Game Tailors is entitled to charge for redeveloping, restoring, or retrieving these source files.
4. Delivery and acceptance
4.1. Game Tailors will deliver to be developed or modified Works or parts thereof when, in its professional opinion, they meet the specifications or are suitable for use.
4.2. The Client shall then evaluate the delivered Works within 14 days of delivery and approve or reject them. If the Client does not reject the delivered Works within this period, they will be deemed to have been accepted.
4.3. If a Work is delivered in stages, the Client must approve or reject the part of the Work from that stage after each phase's delivery, as determined in the previous paragraph. The Client may not base an approval or rejection in a later phase on aspects that have been approved in an earlier phase.
4.4. If the Client rejects the delivered Works, in whole or in part, Game Tailors will strive to eliminate the reason for rejection as soon as possible. This can be done by revising the result or by providing a motivated explanation as to why the reason is not valid. The Client then has a period of 14 days to approve or reject the revision or motivation.
4.5. If after the revision or motivation, the Client continues to reject the delivered Works, in whole or in part, Game Tailors is entitled to charge additional costs for any subsequent revisions. Game Tailors will indicate whether additional costs will be incurred for subsequent revisions.
4.6. If a party indicates that further revisions are no longer deemed meaningful, both parties are entitled to terminate the agreement with regard to the rejected part. In such a case, the Client will compensate Game Tailors for the actual hours worked, up to a maximum of the quoted amount for the rejected part. However, this does not entitle the Client to use the rejected Works in any way. Game Tailors can only terminate the agreement after indicating at a revision or motivation that it is the last one and if the Client still rejects it, in whole or in part.
4.7. After acceptance of the delivered Works, all liability for defects in the delivered Works lapses, unless Game Tailors knew or should have known of the defect at the time of acceptance. In any case, any liability for defects in a Work expires one year after the termination of the Agreement for any reason.
5. Intellectual property rights
5.1. Game Tailors uses open-source software for its services, the rights of which belong to third parties. For works created by Game Tailors itself, the rights belong to Game Tailors unless it is agreed in writing with the Client that the rights will be transferred.
5.2. If the license of certain open-source software requires that the Client can only distribute (parts of) the software as open source, Game Tailors will advise the Client in a timely manner.
5.3. The Client is only entitled to make changes to the Works they receive if this has been explicitly agreed upon.
5.4. The Works developed by Game Tailors remain the property of Game Tailors. The Client is granted a non-exclusive right to use.
5.5. The Client is not allowed to remove or modify any indications of copyright, trademarks, trade names, or other intellectual property rights from the materials, including indications of the confidential nature and secrecy of the materials.
5.6. Game Tailors is permitted to take technical measures to protect the materials. If Game Tailors has secured the materials through technical protection, the Client is not allowed to remove or circumvent this protection.
6. Installation and maintenance of Works
6.1. If licenses from third parties are necessary for the use of the Works, the Client shall procure these licenses and ensure that the provisions contained therein are strictly adhered to. The Client indemnifies Game Tailors against claims from third parties concerning the installation and licensing of the software, except to the extent that the claims are the result of information or licenses provided by Game Tailors.
6.2. If maintenance is agreed upon as a Service, Game Tailors will endeavor to fix errors in the Works and associated software. However, Game Tailors is dependent on suppliers and third parties. For new functionality or changes that can significantly alter the functioning of the software, Game Tailors will discuss this in advance with the Client. Such maintenance will be billed on an hourly basis unless otherwise agreed.
6.3. However, Game Tailors is always entitled to refuse such a request if, in her judgment, it is not feasible or can impede the proper functioning or availability of the software. Such maintenance will be billed on an hourly basis unless otherwise agreed.
6.4. If the Client independently wishes to make a change to a Work, this is entirely at the Client's own risk and responsibility unless the Client has notified Game Tailors of the desired change in advance and Game Tailors has approved it in writing. Game Tailors may attach conditions to this approval. In the case of changes made without its approval, Game Tailors may refuse further maintenance on the changed Work or carry out maintenance with a surcharge on the hourly rate.
7. Changes to the Services
7.1. All changes to the Services, whether at the request of the Client or as a result of circumstances necessitating a different execution, will be considered additional work if they incur additional costs, and as reduced work if they result in lower costs. These will be billed to the Client accordingly.
7.2. If Game Tailors has to perform more work than could reasonably have been foreseen at the time of the quotation, or has to work under more difficult circumstances than known or should have been known when entering into the agreement, Game Tailors is entitled to charge the resulting additional costs to the Client.
7.3. A prerequisite for the right mentioned in the previous paragraph is that Game Tailors has informed the Client in time about the aforementioned circumstances and additional costs. If the Client cannot agree to the additional costs, they have the right to cancel the unexecuted portion of the additional work, however without the right to a refund or waiver of the costs of the additional work already performed.
8. Prices and Payment
8.1. All prices are in euros unless otherwise agreed with the Client. The invoice must be paid annually in advance. The Client must pay the full amount before the commencement of the work.
8.2. If the Client purchases a fixed number of hours, the full amount must be paid in advance before the commencement of the work.
8.3. Game Tailors will send an electronic invoice to the Client for the amounts due.
8.4. The payment term for invoices is 14 days from the invoice date unless a longer payment term is indicated on the invoice. If the Client fails to pay on time, they are in default by operation of law from 14 days after the invoice date without the need for a notice of default. If an amount due is not paid within the payment term, statutory interest is due on the outstanding invoice amount.
8.5. If the Client believes that (a part of) an invoice is incorrect, they must notify Game Tailors within the payment term. The obligation to pay the disputed amount (but not the remainder) is suspended until Game Tailors has investigated the complaint. If after investigation by Game Tailors it appears that the dispute was unfounded, the Client must pay the disputed amount within seven days.
8.6. In the event of late payment, the Client is obliged to fully reimburse both out-of-court and legal collection costs, including the costs for lawyers, bailiffs, and collection agencies, in addition to the amount due and the interest incurred.
8.7. The claim for payment is immediately due and payable if the Client is declared bankrupt, applies for a suspension of payment, or if all of the Client's assets are seized, if the Client dies and also if they go into liquidation or are dissolved.
8.8. Once per calendar year, Game Tailors is entitled to adjust the rates used based on the then published consumer price index (CPI, 2015=100, source CBS). Game Tailors will inform the Client of any changes in rates at least one (1) month in advance.
8.9. All prices invoiced by Game Tailors are exclusive of taxes (VAT) and other government-imposed levies.
8.10. The Client is obliged to pay the amounts arising from the agreement to Game Tailors. If the Client consists of multiple natural and/or legal persons, each of those persons is jointly and severally liable to fulfill the payment obligations.
8.11. If evidence needs to be provided regarding the services performed and the amounts due by the Client, all relevant documents and data from the systems and administration of Game Tailors will provide complete evidence, notwithstanding the Client's right to provide counter-evidence.
9. Confidentiality
9.1. Parties will treat information that they provide to each other before, during, or after the execution of the agreement as confidential when this information is marked as confidential or when the receiving party knows or should know that the information was intended to be confidential. Parties also impose this obligation on their employees as well as third parties engaged in the execution of the agreement.
9.2. Game Tailors may use the knowledge gained in performing the agreement for other assignments, as long as no information from the Client becomes available to third parties in violation of confidentiality obligations.
9.3. The obligations from this article continue to exist after the termination of the agreement for any reason, and as long as the party providing the information can reasonably claim the confidential nature of the information.
10. Liability
10.1. Game Tailors is only liable to the Client in the event of an attributable failure to fulfill the agreement and only for compensatory damages, i.e., compensation for the value of the performance that was not rendered.
10.2. Any liability of Game Tailors for any other form of damage is excluded, including but not limited to additional compensation of any kind, compensation for indirect or consequential damages, damage due to lost turnover or profit, damage due to loss of data, as well as damage due to exceeding deadlines as a result of changed circumstances.
10.3. The maximum amount that can be disbursed in the event of liability pursuant to the previous articles is the amount invoiced for the twelve months preceding the month in which the damaging event occurred, with a maximum of €5,000 (excluding VAT). This maximum amount will not apply if the damage is the result of intent or gross negligence on the part of Game Tailors.
10.4. The liability of Game Tailors due to an attributable failure to fulfill the agreement only arises if the Client promptly and properly issues a written notice of default to Game Tailors, setting a reasonable period to rectify the failure, and Game Tailors continues to fail to meet its obligations after that period. The notice of default must contain a description of the failure in as much detail as possible, to allow Game Tailors to respond adequately. The Client's claim for damages expires twenty-four months after the claim arises.
10.5. In the event of force majeure, which shall in any case include disruptions or outages of the internet, telecommunications infrastructure, power outages, civil unrest, mobilization, war, transport blockages, strikes, lockouts, business disturbances, supply stagnation, fire, flooding, import and export obstructions, and in the event that Game Tailors is not enabled to deliver by its own suppliers, for whatever reason, so that the fulfillment of the agreement cannot reasonably be demanded from Game Tailors, the execution of the agreement will be suspended, or the agreement will be terminated if the force majeure situation has lasted longer than ninety days, all without any obligation to compensate damages.
11. Duration and Termination
11.1. This agreement is entered into for the period necessary for the delivery of the Services. The agreement may only be terminated early as determined in these general terms and conditions or with the consent of both parties.
11.2. The Client may terminate an agreement for the development or modification of Works prematurely, subject to payment of a termination fee equal to the hours worked at the applicable hourly rate within Game Tailors.
11.3. If certain Services by their nature are provided for an indefinite period (such as maintenance), the agreement for these Services is deemed to have been entered into for periods of one year each. Both parties may terminate the agreement at the end of this period by written notice with a notice period of two months.
11.4. Upon cancellation, termination, or dissolution for any reason, Game Tailors is entitled to immediately delete or make inaccessible all stored data after the end date of the agreement and to terminate all accounts of the Client. Game Tailors is not obliged to provide the Client with a copy of these data in such a case.
12. Changes to the Agreement
12.1. After acceptance, the agreement may only be modified with mutual consent.
12.2. If the agreement is a continuing obligation, Game Tailors is entitled to unilaterally adjust or expand these general terms and conditions once per calendar year. It must notify the Client at least two months before the adjustments or expansions take effect. However, changes to the general terms and conditions can never override a specific agreement.
12.3. If the Client objects within this period, Game Tailors will consider whether to withdraw the contentious adjustments or expansions. Game Tailors will notify the Client of its decision. If Game Tailors does not wish to withdraw the contentious adjustments or expansions, the Client has the right to terminate the agreement as of the date these take effect.
12.4. Game Tailors may at any time implement changes to these general terms and conditions if they are necessary due to amended legal regulations. The Client cannot object to such changes.
12.5. All changes in the execution of a Service, whether at the request of the Client or as a result of circumstances necessitating a different execution, will be considered additional work if extra costs are involved and as reduced work if fewer costs are incurred.
12.6. The Client understands that changes to the agreement and/or the occurrence of additional work may affect the agreed or expected completion time of all arrangements made in the Agreement.
13. Final provisions
13.1. This agreement is governed by Dutch law. To the extent not otherwise prescribed by mandatory law, all disputes arising from this agreement will be submitted to the competent Dutch court for the district in which Game Tailors is located.
13.2. If any provision of this agreement is found to be null and void, this does not affect the validity of the entire agreement. In that case, the parties will establish new provision(s) to replace it, which as much as legally possible reflect the intention of the original agreement and these general terms and conditions.
13.3. In these conditions, "in writing" also includes email and fax communication, provided the identity of the sender and the integrity of the content are sufficiently established. Parties will endeavor to confirm the receipt and content of communication by email.
13.4. The version of any communication received or stored by Game Tailors is considered authentic, except for evidence to the contrary provided by the Client.
13.5. Each party is only entitled to transfer its rights and obligations from the agreement to a third party with the prior written consent of the other party. Notwithstanding this, Game Tailors is always entitled to transfer its rights and obligations from the agreement to a parent, subsidiary, or sister company.