Terms & Conditions Digidum B.V.
Last updated: 21-01-2019
These General Terms & Conditions shall apply to all quotations, offers, and services of Digidum B.V. and shall form an integral part of each agreement concluded between Digidum B.V. and its Customers.
Article 1. Definitions
1.1 Account: The personal account of Customer with which he will be able to gain access to a control panel and the user interface.
1.2 Digidum: Digidum B.V., located at the Bruggestraat 49-2, 3841CM in Harderwijk and registered at the Chamber of Commerce under number 52527956.
1.3 Customer: a natural or legal entity acting in the course of his profession or business, who has concluded or wishes to conclude an Agreement with Digidum.
1.4 Service: all services provided by Digidum under this Agreement, for example, the provision of an Account and the provision of support as part of the use of a Service.
1.5 Intellectual Property Rights: all intellectual property rights and associated rights, including copyrights, database rights, rights relating to domain names, trademark rights, rights relating to knowhow, brand rights, design rights, neighboring rights, and patent rights.
1.6 Agreement: the agreement concluded between Digidum and Customer on the basis of which Digidum shall provide the service.
1.7 General Terms & Conditions: these terms & conditions.
Article 2. Conclusion of Agreement
2.1 An Agreement shall be concluded as soon as Digidum has confirmed a request of Customer for the purchase of the Service.
2.2 Any quotation of Digidum shall be non-binding. Digidum shall be entitled to refuse (a request of) Customer at its own discretion without stating any reasons. Any delivery times stated by Digidum shall be strictly indicative and shall never be regarded as final deadlines.
2.3 Any offer of Digidum which is made by means of a quotation, shall be valid for thirty (30) days after Digidum has sent such an offer, unless otherwise stated therein. If Customer accepts the offer after the expiry of aforementioned term, Digidum shall not be required to accept this acceptance of Customer. If Digidum decides to accept this acceptance, the Agreement shall still be concluded.
2.4 Upon execution of the Agreement, Digidum shall be entitled to have certain activities executed by third parties.
2.5 The applicability of Article 227b paragraph 1 and Article 227c of Dutch Civil Code 6 shall be excluded.
Article 3. Account
3.1 To be able to use the Service, Customer shall have to create an Account. Customer shall be responsible for the creation of a strong password during the registration process. As soon as the registration process is successfully completed, Digidum shall activate the Customer’s account. The Account shall enable Customer to log in and to use the Service.
3.2 Customer shall not be allowed to grant third parties access to the Account. However, Customer shall be allowed to grant access to any person who works for or at Customer or who is acting on his behalf.
3.3 Digidum may assume that any actions executed from the account, are actually taken by or on behalf of Customer. Customer shall be responsible for and linked to all of these actions unless Customer has timely notified Digidum of the fact that an unauthorized person has gained access to his account and Digidum has also confirmed the receipt of such notification to Publisher in writing.
Article 4. Availability and maintenance
4.1 Digidum shall make every effort to realize the uninterrupted availability of the Service and its systems and networks and to remedy any defects or problems but does not offer any guarantees in this respect.
4.2 Digidum shall be entitled to temporarily decommission the Service for maintenance, modification or improvement of the Service. Digidum shall try to carry out this decommissioning in such a way that it will cause as little inconvenience to Customer as possible.
4.3 Digidum shall never be required to pay any compensation for damages suffered by Customer resulting from said decommissioning.
4.4 Digidum shall be allowed to modify the functionalities of the Service from time to time. Any feedback and suggestions of Customer in this respect are welcome, but Digidum shall ultimately decide on the modifications it will or will not implement.
Article 5. Rules of Usage
5.1 Customer shall not be allowed to use the Service for any activities, which are contrary to the law and regulations or to help third parties do so. This shall particularly apply to the following activities:
– any distribution of information or any acts in violation of any Intellectual Property Rights (including copy, trademark and design rights) accruing to third parties.
– any violation of the privacy of third parties, for example by distributing the personal data of any third parties without their approval or without any need;
– any sending of unsolicited electronic communications via email, text message or similar medium, without Customer having received the necessary approval thereto from the receiver of such communication.
5.2 Furthermore, Customer shall not be allowed to act contrary to any guidelines and/or codes of conduct established or declared applicable by Digidum with respect to for example email marketing;
5.3 If, in the opinion of Digidum, the functioning of the server(s) or network of Digidum or of any third party is at risk, particularly due to excessive sending or requesting of data (causing performance problems), Digidum shall be entitled to take all measures it deems reasonably necessary to avert or prevent such risk.
5.4 If Customer acts contrary to the General Terms & Conditions, Digidum shall be entitled to deny him access to the Service or to terminate or suspend the Agreement.
Article 6 Payment conditions
6.1 Digidum shall be sent an invoice for all amounts due and shall be entitled to send invoices in advance and electronically. Invoices shall be sent to the email address submitted by Customer. Furthermore, all invoices shall be made available in the Account. At the request of Customer, invoices may be sent per regular mail, in which case Digidum may charge any reasonable costs.
6.2 The payment term of every invoice shall be fourteen (14) days unless stated otherwise.
6.3 Digidum shall be entitled to collect any amounts due by direct debit. Customer shall agree to this and shall grant, upon request, all necessary authorizations. In case the direct debit entry fails or in case Customer reverses the direct debit payment, Customer shall have another fourteen (14) days to manually pay the amount due from the moment the direct debit entry has failed or is reversed. If Customer still fails to make the payment after those fourteen (14) days, Customer shall automatically be in default, without a notice of default being required.
6.4 After a payment period has expired, Customer, who has failed to pay in time, shall be in default by operation of law without a notice of default being required in this respect. Digidum shall then be authorized to suspend the execution of the Services and to terminate the Agreement. The aforementioned shall not affect the payment obligation of Customer. The statutory interest shall be due from the first day after the expiry of the payment term. In case of payment is not done in time, Customer shall be required to fully compensate, in addition to the amount due and the interest due in respect thereof, the costs reasonably incurred in respect of both extrajudicial and judicial collection costs, including in any case any costs for lawyers, bailiffs and collection agencies.
6.5 Customer shall not be entitled to offset a payment obligation, which falls on Customer, against any claim against Digidum.
6.6 All claims of Digidum shall be immediately payable if the bankruptcy of Customer has been requested, Customer has requested suspension of payment, the assets of Customer have been seized, Customer dies and furthermore if Customer is liquidated or dissolved.
6.7 All prices stated by Digidum shall be in euros and excluding VAT and other governmental levies and shall be subject to software errors and typos.
6.8 Digidum shall be allowed to apply an annual inflation charge to the fee as laid down in the applicable price index of Statistics Netherlands, without Customer having the opportunity to terminate the Agreement.
Article 7. Intellectual Property
7.1 All information and images on the website(s) of Digidum shall be part of the Intellectual Property of Digidum or its affiliated companies or the licensors thereof. This information and these images may not be copied or used in any way whatsoever without the separate written approval of Digidum, except in such cases where legally permitted.
7.2 Any information Customer publishes or saves via the Service is and shall always remain the property of Customer. By posting or publishing information within the Service, Customer shall grant Digidum a right to use this information for the execution of the Agreement.
7.3 If Customer sends any information to Digidum, such as feedback with respect to an error or a suggestion for an improvement, Customer shall give Digidum an unrestricted and permanent right of usage with respect to the use of this information for all that is inherent to the services provided by Digidum under the Agreement.
Article 8 Liability
8.1 During six months prior to the occurrence of the damages, the liability of Digidum for any damages resulting from any default in respect of compliance with the Agreement, an illegal act or otherwise, shall be limited to an amount, which equals the fees Customer has paid under the Agreement (excluding VAT) with a maximum of thousand euros per occurrence (whereby a series of subsequent occurrences shall be regarded as one occurrence).
8.2 Digidum shall expressly not be liable for any indirect or consequential damages suffered by Customer or any third party, including (but not limited to) business interruptions lost profits, lost savings, loss of data, turnover, or any damages due to publication thereof, and any immaterial damages.
8.3 The liability of Digidum due to an attributable default in respect of compliance with the Agreement, shall only occur if Digidum has received a written notice of default within thirty days after the occurrence of the damages, proposing therein a reasonable term for remedying the default, and if Digidum still remains attributably in default in respect of compliance with its obligations after this term. The notice of default shall contain the most detailed description of the default possible, to give Digidum the opportunity to respond adequately.
8.4 Any limitations or exclusions of liability included in the Agreement shall not apply if the damages are caused by intent or wilful recklessness on the part of Digidum.
8.5 Customer shall indemnify Digidum against all claims of third parties, for whatever reason, relating to this Agreement and/or the use of the Service by Customer, including any claims from the Dutch Data Protection Authority and the Dutch Authority for Consumers and Markets.
8.6 In the case of force majeure, Digidum shall never be required to pay any compensation for damages resulting therefrom. Force majeure shall include disruptions or failures of the internet or the telecommunication infrastructure, power failures, internal disturbances, mobilization, war, traffic jams, strikes, exclusions, business interruptions, delays in supply, fires, and floods.
8.7 If a situation of force majeure lasted longer than ninety days, each of the parties shall be entitled to immediately terminate the Agreement in writing.
Article 9. Confidentiality
9.1 Parties shall observe confidentiality in respect of any confidential information they provide to each other before, during or after the execution of the Agreement. Confidential information shall concern any information marked as confidential or any information, which is expressly indicated as being confidential by one of the parties prior to the provision thereof.
9.2 Parties shall not use any confidential information received for any other purpose than for the execution of the Agreement.
9.3 The obligation to maintain confidentiality shall not apply to confidential information:
a) which is public or is made public without the receiving party violating his obligation to maintain confidentiality;
b) which is lawfully made available to the receiving party by a third party without any obligation to maintain confidentiality;
c) of which it is demonstrated that the information was already lawfully in the possession of the receiving party;
d) which the other party has marked as non-confidential in a written document;
c) which the receiving party shares with a third party based on a statutory obligation.
9.4 The obligations with respect to confidentiality shall continue to apply after termination of the Agreement, regardless of the reason, and for as long as the party providing the information can reasonably claim the confidentiality thereof.
Article 10. Amendments
10.1 Digidum shall be entitled to unilaterally amend or supplement the General Terms & Conditions.
10.2 Any amendments shall also apply to Agreements already concluded. An amendment shall not enter into effect until thirty (30) days after Customer has been notified of such amendment by means of written notification or via the website of Digidum.
10.3 If Customer does not wish to accept the amendment, Customer shall inform Digidum thereof within thirty (30) days after aforementioned notification. First, parties shall try to jointly come to an agreement after consulting with each other in a reasonably proper manner. If they fail to come to an agreement, Customer shall be entitled to terminate the Agreement as of the date on which the amendment enters into effect. Amendments of minor importance can be made at all times without Customer being entitled to terminate the Agreement.
10.4 Customer shall only be allowed to continue to use the Service from the moment the amendment enters into effect after he has accepted the amended or supplemented terms & conditions – whereby continued use of the Service may be considered an acceptance of such amended terms & conditions.
Article 11. Duration and termination
11.1 The Agreement shall be concluded for the duration as specified in the offer of Digidum or elsewhere in the Agreement. If no duration is specified, the Agreement shall be deemed to have been concluded for the duration of one (1) year.
11.2 Unless expressly stated otherwise, the Agreement shall always be tacitly renewed by the duration of the initial term after the expiry of the term, unless the Agreement has been terminated in writing or via the Account in a timely manner with due observance of a minimum notice period of one (1) month. Customer shall not be allowed to terminate the Agreement prematurely.
11.3 Digidum shall be entitled to dissolve, terminate and/or suspend the Agreement wholly or partially in writing with immediate effect, without judicial intervention and without any obligation to pay compensation for damages or other compensation, if (Digidum reasonably suspects that):
(a) Customer fails to comply with or fails to fully or timely comply with the obligations under the Agreement or if Digidum has good grounds to suspect that Customer will not comply with the obligations;
(b) The customer has been granted the (provisional) suspension of payment, bankruptcy has been filed for Customer or Customer has been declared bankrupt or if the Customer’s company is otherwise liquidated or terminated then for reconstruction or merger of companies:
(c) any circumstances occur, which are of such a nature that compliance with the Agreement can impossibly be expected of Digidum or continuation of the Agreement can reasonably not be expected of Digidum.
11.4 The application of Article 6:271 et seq. Dutch Civil Code shall be excluded.
Article 12. Final provisions
12.1 The Agreement shall be governed by Dutch law.
12.2 All disputes, which may arise in response to this Agreement, shall be submitted to the competent Dutch court in the district in which the Provider is located.
12.3 If a provision in the Agreement requires a notification to be “written” or to be done “in writing”, this provision shall also be met if the notification is sent by email, provided it is sufficiently established that the message is actually sent by the alleged sender and that the integrity of the message has not been compromised.
12.4 If a provision of the Agreement and/or the General Terms & Conditions proves to be invalid, this shall not affect the validity of the entire Agreement/General Terms & Condition. Furthermore, parties shall specify (a) new provision(s), which will approximate the intent of the original provision as much as legally possible.
12.5 Customer may only transfer his rights and obligations under the Agreement to a third party if Digidum has approved of this transfer in writing. Digidum shall be entitled to transfer its rights and obligations to a third party without the approval or cooperation of Customer.
12.6 Any conditions or exemptions suggested by Customer shall not be a part of the Agreement. Digidum shall expressly refute such conditions a priori unless Digidum has expressly accepted the applicability thereof in writing.
12.7 The version of the relevant communication received or saved by Digidum, including any measurements made, shall apply as evidence thereof unless Customer has proof to the contrary.
12.8 Customer shall warrant the correctness of the (contact) details provided by him to Digidum. Any messages Digidum has sent to Customer via these details shall be deemed to have been received by Customer.