General Terms and Conditions of the Limited Liability company PDC RBX LTD. (Pulse DC) (also referred to in these General Terms and Conditions as 'Pulse') in Eindhoven, the Netherlands.
The following definitions, indicated in a Bold letter font, as described below should be interpreted accordingly throughout these General Terms and Conditions, unless they explicitly deviate from in these ‘General Terms and Conditions or in the ‘Agreement'.
General Terms and Conditions: These general terms and conditions of Pulse B.V.
Messages: All forms of communication, such as but not limited to e-mail, text messaging, dial-out and WhatsApp sent by or on behalf of the Customer.
Services: All services provided to the Customer by Pulse, including but not limited to messaging services (SMS, email, dial-out, print) and web services (payments and other transactions).
User: The user of the Services authorized by virtue of the Agreement, employed by the Customer or otherwise active within the Customer's organization.
Starting Date: The date included in the Agreement indicating when the Agreement commences.
Initial Year: The calendar year in which the Customer has concluded the Agreement with Pulse.
Customer: The client who purchases Pulse Services or has obtained the right to use the Product.
Agreement: Every agreement (offers, assignments and performance thereof) that is established between Pulse and the Customer, any change or addition thereto, as well as (legal) actions in preparation and in performance of that agreement.
Personal data: The data traceable to a natural person that is processed during the performance of the Services and / or the SMS services.
Product: The SAAS solution made available by Pulse.
SLA: Service Level Agreement
Service: Means the service, available via the Pulse Connected Engine, which is built and designed to enable the Customer to communicate with debtors as well as with clients of Customer or via various communication channels, such as, but not limited to, Text messaging and e-mail.
Access code: Code made available by Pulse to the Customer, consisting of account names, user names and passwords.
2.1 These General Terms and Conditions apply to every Agreement between Pulse and the Customer in which Pulse has declared these General Terms and Conditions applicable, as far as these General Terms and Conditions have not been explicitly deviated from by the parties in writing or electronically (by e-mail).
2.2 These General Terms and Conditions also apply to all agreements with Pulse for the performance of which third parties must be involved.
2.3 The applicability of possible purchase conditions or other conditions of the Customer is explicitly rejected.
2.4 Any stipulations deviating from these General Terms and Conditions shall only apply if Pulse has explicitly agreed to the applicability of such stipulations in writing. Deviations hereof apply only to Agreement concerned.
2.5 In case one or more provisions in these General Terms and Conditions would be void, the other provisions of these General Terms and Conditions remain fully applicable. Pulse and the Customer will then consult with each other in order to agree on new provisions to replace the null and void or nullified provisions, in a way that justifies the purpose and intent of the original provision as good as possible. The invalidity of a provision does not result in the revocation of the entire Agreement and / or the General Terms and Conditions.
3 Offers and conclusion of Agreements
3.1 All offers by Pulse are non-binding. Pulse is only obligated when it has confirmed an assignment in writing (whether or not in the form of an Agreement).
3.2 If, by the fourth working day after the dispatch of the Order Confirmation (whether or not in the form of an Agreement) as referred to in article 3.1, Pulse has not received a written objection to this, the Order Confirmation (whether or not in the form of a Agreement) as well as these Terms and Conditions are deemed to have been accepted by the Customer.
3.3 If the Customer deviates from an offer made by Pulse, upon its acceptance, Pulse will consider this acceptance as an invitation to make another offer. If the Customer wishes to respond to this, Pulse will make a new offer, to which articles 3.1 and 3.2 will again apply.
3.4 Information provided by Pulse orally or in writing, such as images, applications, instructions and/or through (incidental) advice, is non-binding, unless with respect to a particular offer or order, Pulse has explicitly confirmed otherwise in writing.
3.5 A composite quotation does not oblige Pulse to perform a part of the Agreement against a corresponding part of the quoted price.
3.6 Offers or quotations do not automatically apply to future agreements.
3.7 Apparent errors or mistakes on the website of Pulse, in Pulse leaflets or publications do not oblige Pulse as a result of these errors or mistakes.
4 Duration of the Agreement
4.1 In the event that the Agreement contains no specific provision with respect to the duration of the Agreement, the Agreement is entered into for the duration of 1 (one) year, commencing on the Starting Date. The right of the Customer to cancel the Agreement in advance is excluded, unless explicitly provided for in the Agreement.
4.2 Unless otherwise settled in the Agreement, the duration of the Agreement shall be tacitly extended for the duration of the original period plus the duration up to and including the last day of that particular calendar year, unless the Customer or Pulse terminates the Agreement in writing observing a notice period of 3 months before the end of the period concerned.
5 Prices and payment
5.1 The prices for the delivery of Services and / or the use of the Product are further specified in the Agreement between Pulse and the Customer. The prices stated in the Agreement are exclusive of VAT and any other government-imposed tax.
5.2 Pulse reserves the right to adjust the agreed prices and rates for the Services and / or the use of the Product by means of a written notification in accordance with the Dutch CBS Index for Business Services.
5.3 Invoices will be paid by the Customer in accordance with the payment conditions applicable to the offer as stipulated in the Agreement.
5.4 Objections regarding an invoice must be reported to Pulse in writing within 30 (thirty) days of the invoice date.
5.5 If the Customer remains in default of payment within the set payment term, the Customer is in official default without further notice. The Customer then owes statutory commercial interest. The interest over the outstanding amount will be calculated from the moment the Customer is in default until the moment full amount has been paid. If, after a reminder and notice of default, the Customer remains negligent to settle the claim, Pulse has the right to hand over the claim, in which case the Customer will also be obliged to pay all judicial and extrajudicial costs in addition to the total initial outstanding amount plus the statutory interest.
5.6 In the event of liquidation, bankruptcy, repossession or suspension of payment on the part of the Customer, Pulse’s claims on the Customer are immediately payable.
5.7 Payments made by the Customer always serve to settle all interest and costs owed and then serve to settle the due and payable invoices that have been outstanding the longest, unless the Customer explicitly states in writing that the payment relates to a later invoice.
5.8 The Customer does not have the right to settle any invoice from Pulse against any claims they might have towards Pulse.
5.9 The Customer is not entitled to suspend its payment obligations.
6 Licensing rights
6.1 Pulse hereby grants - where applicable also on behalf of its licensors - to the Customer a non-exclusive and non-transferable right to use the Service and / or the Product for communicating Messages to subscribers or clients of Customer for the duration of the Agreement in accordance with the conditions and the purposes as stated in the Agreement or in these General Terms and Conditions.
6.2 Upon termination of an Agreement concluded between Pulse and the Customer, the right of use of the Customer will end. The Customer must immediately cease all use of the Services and / or Products including associated documentation hereof and keep them suspended.
7 Services and Service levels
7.1 Pulse grants to Customer the Services during the term of the Agreement as specified and described in the Agreement.
7.2 Pulse makes all efforts to ensure that, during the term of the Agreement (including renewal thereof), the Services to be provided by or on behalf of Pulse according to the Agreement and the results thereof will meet the agreed qualifications as laid down in the SLA.
7.3 Customer uses the Services and / or the Product exclusively for purposes as stated in these General Terms and Conditions and / or the Agreement.
8 Terms and Conditions Services and / or Product
8.1 If, for the use of the Services and / or the Product it is necessary that the Customer meet certain conditions, this will be included in the Agreement.
8.2 In order for the Services to be delivered and / or the proper use of the Product, the Customer themself is responsible for installing and purchasing certain equipment and / or software, or to have additional services performed, unless the Agreement dictates that Pulse will be responsible for that.
8.3 In the event that Pulse is indeed responsible as referred to in the previous paragraph, the Customer shall ensure that it has adequate rights (including the necessary license rights) with regard to necessary equipment and software, unless Pulse has indicated in the Agreement that it or its suppliers dispose of the necessary rights for the installation of equipment and software, and can provide the Customer with a user license on that basis.
9.1 Unless explicitly agreed otherwise in writing, Pulse shall never be liable for the content of any Message that is distributed, displayed or otherwise made available by means of the Services and / or the Product. Pulse therefore does not guarantee in any way the integrity, correctness or usability of a message.
9.2 Unless explicitly agreed otherwise in writing, the Customer is fully responsible for the content of the messages that are distributed, displayed or otherwise made available by means of the Services and / or the Product as well ensuring compliance with applicable (legal) regulations hereof. The Customer indemnifies Pulse against any claim (both for compensation and reimbursement of costs, including the costs of legal assistance) from a third party that states that a Message violates any right (of intellectual property) or is otherwise unlawful towards this third party.
9.3 In the event of a claim as referred to in 9.2, Pulse has the right, without any liability towards the Customer, to erase the relevant Messages, make it inaccessible to him and, at the request of the third party concerned, disclose the details of the Customer.
10 Performance of the Agreement
10.1 All Pulse commitments arising from the Agreement are best efforts commitments.
10.2 Pulse shall perform the Agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship based on the state of science / technology at the time of the Starting Date.
10.3 Provided that and as long as a proper performance of the Agreement so requires, Pulse has the right to have certain activities carried out by third parties.
10.4 At all times Pulse is entitled to (temporarily) block access to the Product and / or Service (temporarily) or to (temporarily) disable certain functionalities of the Product and / or Service, to the extent necessary for maintenance or performing (necessary) updates / improvements of the Product and / or the Service. The Customer has no right to compensation from Pulse if the temporary unavailability of the Product and / or Service is not unreasonably long. Pulse endeavours to limit the nuisance to an absolute minimum in these cases and - if possible - will timely inform the Customer hereof.
11 Amending of the Agreement
11.1 If during the performance of the Agreement it appears that to ensure a proper performance it is necessary to amend or supplement the Agreement, the parties shall, in mutual consultation, amend the Agreement accordingly in writing in a timely manner.
11.2 If the parties agree that the Agreement will be amended or supplemented, the time of completion of the performance thereof may be affected. Pulse will inform the Customer accordingly as soon as possible.
11.3 If the change or supplement to the Agreement will have financial and / or qualitative consequences, Pulse will inform the Customer in advance.
12 Obligations of the Customer and the User
12.1 The Customer shall ensure that all data, equipment, software or other requirements necessary for the performance of the Agreement, of which Pulse indicates that they are necessary or of which the Customer should reasonably understand that they are necessary for the performance of the Agreement are to be made available to Pulse on time, and / or executed by the Customer itself.
12.2 The Services and / or the Product provided by Pulse under the Agreement may only be used for legitimate and legitimate purposes. Moreover, these may only be used in such a way that no rights are infringed on third parties, including but not limited to intellectual property rights.
12.3 The Customer is always responsible for all usage - including all usage of Services and / or the Product by the Customer and the User - and the access rights granted to them. Their attitude and behaviour shall be in accordance with what may be expected of a responsible and careful User.
12.4 The Customer will inform Pulse as soon as possible in writing of changes in relevant data concerning the User. Customer and / or User must comply with the (technical) regulations, conditions and procedures, which are provided by or on behalf of Pulse.
12.5 If information necessary for the performance of the Agreement is not, not in time or not, in accordance with the agreements, at the disposal of Pulse or if the Customer does not fulfil its obligations in any other way, Pulse shall in any case have the right to suspend the performance of the Agreement. The Agreement and it has the right to charge the resulting costs according to its usual rates. Suspension of the Agreement also includes the (temporary) blocking of access to the Product and / or Service and the (temporary) disabling of certain functionalities of the Product or Service. Pulse will never be liable towards the Customer for the consequences of such suspension.
12.6 The Customer is obliged to immediately inform Pulse about facts and circumstances that in relation to the performance of the Agreement may be of importance.
12.7 The Customer must refrain from conduct that makes it impossible for Pulse to execute the Agreement properly.
13 Pulse’s obligations
13.1 Pulse is fully committed to optimal availability and accessibility of the Services and / or the Product. Pulse is explicitly not responsible for the (undisturbed) functioning of telecommunications connections.
13.2 Pulse makes an effort to render and adequate security level of the Services and / or the Product consistent with the available technological capabilities without however, removing the Customer's own responsibility for implementing adequate security measures of its own systems, data and other - sensitive or otherwise - information.
13.3 Pulse is explicitly subject to a commitment of effort and no commitment of obligation.
13.4 Under no circumstances does Pulse guarantee:
- unrestricted access to the Services and / or the Product;
- correct and undamaged data transmission;
- undisturbed and uninterrupted use of the Services and / or the Product;
- complete reliability and flawlessness of the Product and / or the Services.
13.5 Pulse is never obliged to repair lost data or compensation for damage caused by the loss of data.
14 Use Services and / or Product
14.1 Customer and / or User are not permitted to use the Product and / or the Services for actions and / or conduct that are in conflict with applicable statutory provisions, the Agreement or these General Terms and Conditions. This includes, but is not limited to, the following actions and behaviour:
- spamming: the unsolicited dispatching of large quantities of Messages with the same content;
- infringing copyright protected works, rights to databases or otherwise acting in violation of third party intellectual property rights;
- publishing and / or distributing (child) pornography;
- (sexual) harassment or harassment of persons in other ways;
- hacking: the penetration of other computers or computer systems without permission.
14.2 The Customer and / or User are not permitted to transfer their user name and / or access code (as referred to in Article 15), the manual or other rights arising from the agreement to third parties or to make them available to third parties, unless Pulse has given explicit written permission for this. At all times, User remains responsible for the use of any user name and Access Code.
14.3 User shall provide the necessary hard and software, peripherals and connectivity to enable the use of the product and / or the Services.
14.4 Pulse has the right to (temporarily) suspend the Services or the user rights granted in relation to the Product, to decommission it and / or to restrict its use, if the Customer and / or User do not fulfil any obligation towards Pulse or violates these General Terms and Conditions. Unless this cannot be reasonably required from Pulse, they will notify Customer of this in advance.
14.5 Pulse will never be liable towards the Customer and / or third parties for the consequences of the previous paragraph.
15 Access codes
15.1 Pulse provides the Customer with an Access Code, through which it gains access to the Service and / or the product. The Access Codes are secret. The Customer takes reasonable measures to prevent unauthorized persons becoming aware of the Access Codes provided to the Customer.
15.2 The Customer is not permitted to transfer or give access to his Access Code or other rights arising from the Agreement to third parties, without Pulse’s written permission.
15.3 If Pulse detects or reasonably suspects unauthorized use or possibility of use by third parties of the Access Codes (unauthorized use), or if the Customer informs Pulse of such use situation by telephone, in writing or otherwise, Pulse shall immediately block the Access Codes in question to the Service and / or Product. Pulse informs the Customer straight away of the unauthorized use and blocking, which is subsequently also confirmed by Pulse in writing as soon as possible.
15.4 Pulse provides the Customer with replacement Access Codes as soon as possible within 24 hours after blocking.
15.5 If the unauthorized use of Access Codes must be attributed to the Customer, the Customer must compensate Pulse for the actual technical and administrative costs associated with the blocking and replacement codes as well as the actual costs of unauthorized use. The basis for the costs for unauthorized use attributable to the Customer is determined by taking into consideration the time at which the access to the Service and / or the Product is blocked by Pulse or, if this is an earlier time, the time at which the access to the Service and / or the Product reasonably should have been blocked by Pulse. The normal rate is charged to Customer.
16.1 Pulse is entitled to change the Services and / or (the rights of use with regard to) the Product.
16.2 A change that in Pulse’s reasonable opinion requires a significant adjustment on the part of the Customer will be communicated to the Customer as soon as possible. Customer cannot claim compensation for damage.
16.3 Pulse reserves the right to suspend or terminate (the use of) the Services and / or the use of the Product if this causes a malfunction or delay to Pulse systems. Pulse assesses whether such a malfunction or delay could have occurred and can block the access without prior notice to the Customer or otherwise take measures to remedy the malfunction or delay.
16.4 Pulse is entitled to (temporarily) take the Services and / or the Product offline or to restrict their use as long as this is necessary for the reasonably required maintenance or for the necessary adjustments or improvements by Pulse of the Services and / or the Product without entitlement for Customer and / or User damage compensation. As long as reasonably possible, Pulse shall inform Customer hereof.
16.5 Pulse is entitled at all times to make changes to the login procedure without creating an entitlement for Customer and / or User damage compensation. In such case, Pulse will inform User of the changes as soon as possible.
17 Delivery and delivery period
17.1 The delivery period specified by Pulse is indicative and cannot be regarded as a deadline.
17.2 In a case that a confirmed or quoted delivery period is exceeded, Pulse can only be blamed to the extent that it can be attributed to Pulse shortcomings.
17.3 In the event that a delivery period agreed to by Pulse is exceeded as a result of an event that is in fact beyond its control and therefore cannot attributed to Pulse OR as a result of an event, as described in article 22 of these General Conditions, this period is automatically extended by the period that it was exceeded by as a result of such event.
18.1 Both parties are obliged to secrecy of all confidential information that, within the framework of their Agreement, they have received from each other or from another source.
18.2 Information is considered confidential if this has been communicated by the other party or if this arises from the nature of the information. Information about Products and / or Services delivered and / or made available by Pulse is undoubtedly confidential.
18.3 The Customer is aware that the provided Product and Services and information related to this contain confidential information and trade secrets of Pulse or its licensers. The Customer commits itself to keep information about the Products and Services secret, not to disclose it to third parties or to pass on for usage, and to only use for the purpose for which it was made available to him. Third parties also include all persons working within Customer's organization who do not necessarily need to use the Products and Services.
18.4 Subject to the prior written consent of the other party, each of the parties will not make available information and data carriers to third parties outside the framework of what is permitted in the Agreement and / or General Terms and Conditions.
18.5 Both parties will compel their staff and any third parties to comply with these provisions.
18.6 If Pulse is obliged pursuant to a statutory provision or a legal ruling to disclose confidential information to third-parties designated by the law or the court with competent jurisdiction, and Pulse is unable to invoke a right to privilege recognized or permitted by statute or by the court with competent jurisdiction, Pulse is not obliged to pay compensation for damages or other compensation and the Customer is not entitled to dissolve the contract on the ground of any losses thus caused.
18.7 Neither party shall report the details of their Agreement and / or General Terms and Conditions in publications or advertisements without the written consent of the other party.
19 Intellectual and industrial property rights
19.1 All intellectual or industrial property rights to all Products, Services, designs, documentation, reports, quotations, etc., as well as preparatory material developed or made available under the Agreement, rest solely with Pulse or its licensers. The Customer only obtains the rights of use and competencies that are explicitly granted under these General Terms and Conditions, the Agreement or otherwise. In addition it will not reproduce the software or other materials or make copies thereof.
19.2 The Customer is not permitted to remove or change any designation concerning copyrights, brands, trade names or other intellectual or industrial property rights from Products, including indications concerning the confidential nature and secrecy of the Product.
19.3 The Customer will never contest the intellectual property rights of Pulse, nor assist others to do so, nor do anything else that jeopardizes or reduces the intellectual property rights of Pulse.
19.4 Pulse is permitted to take technical measures to protect the Products and Services. In case Pulse has secured the Products and / or Services by means of technical protection, the Customer is not permitted to remove or circumvent this security.
19.5 If the Customer uses and / or develops software, or if the Customer intends to do so and if in connection with the interoperability of the software to be used and / or to be developed he needs Product information made available to him by Pulse In order to achieve this interoperability, the Customer will make a written and specified request to Pulse for the required information. Pulse will then inform within a reasonable term whether the Customer is able to obtain the desired information and under what conditions, including financial conditions and conditions concerning possible third parties that may be involved at the request of the Customer. In these General Terms and Conditions the term Interoperability is defined as: the ability of Products to exchange information with other components of a computer system and / or software and / or equipment and to communicate by means of this information.
20.1 Pulse shall indemnify the Customer against any legal claim based on the allegation that Products and / or Services developed by Pulse itself or at the request of Pulse infringe on a Dutch intellectual or industrial property right under the condition that the Customer immediately informs Pulse in writing of the existence and content of such a legal claim and leaves the conclusion of the case, including agreeing on any settlements, entirely to Pulse. To this end, the Customer will grant Pulse the necessary powers of attorney, information and cooperation to defend itself against these legal claims, if necessary on behalf of the Customer.
20.2 This obligation to indemnity referred to in article 20.1 will lapse if and as far as the relevant infringement is related to changes that the Customer or a third party on behalf of Customer has made to the Products and / or Services.
20.3 If it is irrevocably established in law that the Products and / or Services developed by Pulse itself or on behalf of Pulse infringe on any intellectual or industrial property rights belonging to a third party or Pulse believes that there is a reasonable chance that such infringement may occur, Pulse will ensure, where possible, that the Customer can continue to use the Product and / or Services, or functionally similar alternatives thereof, for example, by modifying the infringing parts or by acquiring a right of use for the Customer.
Any other or more extensive liability or indemnification obligation on Pulse’s part due to the infringement of a third party's intellectual or industrial property rights shall be completely excluded, including liability and indemnification obligations on Pulse’s part for infringements caused by using the Product and / or Services (i) in any form not modified by Pulse (ii) in connection with objects or software not delivered or furnished by Pulse or (iii) in another manner besides that for which the Product and / or Services were developed or intended.
21.1 Pulse accepts liability to pay damages to the extent as outlined in this article.
21.2 Pulse is not liable for any damage of any nature whatsoever, since Pulse assumes incorrect and / or incomplete information provided by the Customer, unless this incorrectness or incompleteness should have been known to Pulse.
21.3 Pulse is not liable for any damage or loss arising from any breakdown or inaccessibility as a result of maintenance that is reasonably required in respect of or in connection with the Products and Services. The sending of data and information via data communication lines such as telephone lines, cable or wireless connections takes place under the responsibility and at the risk of the Customer using these means of communication.
21.4 Pulse is not liable for any damage resulting from the suspension of its obligations (including the limitation of the use of Products and / or Services), termination of the Agreement, if this has been done in a reasonable manner.
21.5 Pulse is not liable for any damage as a result of the incorrect import of data from source files of the Customer and vice versa, if this is the result of a not timely reported change in the source file.
21.6 Pulse is not liable for damage caused by data lost by the Customer during the (maintenance) activities of Pulse. The Customer is always expected and required to ensure a backup of its data.
21.7 Pulse is not liable for damage or costs due to transmission errors, malfunctions or non-availability of software and / or databases and / or other computer facilities and / or telecommunications connections.
21.8 Pulse’s total liability in respect of such failure to perform the Agreement as is imputable to the same shall be limited to making compensation for any direct loss up to the amount of the agreed price (not including VAT) for that Agreement.
If the Agreement is primarily a continuing performance contract with a term exceeding one year, the aforementioned amount shall be set at the total of the fees (excluding VAT) stipulated for one year.
In no case however, shall the total compensation for direct damage amount to more than the compensation paid by Pulse’s insurer. If the liability insurer does not pay, the total compensation for direct damage shall be limited to € 25,000.00 (in words: twenty-five thousand euros). Direct damage is exclusively understood as:
a. the reasonable costs that the Customer would have to incur to fulfil the performance of Pulse in accordance with the Agreement. However, this damage will not be compensated if the Customer has terminated the Agreement;
b. reasonable costs incurred to determine the cause and extent of the damage, as far as the determination relates to direct damage within the meaning of these General Terms and Conditions;
c. reasonable costs incurred to prevent or limit the damage, as far as the Customer is able to demonstrate that these costs are directly related to the limitation of direct damage within the meaning of these General Terms and Conditions.
21.9 Pulse's total liability for damage resulting from death or physical injury or for material damage to goods. In no case however, shall the total compensation for direct damage amount to more than the compensation paid by Pulse’s insurer. If the liability insurer does not pay, the total liability will be limited to € 25,000.00 (in words: twenty-five thousand (euro) per event, whereby a series of coherent events counts as one event.
21.10 Pulse's liability for indirect damage is excluded. Indirect damage includes: consequential damage, consequential loss, lost profits, lost savings and damage due to business interruptions; damage ensuing from claims by the Customer's customers, damage due to loss of or damage to data and / or data; any form of damage that is not direct damage as referred to in Article 21.8.
21.11 The maximum amounts referred to in paragraphs 8 and 9 of this article shall lapse if and far as the damage is the result of intent or gross negligence on the Pulse’s part.
21.12 The liability of Pulse because of an attributable failure in fulfilment of an Agreement shall only arise if the Customer immediately and properly puts Pulse into default in writing, stating a reasonable period to correct the failure and if Pulse continues to fail attributably in the fulfilment of its obligations after such period has lapsed. The notice of default must contain an as detailed a description as possible of the breach, so that Pulse could respond adequately.
21.13 A precondition for any right to compensation is that the Customer
must always inform Pulse in writing of the damage as soon as possible
after it has arisen or has become known, and in any case within 4 (four) weeks after the damage could reasonably have been ascertained by the Customer.
22 Force majeure
22.1 Force majeure will apply to Pulse, among other things, if Pulse is prevented from fulfilling its obligations under the Agreement or its preparation as a result of: war, the threat of war, civil war, terrorism, riots, acts of war, revolution, molestation, fire, water damage, flooding, strikes, lockouts, government measures, import and export restrictions, defects or failures in machinery and materials (including computers and telecommunication equipment), disruptions in the supply of energy, non-availability of materials (including computers and telecommunication equipment), blockades, occupancy, irreplaceable employees, transport problems as a result weather conditions and traffic disruption, all of which effect Pulse as well as in the company of the Customer and the company of third parties that are involved in the Agreement.
22.2 By force majeure is also understood a shortcoming of brought in third parties or suppliers as well as each situation on which the Pulse cannot actually exercise (decisive) control (including electricity failure, breaking of the internet connection) as a result of which Pulse can not, not timely or not completely fulfil its obligations.
22.3 If after the conclusion of the Agreement a situation of force majeure occurs or becomes known to Pulse which Pulse did not know at the time of entering into the Agreement, nor should it have known, as a result of which Pulse is not able to fulfil its obligations towards the Customer or is unable to fulfil them on time, Pulse will not be in default and is entitled to suspend its obligations.
22.4 If compliance by Pulse is permanently impossible as a result of the above-mentioned in 22.1, Pulse has the right to demand that the Agreement be amended in such a way that it remains possible for it to be executed, unless under the given circumstances this cannot be reasonably demanded from the Customer and dissolution of Agreement is justified. In the latter case, the Agreement will be annulled without the Customer being able to enforce any right to compensation.
22.5 Provided that at the time when the force majeure takes affect Pulse
partially complied with its obligations under the Agreement or will be able to comply with them, and independent value is attached to that part of the obligations that has been or will be complied with, Pulse is entitled to invoice separately for the said part. The Customer is obliged to pay these invoices as if it were a separate Agreement.
23 Privacy and protection of personal data
23.1 Pulse makes available Products and Services to the Customer for the processing of personal data of Customers’ debtors and clients.
23.2 For the legal framework regarding privacy, the parties assume the applicability of the General Data Protection Regulation ('GDPR') and the ensuing legislation and regulations. The parties will ensure compliance with the obligations applicable to them under the GDPR within the framework of the obligations entered into in the Agreement.
23.3 In case Pulse processes personal and other data for the Customer or on behalf of the Customer, Pulse is the 'processor' in the sense of the GDPR. The Customer is the 'controller' in the sense of the GDPR. Pulse shall only process the personal data as processor for the purpose and purposes as laid down in the Agreement and any further written instructions from the Customer.
23.4 Pulse is not liable for processing of personal data in accordance with the provisions of 23.3, which results in a violation of the provisions of the GDPR and the Customer indemnifies Pulse against claims of third parties that are a consequence of non-compliance with the obligations as referred to in 23.3.
23.5 The Customer agrees that Pulse stores and uses the (personal) data of debtors and clients of Customers, including but not limited to traffic data and registration data resulting from the use of the Product or Service, as far as this is necessary:
for its administration and management tasks;
to enable the Customer to use the Service.
23.6 Pulse will not engage third parties for the processing of personal data as referred to in this article without explicit written consent of the Customer. Pulse shall also not process personal data outside the Netherlands without the explicit written consent of the Customer.
23.7 The personal data collected by Pulse in the framework of the use of the Product and the Service are exclusively accessible to Pulse. These personal data, with the exception of the provision stipulated in 23.6, are not provided to third parties without the permission of the Customer, unless Pulse is or becomes obliged to do so by virtue of the law or a court order.
23.8 The Customer informs its debtors and clients about the Service and about the type of data that will be collected, stored and processed, about the purposes and duration of the processing and whether the personal data will be transferred to third parties. In addition, the Customer informs its debtors and clients about their rights with regard to the processed data, such as but not limited to the right of rectification and objection.
23.9 Pulse shall implement appropriate technical and organizational measures to protect personal data against accidental or unlawful or accidental loss, intentional loss, alteration, forgery, unauthorized distribution or access, in particular where the processing involves the transmission od data over a network and or against any other form of unlawful processing. If the Customer deems it necessary, the Customer can is provide Pulse with written instructions related to this, which will be followed by Pulse. The Customer is entitled, after prior written request, to have the measures taken by Pulse in the framework of this article, checked. The costs involved with the measures mentioned in this article are for at the expense of the Customer.
23.10 At the written request of the Customer, Pulse will give the Customer access to personal and other stored data concerning its debtors and clients.
23.11 Pulse and all persons who act under its authority shall observe secrecy with regard to the personal data which they have been in contact with, except insofar as any statutory regulation obliges them to disclose them, and subject to data of public knowledge, for example on the grounds of publication in media, or as far as the necessity of communication ensues from their duties. If any statutory requirement obliges Pulse and / or any person who acts under its authority to disclose, Pulse will inform Customer of this.
23.12 After the end of the Agreement, Pulse will retain the collected and stored personal data for a maximum period of six months, unless otherwise agreed in writing. The Customer is obliged to download the stored data after these six months. Subsequently, the stored data will then be destroyed at Pulse. Pulse is not liable for any damage for the Customer as a result if this.
24.1 Neither party is entitled to dissolve the Agreement unless the other party remains in breach of contract after having been given a proper and detailed notice of default, which details the problems and sets a reasonable term for remedying them.
24.2 If an Agreement which by its nature and content does not end upon completion, has been entered into for an indefinite period of time, Pulse is entitled to terminate it by written notice with due observance of a notice period of 3 (three) months. Pulse will never be obliged to pay any compensation as a result of the termination.
24.3 If an Agreement which by its nature and content does not end by completion, has been entered into for an indefinite period of time, the Customer may do so after the Initial Year by the last day of the next calendar year, with due observance of a notice period of at least 3 (three) months terminate by written notice. In that case the Customer will never be obliged to pay any compensation.
24.4 Pulse may terminate the Agreement immediately and without notice of default or judicial intervention by notifying the Customer in writing of its intention to terminate in whole or in part, if the Customer is granted a provisional or definitive moratorium on payments, if a winding-up petition in respect of the Customer is filed or a winding-up order is issued against it, if a significant part of the Customers’ assets is attached, or if the Customers’ business is wound up or discontinued other than as part of a restructuring or merger. Pulse shall be obliged to pay any damages as a result of this termination.
24.5 In the event the Customer, at the moment of dissolution as intended by 24.1, already enjoyed performances in connection with the performance of the Agreement, these performances and the thereto pertaining payment obligations, will not constitute part of the dissolution unless Pulse is in default, regarding these performances. Amounts that Pulse has invoiced prior to the dissolution in connection to what it has already properly performed or delivered to execute the Agreement shall, subject to the provisions in the preceding sentence, continue to be owed in full and shall be immediately claimable at the time of dissolution.
25 Various provisions
25.1 Pulse reserves the right to change the General Terms and Conditions and to declare the modified conditions applicable to the existing agreement. Pulse will announce the change on its website. The changes will take effect 30 days after written notice of modification.
25.2 If the Customer does not accept the change, he his entitled to terminate the Agreement without judicial intervention, barring any financial obligations of the Customer
25.3 If the Agreement and the associated Annex (es), or parts thereof, are in conflict with these General Terms and Conditions, the text of the Agreement shall prevail.
25.4 The Agreement can only be modified in writing.
25.5 The unlawfulness, invalidity or unenforceability of a provision of the Agreement shall not affect the legality, validity or enforceability of the remainder of the article or paragraph containing the relevant provision or any other provision of the Agreement. If the rest of the provision is not affected, the parties will make all reasonable efforts to reach an agreement within a reasonable period of time on legal and reasonable variations of the Agreement necessary to achieve, as much as possible, the same effect as would be achieved by the relevant article, or part of the relevant article.
25.6 Neither party may assign, sub-contract, transfer or make available its rights and obligations under the Agreement, in whole or partly, without the prior written consent of the other party, providing that Pulse is entitled to, in whole or partly, assign, outsource, transfer or make its rights and obligations under the Agreement available to its affiliated companies, without the prior consent of the Customer.
25.7 The Agreement concluded between Pulse and the Customer is subject to Dutch law only. The application of the Vienna Sales Convention is excluded.
25.8 Unless explicitly agreed otherwise, disputes will be settled by the competent Dutch judges at the District Court of East Brabant.
25.9 The parties shall not appeal to the courts until they have made every effort to resolve such dispute amicably.
If you have any questions or remarks about these General Terms and Conditions, please contact us at firstname.lastname@example.org.