1 Definitions
In this Agreement, the capitalized terms defined below shall have the following meanings:
Agreement: the Terms and Conditions, as well as the Assignment Form and/or any other provision or statement legally declared applicable to the legal relationship between the Parties in accordance with the Terms and Conditions.
Additional Terms: terms and conditions including, and to the extent applicable, third-party terms, a Service Level Agreement and a Data Processing Agreement, which apply to the delivery of specific products and/or Services and which are in addition to the Terms and Conditions.
Assignment Form: document or pricing page containing a detailed specification of the Service or the Product and/or used to issue an assignment for the Service or the Product or used to order or reserve the Service or the Product.
Customer: the natural person or entity the Supplier has entered into the Agreement with or who visits the Supplier’s Website.
Defect: demonstrable deviation in the Service from the characteristics agreed in the Specifications for that purpose.
Documentation: the manuals/help texts for the use of the Service.
End User or Consumer: every natural person, not in the exercise of professions or business, who makes use of the Service.
Intellectual Property Rights: include all intellectual property rights and related rights, such as copyright, trademark, patent, design, trade name, database and neighboring rights, as well as rights to know-how and performances on a par with a patentable invention.
Internet: the infrastructure intended for the performance of information services between the Customer and the Supplier.
Party: any party to the Agreement.
Product: any product to be made available, to be delivered or delivered by the Supplier on the basis of the Agreement or an equivalent product according to public opinion, including Software.
Really Simple Security: the tradename of Really Simple Plugins B.V.: established in Groningen and registered with the Chambre of Commerce under number 70461155 and is part of team.blue nl B.V.
Server: a computer managed by or on behalf of the Supplier with web server software installed.
Service: service as specified in an Assignment Form that Supplier will provide pursuant to an Agreement.
Software: Computer software made available as plugin from a Server, including the manual for its use intended for the Customer
Specifications: the requirements agreed in respect of the Service and/or the Product
Supplier: Really Simple Plugins B.V.
System: the entirety of equipment and Software.
Terms and Conditions: the provisions of this document.
Website: https://really-simple-ssl.com or other similar forms of providing access to or making available of information, by means of which Products and/or Services or related information are made available.
2 Applicability
2.1 These Terms and Conditions apply to all Agreements, offers and other acts and legal acts between the Supplier and Customer, even if those acts or legal acts should not result in, or are not related to, an Agreement.
2.2 Unless expressly agreed otherwise, the applicability of other general terms and conditions is excluded.
3 Communication
3.1 Any communication between the Supplier and the Customer may take place electronically, except insofar as these Terms and Conditions and/or the Agreement and/or the law deviate from this.
3.2 The version of the relevant communication received or stored by the Supplier is considered to be proof thereof, unless the Customer provides evidence to the contrary.
3.3 Electronic communication shall be deemed to have been received on the date of its transmission, unless the recipient provides proof to the contrary. If the communication has not been received as a result of delivery and/or accessibility problems with respect to the Customer’s email box, this shall be at the Customer’s risk, including if the email box is located with a third party.
4 Conclusion of the Agreement
4.1 Unless a separate written agreement is concluded, the Agreement shall be concluded by the Supplier’s confirmation of the Customer’s order. Confirmation may occur electronically (for example via the Supplier’s website, by email or by means of similar technologies) or, if agreed, in writing (by letter).
4.2 Supplier may unilaterally amend or supplement the agreement and these general terms and conditions, including for existing agreements. For pre-existing agreements, a period of one (1) month after publication before the amendment takes effect. Changes of minor importance, changes based on the law and changes in your favor can take effect immediately.
4.3 In the event of any discrepancy between different documents, the
following order of precedence will apply:
- Additional written and signed agreements;
- Approved (digital) quotation or order via the website;
- Agreed written availability arrangement;
- Additional terms
5 Definition of the service
5.1 The Supplier shall provide the Customer with the service stated in the Assignment Form. To this end, the Supplier shall provide the Customer with the relevant information for use of the Software by an End User (or by the Customer on behalf of other End Users).
5.2 The Customer may allow End Users within its organization to use the Service for its organization’s internal purposes. If agreed in advance, or with the “Agency” version of the Software, the Customer may also allow End Users outside its organization to use the Service insofar as such use forms part of the broader service to those End Users.
5.3 The Supplier may amend the Software from time to time and will use its best effort to implement any amendments to law or applicable case law on the shortest term.
5.4 The Supplier shall take appropriate technical and organizational measures to protect the Customer’s data stored on the Server.
5.5 The Supplier shall have the right to modify the Software from time to time in order to improve the functionality and to correct errors. The Supplier shall make every effort to resolve any errors in the Software, but cannot guarantee that all errors will be remedied. If an adjustment leads to a change in the functionality, the Supplier shall inform the Customer thereof prior to the adjustment.
5.6 Article 5.5 shall not apply to Software purchased by the Supplier from third parties, except for the provisions of the first sentence of Article 5.5. In respect of the use and maintenance of that Software, the Supplier may never be held liable for more than or different from what applies in the relationship between the Supplier and its relevant supplier.
6 Conditions for using the Service
6.1 The Customer and End Users determine which information will be made public through the Service. The Supplier has no knowledge of this information. The Customer is therefore responsible for ensuring that this information is lawful and does not infringe on any rights of third parties. The Customer indemnifies the Supplier against claims by third parties based on the statement that the information published by the Customer or End Users with the help of the Service is unlawful.
6.2 The Customer shall keep confidential any user names and passwords provided by the Supplier to the Customer. The Supplier shall not be liable for any misuse of user names and passwords and may assume that a user who registers with the user name and password of an End User is actually the End User. As soon as the Customer becomes aware or has reason to suspect that user names and passwords have fallen into the hands of unauthorized persons, the Customer shall inform the Supplier thereof, without prejudice to the Customer’s obligation to take effective measures immediately.
7 Maintenance
7.1 The Supplier reserves the right to take the Service out of operation for the purpose of maintenance, modification, or improvement of the computer systems of the Supplier on a temporary basis. To the extent possible, the Supplier shall undertake efforts to effect any such taking out of service outside office hours and shall inform the Customer of the planned taking out of service in good time. The Supplier shall never be obliged to pay the Customer any compensation on account of taking the Service out of operation.
8 Prices and Payment
8.1 The Customer shall pay the price stated in the Agreement for the Services and Products ordered by the Customer. Payment shall be made in the manner indicated by the Supplier on the Assignment Form, or elsewhere on a Website, without prejudice to the provisions of Article 8.5.
8.2 Prices are inclusive of VAT and other government levies, unless stated otherwise.
8.3 In the event of payment against an invoice and the Supplier offers this possibility, the Customer shall pay within 30 (thirty) days of receipt of the invoice, unless the Supplier has stated another term. An invoice sent electronically shall be deemed to have been received on the date of transmission. Invoices sent by post shall be deemed to have been received within 2 (two) days after the postmark in the Benelux and within 5 (five) days after the postmark in other countries.
8.4 In the event of late payment, the Supplier shall have the right: 1) to charge the statutory interest on the full amount due from the date on which payment should have been made until the date on which the amount due has been received by the Supplier without any notice of default or notification being required; and 2) to transfer the claim to a third party for collection after notice of default; 3) suspend your paid Services. The Customer shall reimburse all costs incurred by the Supplier and this third party to collect the amount due, including costs of legal assistance, legal costs and extrajudicial costs, the last-mentioned with a minimum of 15 (fifteen) percent of the outstanding sum, except insofar as this (in view of the amount of the outstanding sum) would be considered unacceptable according to standards of reasonableness and fairness. A notice of default may be sent electronically if the Customer has opted for electronic payment or if payment has taken place after receipt of an invoice sent electronically.
8.5 The Supplier reserves the right to demand a method of payment other than that specified by the Customer, without stating any reasons.
8.6 During the term of an agreement, the Supplier is entitled to adjust the prices for its services at any time. Supplier shall notify Customer of price changes at least 1 month in advance via its website and by e-mail.
8.7 In the event of a price increase pursuant to Article 8.6, the Customer has the right to terminate the Agreement with effect from the date on which the increased rates come into effect. Customer does not have this right if the price change is the result of:
- inflation (% as published by CBS);
- a price increase by the supplier(s) of the Supplier;
- an obligation incumbent on the Supplier by or due to laws and/or regulations; or
- price change in favor of Customer.
The price changes referred to in points (a) to (d) of this paragraph may take effect immediately.
9 Intellectual Property Rights
9.1 The Intellectual Property Rights to all Software made available by the Supplier within the scope of the Agreement shall remain vested in the Supplier or in the third party from whom the Supplier has acquired the right to make (part of) this Software available to the Customer. The Supplier hereby grants the Customer only a right of use that is not exclusive and non-transferable, unless explicitly provided otherwise or differently in the Agreement.
9.2 If, in the opinion of the Supplier, it is plausible that it will be established that the Software made available by the Supplier under the Agreement infringes on any right of a third party, the Supplier shall be entitled, at its discretion, (1) to ensure that the Customer can continue to use the Software made available, or (2) to discontinue the provision of the relevant Services in return for payment of a reasonable fee for the use thereof and, if applicable, to reimburse any excess, or (3) to make equivalent Software available, in the Supplier’s reasonable opinion. Any further liability, obligation to further fulfillment, or obligation to pay compensation is hereby excluded.
9.3 The Customer warrants that, if and insofar as it makes materials or data available to the Supplier within the scope of the Agreement, it shall be entitled to do so and that these materials and data do not infringe on the rights of third parties.
9.4 The Customer may not remove or alter copyright markings, trademarks or other indications of the owner of Intellectual Property Rights from or in the Software provided. The same applies to statements to the effect that certain information is confidential in nature.
9.5 Except to the extent permitted by mandatory law, the Agreement or any applicable open source licenses, the Customer may not reproduce, decompile or reverse engineer any Software provided. Furthermore, it is not permitted to remove or circumvent protections or technical (user) restrictions of the Software.
9.6 The Supplier indemnifies the Customer against claims by third parties that Services provided under the Agreement infringe on Intellectual Property Rights in the Netherlands or are otherwise unlawful, on the condition that the Customer informs the Supplier forthwith of the existence and content of such claims and that the Customer allows the Supplier to conduct negotiations in respect of these and/or to seek a settlement and/or to defend itself in any proceedings. If and to the extent necessary, the Customer hereby gives the Supplier irrevocable power of attorney to defend such claims in and out of court and to seek a settlement. The Customer undertakes to provide the Supplier with all information and cooperation reasonably required for this purpose. The Supplier’s obligation to indemnify shall lapse if and insofar as the alleged infringement is caused by changes in the Services provided by the Customer or by a third party on behalf of the Customer, by the use of Software in combination with Software not supplied by the Supplier, or as a result of use in a manner other than that for which the Services supplied were developed or intended.
9.7 One or more open source licenses may apply to a number of software modules used in the Software. This Agreement shall not limit the rights that such licenses may confer on the Customer in addition to this Agreement. Only if a right to do so exists shall the source codes of these modules be available to the Customer for a period of at least 3 years, starting on the day of this Agreement.
10 Privacy
10.1 The use of the Service may involve the processing of personal data. In such a case, the Supplier and the Customer shall enter into a Data Processing Agreement.
10.2 All employees who act under the authority of the Supplier and who have access to the personal data shall observe confidentiality with respect to the personal data they become aware of, unless they are under an obligation to disclose such information pursuant to any statutory regulation.
10.3 The Supplier shall take all appropriate technical and organizational measures to protect the personal data against loss or any form of unlawful processing. These measures shall be appropriate, taking into account the state of the art and the costs involved, and shall also be aimed at preventing unnecessary collection and further processing of personal data.
11 Warranties
11.1 Defects reported by the Customer to the Supplier shall, at the Supplier’s discretion, either be rectified or replaced free of charge, unless the occurrence of these Defects is attributable to the Customer, or the Agreement already contains an arrangement in this respect. In the event of replacement of a Product, the return costs shall be for the account of the Customer. In the case of Software, imperfections that do not substantially restrict normal use are not covered by this warranty and, furthermore, in the case of Software originating from third parties, the Supplier shall never be obliged to more or something else than that which is applicable in the relationship with the relevant suppliers of the Supplier.
11.2 Third parties that have granted the Supplier the right to make (part of) this Software available to the Customer do not provide any guarantees to the Customer.
12 Liability
12.1 The total liability of Supplier due to an attributable shortcoming in the performance of the Agreement or for any other reason obliged to compensate damage, expressly including any failure to comply with a warranty obligation, is limited to compensation for direct damage, which concept of damage also includes multiple damages as a result of a series of related events that are treated as a single claim for the purposes of this article.
12.2 Direct damage is exclusively understood to mean:
- material damage to property;
- reasonable costs incurred to prevent or limit direct damage that could be expected as a result of the event on which the liability is based;
- reasonable costs incurred to determine the cause of the damage, the liability, the direct damage and the method of repair.
12.3 The Supplier shall never be liable for any indirect damage suffered by the Customer or third parties, including consequential damage, loss of turnover and profit, loss of data, and immaterial damage. Supplier’s liability for mutilation, destruction or loss of (back-up) data, data, documents, domain names and/or other types of (financial) rights is also excluded.
12.4 Under no circumstances shall Supplier’s total liability for damages, including multiple damages resulting from a series of related events, for whatever reason, exceed the lesser of:
- the price stipulated for the agreement (excl. VAT), whereby if the agreement is mainly a continuing performance agreement with a term of more than one (1) year, the price stipulated for the agreement is set at the total of the fees (excl. VAT) for one year, and
- € 250,000,– (two hundred and fifty thousand euros).
12.5 With due observance of the provisions of Article 9.6, the Customer indemnifies the Supplier against all claims by third parties, for whatever reason, in respect of compensation for damage, costs or interest in connection with this Agreement or the use of the Products and/or Services.
12.6 The previous paragraphs of this article shall not apply if and insofar as the relevant damage was caused by intent or wilful recklessness on the part of the Supplier or its employees.
13 Force Majeure
13.1 A party shall not be bound to fulfill any obligation, if it is prevented to do so as a result of force majeure. Force majeure shall also be understood to mean a non-attributable failure on the part of third parties or suppliers engaged, as well as any situation in which the relevant party cannot actually exercise any (decisive) control, with the exception of obligations to pay.
13.2 As soon as it becomes clear that the force majeure situation will last for longer than 3 (three) months, the other party shall have the right to terminate this Agreement without being liable for compensation.
14 Confidentiality
14.1 If and insofar as confidential information of one Party is brought to the knowledge of the other Party in the performance of the Agreement, this receiving Party shall only use this information for the performance of this Agreement and restrict access to that information to persons who need to take cognizance thereof for that purpose. The parties warrant that an employment contract and/or a confidentiality agreement shall oblige these persons to maintain the confidentiality of such confidential information.
14.2 Confidential information shall not include information that was already in the public domain at the time it became known or subsequently became known, or information that the receiving Party has also received from a third party without a confidentiality obligation being imposed or that third party being obliged to do so.
15 Duration and termination
15.1 Unless otherwise stipulated, the Agreement is entered into for an indefinite period of time and may only be terminated with due observance of a notice period of 2 months.
15.2 If the Agreement is entered into for a definite period of time, the Agreement will be automatically extended each time for a period of one (1) year, unless one of the Parties terminates the agreement at the end of its duration, with due observance of a notice period of 10 days, which notice may be given without reason and motivation.
15.3 In the event of (temporary) suspension of payments, bankruptcy, cessation or liquidation of the business of one Party, the other Party shall be entitled to dissolve this Agreement in whole or in part without the other Party being liable to pay compensation.
15.4 If one Party fails to fulfill any of its obligations arising from any Agreement properly or not within a prescribed period or otherwise in a timely manner, said Party shall be in default and the other Party shall be entitled to dissolve the Agreement in whole or in part without notice of default being required, without prejudice to the other rights of the dissolving Party and without the dissolving Party being liable to pay compensation.
15.5 In the event of dissolution as referred to in paragraph 3 or 4, all claims of the dissolving Party against the other Party shall be immediately due and payable in full. The other Party shall be obliged to take the necessary measures to allow the dissolving Party to assert its rights.
15.6 In the event of dissolution or termination as referred to in Articles 15.1, 15.2, 15.3 and 15.4, the following obligations will continue after the end of the Agreement:
- outstanding payments;
- confidentiality;
- Intellectual Property Rights;
- liability.
These shall continue to exist for as long as the Supplier can reasonably claim their continuation.
16 Amendments and additions
16.1 Supplier may unilaterally amend or supplement the agreement and these general terms and conditions, including for existing agreements. For pre-existing agreements, there is a period of one (1) month after publication before the amendment takes effect. Changes of minor importance, changes based on the law and changes in your favor can take effect immediately.
17 Miscellaneous, applicable law and competent court
17.1 These Terms and Conditions, as well as all Agreements, shall be governed by the laws of the Netherlands. The regulations relating to general terms and conditions in the Dutch Civil Code shall not apply in the relationship with Customers, other than consumers, from outside the Netherlands.
17.2 Third parties do not enter into any Agreement between the Supplier and the Customer on the basis of a third-party clause in these Terms and Conditions or the Agreement.
17.3 The provisions in these Terms and Conditions and the Agreement jointly determine the legal relationship between the parties and shall replace all previous agreements or statements made by the Supplier with respect to the subject of the Agreement. This shall be deemed to constitute an agreement as to burden of proof.
17.4 If any provision of these general terms and conditions is found to be null and void or is annulled, the remaining provisions shall remain in full force and effect. We will then enter into consultations in order to agree on a new provision with regard to the void or voided provision, taking into account the purpose and purport of the void or voided provision as much as possible.
17.5 Supplier may transfer part or all of the agreement with you to a third party, including the rights and obligations as stated in these general terms and conditions and, if applicable, other agreements. If the transfer of obligations to a third party is reasonably unacceptable to the Customer, the Customer shall be entitled to terminate the Agreement within 5 (five) days of receipt of the said notification
17.6 The Supplier may engage third parties in the performance of the Agreement at its own discretion.
17.8 Insofar as any national or international mandatory legislative provision does not provide otherwise, all disputes between the Parties shall be submitted to the competent court in the district in which the Supplier has its registered office
