Terms of Services
Article 1 Applicability
1.1 These terms of service (the “Terms”) apply to your use of our website and all offers and agreements for which L - founders of loyalty, registered at the Dutch Chamber of Commerce under number 76145735, and/or any of its subsidiaries and affiliates (“Supplier”, “we” or “us”) delivers services, of whatever nature and under whatever name.
1.2 The applicability of any other purchase terms or other general terms is explicitly excluded.
1.3 If and insofar we make products or services of third parties available to you or grant access to these products or services, the terms of the third parties in question apply to these products or services in the relationship between you and us.
1.4 Without prejudice to the provisions of article 1.3 above, the provisions of these Terms prevail if a conflict should arise about any of the arrangements made by parties, unless parties have explicitly departed from these terms in writing, with reference to these terms. In the event of a conflict between the provisions of different sections of these Terms, the provisions of a prior section apply, unless parties have explicitly agreed otherwise.
Article 2 Offers and agreements
2.1 All of our offers and other forms of communication are without obligation, unless we explicitly indicate otherwise in writing. You ensure the correctness and completeness of the information that you provide to us and on which information we have based our offer.
2.2 We are only bound by a mutually signed agreement to perform services. Amendments of or supplements to an agreement will only be effective if agreed by parties in writing.
Article 3 Performance of services
3.1 We will perform our services with due care and in accordance with the arrangements and procedures agreed on in writing. All services provided are performed on the basis of a reasonable efforts obligation (“inspanningsverbintenis” in Dutch) unless and insofar we have explicitly agreed on a specific result in the written agreement and the result concerned has been described in the agreement in a sufficiently precise manner in which case we will perform the services on such basis (“resultaatsverbintenis” in Dutch).
3.2 We will make reasonable efforts to comply to the greatest extent possible with any timelines, planning or delivery dates, whether or not these are deadlines and/or strict dates, that we have specified or that have been agreed on by parties. Any interim dates and delivery dates specified by us or agreed on by parties always apply as target dates, and are always indicative. If a term or period of time is likely to be exceeded, parties shall discuss the consequences of the term being exceeded in relation to the planning and how to reasonably mitigate the effects thereof.
3.3 We are always entitled to replace staff members by other staff members with the same and/or similar qualifications when performing the services.
3.4 We are not under obligation to follow your instructions when performing the services, more particularly if these instructions would change or add to the content or scope of the services agreed upon. If we do follow such instructions however, the activities performed are charged at the applicable rates.
Article 4 Provision of information and assistance
4.1 Parties acknowledge that the success of the provision of the services depends on proper and timely cooperation of parties. You will fully and timely cooperate with all reasonable requests related to the services.
4.2 You ensure that the data, information, designs and specifications that you provide are correct and complete. You are also responsible for any hardware, infrastructure and auxiliary software that is relevant for the service provision.
Article 5 Adjustments and additional services
5.1 If you request or give prior consent for additional services, we will charge you for the additional services that are outside the scope of the agreed services on the basis of the agreed rates or, if no rates have been agreed upon, on the basis of our applicable rates. We are not obliged to honour requests for additional services, and may require that a separate agreement is entered into for such additional services.
5.2 You understand that adjustments and additional services may result in the planning and/or delivery dates being extended. Any new planning or delivery dates indicated by us will replace the previous planning and delivery dates.
Article 6 Service Level Agreement
6.1 Upon your request and subject to agreement between the parties, we can agree on specific service levels that apply to the services we provide. In such event, parties will enter into a Service Level Agreement, and you will promptly inform us upfront about any circumstances that may affect the service levels or the availability of the services.
6.2 If any service levels have been agreed on the availability of software, systems and related services, such levels are always measured in such a way that unavailability due to preventive, corrective or adaptive maintenance service or other forms of service that we have informed you about in advance and circumstances beyond our control are not taken into account. Subject to proof to the contrary, the availability that we measure is considered conclusive.
Article 7 Our website
7.1 We cannot guarantee the continuous, uninterrupted or error-free operability of our websites. There may be times when certain features, parts, content or the entire website becomes unavailable (whether on a scheduled or unscheduled basis) or are modified, suspended or withdrawn by us, in our sole discretion, without notice to you. You agree that we will not be liable to you or to any third party for any unavailability, modification, suspension or withdrawal of the websites or parts thereof. You agree that your use of our websites is on an ‘as is’ and ‘as available’ basis and at your sole risk. We may change the format and content of our websites from time to time.
7.2 Whilst we try to make sure that all information contained on our website is correct, it is not intended to amount to authority or advice on which reliance should be placed. You should check with us or the relevant information source before acting on any such information. We make or give no guarantee as to the accuracy, completeness, currency, correctness, reliability, integrity, quality of any content of our website and, to the fullest extent permitted by law, exclude all liability for any damages or losses of any kind incurred as a result of you using our website or relying on any of its content. We cannot and do not guarantee that any content of our website will be free from viruses and/or other code that may have contaminating or destructive elements. It is your responsibility to implement appropriate IT security safeguards (including anti-virus and other security checks) to satisfy your particular requirements as to the safety and reliability of content.
7.3 Our website may, from time to time, include links to external sites, which may include links to third party offers and promotions. We include these to provide you with access to information, products or services that you may find useful or interesting. We are not responsible for the content of these sites or for anything provided by them and do not guarantee that they will be continuously available.
Article 8 Price and payment
8.1 All prices for our services are exclusive of turnover tax / VAT and other applicable taxes and levies imposed by the authorities. All prices quoted are in euros and you must pay in euros.
8.2 You cannot derive any rights or expectations from any cost estimate or budget that we have issued, unless we have agreed otherwise in writing. A budget communicated by you is only considered a (fixed) price agreed on by parties if this has been explicitly agreed in writing.
8.3 Our administration of hours spent and services provided shall provide full evidence, without prejudice to your right to provide evidence to the contrary.
8.4 If we have agreed on periodic payment obligations, we may periodically adjust the applicable prices and rates in accordance with the index or any other criterion included in the agreement. If no index or any other criterion is included in the agreement, we may apply a generally accepted index for the services.
8.5 Parties will agree upon a payment schedule or payment arrangements in the agreement, and we will bill you accordingly. If no such payment schedule or payment arrangements are included in the agreement, we will bill you monthly upfront.
8.6 You will pay any sums due in accordance with the payment terms agreed on or as stated in the invoice. Should such payment terms be absent, you will pay such invoices within thirty (30) days. You are neither entitled to suspend any payments nor to set off any of the sums due.
8.7 If you fail to pay the sums due or do not pay these on time, the statutory interest for commercial agreements of article 6:119a of the Dutch Civil Code applies to any outstanding sum, without a reminder or notice of default being required. Should you also fail to pay the sum due after a reminder or notice of default, we can pass on the claim for collection and you are obliged to pay, within reason and in addition to the total sum due at that time, all judicial and extrajudicial costs, including all costs charged by external experts – all of which is without prejudice to any of our statutory and contractual rights.
Article 9 Intellectual property
9.1 All intellectual property rights in respect of (the content on) our websites and the services carried out by us, and any deliverables resulting from such services, including any software, websites, data files, databases, training, testing and examination materials, as well as other materials such as analyses, designs, documentation, reports, offers, including preparatory materials for these materials, developed or made available by us, remain exclusively vested in us and our licensors or suppliers. You will be solely granted the rights of use as laid down in these Terms and, if applicable, in the agreement entered into by parties in writing. Such right of use is always non-exclusive, non-transferable and non-sublicensable.
9.2 If we are prepared to undertake to transfer an intellectual property right in any deliverables that was specifically developed for you for consideration, such undertaking may only be explicitly effected in writing. If parties agree in writing to do so, this does not affect our rights or options to use and/or exploit, either for ourselves or for third parties and without any restriction, the ideas, parts, designs, algorithms, documentation, works, protocols, standards and the like on which the deliverables referred to are based for other purposes. In any event, we are entitled to use and/or exploit, either for ourselves or for third parties and without any restrictions, the general principles, ideas and programming languages that have been used as a basis to create or develop any work for other purposes.
9.3 You are not permitted to remove or change any indication with respect to the confidential nature of the software, websites, data files, hardware or materials or with respect to copyrights, brands, trade names or any other intellectual property right pertaining to the software, websites, data files, hardware or materials, or have any such indication removed or changed.
9.4 You guarantee that no rights of third parties preclude making any software, material intended for websites, data files and/or other materials, designs and/or other works available to us for the purpose of use, maintenance, processing, installation or integration; this guarantee also pertains to you having the relevant licences. You will indemnify us against any claim of a third party based on the allegation that making any of this available and/or the use, maintenance, processing, installation or integration infringes a right of that third party.
9.5 We are entitled to use your figurative mark, logo or name in our external communication unless agreed otherwise in writing.
Article 10 Confidentiality
10.1 Each party ensures that secrecy is observed with respect to all information received from the other party of which information the receiving party knows or should reasonably know it is confidential. This prohibition does not apply if and insofar as the information concerned must be provided to a third party in compliance with a judicial decision, a statutory requirement, a statutory order by a public authority or for the proper performance of an agreement. The party that receives the confidential information may only use it for the purpose for which it has been provided. Information is in any case deemed confidential if it has been designated as such by either party.
10.2 You acknowledge that any deliverables or other results of the services or provided by us are always considered confidential in nature, and that these may contain trade secrets.
Article 11 Privacy, data processing and security
11.1 Both parties will strictly adhere to the General Data Protection Regulation (GDPR) and all other applicable rules, regulations and principles for the protection of personal data.
11.2 Prior to the processing of personal data under an agreement or these Terms, we will enter into a data processing agreement as referred to in article 28, paragraph 3 of the GDPR pursuant to our template. You will ensure that all personal data provided to us has been collected in compliance with applicable law and may be processed by us.
11.3 Where we are obliged to provide some form of information security under the agreement, we will ensure that such protection meets the specifications on security that parties have agreed on in writing. We cannot guarantee that the information security provided is effective under all circumstances. If the agreement does not include an explicitly defined security method, the security features provided meet a level that is not unreasonable in view of the state of the art, the implementation costs, the nature, scope and context as known to us of the information to be secured, the purposes and the standard use of our services and the probability and seriousness of foreseeable risks. We are entitled to adapt the security measures from time to time if this should be required as a result of a change in circumstances.
11.4 Any access or identification codes and certificates provided to you are confidential and must be treated as such, and they may only be made known to authorised staff in your own organisation or company. We are entitled to change the access or identification codes and certificates. You are responsible for managing these authorisations and for providing and duly revoking access and identification codes.
11.5 We may give you instructions about security features intended to prevent or to minimalize incidents, or the consequences of incidents, that may affect security. Should you fail to follow the instructions as issued or should you fail to follow these in time, we will not be liable.
Article 12 Term and termination
12.1 The parties will agree upon the term of the engagement in the agreement.
12.2 Either party may terminate the agreement for breach (“ontbinden” in Dutch) if the other party is in default of an essential obligation under the agreement. In case of a breach that can be remedied, a party will only be in default if a written notice of breach has been served that is as detailed as possible and in which a reasonable period of time to remedy the breach is granted, and the breaching party fails to do so. Your payment obligations are deemed as essential obligations under the agreement.
12.3 If, at the time of the termination for breach, you have already received activities or services in the performance of the agreement, this performance and the relevant payment obligations cannot be undone unless you demonstrate that we are in default with respect to the essential part of the performance due. With due regard to the provisions of the preceding sentence, sums invoiced by us prior to the termination for breach in connection with what has already been properly performed or delivered in the performance of the agreement remain due in full and become immediately payable at the time of the termination for breach.
12.4 Either party may terminate (“opzeggen” in Dutch) the agreement in writing, in whole or in part, without notice of breach being required and with immediate effect, if the other party is granted a suspension of payments, whether or not provisional, a petition for bankruptcy is filed against the other party or the company of the other party is liquidated or dissolved other than for restructuring purposes or for a merger of companies. We may also terminate (“opzeggen” in Dutch) the agreement, in whole or in part, without notice of default being required and with immediate effect, if a direct or indirect change occurs in the decisive control of your company.
12.5 Article 7:408 of the Dutch Civil Code is explicitly excluded.
Article 13 Our liability
13.1 Our total liability under these Terms and/or an agreement, irrespective of the legal basis thereof, explicitly including any failure to meet a guarantee or indemnification obligation, is limited to the compensation of direct damages or losses as described in more detail in this article 13.
13.2 Our liability for direct damages or losses is limited to a maximum equal to the agreed price in the relevant agreement or engagement (excluding VAT). If the agreement is a continuing performance contract with a duration of more than one year, the maximum shall be equal to the total sum of the payments (excluding VAT) stipulated for one year. In no event will our total liability for any direct damages or losses, on any legal basis whatsoever, exceed EUR 100,000 (one hundred thousand euros).
13.4 We will not be liable for indirect damages or losses, including consequential damages or losses, loss of profits, lost savings, corruption, destruction or loss of data or documents, reduced goodwill, loss due to business interruption, loss as a result of claims of your customers, loss arising from the use of data, goods, materials or software of third parties prescribed or provided by you.
13.5 The exclusions and limitations of liability described in this article 13 do not apply in case of (i) any damage arising from death or bodily injury, or (ii) wilful misconduct or gross negligence (“opzet of bewuste roekeloosheid” in Dutch) by us or our senior management.
13.6 Unless performance is permanently impossible, we will only be liable if (i) you promptly serve us with a written notice of breach, granting us a reasonable period of time to remedy the breach, and (ii) we still fail to meet our obligations after that reasonable term has passed. The notice of breach must describe our failure as comprehensively and in as much detail as possible so that we have the opportunity to respond adequately.
13.7 The right to compensation of damages or losses exclusively arises if you report the damage to us in writing as soon as possible after the damage has occurred. Any claim for compensation of damages filed against us lapses by the mere expiry of a period of twelve (12) months following the inception of the claim unless you have instituted a legal action for damages prior to the expiry of this term.
Article 14 Force Majeure
14.1 Neither party is obliged to meet any obligation, including any statutory and/or agreed guarantee, if it is prevented from doing so by circumstances beyond its control (“overmacht” in Dutch). Circumstances beyond our control include, among other things: (i) circumstances beyond the control of our suppliers, (ii) defects in goods, hardware, software or materials of third parties that we use on your instructions, (iii) measures by public authorities, (iv) power failures, (v) failures of the Internet, data network or telecommunication facilities, and (vi) (cyber) crime, (cyber) vandalism, war or terrorism.
14.2 If a force majeure situation lasts for more than sixty (60) days, either party has the right to terminate (“opzeggen” in Dutch) the agreement, in writing.
Article 15 Applicable law and jurisdiction
15.1 These Terms, any agreement or offer applying these Terms and any dispute that arises therefrom are governed by the laws of The Netherlands. Applicability of the Vienna Convention 1980 (The United Nations Convention on Contracts for the International Sale of Goods or CISG) is excluded.
15.2 Any disputes arising from these Terms or any agreement or offer to which these Terms apply shall be exclusively resolved by the competent court of the Oost-Brabant district in ‘s Hertogenbosch, the Netherlands.
Article 16 General
16.1 Any agreement to which these Terms apply will be binding on the parties and their respective successors and assignees. You may not assign such agreement (or any of the rights, claims, benefits or obligations thereunder) without our prior written consent. We may assign all or part of our rights and delegate all or part of its duties hereunder to one or more of our affiliated companies.
16.2 We will act as an independent contractor and will have no right, power or authority whatsoever to create any obligation, express or implied, on your behalf. No agreement to which these Terms apply will constitute a partnership or joint venture between the parties.
16.3 Any agreement to which these Terms apply, and any attachments thereto, will constitute the entire agreement between the parties concerning the activities and/or services that we will provide and will supersede any and all communications, representations and arrangements whether written or oral concerning the subject matter hereof.
16.4 If any provision of these Terms should be null and void or is annulled, the other provisions of these Terms remain fully applicable and effective. In that case, parties will consult as to arrange for new provisions which have the same purport, as much as possible, and that will replace the provisions that are null and void or that have been annulled.