General Terms and Conditions

Last updated 19 April 2021

Definitions

  1. Flapkan: Flapkan Productions, established in Terneuzen, Chamber of Commerce no. 81682964.
  2. Customer: the person with whom Flapkan has entered into an agreement.
  3. Parties: Flapkan and customer together.
  4. Consumer: a customer who is an individual acting for private purposes.

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 Flapkan.
  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.

Offers and quotations

  1. Offers and quotations from Flapkan are without engagement, unless expressly stated otherwise.
  2. An offer or quotation is valid for a maximum period of 1 month from its date, unless another acceptance period is explicitly mentioned in the offer or quotation.
  3. If the customer does not accept an offer or quotation within the applicable time frame, the offer or quotation will lapse.
  4. Offers and quotations do not apply to repeated orders, unless the parties have agreed upon this explicitly and in writing.
  5. Upon acceptance of a quotation or offer without engagement, Flapkan reserves the right to withdraw the quotation or offer within 3 days after receipt of the acceptance, without any obligations towards the customer.

Prices

  1. All prices used by Flapkan are either in Euros or U.S. dollars, are exclusive 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. Flapkan is entitled to adjust all prices for its products or services, shown in its shop, on its website or otherwise, at any time.
  3. Increases in the cost prices of products or parts thereof, which Flapkan could not foresee at the time of making an offer or the conclusion of the agreement, may give rise to price increases.
  4. The consumer has the right to terminate an agreement as a result of a price increase as referred to in paragraph 3, unless the increase is the result of statutory regulation.
  5. The price with regard to services is determined by Flapkan on the basis of the actual working hours.
  6. The price is calculated according to the usual hourly rates of Flapkan, valid for the period in which he carries out the work, unless a different hourly rate has been agreed.
  7. If the parties have agreed on a total amount for a service provided by Flapkan, this is always a target price, unless the parties have explicitly agreed upon in writing on a fixed price, which cannot be deviated from.
  8. Flapkan is entitled to deviate up to 10% of the target price.
  9. If the target price exceeds 10%, Flapkan must let the customer know in due time why a higher price is justified.
  10. 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%.
  11. Flapkan has the right to adjust prices annually.
  12. Flapkan will communicate price adjustments to the customer prior to the moment the price increase becomes effective.
  13. The consumer has the right to terminate the contract with Flapkan if he does not agree with the price increase.

Pay what you want

  1. Some items are sold on a “pay what you want” basis, meaning that the customer determines the price paid.
  2. Any such items will have any applicable VAT and payment processing fees included in the price set by the customer.
  3. If the amount set by the costumer is zero (0), the delivered item can differ from the version that would be made available if any higher amount was paid. Flapkan reserves the right to change the differences between the free and paid version at any time.

Downloadable software

  1. Any Software and any related documentation is provided “as is” without warranty of any kind, either express or implied, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, or non-infringement.
  2. You accept any and all risk arising out of use or performance of any Software.
  3. You may not reproduce or redistribute any software except in accordance with the license under which it was published (see Intellectual property below) or what is explicitly greed upon with Flapkan in writing.

Payments and payment term

  1. Flapkan 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 before delivery of the finished product.
  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 Flapkan having to send the customer a reminder or to put him in default.
  4. Flapkan 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.

Consequences of late payment

  1. If the customer does not pay within the agreed term, Flapkan is entitled to charge an interest of 1% per month 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 Flapkan.
  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, Flapkan 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 Flapkan on the customer are immediately due and payable.
  6. If the customer refuses to cooperate with the performance of the agreement by Flapkan, he is still obliged to pay the agreed price to Flapkan.

Right of recovery of goods

  1. As soon as the customer is in default, Flapkan is entitled to invoke the right of recovery with regard to the unpaid products delivered to the customer.
  2. Flapkan invokes the right of recovery by means of a written or electronic announcement.
  3. As soon as the customer has been informed of the claimed right of recovery, the customer must immediately return the products concerned to Flapkan, unless the parties agree to make other arrangements about this.
  4. The costs for the collection or return of the products are at the expense of the customer.

Right of cancellation

  1. A consumer may cancel an online purchase during a cooling-off period of 14 days without giving any reason, provided that
    • the product has not been used or downloaded, in case of downloadable software
    • the product is not specially tailored for the consumer or adapted to its special needs
    • the purchase does not concern an (assignment to) urgent repair
    • the consumer has not renounced his right of cancellation
  2. The reflection period of 14 days as referred to in paragraph 1 commences:
    • on the day after the consumer has received the last product or part of 1 order
    • as soon as the consumer has received the first the product of a subscription
    • as soon as the consumer has purchased a service for the first time
    • as soon as the consumer has confirmed the purchase of digital content via the internet
  3. The right of cancellation is separate from the functionality of the products. If products fail to work as advertised, you are entitled to reimbursement.
  4. The consumer can notify his right of cancellation or request for reimbursement via info@flapkan.com or by using the contact form on the website of Flapkan, www.flapkan.com/#contact.

Suspension of obligations by the customer

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

Right of retention

  1. Flapkan can appeal to his right of retention of title and in that case retain the products sold by Flapkan to the customer until the customer has paid all outstanding invoices with regard to Flapkan, unless the customer has provided sufficient security for these payments.
  2. The right of retention of title also applies on the basis of previous agreements from which the customer still owes payments to Flapkan.
  3. Flapkan is never liable for any damage that the customer may suffer as a result of using his right of retention of title.

Settlement

The customer waives his right to settle any debt to Flapkan with any claim on Flapkan.

Retention of title

  1. Flapkan remains the owner of all delivered products until the customer has fully complied with all its payment obligations with regard to Flapkan under whatever agreement with Flapkan including of claims regarding the shortcomings in the performance.
  2. Until then, Flapkan can invoke its retention of title and take back the goods.
  3. Before the property is transferred to the customer, the customer may not pledge, sell, dispose of or otherwise encumber the products.
  4. If Flapkan invokes its retention of title, the agreement will be dissolved and Flapkan has the right to claim compensation, lost profits and interest.

Guarantee

  1. When parties have entered into an agreement with services included, these services only contain best-effort obligations for Flapkan, not obligations of results.

Performance of the agreement

  1. Flapkan executes the agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship.
  2. Flapkan 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 Flapkan can start the implementation of the agreement on time.
  5. If the customer has not ensured that Flapkan can start the implementation of the agreement in time, the resulting additional costs and/or extra hours will be charged to the customer.

Duty to inform by the customer

  1. The customer shall make available to Flapkan 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, Flapkan will return the relevant documents.
  4. If the customer does not timely and properly provides the information, data or documents reasonably required by Flapkan and the execution of the agreement is delayed because of this, the resulting additional costs and extra hours will be charged to the customer.

Intellectual property

  1. Flapkan retains all intellectual property rights (including copyright, patent rights, trademark rights, design and design rights, etc.) on all designs, drawings, writings, data carriers or other information, quotations, images, sketches, models, scale models, etc., unless parties have agreed otherwise in writing.
  2. Parts of the software distributed by Flapkan is “Open Source”, has its source code available via GitHub, and is licensed under the GNU General Public License version 3. This license does not extend to anything beyond that which is published on GitHub, such as images.
  3. The software distributed by Flapkan includes content licensed by Wizards of the Coast by use of the Open Gaming License version 1.0a.
  4. The customer may not copy or have copied the intellectual property rights without prior written permission from Flapkan, nor show them to third parties and / or make them available or use them in any other way.

Penalties

  1. If the customer violates the articles of these general terms and conditions about secrecy or intellectual property, then he forfeits on behalf of Flapkan an immediately due and payable fine of € 1000 if the customer is a consumer and € 5000 if the customer is a company, for each violation and in addition an amount of 5% of the aforementioned amount for each day that this violation continues.
  2. No actual damage, prior notice of default or legal proceedings are required in forfeiting the fine referred to in the first paragraph of this article.
  3. The forfeiture of the fine referred to in the first paragraph of this article shall not affect the other rights of Flapkan including its right to claim compensation in addition to the fine.

Indemnity

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

Complaints

  1. The customer must examine a product or service provided by Flapkan 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 Flapkan of this as soon as possible, but in any case within 1 month after the discovery of the shortcomings.
  3. Consumers must inform Flapkan of this within two months after detection of the shortcomings.
  4. The customer gives a detailed description as possible of the shortcomings, so that Flapkan 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 Flapkan being forced to perform other work than has been agreed.

Giving notice

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

Joint and several Client liabilities

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

Liability of Flapkan

  1. Flapkan is only liable for any damage the customer suffers if and insofar as this damage is caused by intent or gross negligence.
  2. If Flapkan 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. Flapkan is never liable for indirect damages, such as consequential loss, lost profit, lost savings or damage to third parties.
  4. If Flapkan 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, colours, drawings, descriptions on the website or in a catalogue 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.

Expiry period

Every right of the customer to compensation from Flapkan 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 of the Dutch Civil Code.

Dissolution

  1. The customer has the right to dissolve the agreement if Flapkan imputably fails in the fulfilment 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 fulfilment of the obligations by Flapkan is not permanent or temporarily impossible, dissolution can only take place after Flapkan is in default.
  3. Flapkan has the right to dissolve the agreement with the customer, if the customer does not fully or timely fulfil his obligations under the agreement, or if circumstances give Flapkan good grounds to fear that the customer will not be able to fulfil his obligations properly.

Force majeure

  1. In addition to the provisions of article 6:75 Dutch Civil Code, a shortcoming of Flapkan in the fulfilment of any obligation to the customer cannot be attributed to Flapkan in any situation independent of the will of Flapkan, when the fulfilment of its obligations towards the customer is prevented in whole or in part or when the fulfilment of its obligations cannot reasonably be required from Flapkan.
  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 Flapkan cannot fulfil one or more obligations towards the customer, these obligations will be suspended until Flapkan 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. Flapkan 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.

Modification of the agreement

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.

Changes in the general terms and conditions

  1. Flapkan 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 Flapkan with any customer who has ongoing contracts 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.

Transfer of rights

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

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 Flapkan had in mind when drafting the conditions on that issue.

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 Flapkan is established is exclusively competent in case of any disputes between parties, unless the law prescribes otherwise.