General Terms and Conditions

1. Definitions and applicability

1.1 Definitions

In these General Terms and Conditions, the following terms have the meanings set out below:

• WEBSOLVE: the private limited company WEBSOLVE B.V., having its registered office in Amsterdam, registered with the Chamber of Commerce under number 34141020.
• Client: the legal entity, or the natural person acting in the course of a profession or business, with whom WEBSOLVE enters into or has entered into an Agreement.
• Quotation: a written or electronic offer from WEBSOLVE to the Client specifying the content, price and other terms of the Services.
• Order Confirmation: the document setting out the specific arrangements between WEBSOLVE and the Client regarding the Services, which has been signed or accepted in writing by the Client, including a separate (framework) agreement or supplementary side letter signed by the parties.
• Agreement: the agreement between WEBSOLVE and the Client for the provision of Services, consisting of the Contract Documents.
• Contract Documents: the documents that together form the Agreement, as listed in Article 1.3.1.
• Annex: a document expressly designated as an annex in the Order Confirmation or the Quotation, other than the SLA, the DPA and the General Terms and Conditions.
• General Terms and Conditions: this document, in the version applicable to the Agreement pursuant to Article 1.4.
• Services: the SaaS solutions, support, consultancy, implementation or other related activities to be provided by WEBSOLVE.
• Software: the software that WEBSOLVE makes available as part of the Services, including the Modules and Add-ons as specified in the Agreement.
• Module: a separately available component of the Software, as specified in the Agreement.
• Add-on: additional functionality subscribed to in conjunction with a Module, as specified in the Agreement.
• Location: a physical site of the Client with its own address. Two directly adjacent buildings with different addresses, and a site where several brands operate, count as one Location.
• Subscription Period: the period for which the fee for the Services is invoiced in advance, as specified in the Agreement.
• Metered Usage: use of the Services that is measured per unit, such as emails, SMS and WhatsApp messages sent, reports and API calls.
• Client Data: all data entered, stored or processed in the Software by or on behalf of the Client, or generated with the Software for the Client, including personal data, content, settings entered by the Client and output. Templates, standard configurations and other materials of WEBSOLVE as referred to in Article 5.1.1 are not Client Data.
• Usage Data: technical data about the operation and use of the Software, such as performance data, error messages and the use of features.
• Integration: a technical connection between the Software and systems or data sources of third parties, such as manufacturers, importers and suppliers of DMS and CRM systems.
• SLA: a separately agreed Service Level Agreement containing arrangements on availability, response times, recovery and support.
• DPA: the data processing agreement setting out the arrangements for the processing of personal data in connection with the Services.
• User: any person using the Services under the responsibility of the Client, including third parties to whom the Client has granted access.
• Material Change: a change that appreciably restricts the Client’s rights or appreciably increases its obligations under the Agreement.
• Working Day: Monday to Friday, excluding generally recognised public holidays in the Netherlands.
• Force Majeure: circumstances beyond the reasonable control of a party which render performance of the Agreement temporarily or permanently impossible, including but not limited to failures in the telecommunications infrastructure, internet outages, power outages, government measures, pandemics, natural disasters, wars, labour disputes, cyberattacks that could not be prevented despite appropriate security measures, vulnerabilities in third-party software or services for which no fix is available at that time, and the termination, modification or unavailability of Integrations or third-party data sources, including manufacturers and importers, over which WEBSOLVE has no control.

1.2 Applicability

1.2.1. These General Terms and Conditions apply to all Quotations, offers, assignments and Agreements between WEBSOLVE and the Client.

1.2.2. WEBSOLVE does not enter into agreements with consumers. The Client warrants that it enters into the Agreement in the course of its profession or business.

1.2.3. The applicability of any general terms and conditions of the Client is expressly rejected.

1.2.4. If any provision of these General Terms and Conditions is found to be void or is set aside, the remaining provisions remain in full force. The parties shall then consult with each other to agree on a replacement provision that approximates the purport of the original provision as closely as possible.

1.2.5. WEBSOLVE provides these General Terms and Conditions before or upon the conclusion of the Agreement by enclosing them with the Quotation or Order Confirmation. Previous versions are available on request.

1.3 Contract Documents and order of precedence

1.3.1. The Agreement consists of the following Contract Documents, to the extent applicable. In the event of conflict, a document listed earlier prevails over a document listed later, unless the parties have expressly agreed on a different order of precedence in a document accepted in writing by both of them, such as the Order Confirmation:
a. the Order Confirmation;
b. the Quotation;
c. the Annexes;
d. the SLA;
e. the DPA;
f. the General Terms and Conditions.

1.3.2. Notwithstanding Article 1.3.1, the DPA prevails over all other Contract Documents insofar as the processing of personal data is concerned.

1.3.3. In the event of conflict between documents of the same type, such as an Order Confirmation and a subsequently signed side letter, the most recent document prevails.

1.3.4. A higher-ranking document deviates from a lower-ranking document only to the extent this is apparent from its wording. Matters not governed by a higher-ranking document are supplemented by the lower-ranking documents.

1.4 Amendments

1.4.1. WEBSOLVE may amend these General Terms and Conditions. An amendment shall be announced in writing at least thirty (30) days before it takes effect.

1.4.2. A Material Change to the detriment of the Client takes effect for current Agreements only upon the next renewal, unless the Client agrees in writing at an earlier date. WEBSOLVE shall announce such a change no later than thirty (30) days before the last date on which notice of termination can be given under Article 13.1.2. If WEBSOLVE announces the change later, the Client may terminate the Agreement in writing with effect from the date on which the change takes effect, irrespective of the notice period under Article 13.1.2.

1.4.3. Article 1.4.2 does not apply to amendments required to comply with laws or regulations or with a binding instruction from a competent authority. If such an amendment is a Material Change to the detriment of the Client, the Client may terminate the Agreement in writing with effect from the date on which the amendment takes effect.

1.4.4. Changes to rates are governed exclusively by Article 11. Articles 1.4.2 and 1.4.3 do not apply to them.

1.5 Notices

1.5.1. Electronic communication, including email, qualifies as written communication.

1.5.2. The Client shall send notices of termination, notices of default and other notices with legal effect to info@websolve.com or to WEBSOLVE’s business address. WEBSOLVE shall send these to the contact person and address stated in the Agreement. The parties shall notify each other in writing of any change to these details.

1.6 Collective arrangements

Arrangements that WEBSOLVE has made with a dealer association, purchasing organisation or importer form part of the Agreement if the Order Confirmation or the Quotation designates them as an Annex.

2. Formation and amendment of the Agreement

2.1 Quotations and offers

2.1.1. All Quotations and offers made by WEBSOLVE are made without obligation, unless expressly stated otherwise therein.

2.1.2. A Quotation is valid for the period stated therein. If no period is stated, a validity period of thirty (30) days applies.

2.2 Formation of the Agreement

2.2.1. An Agreement is formed at the moment the Client signs the Quotation or Order Confirmation, or otherwise accepts either document in writing.

2.2.2. If the Client starts using the Services before signing or written acceptance has taken place, such use constitutes acceptance of the most recently sent Quotation or Order Confirmation.

2.3 Amendments and additions

2.3.1. Deviations from, additions to and amendments of the Agreement, including these General Terms and Conditions, are only valid if agreed in writing by the parties.

2.3.2. If a change requested by the Client results in additional work or delay, WEBSOLVE may adjust the agreed schedule and fee accordingly. WEBSOLVE shall inform the Client of this in advance.

2.3.3. Verbal commitments or arrangements are only binding on WEBSOLVE if confirmed in writing by a duly authorised representative of WEBSOLVE.

3. Services and delivery

3.1 Description of Services

3.1.1. WEBSOLVE provides its Services on a Software-as-a-Service (SaaS) basis, whereby the Software is made available via the internet for use by the Client and its Users.

3.1.2. Additional services, such as implementation, consultancy, training or bespoke work, are agreed separately and specified in the Agreement.

3.2 Delivery and availability

WEBSOLVE shall use reasonable efforts to make the Services available in accordance with the agreed specifications and within the agreed time frames.

3.3 Updates and phasing out of functionality

3.3.1. Updates, patches and new functionality are rolled out at WEBSOLVE’s discretion, provided that they do not materially detract from the agreed functionality, subject to Article 3.3.2.

3.3.2. If material functionality of a Module to which the Client subscribes is discontinued without equivalent replacement, substantially impairing the agreed use of that Module, WEBSOLVE shall give at least three (3) months’ notice. The Client may then terminate that Module in writing with effect from the date of discontinuation.

3.4 Acceptance

3.4.1. This article applies only to bespoke work and implementation projects. Standard updates of the Software are not subject to an acceptance procedure.

3.4.2. Unless agreed otherwise in writing, an acceptance period of ten (10) Working Days applies following delivery. If no written, substantiated objections are received within that period, or if the Client puts the deliverable into production use, the delivery is deemed accepted.

3.4.3. WEBSOLVE shall remedy substantiated defects reported by the Client within a reasonable period. Minor defects that do not materially impede use do not prevent acceptance.

3.5 Engagement of third parties

WEBSOLVE may engage third parties in the performance of the Agreement. WEBSOLVE remains responsible towards the Client for the performance of those third parties. Article 6.3 applies to sub-processors.

3.6 Integrations and third-party data sources

3.6.1. Certain Modules operate on the basis of data from third parties, such as manufacturers, importers and suppliers of DMS and CRM systems. The Client shall ensure that WEBSOLVE has access to the data sources that fall under its responsibility.

3.6.2. WEBSOLVE is not responsible for the availability, accuracy or changes to third-party data.

3.6.3. If a data source or Integration permanently ceases to be available, as a result of which a Module can no longer function, the fee for that Module ends from the first full calendar month thereafter. Either party may then terminate that Module in writing with immediate effect.

3.6.4. A Module that depends on an Integration that is not yet active at the start of the Agreement is invoiced from the moment of activation, with the following exceptions:
a. if the delay is attributable to the Client or to a party under its responsibility, such as its DMS or CRM supplier, the Module is invoiced from sixty (60) days after the start date stated in the Agreement, even if the Integration is not yet active at that time;
b. if the delay is attributable to an independent third party beyond the reasonable control of the parties, such as a manufacturer or importer, and the Integration is still not active six (6) months after the start date, either party may terminate that Module in writing without any fee being payable for that Module.

3.6.5. If a Module forms part of a package for which a single price applies, the share of that Module as stated in the Agreement is decisive for the purposes of Articles 3.6.3, 3.6.4 and 13.4.3. If no share is stated, the package price is allocated in proportion to the rates of the Modules in the package according to WEBSOLVE’s price list applicable at the time the Agreement was concluded.

3.7 Pilots and trial periods

The price, duration, scope and terms of a pilot or trial period are set out in the Agreement. Unless provided otherwise therein, a pilot is free of charge and not subject to an SLA. A pilot ends automatically on the agreed end date, unless the parties agree in writing on a continuation. Client Data from a pilot is covered by the DPA and is deleted after the pilot in accordance with Article 13.3, unless the Module is continued.

4. Obligations of the Client

4.1 Cooperation and provision of information

4.1.1. The Client shall provide all cooperation reasonably required for the proper performance of the Agreement.

4.1.2. The Client is responsible for the timely, complete and accurate provision of all information, data and documents that WEBSOLVE requires for the provision of the Services.

4.1.3. If information is not provided in time, WEBSOLVE may, after informing the Client, suspend performance of the Services concerned and charge reasonable additional costs.

4.2 Use and security

4.2.1. The Client is responsible for the proper use of the Software by its Users, in compliance with applicable laws and regulations.

4.2.2. Access to the Software is personal. The Client shall keep login credentials confidential and prevent misuse. WEBSOLVE is not liable for damage resulting from unauthorised use, unless the unauthorised use results from a failure in WEBSOLVE’s security.

4.2.3. WEBSOLVE may require the use of secure login methods, such as two-factor authentication. The Client is obliged to comply with this.

4.3 Liability in case of misuse

4.3.1. In the event of misuse, unlawful use or breach of the Agreement, WEBSOLVE may suspend access to the Software in whole or in part. WEBSOLVE shall inform the Client accordingly.

4.3.2. Damage and costs resulting from misuse by the Client or its Users are borne by the Client.

4.4 Technical requirements

4.4.1. The Client shall ensure suitable equipment, internet connection and browser settings for access to the Software.

4.4.2. If specific technical requirements apply to certain Modules, WEBSOLVE shall communicate these in advance.

4.5 Messaging and consent

4.5.1. The Client is responsible for the content of messages sent via the Software and for a valid legal basis or consent for sending them, including the requirements of the GDPR and the Dutch Telecommunications Act.

4.5.2. WEBSOLVE may delay or block the sending of messages if, in its reasonable opinion, such sending violates applicable laws or regulations or harms the deliverability of messages of WEBSOLVE or its other clients. WEBSOLVE shall inform the Client of this immediately.

4.6 API access by third parties

WEBSOLVE may impose additional requirements on the security and Metered Usage of API access that the Client grants to third parties, and may revoke such access in the event of misuse. WEBSOLVE shall inform the Client of this immediately.

5. Intellectual property rights

5.1 Ownership of rights

5.1.1. All intellectual property rights in the Software, documentation, templates, standard configurations, models, methods and other materials developed or made available by WEBSOLVE remain vested in WEBSOLVE or its licensors, even if they have been developed for or on the instructions of the Client. The content that the Client includes therein, such as texts, images and logos, and the data that the Client generates with the Software, such as selections, reports and exports, are covered by Article 10.1. The Client may use these freely for its own business operations.

5.1.2. These rights include copyrights, database rights, trademark rights, design rights and patents, where applicable.

5.2 Right of use

5.2.1. The Client obtains a non-exclusive, non-transferable right to use the Software and documentation for internal purposes during the term of the Agreement, unless the Agreement is dissolved due to an attributable failure.

5.2.2. The right of use applies only to the agreed Modules, Add-ons, Locations, numbers of users and functionality as set out in the Agreement.

5.3 Restrictions and obligations

The Client shall not perform any acts that may impede or compromise the operation or security of the Software, including but not limited to:
a. reproducing, selling, renting out or otherwise making the Software available to third parties, other than as permitted under Article 4.6;
b. making changes to, or creating derivative works of, the Software;
c. decompiling, reverse engineering or otherwise attempting to derive the source code, except to the extent permitted by mandatory law;
d. circumventing or removing technical security measures.

5.4 Infringement of rights

5.4.1. In the event of a demonstrable and attributable infringement of WEBSOLVE’s intellectual property rights by the Client or its Users, the Client is obliged to compensate the damage directly resulting therefrom, including reasonable costs of legal assistance. WEBSOLVE shall first give the Client the opportunity to remedy the situation within a reasonable period, unless there is intent or gross negligence.

5.4.2. If the Client fails to remedy the infringement within that period, or in the event of intent or gross negligence, WEBSOLVE may immediately suspend the infringing use and/or terminate the Agreement with immediate effect, without the Client thereby becoming entitled to any compensation.

5.5 Infringement by third parties

If the Client becomes aware of an actual or suspected infringement of the intellectual property rights of WEBSOLVE or its licensors, it shall notify WEBSOLVE thereof in writing without delay. At WEBSOLVE’s request, the Client shall reasonably cooperate in establishing, gathering evidence of and enforcing or settling such an infringement, including by providing relevant information and documents.

6. Data processing and privacy

6.1 Processing of personal data

6.1.1. In the performance of the Agreement, WEBSOLVE processes personal data on behalf of the Client. WEBSOLVE acts as processor within the meaning of the General Data Protection Regulation (GDPR); the Client is the controller. If the Client obtains Services for multiple parties, such as an importer for a dealer network, the DPA sets out the allocation of roles per data flow.

6.1.2. The parties shall enter into a DPA setting out the nature, duration, purposes and security of the processing. As long as no DPA has been concluded, WEBSOLVE’s standard DPA as published at websolve.com/dpa applies.

6.2 Compliance with legislation

WEBSOLVE processes personal data in accordance with the GDPR and supplementary privacy legislation.

6.3 Data breaches, sub-processors and transfers

WEBSOLVE shall inform the Client upon discovering a personal data breach in accordance with the DPA. WEBSOLVE uses sub-processors for, among other things, hosting, communication and support; an up-to-date overview and the procedure for changes, including the Client’s right to object, are set out in the DPA. Transfers outside the European Economic Area take place only with appropriate safeguards.

6.4 Data subject rights

WEBSOLVE shall provide the Client with reasonable assistance in handling requests received from data subjects that require WEBSOLVE’s support, in accordance with the DPA. If a request requires more than limited effort, WEBSOLVE may charge the reasonable costs, unless the DPA provides otherwise.

7. Security and business continuity

7.1 Technical and organisational measures

7.1.1. WEBSOLVE applies appropriate technical and organisational measures to secure its systems and the data processed therein against loss, theft, unauthorised access or any other form of unlawful processing.

7.1.2. These measures are aligned with the risks and the state of the art, and are periodically evaluated and adjusted where necessary.

7.2 Availability and recovery

7.2.1. The Software is hosted in a redundant cloud environment that meets generally accepted standards in the areas of security, availability and scalability.

7.2.2. Daily back-ups are made of essential data and systems. These back-ups are stored in encrypted form and periodically tested for recoverability.

7.2.3. In the event of a failure or incident, WEBSOLVE shall activate its recovery procedures without undue delay. If an SLA has been agreed, the recovery objectives (RTO and RPO) set out therein apply. Otherwise, WEBSOLVE shall use reasonable efforts to restore the service as soon as reasonably possible, taking into account the nature of the failure and generally accepted industry standards.

7.3 Continuity measures

7.3.1. WEBSOLVE has a business continuity and disaster recovery plan covering scenarios such as power outages, cyberattacks and the failure of suppliers.

7.3.2. In the event of a persistent or recurring disruption or an impending risk to the continuity of the service, WEBSOLVE shall inform the Client as soon as possible and consult on appropriate emergency measures.

7.4 Audit and certification

7.4.1. WEBSOLVE organises its information security in accordance with ISO 27001 and strives for continuous improvement of its security policy. On request, WEBSOLVE provides a summary of relevant audit findings or its certification status, to the extent this does not conflict with contractual or statutory confidentiality obligations.

7.4.2. WEBSOLVE shall enable the Client to carry out audits as provided for in Article 28 GDPR and the DPA. Other assessments take place after prior consultation, with due regard for confidentiality and operational constraints. The costs of an audit are borne by the Client, unless the audit reveals a material deficiency in WEBSOLVE’s performance.

8. Service levels and support

8.1 Availability and performance

8.1.1. WEBSOLVE strives for an availability of the Software of 99.5% per calendar month, measured as set out in Article 8.1.2, excluding announced planned maintenance.

8.1.2. The Software is considered available when Users can log in and use the core functions of the Modules to which the Client subscribes. WEBSOLVE measures this with its monitoring systems; that measurement applies to the standard in 8.1.1 and the threshold in 8.1.3. Failures resulting from Force Majeure, from acts of the Client or third parties engaged by it, or from Integrations and third-party data sources as referred to in Article 3.6 do not count as unavailability.

8.1.3. If the availability of a Module falls below 98% in three (3) consecutive calendar months, the Client may terminate that Module in writing with immediate effect. If the low availability concerns the Software as a whole, such as logging in or the core functions of all Modules to which the Client subscribes, or if the loss of the affected Module makes the use of the other Modules materially impossible, the Client may terminate the entire Agreement.

8.1.4. Higher standards, guarantees and compensation arrangements may be agreed in an SLA.

8.2 Maintenance and updates

8.2.1. WEBSOLVE may carry out maintenance whenever necessary and strives to do so outside office hours as much as possible. Maintenance that WEBSOLVE has announced at least one (1) Working Day in advance is excluded from the calculation of availability under Article 8.1.1.

8.2.2. WEBSOLVE may temporarily take the Services out of operation in whole or in part if, in its reasonable opinion, this is necessary to prevent or mitigate a serious security risk. Such a suspension does not constitute a failure and is excluded from the calculation of availability under Article 8.1.1.

8.3 Support services

8.3.1. WEBSOLVE provides support via email and an online ticketing system on Working Days from 09:00 to 17:00 Dutch time (CET/CEST).

8.3.2. Support is provided on a best-effort basis. Response and resolution times depend on the priority and complexity of the request. Fixed response and resolution times are agreed only in an SLA.

8.4 Fair use

8.4.1. Metered Usage included in the fee, such as email, reports and API calls, is subject to fair use appropriate to the size of the Client.

8.4.2. If usage structurally exceeds what is customary for comparable clients, WEBSOLVE may, after written notice, charge the excess usage at the rates set out in the Agreement or, if the Agreement does not contain a rate for it, at a rate notified in writing by WEBSOLVE in advance, or impose appropriate technical limits.

9. Use of AI and automation

9.1 Application of AI

In certain Modules, WEBSOLVE applies AI functionality that generates predictions and recommendations to support the Client’s commercial, operational and analytical processes.

9.2 Transparency and explanation

9.2.1. WEBSOLVE strives for transparency about the operation of its AI functionality. Where relevant, WEBSOLVE makes available documentation or a functional explanation of the logic, relevance and expected effects of predictions and recommendations.

9.2.2. When a User interacts directly with an AI system, for example via a chatbot, the User is informed in a clear and recognisable manner that it is an automated system.

9.3 Use and interpretation

AI-based insights, predictions and recommendations are supporting information. WEBSOLVE designs its AI functionality in such a way that the decision lies with authorised employees of the Client, who interpret and validate the output before any decision is taken on that basis. Consequently, no solely automated decision-making within the meaning of Article 22 GDPR takes place.

9.4 Limitations and liability

The Client is responsible for the decisions it takes on the basis of AI output, as provided in Article 9.3. WEBSOLVE is liable for failures in the operation of the AI functionality in accordance with Article 12, but not for damage resulting from a decision by the Client in which the AI output was not carefully assessed.

9.5 Settings and control

The Client retains control over the configuration of AI functionality within the Software, including enabling or disabling certain algorithms or recommendations, to the extent WEBSOLVE provides these options.

9.6 Responsible development

WEBSOLVE develops and trains its AI models in accordance with the principles of transparency, proportionality and data minimisation. The use of Client Data and Usage Data for this purpose is governed by Article 10.4.

9.7 Allocation of roles under the AI Act

Unless the Agreement provides otherwise for a specific application, WEBSOLVE is the provider of the AI functionality and the Client is the deployer for the purposes of the European AI Act. The Client shall ensure a sufficient level of AI literacy among the employees who work with the AI functionality.

10. Data ownership and confidentiality

10.1 Ownership of Client Data

Client Data remains the exclusive property of the Client or its licensors.

10.2 Confidentiality obligations

10.2.1. The parties undertake to keep confidential all information designated as confidential or the confidential nature of which can reasonably be assumed, including technical, commercial and operational data and personal data, and shall not disclose such information to third parties without prior written consent.

10.2.2. The confidentiality obligation does not apply to information that:
a. was already lawfully known to the receiving party at the time of receipt;
b. is or becomes generally known through no fault of the receiving party;
c. was lawfully obtained from a third party without an obligation of confidentiality;
d. must be disclosed pursuant to a statutory obligation or a binding order of a competent authority.

10.2.3. The confidentiality obligation remains in force until five (5) years after termination of the Agreement. For personal data and trade secrets, including WEBSOLVE’s source code and models, the obligation applies for as long as they remain confidential.

10.2.4. A party may disclose confidential information to its employees, advisers and engaged third parties, including sub-processors as referred to in Article 6.3, to the extent they need that information for the performance of the Agreement and are bound by a confidentiality obligation that is at least equivalent. The party remains responsible for their compliance.

10.3 Residual knowledge

Nothing in the Agreement restricts WEBSOLVE in the use of general knowledge, experience and skills acquired during the performance of the Agreement, provided that WEBSOLVE does not disclose or misuse the Client’s confidential information or infringe its intellectual property rights.

10.4 Use of Client Data and Usage Data

10.4.1. WEBSOLVE uses Client Data exclusively to provide the Services to the Client. Client Data is not used to train or improve AI models that are also deployed for other clients, subject to Article 10.4.2. This restriction does not apply to the use of general AI models that are not trained on Client Data, nor to models that are trained and deployed exclusively for the Client.

10.4.2. WEBSOLVE uses Client Data for models or services for multiple clients, such as a network-wide model for an importer or dealer organisation or benchmarks, only if the Client gives its prior written consent, in the Agreement or separately. In that case, the parties shall record which data is used, for what purpose and who receives the results. Personal data is processed only to the extent necessary and as set out in the DPA. The Client may withdraw this consent in writing subject to a notice period of three (3) months; thereafter, WEBSOLVE shall no longer use new Client Data from that Client for that purpose. The consent shall specify what happens after withdrawal to existing datasets, models and results. If this has not been specified, WEBSOLVE shall remove the Client’s Client Data from the datasets for that purpose and may continue to use existing models and results only to the extent they do not contain personal data or data traceable to the Client.

10.4.3. WEBSOLVE may use Usage Data and feedback from the Client to improve the Services. Personal data in Usage Data is anonymised beforehand so that it cannot be traced to natural persons; the Client hereby instructs WEBSOLVE to carry out this anonymisation. Results are not shared in a manner traceable to the Client. The method of anonymisation is set out in the DPA.

10.5 Return or deletion of confidential information

After termination of the Agreement, each party shall, at the other party’s request, return or carefully destroy confidential information received, within the periods set out in Article 13.3 and unless a statutory retention obligation applies.

11. Fees and payment

11.1 Fees

11.1.1. The fees payable by the Client are specified in the Agreement.

11.1.2. All prices are exclusive of VAT and other government levies, unless stated otherwise.

11.1.3. WEBSOLVE may adjust its rates annually as of 1 January on the basis of the consumer price index (CPI), all households, published by Statistics Netherlands (CBS), comparing the index figure for June of the preceding calendar year with that for June of the year before. A first adjustment takes place on 1 January after the Agreement has been in force for at least six (6) months. WEBSOLVE shall announce the adjustment in writing at least thirty (30) days in advance. A negative index figure does not lead to a reduction.

11.1.4. If an adjustment under Article 11.1.3 exceeds five (5) percent, the Client may terminate the Agreement in writing within thirty (30) days of the announcement with effect from the date on which the adjustment takes effect.

11.1.5. WEBSOLVE may adjust rates for Metered Usage that depends on third parties, such as SMS and WhatsApp, if the rates of those third parties change. WEBSOLVE shall give at least thirty (30) days’ notice of this.

11.2 Invoicing and payment term

11.2.1. Invoicing takes place in advance of the relevant Subscription Period or in accordance with the invoicing schedule agreed in the Agreement. Metered Usage is invoiced in arrears, unless agreed otherwise.

11.2.2. Payment shall be made within thirty (30) days of the invoice date, without discount or set-off, unless agreed otherwise in writing.

11.3 Late payment

11.3.1. If the Client fails to pay an invoice on time, it is in default without further notice of default and owes statutory commercial interest on the outstanding amount.

11.3.2. All reasonable collection costs, both judicial and extrajudicial, are borne by the Client in the event of late payment.

11.3.3. WEBSOLVE may suspend or restrict its services in the event of payment default, after a prior written demand for payment allowing a reasonable period to remedy the default.

11.4 Disputes regarding invoices

11.4.1. Objections to an invoice must be submitted in writing, stating reasons, within thirty (30) days of the invoice date.

11.4.2. If the objection is well-founded, WEBSOLVE shall correct the invoice and credit any amounts overpaid within ten (10) Working Days.

11.4.3. WEBSOLVE shall communicate the outcome of a reasoned objection in writing. As long as the objection is being processed, WEBSOLVE shall not take any collection or suspension measures in respect of the disputed part. An objection does not suspend payment of the undisputed part.

11.4.4. If the objection proves to be wholly or partly unfounded, the Client shall pay the amount still due within fourteen (14) days of the communication of the outcome. Statutory commercial interest is due on that amount from the original due date.

11.5 Expansion and reduction

11.5.1. If the Client adds Modules, Add-ons, Locations or users during the term, the associated costs are charged pro rata over the remaining Subscription Period.

11.5.2. If the Client permanently closes a Location, the fee is adjusted from the first full calendar month after three (3) months have elapsed since the written notification. Package prices, minimum commitments and volume discounts are recalculated on the basis of the remaining number of Locations. In the event of an acquisition, relocation or consolidation of Locations, the number of Locations remains decisive in accordance with the definition in Article 1.1.

11.5.3. Other reductions, such as the termination of Modules or Add-ons, take effect as of the next renewal date, subject to the notice period under Article 13.1.2.

12. Liability and indemnity

12.1 Limitation of liability

12.1.1. WEBSOLVE’s total liability for attributable failure in the performance of the Agreement, or on any other legal ground whatsoever, is limited to compensation of direct damage up to a maximum of the amount (exclusive of VAT) owed by the Client to WEBSOLVE for the three (3) months preceding the event giving rise to the damage. If the Agreement has been in force for less than three months at that time, three times the monthly fee under the Agreement applies. A series of related events counts as one event.

12.1.2. Direct damage is understood to mean exclusively:
a. reasonable costs to determine the cause and extent of the damage;
b. reasonable costs incurred to prevent or limit damage, insofar as the Client demonstrates that these costs have led to the limitation of direct damage;
c. reasonable costs to make WEBSOLVE’s performance conform to the Agreement;
d. reasonable costs of restoring data from WEBSOLVE’s back-ups.

12.1.3. The limitations in this Article 12 do not apply if and to the extent the damage results from intentional misconduct or conscious recklessness on the part of WEBSOLVE or its management.

12.2 Exclusion of consequential damage

WEBSOLVE’s liability for indirect damage, consequential damage, loss of profit, lost savings, loss of goodwill, damage due to business interruption and damage resulting from third-party claims is excluded. Liability for loss of or damage to data is excluded, with the exception of the costs referred to in Article 12.1.2 under d.

12.3 Third parties on the Client’s side

WEBSOLVE is not liable for failures or damage caused by third parties engaged by the Client or with whom the Client is in any way associated, such as suppliers of hardware, networks or other software.

12.4 Conditions for liability

WEBSOLVE’s liability arises only if the Client promptly gives WEBSOLVE written notice of default, setting a reasonable period for remedy, and WEBSOLVE continues to fail attributably after that period. A notice of default is not required if performance is permanently impossible. A claim for damages lapses twelve (12) months after the Client became aware, or could reasonably have become aware, of the damage.

12.5 Indemnification by the Client

The Client indemnifies WEBSOLVE against third-party claims in connection with the use of the Services, to the extent these claims result from acts or omissions of the Client or its Users in breach of the Agreement, including Article 4.5, applicable legislation or third-party rights. This indemnity does not apply to the extent the damage is caused by negligence or wilful misconduct of WEBSOLVE.

12.6 Relationship with the DPA

If the DPA contains its own provisions on liability, these apply to damage caused by the processing of personal data. This Article 12 applies to all other damage.

13. Term, termination and exit arrangement

13.1 Term of the Agreement

13.1.1. Unless agreed otherwise, the Agreement is entered into for an initial term of twelve (12) months.

13.1.2. After the initial term, the Agreement is automatically renewed for successive periods of twelve (12) months, unless either party gives written notice of termination no later than three (3) months before the end of the current period.

13.2 Termination and dissolution

13.2.1. Notice of termination must be given in writing, in accordance with Article 1.5. Amounts already paid are not refunded, except in the event of termination under Article 1.4.2, 1.4.3, 3.3.2, 3.6.3, 8.1.3, 11.1.4 or 13.4, or dissolution due to a failure on the part of WEBSOLVE. In those cases, WEBSOLVE shall refund the amount paid in advance for the terminated part pro rata.

13.2.2. Either party is entitled to dissolve the Agreement in writing if the other party attributably fails to perform its obligations and, after written notice of default setting a reasonable period, fails to remedy this.

13.2.3. Either party is entitled to terminate the Agreement in writing with immediate effect if the other party applies for a suspension of payments or is declared bankrupt.

13.2.4. WEBSOLVE is entitled to terminate the Agreement in writing with immediate effect if the Client:
a. makes unlawful use of the Services and does not cease doing so immediately after a written warning; or
b. uses the Services in a manner that causes serious damage to WEBSOLVE’s systems or to other clients, and does not cease doing so immediately after a written warning.

13.3 Exit arrangement

13.3.1. The Client may request an export of the Client Data up to thirty (30) days after termination of the Agreement (the export period). WEBSOLVE shall make that export available free of charge in a common format, such as CSV, XLSX, JSON or via the API.

13.3.2. Additional services that are not necessary for the export or for switching to another provider, such as conversion to a specific format, custom integrations or migration support, are optional and are agreed separately at the rates then applicable.

13.3.3. After the export period, WEBSOLVE shall delete the personal data from its production environments within the period set by the DPA, unless the Client requests earlier deletion or a statutory retention obligation requires otherwise. The Client hereby instructs WEBSOLVE to retain the Client Data until the end of the export period. Data is deleted from back-ups within the retention period of those back-ups. Other Client Data is deleted within the same periods, unless agreed otherwise in writing.

13.4 Force Majeure

13.4.1. A party is not liable for failures or damage caused by Force Majeure. During the Force Majeure, the obligations of that party are suspended.

13.4.2. If the Force Majeure lasts longer than thirty (30) days, either party is entitled to dissolve the Agreement in writing, without any obligation to pay compensation.

13.4.3. A Module is considered not to be working when its core functions, as referred to in Article 8.1.2, are substantially unusable; the restriction of a single data source or a non-essential function is not sufficient for this. If a Module does not work for more than thirty (30) consecutive days due to Force Majeure, the Client owes no fee for that Module from the first day of that period until restoration and may terminate that Module in writing. If the cause falls under Article 3.6.3, only that article applies. A fee that lapses as a result is set off against any compensation under the SLA.

13.5 Surviving provisions

Provisions that by their nature are intended to continue to apply after termination of the Agreement remain in force thereafter. These include in any event Articles 5 (intellectual property), 10.2 (confidentiality), 12 (liability), 13.3 (exit arrangement) and 15 (governing law and disputes).

14. Transfer of rights and obligations

14.1 Transfer by the Client

The Client may transfer its rights and obligations only with WEBSOLVE’s prior written consent, except for a transfer in the context of a merger or acquisition, provided that WEBSOLVE has been informed thereof in writing in advance and does not reasonably object.

14.2 Transfer by WEBSOLVE

WEBSOLVE is entitled to transfer its rights and obligations under the Agreement to an affiliated company or in the context of the transfer of (part of) its business. The Client hereby consents in advance to, and cooperates in, such a transfer of the Agreement. WEBSOLVE shall inform the Client in writing of the transfer in advance and ensure that the acquiring party assumes all obligations under the Agreement and the DPA.

15. Governing law and disputes

15.1 Governing law

The Agreement and all Quotations and offers of WEBSOLVE are governed exclusively by Dutch law. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded.

15.2 Competent court

The parties shall preferably first attempt to resolve disputes amicably. If this is not successful, disputes shall be submitted to the competent court in the district in which WEBSOLVE has its registered office, unless mandatory provisions of law prescribe otherwise.

15.3 Precedence of the Dutch version

In the event of any difference in interpretation between language versions of these General Terms and Conditions, the Dutch version prevails.