Article 1. Definitions

 

1.1. Agreement: the agreement between Customer and Service Provider in which these General Terms and Conditions are declared applicable, and are therefore an integral part of the Agreement.

1.3. API: The WineStein Application Programming Interface.

1.4. Availability: the percentage of the time of the Service Window in which Customer should be able to use the API without interruptions.

1.5. Customer: the other party entered into an Agreement with Service Provider.
1.6. Defect: a situation where the API is not completely or partially in accordance with the API specifications.
1.7. General Terms and Conditions: these general terms and conditions.

1.8. Maintenance Window: the period in which the API is can be unavailable and that is reserved for maintenance.
1.9. Parties: Service Provider and Customer jointly.
1.10. Service Provider: The Dutch limited liability corporation “WineWineWine B.V.” and its affiliated companies making use of these General Terms and Conditions, the party entered into an Agreement with Customer.
1.11. Service Window: the period of time outside the Maintenance Window in which the API should be available.

1.12. Working Hours: hours on Working days between 09.00 and 17.00 hours.
1.13. Working Days: Monday till Friday, with the exception of Dutch national holidays, taking into account that May 5th is once every five (5) years a national holiday.

Article 2. Service

 

2.1. Service Provider strives for an Availability of 99% (ninety nine percent) a year. In case the API is not Available the Availability will be deemed fully and uninterrupted in case the unavailability was less than four (4) consecutive hours.
2.2. Service Provider reserves the non Working Hours for maintenance. This reservation is included in the Maintenance Window.
2.3. In case maintenance is necessary outside the Working Hours, Service Provider will notify Customer in advance within a period of time of at least (3) three Working Days. This planned maintenance is also included in the Maintenance Window.
2.4. A Defect is only followed up if the Defect is demonstrable or reproducible. If the period of time it takes to repair the defect is of such nature, that it is suspected that it will affect the Availability, Service Provider will attempt to provide a temporary but sufficient solution.

2.5. Defects that affect Availability caused by:

2. improper use by Customer;
   b. using hardware and/or software that does not meet the prior approved specifications by Service Provider;
   are never in scope of this Agreement. Service Provider will only repair those Defects after receipt of an order confirmation in writing by Customer. In that case the repair will take place against the rate applicable that moment.
   2.6. Service Provider determines without approval of Customer the policy regarding versioning. Furthermore Service Provider provides Customer with the most recent functionality.

2.7. Service Provider will prior to implementation of updates and/or other modifications of functionality hold mutual consultations with Customer if these updates and/or modifications of functionality are suspected to lead to loss of performance of the API or a loss of functionality and/or affect the Availability.
2.8. In paragraph 2.7 stipulated is not applicable in case the updates should be applied due to reasons of security.

 

Article 3. Right of usage API and scope

 

3.1. Service Provider hereby grants Customer a right of usage of the API and the data the API returns using the API. This grant of license does not encompass more than that the API and its returned data can be used by Customer in accordance with the purpose for which it acquired the services. This purpose is agreed upon in the offer/quotation issued by Service Provider or its (re)seller to, and approved by Customer. If Customer foresees that the use of the API is not in accordance anymore with the agreed upon purpose, Customer consults Service Provider in order to expand the grant of license. In that case Service Provider can stipulate additional conditions.
3.2. Customer is obliged to use the logo and registered trademark of WineStein if data resulted from the use of the API is presented.
For this purpose only, Service Provider hereby grants Customer a right of usage. It is not allowed to use the logo and trademark for other purposes, these rights remain reserved by Service Provider, unless other usage is allowed by prevailing and applicable laws regarding registered trademarks.
3.3. The afore granted rights are non-exclusive, immediately revocable and non-transferable.
3.4. The intellectual property rights on the API, provide materials like documentation and such, and the data returned from the API, shall remain vested in Service Provider or its suppliers.
3.5. If the Agreement states that the billing of the use of the API depends on the amount of calls on the API, the data provided to Customer by the API should not be stored longer by the software of Customer than is strictly necessary for the processing that data. In that case the data will never be stored for improper purposes, including but not limited to: (i) for reverse engineering of the algorithm of the API and for (ii) minimizing the amount of calls on the API.

 

Article 4. Customizing and acceptance

 

4.1. Taking the continuity of the tasks performed under the Agreement into consideration, Customer will appoint one or more persons acting as designated contact(s) for the duration of the performance of Service Provider under the agreement. These designated contacts of Customer shall possess the necessary experience, specific subject knowledge and insight of the by Customer desired business goals.

4.2. If Parties have agreed upon an acceptance test after delivery, the acceptance test takes place within ten (10) business days after delivery. The purpose of the acceptance test is to determine whether the deliverables are in accordance with the specifications.

4.3. Subject of the acceptance test can be software, (graphical) designs, services, concepts and documentation, hereafter to be called the subject of acceptance. The integral acceptance takes place by Customer signing the acceptance form provided by Service Provider.
4.4. Upon first request, Service Provider can assist Customer against the then applicable rates during the acceptance test.
4.5. If the subject of acceptance is not accepted Customer sends Service Provider within five (5) business days a report of the acceptance test. In this report any discovered Defects shall be recorded. The report will further state whether all functions well and/or suffices.
4.6. If the term as set out in paragraph two (2) of this article added with the term as set out in the previous paragraph lapses without receipt by Service Provider of results of the acceptance test the subject of acceptance shall be deemed accepted.
4.7. Small Defects, including Defects which are by nature and/or amounts by all reasonableness not preventing Customer to actually take the subject of acceptance in production, are no valid reasons to withhold acceptance.

4.8. If possible Service Provider shall, after the receipt of the report mentioned in this article, do its utmost to repair and correct the reported Defects. In case the Defects were found in de standard service (the API), these Defects will be repaired free of charge. Are the Defects found in parts specifically developed for Customer, these Defects will be repaired free of charge only if for the development of these parts a fixed price was agreed upon. In all other cases these repairs will be charged to Customer on time and materials basis.
4.9. If the delivery is accepted by Customer, the date the acceptance form is signed shall be the date of acceptance.
4.10. If customer puts subject of acceptance into use prior to acceptance, the date the deliverable was put into use and/or delivered shall  be deemed as date of acceptance.

4.11. After acceptance by Customer, Service Provider shall deliver the subject of acceptance ready for use, which includes but not limited to making the functionality of the software available.

4.12. By signing the acceptance form Customer grants a discharge to Service Provider regarding the work done preceding the acceptance and Customer accepts the subject of acceptance as is.
4.13. The intellectual property rights on software that was specifically developed for Customer shall remain vested in Service Provider. The functionality the software delivers will be added to the existing functionality of the API. The total functionality will be made available to Customer in accordance with article 4.

Article 5. Obligations Customer

 

5.1. Customer is not entitled to use the API in a way that it can result in damaging the service, damages for Service Provider and/or third parties, or in a way that in can result in interruptions of the Availability.
5.2. Service Provider offers its service on “fair use” basis. That is that Service Provider in principle does not limit the system and network load caused by Customer. However, Service Provider reserves the right to take measures in case of excessive usage. Excessive usage is usage that is significantly higher than the usage of an average customer of the API.

5.3. After first notification Customer has to take measures immediately to end excessive system and/or network load. Service Provider is entitled to suspend the service and/or any other obligation out of the Agreement in case of continuous excessive system and/or network load.
5.4. In case of structural excessive system and/or network load Parties will consult each other about the costs.

5.5. Customer will ensure careful handling regarding the credentials provided by Service Provider, therefore Customer will administer the credentials as good administer
5.6. Customer indemnifies Service Provider for all claims of third Parties based on acts infringing paragraph 5.1 to 5.5.

5.7.  Customer is responsible for timely selecting and acquiring suited communication facilities and (computer) hardware to actually make use of the API and additional functionality.
5.8.  Customer agrees with the fact that it is responsible for entering into an agreement with a vendor to acquire the services and (computer) hardware as mentioned in the previous paragraph. However, Customer may authorize Service Provider to, if and so far that is possible, to do so for it and/or on its behalf. Service Provider is willing to take a coordinating role regarding entering into such an agreement regarding telecommunication facilities and/or (computer) hardware. Customer acknowledges the fact that it will be bound to the stipulations and conditions of that vendor.
5.9. Service Provider is not responsible and/or liable for all costs regarding the telecommunication facilities and (computer) hardware as mentioned in paragraph 5.8, which costs are caused by using the API and its additional functionality.
5.10. Customer is obliged to present as soon as possible, or on first request  of Service Provider, functional and/or graphical designs for approval to Service Provider if the API and/or its additional functionality will be implemented in a web store. The approval will not be withheld by Service Provider unreasonably.

 

Article 6. Intellectual property rights

6.1. Service Provider guarantees that it possess all necessary rights for making the API available, including all rights regarding the underlying software.
6.2. The intellectual property rights, including database rights and/or copyrights, shall remain vested fully in Service Provider or its suppliers.

Article 7. Prices, rates, invoices and payment

 

7.1. Prices and rates are stated in the offer/quotation done by Service Provider and approved by Customer. All prices and rates are without value added tax (VAT), unless stated otherwise.
7.2. For duties outside Working Hours an additional surcharge can be charged.
7.3. The agreed upon prices and rates can be increased yearly as of from January 1st by Service Provider with a maximum percentage of 5% (five percent).
7.4. Changes in the price due to substantial expansion of the functionality are immediately invoiced and are directly due and payable.

7.5.  On the invoices to Customer, Service Provider will state a date, the period in which the services is rendered, the scope of thereof and the total of the amount payable in euro’s.
7.6. Customer hereby authorizes Service Provider to take the monthly amount on behalf of the Customer out of its account (direct debit). Furthermore Customer hereby authorizes Service Provider one time only to take the possible amounts for the (startup) costs, only if (startup) costs are agreed upon. In case of an agreed upon monthly amount, Service Provider will take out the amount each month at the beginning of the month. The amount taken out is deemed to be a payment for the month it was taken out.

7.7.  Other services and duties not part of the Agreement will be invoiced against the at that time applicable rates for the employee of Service Provider in question. In that case invoicing will take place afterwards on the basis of actual time spent, unless explicitly agreed upon otherwise.
7.8. In the meantime to the Agreement added functionality, will be invoiced pro rata until the next invoice date.
7.9. If the Customer states that the invoice is not correct does not waive the obligation to pay the uncontested part of that invoice.
7.10. If the direct debit fails, or in case of derogation of paragraph 7.6 something else is agreed upon, Customer is obliged to pay by Service Provider sent invoices within 15 (fifteen) days after invoice date. In default of paying within the aforementioned term, Customer is in final default after Service Provider notified Customer of default in which notification is stated a reasonable term to remedy the default. Therefore all sent invoices become immediately due and payable without any notification. Moreover, Service Supplier is entitled to applicable statutory interest for every month in Customer is in default, this without prejudice to the right of Service Supplier to demand additional damages, included reasonably incurred extrajudicial costs.

7.11. Service Provider is entitled to suspend its duties and services if Customer is in arrears. In this case Customer is not entitled to any damages.
7.12. Customer hereby agrees to send invoices digitally. If Supplier invoices digitally it will issue the invoice as a PDF by e-mail.

 

Article 8. Duration and termination

 

8.1. The agreement enters in to force from the moment both Parties signed it.
8.2. The agreement is entered into for a duration of one (1) year. If the end of the duration does not coincide with the end of a calendar month, the agreement has a duration of one (1) year added with the days to reach the end of the calendar month.

8.3. The agreement will be every time automatically extended for a period of time of (1) one month, unless a Party terminates the agreement 30 (thirty days) before expiry in writing by registered mail.

8.4. Without prejudice to what is agreed upon, Service Provider is entitled to terminate the agreement in writing without any prior notice partially or completely and with immediate effect:

1. If Customer commits an imputable failure regarding one or more of his obligations and/or compliance is impossible.
2. If it becomes clear to Service Provider that Customer is not in a position and/or willing to fulfill its obligations.
3. If Customer has applied for a suspension of payments, has been granted this suspension of payments or has filed for bankruptcy, has been declared bankrupt, is about to liquidate its company, ceases its operations or appears to be insolvent.
4. If Server Provider will suffer reputational damage through the cooperation with Customer or if further cooperation will lead to foreseen reputational damage of Service Provider.

8.5. In case of termination as set in paragraph 8.4, Service Provider cannot be held liable for any payment of damages. Customer is obligated to hold Service Provider harmless and indemnify it with respect to claims of third parties which could arise in connection with the termination as described in the previous paragraph.

8.6. In case of termination pursuant to paragraph 8.4, Customer is obligated to immediately reimburse expenses made by Customer, without prejudice to the right of Service Provider to claim a full damages.

8.7. If parties at the time of termination of the agreement as mentioned above, already have performed and delivered activities, this performance and payment obligations shall not be part of the mutual undo obligations. This applies to any cause for termination. Invoices issued by Service Provider to Customer are due payable immediately.

8.8. Obligations, which, by their nature are intended to survive the termination, will remain in force after termination. The termination of the agreement will not explicitly exempt parties from: confidentiality, intellectual property rights, applicable law, authorized entity related to disputes.. This also applies to termination due to attributable shortcomings on the part of Service Provider.

 

Article 9. Shortcomings

 

9.1.  Service Provider is not liable for any attributable shortcomings regarding the obligations under of the agreement, nor for any other claims, except in case of willful misconduct or conscious recklessness of the top level management of Service Provider.

9.2. In case what is stipulated in previous paragraph is legally impossible, Service Provider is only liable for direct damages caused by an attributable shortcoming as mentioned in previous paragraph with a maximum of what Service Provider charged and was actually paid by Customer, value added tax excluded, in three preceding months, this with a maximum of € 10.000 (ten thousand euro). This limitation voids in case of willful misconduct or conscious recklessness of the top level management of Service Provider.

9.3. Service Provider is not liable for any indirect damages, consequential damages, lost profits, lost saving, damages related to damages of customer of Customers, damages related to materials or third party software designated by Customer, working methods and damages related to calling in suppliers designated by Customer.

9.4. The stipulations as set out in  this article and all other limitations and exclusions of liability specified in these general conditions, are for the benefit of all persons and/or legal entities used by Service Provider during the execution of the agreement.

9.5. Service Provider is not obliged to perform any obligation if prevented from doing so due to a circumstance for which Service Provider cannot be attributed, nor under the law, legal act or due to generally prevailing opinions. If Service Provider invokes force majeure against Customer, Service Provider shall notify Customer in writing as soon as possible, however, within a reasonable period of time.
9.6. Under a non-attributable shortcoming (force majeure) for Service Provider is understood, among other things, as not being able to properly fulfill its obligations due to the lack of personnel, (long duration of) illness of personnel, strikes, traffic congestions, power failures, late deliveries of goods and services, regardless of the fact that these take place at Service Provider and/or her suppliers, unsuitability of materials, software and/or equipment provided and designated by Customer.

9.7. If a situation of force majeure lasts longer than sixty (60) days and Customer has sent Service Provider a notice of default, Customer has the right to terminate the agreement extrajuridicial and with immediate effect by means of a registered letter. Customer is not entitled to any damages. Work which has already been performed under the terms of the agreement will be paid pro rata.

 

Article 10. Non diclosure en security

10.1. Both Parties shall observe strict confidentiality regarding information about its organizations, the way the API operates, functionality, etc. Without prior written consent of the other party it is not allowed to disclose information, data carriers and information at its disposal to third parties. It will disclose only to personnel if and so far this is necessary to fulfill the agreed upon duties. Parties shall let its personnel adhere to this stipulation regarding non disclosure.

10.2. Regarding data from the other Party, regardless the way it was provided, regardless the data carrier it was provided on, the receiving Party shall:

1. take care of all fair measures for a safe storage;
2. not use the data for any other than the purpose than is agreed upon;
3. not store the data longer than is needed for fair execution of the agreed upon obligations and to place the data, including copies whereof, at the other Party’s disposal, or destroy them after prior consent of other Party;
4. only let the agreed upon obligations be executed by persons deemed trustworthy by the obligated party;
5. cooperate with executing surveillance by or on behalf of the other party on storage and usage of data.

10.3 Parties are responsible for entering in to an agreement with its involved personnel and/or third parties regarding non disclosure pursuant to this article.

 

Article 11.    Processing personal data

 

11.1. Service Provider is entitled to use and include the personal data of Customer which are required for its administration and management purposes in the internal registration system of Service Provider.

11.2. On the basis of the GDPR and applicable laws and regulations and within the context of the processing of personal data, parties recognize and distinguish the following roles (including the associated responsibilities): the Customer is the controller, Service Provider is considered as processor, a third party contracted by Service Provider that processes the personal data will be considered as a sub-processor.

11.3. Service Provider processes personal data within the framework of the agreed upon and available Service in accordance with the General Data Protection Regulation (hereinafter: GDPR).

11.4. Service Provider will in the context of the execution of an Agreement process personal data on behalf and in accordance with instructions of Customer. Therefore, Service Provider is not allowed to process personal data for other purposes than agreed upon and/or provide it to third parties. Service Provider will insofar as possible follow up the instructions of Customer regarding the processing of personal data of Customer.

11.5. Service Provider may use the obtained and collected personal data for analysis and marketing purposes, such as doing statistical, trend or marketing research. If and insofar as Service Provider processes the (personal) data for its own purposes, it will be for that part of processing considered as controller.

11.6. If Service Provider deems this to be important for the execution of the Agreement, Customer will immediately inform Service Provider in writing about the way in which Customer performs its obligations under legislation relating to the protection of personal data.

11.7. Customer warrants that the contents, the agreed upon use and the assignment to process personal data is not unlawful and will not infringe any right of third parties. Customer shall in particular ensure that by the use of services special categories of personal data will not be processed. Customer indemnifies and holds Service Provider harmless for all claims related hereto.

11.8. Customer takes appropriate technical and organizational measures in accordance with GDPR to protect personal data against loss or against any form of unlawful processing. These measures ensure, taking into account the current state of the technology and the cost of implementation, a level of security appropriate to the risks represented by the processing and the nature of the personal data to be protected. The measures are also aimed at unnecessary collection and further processing of personal data.

11.9. Service Provider takes appropriate technical and organizational measures to secure the personal data against any illegal processing. These measures warrant, taking the current state of technology and the costs of implementing those measures into account, an adequate level of protection, considering the risks of processing, and the nature of, the personal data. The measures are also aimed at preventing unnecessary processing of personal data.

11.10. If Service Provider is under the Agreement obliged to provide a form of information security, that security will meet than the specifications regarding security as parties agreed upon in writing. Service Provider never guarantees that the information security is effective under all circumstances. If a security measure is missing in the Agreement, than the security will meet a level which, in view of the state of the technology, the sensitivity of the data and the costs involved at implementing the security measures are not unreasonable.

11.11. In case in the performance of the Agreement or otherwise there will be made of computer, data or telecommunications facilities, than Service Provider is entitled to assign Customer access or identification codes. Service Provider is entitled to change assigned access or identification codes. Customer treats the access and identification codes confidentially and with care and will only discloses the codes to authorized staff members. Service Provider can not be held liable for damage or costs resulting from the use or misuse of access or identification codes, unless the abuse was possible as a direct result of an action or omission of Service Provider.

11.12. Customer is for the duration of this agreement allowed to audit the aforementioned measures, which audit can be executed by Customer an independent third party. Service Provider hereby warrants to cooperate with such an audit, provided that: (i) the costs for the audit itself are borne by Customer; (ii) the costs and/or time of Service Provider regarding the cooperation (including time of staff), are borne by Customer; (iii) the audit is not executed more than once a calendar year; (iv) there is a valid reason for the audit, such as loss of data; and (v) the scope of the audit is provided by Customer and the audit is limited to the aforementioned scope. Points (iii), (iv) and (v) do not apply in case the audit is due to investigation of a supervisory authority.  Service Provider cannot guarantee that an audit can take place by a subcontractor of Service Provider which processes personal data.

11.13. Service Provider is allowed to use a sub-contractor in the process of rendering its services. Upon first request of Customer Service Provider will provide a list of sub-processors. Service Provider may at its own discretion and judgment change and/or extend the list. In case Service Provider expands or changes the list with new sub-processors, Customer will be notified at least two (2) weeks prior to using the intended sub-contractor and given the opportunity to object to the proposed new sub-processors.

11.14. In case Service Provider suspects or knows that personal data of Customer is compromised, due to a data or security breach, Service Provider notifies Customer without delay. In response to this notification Customer assess independently whether it should notify data subjects and/or supervisory authorities. Customer is and remains responsible for  any legal obligation to notify. However, Service Provider is willing to support Customer to fulfill its obligations under the applicable laws and regulations regarding the processing of personal data .

11.15. In case a data subject invokes his or her rights under the General Data Protection Regulation, it will forward the request to Customer. Customer will follow up the request of the data subject. Service Provider will inform data subject about the forward and will await further instructions of Customer.

11.16. After the expiry of the duration of the agreement / order or the stated processing period of the personal data or termination of the agreement / assignment Service Provider will give Customer the opportunity to obtain the personal data before deleting the personal data.

11.17. The foregoing paragraphs of this article are deemed to be a basic data processing agreement in accordance with the GDPR. Upon first request of Customer, Service Provider is willing to enter into a separate data processing agreement as referred to in the GDPR.

 

Article 11. Transfer of rights and obligations

 

11.1. Customer is not entitled to transfer the rights and obligations out of the Agreement to third party without prior written consent of Service Provider.
11.2.  Service Provider is entitled to transfer the rights and obligations out of the Agreement.

11.3. Service Provider is entitled to make use of third parties executing the Agreement, whether by of subcontracting or the hiring of personnel.

Article 12. Governing law and disputes

 

12.1. The Agreement and ancillary resulting out of the Agreement agreements are governed by Dutch law.

12.2. In case of a dispute, the party taking the initiative notifies the other party about the dispute including a short summary of what is according to that party deemed to be the subject of the dispute.

12.3. Disputes between Service Provider and the Customer arising out of, or connected with, the Agreement or connected ancillary Agreements, are settled through alternative dispute resolution in accordance with the arbitration regulations of the “Stichting Geschillenoplossing Automatisering”, having its registered office in The Hague. This without prejudice to the right of each party to make use of the  (arbitral) interlocutory proceedings and to take protective measures (see www.sgoa.org).

12.4. If the dispute can be submitted to “Rechtbank Sector Kanton” because the dispute falls within its jurisdiction, the previously stated does not apply. In that case the any party taking the initiative can submit the dispute to the competent court, “Rechtbank Sector Kanton”. In that case the “Rechtbank Sector Kanton” is the only competent court to resolute the dispute.

12.5.. Before submitting the dispute as stated in 12.3. any party can take the initiative  to start a procedure in accordance with the mediation regulations of “Stichting Geschillen Oplossing Automatisering” having its registered office in The Hague. The procedure is meant to resolve a dispute with mediation by one or more mediators. The other party is obliged to cooperate actively. The obligation encompasses at least the legally enforceable obligation to visit one meeting of mediators along with the other party , to give this form of extrajudicial dispute resolution a chance. Every party has the right to end the mediation procedure after the first meeting. All this without prejudice to the right of Parties to take protective measures or to make use of (arbitral) interlocutory proceedings if considered appropriate (see www.sgoa.eu).

Article 13. General stipulations

 

13.1. A party refraining from invoking its right to enforce performance of an any obligation within an agreed upon term, does not construe a waiver to the right to enforce the other party the remedy the shortcoming, unless Parties explicitly agreed upon non performance in writing.

13.2. If in these General  Terms and Conditions is stated “by writing” it includes also electronic messages like e-mail and fax, unless the context evidently calls for in writing.

13.3..
In the case the General Terms and Conditions and offer/quotation are conflicting, the order confirmation prevails upon these General Terms and Conditions, and the General Terms and Conditions prevail upon the offer/quotation, unless in the offer/quotation a derogation of the General Terms and Condition is explicitly stated.

13.4. The applicability of general or specific (purchasing)conditions of Customer are explicitly declined by Service Provider, and therefore not applicable.
13.6. If any provision of the General Terms and Conditions shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. In that case Service Provider will draft a provision that will take the essence of the void/invalid provision into consideration as much as possible.

13.7.  In case Service Provider does not invoke a right out of the Agreement it does not construe a waiver and/or a relinquishment of those rights.