General Conditions Watermelon Messenger B.V.
As deposited with the Chamber of Commerce, registry no. 66844177.
Article 1. Definitions and General Provisions
- In these General Conditions the following is taken to mean:
- Supplier: The private limited liability company Watermelon Messenger B.V., registered at Utrecht, The Netherlands.
- The Customer: The legal or natural person who, acting in the course of his profession or business, entered into an Agreement with Supplier.
- End User: Anyone with whom the Customer communicates by means of the Software.
- Parties: Both Supplier and Customer.
- Software: Watermelon Messenger online application.
- Deviation from these General Conditions is only possible when explicitly agreed on in writing. Said deviations are only valid in the context of the Agreement which they concern.
- Should one or more articles of these General Conditions be annulled, or declared null and void in whole or in part by judicial intervention, the remaining provisions still apply. Parties will by mutual consent draw up new provisions to replace the annulled or voided provisions according to the purpose and purport of the original provisions.
- These General Conditions apply to any third party that is involved in the implementation of any instructions, whether or not in the service of others, or is or may be liable in connection therewith.
- If the Software uses services provided by a third party or parties, the General Conditions and License Terms of these parties also apply. Supplier is not responsible for the services, Conditions and License Terms of the third party or parties in question. Concerning third-party services, the General Conditions and License Terms of the third party or parties apply in the relationship between Supplier and the Customer to the exclusion of the General Conditions of Supplier. The Customer agrees to the referred to General Conditions and License Terms of the third party or parties, which on request shall be made available to the Customer by Supplier.
Article 2. Concluding the Agreement
- All prices stated are exclusive of VAT and any other government-imposed levies.
- Supplier cannot be obliged to keep to offers or prices if the Customer can or must reasonably be expected to understand that the offer or price is erroneous.
- Prices are based on the information provided by the Customer upon signing up. Should this information be changed after the signup has been completed, these changes may affect prices.
- The Agreement is concluded when the Customer has completed and submitted the signup form on Supplier’s website, Supplier has received this form and Supplier has sent a confirmation by email to that effect.
- This Agreement is entered into for a definite time period. After this period the Agreement will be automatically and tacitly renewed for an indefinite time period, unless written cancellation is received two months prior to the date of expiry and towards the end of the month.
- The indefinite-term Agreement may only be cancelled in writing, subject to a one month notice and towards the end of the calendar year.
- The Agreement may be terminated by Supplier at any time and without any additional charge, should Supplier judge that cooperation is no longer a viable option.
- The Customer may not terminate the definite-term Agreement prematurely.
Article 3. Executing the Agreement
- Supplier is required to execute the Agreement to the best of his ability, exercising due care and expertise.
- Supplier is obliged to employ his best efforts, but not to guarantee results, unless a result has been explicitly agreed upon in writing and this result has been defined with sufficient certainty.
- If and to the extent that proper execution of the Agreement so requires, Supplier has the right to arrange for certain activities to be carried out by third parties.
- The Customer is obliged to do and allow all that is reasonably necessary for the timely and correct execution of the Agreement.
- The Customer shall ensure that all the details that Supplier states are necessary, or that the Customer should reasonably understand are necessary to execute the Agreement, are provided to Supplier promptly. If these details are not provided to Supplier promptly, Supplier is entitled to suspend the execution of the Agreement. Any additional cost resulting from this delay will be charged to the Customer.
- The Software has been compiled by Supplier to the best of his ability. However, Supplier does not guarantee that the Software will work and be available at all times without any flaws, errors or interruptions or that the information provided is complete, accurate or up to date.
- Delivery dates given by Supplier are approximate and in no case to be regarded as strict deadlines.
- The Customer is bound to treat any personal information provided by the End User in accordance with the Dutch Personal Data Protection Act (“Wet Bescherming Persoonsgegevens”). The Customer is explicitly forbidden to sell or provide personal data to third parties, unless explicit prior consent has been obtained from the End User.
- Any processing of personal data by the Customer requires the End User’s explicit prior consent.
- The Customer is responsible for providing the hard- and software, peripherals and connections necessary to enable the execution of the Agreement.
Article 4. Amending the Agreement and Additional Work
- If, during the execution of the Agreement, amendments to the Agreement should prove necessary to ensure the proper execution thereof, the Parties will by mutual consent draw up a timely, written amendment.
- If Supplier has, on request or with the prior consent of the Customer, carried out activities outside the scope and contents of this Agreement, the Customer must pay an additional fee on the basis of actual costs. Supplier is under no conditions obliged to meet such a request.
- The Customer accepts that activities or services as stipulated in the previous paragraph may influence the agreed upon or expected completion time of the Agreement and the mutual responsibilities of the Parties. The fact that additional work (or the demand for it) arises during execution of the Agreement shall never be a ground for the Customer to rescind or terminate the Agreement.
Article 5. Prices and Fees
- Supplier’s fee will be calculated on the basis of a fixed annual rate.
- Fees must be paid within 14 days of the invoice date by deposit or bank credit transfer into a bank account indicated by Supplier.
- Without the possibility of termination by the Customer Supplier retains the right to raise the prices agreed upon with the Customer every year on January 1st by a maximum of 5%.
- Supplier is entitled to demand advance payment (in full) of the annual fee.
- Supplier is entitled to invoice in instalments.
- The Customer agrees to Supplier’s use of electronic invoicing.
- If the Customer fails to pay within the term set out in paragraph 2 of this article, he shall be legally in default, with no notification of default being required. In case of default on the part of the Customer Supplier is authorised to charge the statutory interest over the payable amount from the due date until the day of payment in full.
- If the Customer fails to meet one or more of his obligations towards Supplier, all reasonable costs incurred to obtain an in- or out-of-court settlement are at the expense of the Customer, the extrajudicial costs amounting to a minimum of 15% of the payable amount, with a minimum of 100 euros.
- The Customer is not entitled to any suspending and/or offsetting of his obligations towards Supplier.
Article 6. Liability
- Supplier is only liable towards the Customer for direct damages resulting from intent or gross negligence in the execution of the Agreement.
- By ‘direct damage’ shall exclusively be understood:
- The reasonable costs of determining the cause and scope of the direct damage.
- The reasonable costs incurred to make the defective performance of Supplier meet the requirements of the Agreement, insofar as this defective performance can be attributed to Supplier.
- The reasonable costs incurred to prevent or limit damage, insofar as the Customer can show that these costs have led to the limitation of direct damage.
- If it should be determined Supplier is responsible for the damage suffered by the Customer, any liability is limited to the amount paid out in the respective case under the professional or corporate liability insurance held by Supplier, increased by the excess (“eigen risico”) applicable to this insurance.
- If in any given case the insurance does not offer coverage or no payment is made under the insurance, Supplier’s liability is limited to a maximum of 50% of the invoice value of the specific part of the Agreement to which the liability relates.
- Supplier is never liable for indirect damage, including: discontinuations of the Customer’s normal business operations, lost profit, loss of company data, lost savings, and consequential damage in any way relating to or caused by the execution of the Agreement.
- If the Customer wishes to hold Supplier liable for an attributable breach of the Agreement, the Customer should first give Supplier notice of default and set a reasonable term to rectify the breach.
- Supplier is not liable for any and all damage caused by Supplier’s having acted on inaccurate or incomplete information provided by or because of the Customer.
- The Customer indemnifies Supplier for all liability claims by third parties caused by a failure in executing the Agreement, supplied by the Customer to a third party, and which included goods, materials or results supplied by Supplier.
- Supplier is not liable for any damage resulting from force majeure.
- Supplier is not bound to any compensation for damage resulting from software modifications.
- Supplier is not liable for damage resulting from the use of third-party services or products, as referred to in Article 1 paragraph 5, by the Customer or the incorporation of these services in the Software. Where appropriate, Supplier is to hold the third party liable.
- The Customer should be aware that third parties, as referred to in Article 1 paragraph 5, may process personal data. The Customer bears the responsibility for investigating this processing of personal data. Supplier is not liable for the use, processing, alteration, or disclosure of personal data by the third party in question. The Customer shall indemnify Supplier against any claim provided for in this clause.
- The limitations of liability as stated in this article do not apply if the damage is due to intent or gross negligence on the part of Supplier.
Article 7. Force Majeure
- Force majeure on the part of Supplier suspends his (further) obligations under the Agreement, as long as the force majeure continues.
- Force majeure is understood to mean, in addition to its definition in law and legal precedent: every circumstance beyond the control of Supplier which temporarily or permanently prevents performance of the Agreement and which should not, pursuant to the law and within the standards of reasonableness and fairness, be for the risk of Supplier, as well as, insofar as not yet included therein, faults or failure of the Internet or the telecommunications infrastructure, SYN flood, network attack, DoS or DDoS attacks, power failures, internal civil commotion, mobilisation, war, obstruction in transport, strike, lockout, business disruptions, delay in supply, fire, flood, import and export impediments and in the event that Supplier is prevented, for whatever reason, from supplying through its own suppliers, as a result of which fulfilment of the Agreement cannot reasonably be required of Supplier.
- Supplier shall inform the Customer as soon as possible of a force majeure situation unless the circumstances render this in fairness impossible.
- In the event of partial execution of the Agreement by Supplier upon occurrence of a force majeure situation, Supplier is entitled to invoice the executed parts separately.
- If the force majeure situation on the part of Supplier continues for longer than three months, both Parties may terminate the Agreement prematurely, without prior notice and without paying any damage.
Article 8. Availability and Backup
- Supplier shall make every effort to achieve uninterrupted availability of the Software and to provide access to data stored by Supplier, but provides no guarantees to that effect.
- Supplier is not bound to provide backups of data entered by the Customer to the Customer, unless in the event of ‘major data loss’, subject to the discretion of Supplier.
- If Supplier provides a backup to the Customer, as referred to in the previous paragraph, Supplier is entitled to charge a fee.
- Supplier shall make every effort to keep the Software up to date.
- If in the opinion of Supplier the operation of the Software, the network of Supplier or of third parties is at risk, in particular as a result of excessive sending of data, poorly protected systems or activities of viruses, trojans and similar software, Supplier is entitled to take all the steps that Supplier reasonably considers necessary to avert or prevent this risk.
Article 9. Faults
- Supplier has the right to take its service or parts thereof (temporarily) out of service for the purposes of maintenance, modification or improvement of the Software or servers. Supplier shall endeavour to arrange for such taking out of service to take place as much as possible outside office hours and to notify the Customer of the planned taking out of service in good time. Under no circumstances however is Supplier liable for compensation for damage in connection with such taking out of service.
- Supplier has the right to modify the Software or parts thereof from time to time to improve the functionality and to rectify faults. If a modification leads to a substantial change in functionality, Supplier shall make every effort to notify the Customer in a timely fashion.
- In the event of the non-availability of the Service, due to faults, maintenance or other causes, Supplier shall endeavour to inform the Customer of the nature and the expected duration of the interruption.
Article 10. Intellectual Property
- All intellectual property rights to all the software, materials, programming, analyses, designs, documentation, opinions, reports, quotations, and preparatory material thereof (hereafter called ‘the materials’), developed or provided as part of the Agreement, are vested exclusively in Supplier or its licensers.
- The Customer shall only acquire the rights of use and powers arising from the scope of the Agreement or granted in writing, and otherwise the Customer shall not reproduce or publish the software or other materials.
- The Customer is not permitted to remove from the materials or to amend any marking concerning intellectual property rights, including markings concerning the confidential nature and secrecy of the materials.
- Supplier is permitted to take technical measures to protect the materials. If Supplier has used technical protection to protect the materials, the Customer is not permitted to remove or to evade this protection.
- The rights of use explicitly do not include access to and use of the Software source code.
- Any use, reproduction or publication of the materials that is beyond the scope of the Agreement or rights of use granted will be regarded as a breach of Supplier’s intellectual property rights. The Customer shall pay Supplier an immediately payable penalty that is not open to judicial moderation of 10,000 euros per breach, without prejudice to the right of Supplier to obtain compensation for any damage on account of the breach or to take other legal action in order to terminate the breach.
- Supplier does not own details, information or materials sent by the Customer or its customers through the Software during use of the Software. The Customer therefore bears the responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and the intellectual property rights of third parties to and of the entered data.
- Supplier shall indemnify the Customer against any third-party claims that the Software supplied by Supplier breaches an intellectual property right of the third party concerned. The Customer shall forthwith inform Supplier in writing about the existence and substance of a claim and leave the handling of the case entirely to Supplier. For that purpose the Customer shall provide Supplier with the powers of attorney, information and cooperation necessary to defend themselves against these claims.
- The indemnification obligation set out in the previous paragraph does not apply if the alleged infringement relates to:
- Materials made available to Supplier by the Customer for the purpose of use, editing, processing or incorporation, or
- Changes in or to the Software made by the Customer or upon request from the Customer by a third party without the Customer having first obtained written consent.
Article 11. Complaints
- Complaints regarding supplied services must, on pain of forfeiture, be submitted in writing and be received by Supplier within 14 days after the performance of the services.
- Complaints regarding invoices must, on pain of forfeiture, be submitted in writing and be received by Supplier within 14 days after the invoice date.
- Complaints do not suspend the payment obligation.
- If a complaint is well-founded, Supplier will yet fulfill his obligations as agreed upon, unless this has become demonstrably pointless to the Customer. In the last event the Customer must provide timely written notice thereof.
Article 12. Confidentiality and Privacy
- The Parties are obliged to keep secret all confidential information and details that they provide to each other in the context of the Agreement.
- Information shall be deemed confidential unless otherwise stated by the other party or when this is apparent from the nature of the information.
- The obligation to secrecy referred to in paragraph 1 does not apply in so far as statutory regulations or professional rules shall impose a duty of disclosure on Supplier.
- If the Customer sends information to Supplier, e.g. feedback on an error or suggestions for improvement, the Customer thereby grants Supplier an unrestricted and perpetual right to use this information for the benefit of the Software, unless this information is marked confidential.
- Supplier shall not examine data that the Customer stores and/or disseminates through the Software, unless this is necessary for proper performance of the Agreement or Supplier is obliged to do so in pursuance of a legal provision or by court order. In that case Supplier shall endeavour to limit the examination of the data as far as possible, to the extent that this lies within his power.
- Under the terms of the legislation concerning the processing of personal data (including the Dutch Personal Data Protection Act), the Customer has obligations towards third parties, such as the obligation to inform involved parties and give them access to their personal data for inspection, correction and deletion. The responsibility for the observance of these obligations rests fully and solely with the Customer. With regard to the processing of personal data, the Parties consider Supplier to be a “processor” as defined by the Dutch Personal Data Protection Act.
Article 13. Suspension and Termination
- Supplier is entitled, without being bound to pay out any compensation under the heading thereof and without the need for notice of default, to suspend the performance of its obligations or terminate the Agreement, if:
- The Customer is in default with regard to the (timely) observance of one or more of his obligations under the Agreement;
- It seems likely that the Customer may not, in whole, in part and/or in time (be able to) fulfil his obligation towards Supplier;
- The Customer has been declared bankrupt, put under guardianship, has been granted suspension of payment or has been declared subject to a statutory debt reorganisation scheme, or if an application for any of these procedures has been lodged;
- The Customer violates article 4 of these General Conditions;
- The Customer violates article 3.8 of these General Conditions.
- Suspension and/or termination are only permissible to the extent that the shortcoming justifies the same.
- Supplier is authorised to terminate the Agreement if circumstances arise which are of a nature to make executions of the Agreement impossible or if, in all reasonableness and fairness, the unaltered continuation of the agreement cannot be expected.
- Upon suspension or termination, all obligations of the Customer will become immediately due and payable.
- Suspension and/or termination are without prejudice to the payment obligation regarding work already performed. Additionally Supplier is in this case entitled to claim the following costs from the Customer: damage costs, costs and loss of interest incurred as a result of the Customer’s non-performance, termination fees and loss of income.
- In case of suspension of the Agreement, Supplier is entitled to deny the Customer access to the Software.
Article 14. Data Storage
- Supplier is obliged to ensure the careful storage of any data from the Customer. Unless proven otherwise, Supplier is deemed to have fulfilled this obligation.
- The Customer bears the risk regarding damage or loss of data stored by Supplier or third parties, unless the damage or loss results from intent and/or gross negligence on the part of Supplier.
Article 15. Changes to General Conditions
- Supplier reserves the right to change or to supplement these General Conditions.
- Changes also apply in respect of Agreements already concluded subject to a period of 30 days following publication of the change on the website of Supplier.
- If the Customer does not wish to accept a change in these general conditions, it can terminate the Agreement up to the date on which the new general conditions come into force by this date at the latest.
Article 16. Final Provisions
- These General Conditions shall remain effective if Supplier changes his name, legal form or ownership.
- All legal relations between Supplier and the Customer to which these General Conditions apply are exclusively subject to Dutch law.
- Disputes between the Customer and the Supplier arising from this Agreement will exclusively be submitted to the competent court in the district of Utrecht, in the Netherlands.
- A dispute as referred to in the previous paragraph exists when one of the Parties states that this is the case.
- These conditions become effective from 15 December 2016.