DDRETAIL – GENERAL TERMS AND CONDITIONS
For the purpose of these general terms and conditions the following definitions are used:
‘Agreement’ each and every agreement concluded between the Client and DDretail, including an Offer signed by the Client, including appendices, including the Project Proposal;
‘Client’ the (legal) person who requests DDretail to present an offer or the (legal) person who presents an Offer to DDretail or with whom DDretail concludes an agreement;
‘Content’ the message as transmitted by means of the software used by DDretail via online, email and/or mobile communication channels;
‘Data’ the data, personal data and other information and/or designs supplied to DDretail by the Client for the performance of the Services;
‘General Terms and Conditions’ the general terms and conditions included in this document;
‘Offer(s)’ each and every offer or proposal for the supply of Services presented by DDretail;
‘Parties’ the Client and DDretail;
‘Project Proposal’ the Project Proposal in which the Services and Software are described;
‘Services’ all activities performed or to be performed or the services supplied or to be supplied or the products delivered or to be delivered by DDretail for the benefit of the Client, all as described in the Agreement and the Project Proposal;
‘Software’ the software, application(s), interface, website / virtual environment, data files, equipment or other materials, expressly not including the Data, used by DDretail – or made available to the Client by or on behalf of DDretail;
‘DDretail’ DDretail B.V., having its registered office in (1217 GN) Hilversum at the Lage Naarderweg 47.
Activities of DDretail
2.1 DDretail is a marketing (consultancy) firm that is basically engaged in the supply of services in the area of CRM, marketing platform solutions, customer activation and retention and marketing data science .
Relevance of general conditions
3.1 These General Terms and Conditions are applicable to all Agreements and Offers, the conclusion thereof and all commitments deriving there from.
3.2 Should arrangements in the various documents be at odds with each other then the following priority applies in respect of those specific arrangements (where the arrangements in the earlier mentioned document prevail over that in the subsequent documents): (i) the Agreement, (ii) the General Terms and Conditions, (iii) possible other terms and conditions of which the Parties have agreed in writing that they shall be applicable. Other general or special terms and conditions are not applicable.
3.3 Should a provision from these General Terms and Conditions or the Agreement not appear to be valid then this shall not affect the other provisions. The Parties shall in that case replace the invalid provision by a valid and binding provision that best approaches the scope of the invalid provision.
4.1 All Offers of DDretail are valid during the time limit specified in the same. If a time limit has not been specified then the Offer is subject to contract.
4.2 If DDretail needs to incur costs for the presentation of an Offer then DDretail can charge these costs, also if an Agreement is not concluded. DDretail shall inform the Client of these costs in advance.
4.3 DDretail can refuse contracts without stating reasons.
Conclusion of Agreements and changes
5.1 The Agreement contains all stipulated arrangements.
5.2 All Agreements are only concluded if the Parties (i) signed the Offer or another document, (ii) the Client indicated by email to unconditionally agree with the Offer, or (iii) if the Client actually enables DDretail to supply the Services. Changes to Agreements and Offers can only be agreed on in writing.
5.3 Should circumstances occur during the performance of the Services that make it necessary to deviate from the Agreement then DDretail shall inform the Client accordingly at the earliest stage possible. Unless the Client forthwith informs DDretail otherwise, DDretail shall implement the Agreement in consideration of the necessary changes.
Implementation of the Agreement
6.1 In its capacity as contractor DDretail shall make every effort to perform the Services accurately and independently in accordance with (i) the arrangements and procedures stipulated in the Agreement, and (ii) the guiding principles included in the Project Proposal.
6.2 The Project Proposal contains a general description of the objectives and guiding principles of the Services and the circumstances for a (optimal) performance of the same. DDretail shall make every effort to comply with these guiding principles as much as possible, however only the provisions from the Project Proposal that have also been included in the Agreement are legally enforceable.
6.3 If so desired the Parties can establish arrangements about the service level in a Service Level Agreement (‘SLA’). The Client shall always inform DDretail of any and all circumstances that can affect the services and the availability thereof. Should arrangements about a service level be agreed on then the availability is measured without taking previously announced unavailability due to maintenance or service or circumstances beyond the control of DDretail into account. In this respect the Services as a whole during the term of the Agreement are also taken into account.
6.4 DDretail can assume that each and every party who communicates with DDretail on behalf of the Client is also authorised to act in the name of the Client.
6.5 DDretail can rely on third parties for the (partial) performance of the Services. In that case DDretail fully warrants the performance of these Services.
6.6 All time limits (delivery periods) indicated by DDretail are estimated to the best of its ability on the basis of the data that were known to the same upon the conclusion of an Agreement. DDretail shall make every effort to observe these time limits. DDretail shall only be in default in case of an overstepping of an indicated time limit if (i) the Client gives DDretail notice of default, (ii) DDretail is given the opportunity to remedy the default within a reasonable time limit, and (iii) the default has not been remedied after this time limit.
6.7 If an overstepping of a time limit threatens to occur then the Parties shall forthwith enter into discussions about the required measures. If a time limit is overstepped then this shall not be reason to refuse the Services or to dissolve the Agreement (either in whole or in part).
6.8 A delay in the delivery of Services can never be blamed on DDretail if said delay is the result of (i) the late supply of Data (including Content), or (ii) the supply of unreliable Data. DDretail independently assesses as to whether the Data are reliable for the performance of the Services and shall as soon as within reason possible inform the Client if the Data do not comply.
Data of the Client
7.1 All Data remain the property of the Client and the Client warrants (i) that the Data were obtained in a lawful manner, and (ii) that the use of the Data as anticipated in the Agreement does not result in infringement of legislation and regulations.
7.2 Adjustments or processing by DDretail of the Data shall never result in ownership of the Data by DDretail.
7.3 If the creation of a database results from the Services or is a part thereof then the creation shall take place under the responsibility of the Client. If the Client is by law not qualified as the producer of the database then the Agreement shall imply that all database rights are transferred to the Client in full in pursuance of article 2 paragraph 4 of the Dutch Databases (Legal Protection) Act.
7.4 DDretail shall always handle all Data confidentially. DDretail shall take appropriate technical and organisational measures to secure Data against loss or against any form of unlawful processing. These measures shall, in consideration of the state of the art and the costs of the implementation, warrant an appropriate level of security having regard to the risks that the processing and the nature of the data to be protected bring about.
7.5 Any and all processing of personal data by DDretail takes place on the instruction of the Client. The Client is then the Controller within the meaning of the Dutch Personal Data Protection Act.
7.6 DDretail cannot process and/or make the personal data of the Client (hereinafter referred to as: the ‘Personal Data) available to third parties. Paragraph 4 of this article is equally applicable to personal data. With regard to Personal Data the Client can request an audit of compliance with paragraph 4 by an independent expert.
7.7 DDretail is held to abide by confidentiality with regard to the Personal Data, unless the Client informs otherwise or unless a statutory provision obliges DDretail to disclose the same.
7.8 The Client agrees that DDretail relies on possible sub-processors for the processing of Personal Data. DDretail shall impose similar obligations as included in this article on its sub-processors. DDretail shall always remain responsible for the acts or omissions of the sub-processors.
7.9 During the Agreement the Personal Data are, at the request of the Client, available within the time limit as technically possible. After termination of the Agreement DDretail shall return or destroy all Personal Data, if so requested.
Prices and payment
8.1 All prices indicated by DDretail are excluding VAT.
8.2 If DDretail supplies Services on the basis of a continuing performance agreement then DDretail shall be entitled to adjust its prices in the interim. DDretail shall notify the Client about its intention of an adjustment at the latest 3 months before the price adjustment shall take effect. If the Client objects to the adjustment then he must object to the same within thirty (30) days after the notification of DDretail. In case of an objection the Parties shall enter into discussions about the adjustment. If these discussions do not lead to agreement then both Parties shall be entitled to terminate the Agreement as from the date that the price adjustment shall take effect.
8.3 If DDretail needs to supply more or different Services due to failing (late) delivery of reliable Data then DDretail shall charge these Services separately on the basis of the prices commonly used by DDretail.
8.4 The invoicing method and the payment term are included in the Agreement. Should this not be the case then DDretail shall invoice monthly on the basis of actual costs and apply a payment term of thirty (30) days after the date of the invoice.
8.5 The Client waives any authority to suspend and settle a payment. If the Client does not agree with an invoice then the Client must report this in writing, stating reasons, within 14 days after the date of the invoice, failing which the invoice has been accepted.
8.6 In case of an overstepping of the stipulated payment term the Client shall be in default by operation of law without any demand or notice of default being required. As from the moment of default DDretail can suspend its Services and the Client shall be liable to pay default interest equal to the statutory interest plus 2%.
8.7 If the Client also fails to proceed with payment within the imposed time limit after a first demand for payment then DDretail shall outsource the collection. In that case the Client shall also be liable to pay the extrajudicial collection costs. These costs amount to 15% of the outstanding principal sum with a minimum of EUR 1,000.00.
8.8 If DDretail proceeds with suspension of its Services then the Client shall be liable to pay costs for the new connection / start-up of the Services.
9.1 If the Client uses the Software then this takes place on the basis of a non-exclusive and non-transferable right granted by DDretail to use the Software (sub-licence) in accordance with the objective and for the term of the Agreement.
9.2 The Software can only be used by the Client for the benefit of its own business and the objective further specified in the Agreement.
9.3 The Client cannot release or transfer the Software or copies thereof or rights to use the same (in any form whatsoever) or make the same, in any way whatsoever, available a third party. Nor can the Software be encumbered with a limited right.
9.4 The Client shall not use the Software for the processing of data for the benefit of third parties.
9.5 DDretail does not warrant that the Software is error-free and shall operate for 100% without interruptions. DDretail shall make every effort to repair defects in the Software within a reasonable time limit.
9.6 The Client is responsible for the hardware, software, peripheral equipment, connections, configurations and telecommunications means that are required to enable use of the Software.
9.7 The Client cannot reproduce, decompile or reverse engineer the Software. It is neither allowed to remove or circumvent securities or technical (user) restrictions of the Software.
9.8 DDretail usually uses Software of third parties for the Services that is sub-licensed to the Client. The licence terms and conditions of these third parties are applicable to the use of the Software of third parties. The relevant licences are forwarded if so requested. Should the provisions of the licences of third parties be in breach of the provisions included in these General Terms and Conditions then the provisions of these General Terms and Conditions shall prevail.
Intellectual or industrial property rights
10.1 All intellectual property rights in respect of the Software are exclusively vested in DDretail or its licensors.
10.2 The Client is not allowed to remove or change an indication in the Software relating to the confidential nature, copyrights, trademarks, trade names or other rights.
10.3 If a work is created through the Services that is subject to copyrights vested (to be vested) in DDretail (hereinafter referred to as: the ‘Work’) then these copyrights shall exclusively be vested in DDretail. The Client is, however, granted – after the Client has complied with all its obligations – the non-transferable right (‘licence’) to use the Work for the purpose for which the Work was created.
10.4 The Client cannot adjust or change the Work or (partly) make the same available to third parties or allow third parties to use the same.
10.5 DDretail shall be free to use the name and the logo of the Client and the Work for its own publicity or promotion, unless the Client objects to this. In this respect DDretail shall always observe the interests of the Client.
Indemnifications and warranties
11.1 DDretail warrants that it is authorised to (sub-)license the Software and indemnifies the Client against any and all claims of third parties with regard to the Software, provided the Client forthwith informed DDretail in writing of a legal claim and fully leaves the settlement thereof to DDretail. To this end the Client shall provide DDretail with the required powers of attorney, information and cooperation in order to, where necessary in the name of the Client, oppose these legal claims.
11.2 The indemnification obligation as intended in the previous paragraph expires if the claim is related to (i) the DDretail, (ii) changes that the Client made or had made in the Software, or (iii) if the Client acted in breach of any arrangement or condition.
11.3 The Client warrants that the rights of third parties and/or legislation and regulations are not infringed as a result of the availability of the Data. The Client indemnifies DDretail against any and all claims of third parties in connection with the Data.
11.4 The indemnification obligation as intended in the previous paragraph expires if the claim is caused by an attributable shortcoming on the part of DDretail.
11.5 The Client is solely responsible for the Content and warrants that it shall comply with the requirements of decency and morality and with the applicable legislation and regulations. The Client indemnifies DDretail against any and all claims of third parties that are based on the Content. Should DDretail be of the opinion that the Content does not comply with the aforementioned requirement then it shall be entitled to suspend its Services or to terminate the same with immediate effect without being liable to pay compensation.
11.6 The Client warrants that it shall at all times comply with the applicable provisions pursuant to the applicable (European) legislation and rules of conduct, including regulations in the area of the protection of personal data, spam, electronic communications and commerce, databases and the rules (of conduct) of the trade association Dutch Dialogue Marketing Association (www.ddma.nl), including the ‘Adverting via Email Code’. The latter rules of conduct can be downloaded via www.ddma.nl and www.DDretail.com and are forwarded free of charge if so requested.
11.7 The Client indemnifies DDretail against any and all claims of third parties that derive from non-compliance or incomplete compliance with these regulations and/or code(s) of conduct.
12.1 The total liability of DDretail is limited to at most the amount that the Client had to pay to DDretail in the 12 months prior to the fact that caused the damages. In no instance whatsoever shall the liability of DDretail exceed the amount paid out pursuant to the liability insurance of DDretail plus the excess of DDretail under said insurance.
12.2 DDretail shall not be liable for consequential damages – including but not limited to lost profit, reduced goodwill, reputational damages, losses due to business interruptions, damages resulting from claims of customers or business relations of the Client or the loss of data.
12.3 The restrictions outlined in the previous paragraphs of this article are not applicable if and to the extent that the damages are the result of intent or gross negligence on the part of DDretail.
12.4 Liability of DDretail shall in all instances only occur after the Client has forthwith given DDretail proper written notice of default in the course of which a reasonable time limit is provided within which DDretail can remedy the default and DDretail also attributably fails to comply with its obligations after this time limit. The notice of default must contain a description of the shortcoming that is as complete and detailed as possible in order that DDretail is able to react adequately. Each and every claim for compensation vis-à-vis DDretail expires as a result of the mere expiry of 6 months after the Client has become or could have become familiar with the existence of the claim.
13.1 Any and all information and data that are exchanged between the Parties or of which they take note shall be handled confidentially, unless said information and/or data are meant for communication purposes. The Parties commit not to disclose confidential information and data to third parties without the written consent of the other party, unless and to the extent that they are held to do so in pursuance of a mandatory statutory provision.
14.1 Neither party shall need to comply with an obligation if said compliance is impossible due to a situation of force majeure. Force majeure is also understood as force majeure on the part of suppliers, improper compliance with obligations by suppliers designated by the Client, and defectiveness of goods, materials, information, Data and software of third parties of which the use has been prescribed by the Client.
14.2 If a situation of force majeure has lasted for more than ninety (90) days then the Parties are entitled to give written notice of termination of the Agreement with immediate effect. All Services that have already been supplied pursuant to the Agreement shall in that case be settled proportionately.
Term and notice of termination
15.1 An Agreement is concluded for the definite period of time specified in the Agreement. After expiry of the first term it is always automatically renewed by a similar term, unless the Agreement is terminated by registered post in consideration of a notice period of four (4) months at the end of the current term.
15.2 The Parties are both entitled to terminate an Agreement with immediate effect or to suspend their obligations on account of the same in case of suspension of payment or a corresponding request, insolvency or a winding-up petition in respect of the other party or if the other party liquidates or discontinues the business carried on by the same.
15.3 DDretail confirms the end of the Agreement, where within reason possible, within sixty (60) days before the Services come to an end. The Client must then take possession of the properties, including the Data, that belong to the same. After termination of the Agreement DDretail shall, in any case, return these properties to the Client by registered post.
Applicable law and dispute settlement
16.1 Dutch law is exclusively applicable to these General Terms and Conditions, all Offers and Agreement(s) to which these General Terms and Conditions are applicable. The law declared applicable in the Software terms and conditions is applicable to the Software terms and conditions.
16.2 All disputes, including those about the applicability and the interpretation of the applicability of these General Terms and Conditions and an Agreement or Offer, shall in the first instance exclusively be brought to the cognisance of the competent court in Amsterdam, unless DDretail chooses to bring the dispute to the cognisance of the court that would have been competent without the choice of forum made in this paragraph.