GENERAL TERMS AND CONDITIONS OF DIGITAL DATA SOLUTIONS
Latest version: 13 January 2022
|Agreement||The main Agreement between Digital Data Solutions and the Customer|
|Cookies||Text files with small pieces of data that are used to identify your computer as you use a computer network. Specific cookies known as HTTP cookies are used to identify specific users and improve your web browsing experience|
|Controller||A natural person or legal entity which, alone or jointly with
others, determines the purposes and means of the processing of personal data
|Customer||A natural person or legal entity buying and/or using Software and/or Services from Digital Data Solutions|
|Data Processing Agreement||An agreement between a Controller and Processor, in the sense of the GDPR, regulating any data processing activities conducted regarding the performance of the Agreement|
|GDPR||General Data Protection Regulation|
|Maintenance||The modification of the Software and/or Services after delivery to correct faults, to improve performance, or other attributes|
|Parties||The parties to the Agreement; Digital Data Solutions and the Customer|
|Processor||A natural or legal person, public authority, agency or other body which processes personal data
on behalf of the controller
|Processing of personal data||Any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, storage, disclosure by transmission, erasure or destruction|
|SaaS||Software as a Service; a software licensing and delivery model in which Software is licensed on a subscription basis and is centrally hosted|
|Scripts||A program or sequence of instructions that is interpreted or carried out by another program|
|Software / Services||Digital Data Solutions’ Consent Management Tool (“CookieFirst”)|
|Third Party||Any party other than the Parties|
|Third Party Code||Any code written by a third party that is included in the Software and/or Services|
|User||A natural person interacting with the Software and/or Services|
Scope and application
- These general terms and conditions apply to all offers and agreements concluded between Digital Data Solutions B.V., Plantage Middenlaan 42A, 1018DH Amsterdam, registered to the Dutch chamber of commerce with number 75762277 and/or any of its affiliated services (hereafter: “DDS”, “We”, “Us”, “Our”) and the Customer. Within these general terms and conditions a “Customer” is any party using Our services and/or products.
- By means of Software-as-a-Service (“SaaS”), We offer our “Services” and “Software” to Our Customers. Our Services include but are not limited to Our consent management platform (“CookieFirst”). We offer Customers access to the Services we have developed via the internet.
- Terms and provisions stipulated by the Customer that deviate from, conflict with, or that are not included in these general terms and conditions do not apply, unless and insofar DDS has agreed expressly to their application in writing.
Offers and acceptance
- DDS shall make an offer in which We will stipulate the Services we offer and the monetary compensation for these Services.
- All our proposals and offers are non-binding, unless expressly agreed otherwise. An offer or proposal only applies to the assignment specified therein and not to possible future assignments.
- Generally, Our Services consist of the use of CookieFirst, including assistance with configuration, installation, and support regarding these Services. Other activities will only be performed if expressly mentioned in the offer.
- An offer remains valid for 14 days after being sent by DDS, unless otherwise stated in the offer. DDS can never be obligated to agree with an acceptance after this period. However, if DDS does agree with an acceptance after this period, the offer will still be considered accepted.
- An offer will be considered to be accepted the moment that DDS receives a written notification from the Customer in which the offer is accepted.
- A change in the Services is only acceptable if expressly agreed upon by both parties in writing. In the case additional services and/or work is requested by the Customer, DDS shall provide a suitable offer.
- The prices for the Services are determined by the signed contract or completed online contract offer. All prices are in Euro and do not include possible expenses, taxes, and/or levies imposed by the relevant authorities.
- DDS has the right to adjust the prices of our Services at any given time. The new price shall be applicable by the next billing cycle.
- In case the Customer does not agree with the change of price in question, the Customer has the right to cancel the agreement within 14 days after the announcement. The agreement will then terminate on the day the new prices become applicable.
Payment, renewal of subscriptions and collection charges
- By selecting a subscription, you agree to pay DDS the monthly or annual subscription fees indicated for the service. Subscription fees are not refundable except for the first 30 days of a yearly subscription. The subscription fee is specified on the invoice. Unless you notify DDS before the end of the applicable subscription period that you want to cancel, the subscription will automatically renew. You authorise DDS to collect the applicable annual or monthly subscription fee using any credit card or other payment mechanism we have on record for you.
- We shall automatically charge your bank account each month around the first of every billing cycle.
- If a payment is due, and you have failed to meet this payment obligation, you will automatically be in default. A default notice is not required.
- In case of default:
- We may charge an interest of 1% per month. The interest is calculated from the moment that the payment becomes due, until the moment that the amount has been paid in full.
- all extrajudicial costs. In case of an invoice up to € 267, these costs will be € 40. In case of a higher invoice amount, the maximum collection fees are as follows:
- 15% on the first € 2,500;
- 10% on the part that remains thereafter, up to € 5,000;
- 5% on the part that remains thereafter, up to € 10,000;
- 1% on the part that remains thereafter, to € 200,000;
- 5% on the remaining part, whereby the total collection fees are maximised to € 6,775.
Use of our Services
- If the Customer wants to use our Services, the Customer will have to create an account on our website.
- The Customer is free to create multiple accounts. The Customer is responsible for the use of the created accounts.
- Passwords must be treated confidentially and the Customer is responsible for choosing a unique and strong password.
- The Customer is responsible for all other internal networks or IT-systems he/she uses if so required to use Our Services within the Customer’s organisation.
- The Customer is responsible for all activities on his/her account after it has been logged in, unless the personal account has been compromised and this has been reported as soon as becoming aware of this.
- Our regular plans (Free, Basic and Plus) are meant for traffic of up to 300.000 monthly page views per domain. We allow an overuse of 25% for two months. When the overuse exceeds these limits, using the regular plans (Free, Basic and Plus) is not allowed anymore. In that case you will be contacted by our team with an offer for a custom enterprise solution.
- We retain the right to block accounts. We will only do this in case we have reasonable belief that one or more accounts are used in a manner that is against the law or contrary to a provision of these terms or any other contract concluded between DDS and the Customer. Furthermore, We have the right to take any other measures We deem adequate, taking into account the circumstances at hand.
- The nature of Our Services is conclusively regulated in the contract and the documentation of DDS Services. A material defect shall only be given if a deviation from the documentation of DDS Services or contractually agreed quality differs significantly. A further quality agreement requires explicit written confirmation. A particular quality cannot be derived from advertising materials or public statements if the specific content has not been expressly confirmed in writing by DDS. The assumption of a guarantee is only validly agreed if DDS explicitly confirms it in writing.
- Insofar as the Customer can assert claims for defects against DDS regarding DDS’ Services throughout the course of providing a paid service such as in the event of defects in the software or DDS-code provided, the defects shall be eliminated by DDS, at Our option. This shall be undertaken either by providing a modified version of the software or the DDS-code (e.g. an update) or by providing the Customer with reasonable instructions for a workaround, provided that this does not unreasonably impair the usability of the Our Services.
- In the case of a free service provision DDS is not obliged to rectify the defect.
- Warranty claims of the Customer are time-barred within one year. This does not apply if the defect was caused intentionally or through gross negligence, if a defect caused by simple negligence has resulted in injury to life, body or health, or if a guarantee is given for the quality of the contractual service. The commencement of the limitation period is determined in accordance with the statutory provisions.
Availability and maintenance of “CookieFirst”
- DDS shall ensure that the Software will be kept available for use for the entire duration of the agreement between DDS and the Customer. We shall do our best to keep the Software up and running 24 hours a day, 7 days a week.
- We are responsible for the functioning and maintenance of the Software. During maintenance, the Software can be unavailable. Maintenance will, as a matter of principle, never take place during office hours (Monday – Friday 09:00 – 18:00 UTC +2). We will notify the Customer of such a maintenance at least 7 days in advance.
- In case of emergencies and/or force majeure, DDS can deviate from paragraph 2 of this article.
- We have the right to change the Software. This includes, but is not limited to, changing, removing or adding certain features or functionalities of the Software.
- We do not guarantee that our Software is completely free of error. Please inform us immediately of any errors, bugs or malfunctions of the Software. You can do that by sending an email to: firstname.lastname@example.org. We will then do our utmost best to resolve your problem as quickly as possible.
- We have the right to employ third parties to partially perform our duties, if we are of the opinion that this is necessary for the due exercise of the SaaS Agreement. Articles 7:404 of the Dutch Civil Code (uitvoering door bepaalde persoon), 7:407 section 2 DCC (hoofdelijke aansprakelijkheid) and 7:409 DCC (overlijden van bepaalde persoon) are not applicable.
- DDS is only liable for damages suffered by the Customer that are directly caused by gross negligence, intentional action, or malice by DDS.
- In all other cases, DDS shall only be liable in the event of negligent breach of essential contractual obligations, and only for compensatory damages, meaning compensation for the value of the omitted performance. Liability for any other form of damages is explicitly excluded.
- The Customer indemnifies DDS from all claims by third parties relating to the data that the Customer has collected, saved and/or, processed in any way, by means of our Services. We are not liable for the content of the data that the Customer has collected, saved and/or processed within the framework of our Software.
- DDS’ liability is limited to a maximum sum of a 12 month subscription fee for the subscription plan the Customer signed up for.
- DDS undertakes the responsibility to ensure that your data will be stored safely. We are not liable for the damage or loss of any data, for the storage of which third parties have been employed.
- DDS is not liable for any damages in case of force majeure. If the force majeure takes place for a period that exceeds 14 days, the agreement between DDS and the Customer can be terminated in writing. In that case, parties have no right to recover damages. DDS will then send the Customer an invoice regarding the period in which you have used our Software.
Liability to fines due to wrong use of services
- The Customer is responsible for correct use of DDS’ Software and Services. Simply activating Our cookie notice banner does not make a website compliant to the GDPR and/or other laws and legislation. The Customer is responsible for correctly implementing the execution of any Scripts and/or Third Party Code on its website according to the cookie categories accepted by the website visitor. Digital Data Solutions B.V. and/or its brand name CookieFirst cannot be held liable for any fines and/or other penalties that arise from misconfigured or wrong use of Our Software and/or Services.
Data protection and confidentiality
- For the processing of personal data on behalf of the Customer, the parties conclude a separate Data Processing Agreement. In the event of contradictions between these terms and conditions and the Data Processing Agreement, the Data Processing Agreement shall prevail.
- Each Party protects the confidential information of the other Party from use or access by unauthorised individuals with reasonable care.
- “Confidential Information” means (i) any information exchanged between the parties in the context of or in connection with this Agreement, either expressly marked in writing as “confidential” or in a similar manner, (ii) oral information expressly designated by the issuing party as confidential, (iii) all information related to research, development, trade secrets or information related to company matters, (iv) personal data in the sense of the General Data Protection regulation (GDPR), and (v) regardless of the above provisions, any information from which it is clear that they need to be kept confidential.
- The obligation of confidentiality does not apply to information that is already generally known at the time of conclusion of the contract or which can verifiably become subsequently known without breach of the contractual obligations. The obligation of confidentiality also does not apply to confidential information to the extent that the disclosing party may prove to them that it (i) has obtained or received it lawfully from third parties; (ii) for the provision of contractual services to the other party, must be passed on to third parties legitimately engaged for this purpose; (iii) must be disclosed by law or by decision of a court or an order of an authority; or (iv) by professionally committed advisors and lawyers.
- In the event that one of the parties has reason to believe that there has been an unauthorised loss, access or disclosure of the other party’s confidential information, it shall notify the other party without delay.
- DDS (or our licensor or suppliers) are the exclusive owners of all existing and future intellectual property, such as copyrights, trademarks, design rights, patents, source codes and know-how, which rest on our Software or are the fruits of the use of our Software.
- As a Customer, you only gain the right to use our Software. You cannot claim any of the intellectual property rights mentioned in paragraph 1 of this article. This is not an exclusive right, which means that DDS can grant others similar rights of use. Furthermore, it is expressly forbidden to transfer or license this right to any third party, without explicit, written consent from DDS.
- Dutch Law is exclusively applicable to all Agreements concluded between DDS and the Customer.
- If any dispute were to arise, the court of Amsterdam shall be the only competent court to handle such a dispute.
- DDS has the right to change these general terms and conditions at all times. The latest version of these terms and conditions will always apply. Arrangements that deviate from these terms and conditions will only be applicable if they have been agreed on by us in writing.
If you have any questions, you can contact us by sending an email to email@example.com or via mail: Digital Data Solutions B.V., Plantage Middenlaan 42a, 1018DH Amsterdam.