General terms and conditions
Article 1: Definitions
Merchant: The Merchant (legal entity) is the party that enters or has entered into an Agreement with Daalder on the basis of which the latter delivers Services to the counter-party.
General Terms and Conditions: These terms and conditions, regardless of the form in which they are made known; be it on paper and/or electronically.
Daalder: Daalder B.V., with its registered office in Amsterdam, postal address (Beurs van Berlage) Oudebrugsteeg 9, 1012 JN Amsterdam, registered in the Company Register of the Chamber of Commerce under file number: 59910585.
Daalder system: A software solution (inter alia consisting of an Android and iOS application - app -) that, by means of a smartphone or through the Website, enables a User to pay a Merchant and to make use of offers by affiliated Merchants.
Services: All work and other activities that are the subject of any offer, quotation, agreement or any other legal act arising from the relationship between Daalder and the Client, including the Daalder system and Daalder's technical systems, its suppliers and/or third parties engaged by Daalder, explicitly excluding the issuance of the electronic money that is issued in the context of the Services and the provision of payment services through Intersolve EGI.
Intersolve EGI: Intersolve EGI B.V., the licensed electronic money institution, as recorded in the Register of Electronic Money Institutions of the Dutch central bank (De Nederlandsche Bank) (http://www.dnb.nl/toezichtprofessioneel/de-Gebruiker-en-toezicht/registers/WFTEG/index.jsp). Intersolve EGI is supervised by the Dutch central bank (De Nederlandsche Bank) as well as by the Authority for the Financial Markets (Autoriteit Financiële Markten). Intersolve EGI has its registered office in Woudenberg (3931 WX), Fonteinkruid 4, and is registered in the Company Register of the Chamber of Commerce under number: 32153540.
User: The Client, who, at all times, is a party who is not acting in the exercise of an occupation or a business, to whom Daalder delivers the Services, with the purpose of enabling the User to make use of offers from Merchants as well as the issuance of electronic money to the User and to enable its use as a means of payment.
Client: The Merchant or User who enters or has entered into an Agreement with Daalder, on the basis of which the latter delivers Services this party, including the Daalder system.
Agreement: The Agreement between Daalder and the Client on the basis of which Daalder delivers Services for the Client.
Parties: Daalder and the Client jointly.
Website: Each virtual site on the World Wide Web or any other similar form of disclosure or making information available through which Services, software or information is made available, including www.daalder.nl and all other sites that are registered under Daalder's name.
Article 2 Applicability of the General Terms and Conditions
- The General Terms and Conditions shall apply to and form part of all offers, quotations, agreements and other legal acts, regardless of whether these were issued verbally, electronically, in writing or in any other form, relating to the delivery of Services by Daalder to or for the Client.
- The General Terms and Conditions shall also apply to Services for which Daalder has fully or partially engaged services provided by third parties and who delivers these, whether or not processed, to the Client, as well as to Services that shall be provided to the Client by a third party, on behalf of Daalder, for the execution of the offer, quotation, agreement or any other legal act. The General Terms and Conditions shall explicitly not apply to the issuance of the electronic money that is issued in the context of the Services, nor to the provision of payment services through Intersolve EGI.
- Daalder and the Client shall expressly reject the applicability of any general purchase and/or sales terms of the Merchant.
- If and insofar any provision of these General Terms and Conditions should be declared null and void, the remaining provisions shall remain in full force. Daalder and the Client shall consult with each other on a new provision in order to replace the void or annulled one, where the new provision is to reflect the purport and tenor of the void or annulled one as closely as possible.
- Should there be any ambiguity regarding the interpretation of one or more provisions of these General Terms and Conditions, or should a situation between parties arise that is not covered by them, then interpretation must take place ‘according to the spirit’ of these provisions.
- Should Daalder not insist on strict observance of these terms and conditions, then this is not understood to mean that its provisions are not applicable or that Daalder, in any way, waives its right to demand strict observance of the provisions of these terms and conditions in other cases.
- Daalder shall be entitled to modify these General Terms and Conditions at all times. Modifications shall similarly apply to Agreements that have previously been concluded, taking a notice period of one month after written notification of the modification into account, unless the Client objects to the proposed modifications in writing within the stipulated period.
- In case of inequalities, the Dutch texts shall prevail over translations at all times.
Article 3 Offers and agreements
- All offers made by Daalder shall be non-binding towards the latter, unless explicitly stated otherwise in writing by Daalder.
- Should the Merchant make use of the option to enter offers into the Daalder system, then these offers shall be entered and offered at the Merchant's own expense and risk.
- Should the User make use of an offer which is entered by the Merchant, then the User shall do so at his/her own expense and risk.
- A combined quotation shall not oblige Daalder to fulfil a part of the order at a corresponding proportion of the specified price. Offers and quotations shall not automatically apply to future orders.
- Daalder, at all times, shall reserve the right to refuse orders from the Client without stating reasons.
- Additions and modifications to the Agreement shall be communicated in writing only.
- Unless otherwise agreed upon, the Agreement to perform Services shall be entered into for an indefinite period.
- With a prior written notification to the Client, Daalder shall be entitled to transfer the rights and obligations ensuing from the Agreement to a third party. The Client shall only be entitled to transfer the rights and obligations of this Agreement with the prior written consent of Daalder. Such consent shall not be withheld on unreasonable grounds.
- All Agreements between parties shall be drawn up in Dutch.
- Should the Client consist of several legal entities or natural persons who jointly place the order, then each of them is severally liable for the fulfilment of the obligations ensuing from the Agreement.
Article 4 Prices and rates
- Any prices and rates specified by Daalder are in euro and exclusive of turnover tax (VAT) or any other levies as stipulated by the authorities, unless expressly specified otherwise in writing.
- Daalder shall be entitled to modify its prices and rates at all times. The announced price modifications shall enter into force one month after proper notification.
- Daalder shall be entitled to pass on any and all price and rate increases from its suppliers to the Client.
- Any prices indicated on the Website, in e-mails and in other documents coming from Daalder shall be presented with reservations in respect of typographical and spelling errors.
Article 5 Services
- Any Agreement on the supply of a Service shall result in an obligation to use best endeavours on the part of Daalder only. Daalder shall carry out orders in accordance with the rules of good workmanship and to the best of its knowledge and ability, taking the state-of-the-art into account.
- Daalder, as a good service provider, shall endeavour to arrange for the establishment and maintenance of the connections between Daalder's server and the Internet, Daalder's server and servers pertaining to third parties as well as the security of Daalder's server.
- Daalder shall endeavour to make the Services available and to maintain them, including the Daalder system, inter alia by means of the iOS or Android apps and the Website.
- By supplying materials to Daalder or to the User, the Merchant shall certify that any materials delivered to Daalder by the Merchant are not subject to the rights of a third party or that the Merchant has permission from the person(s) entitled to allow Daalder to use the materials for the execution of the Service.
- Daalder shall not warrant that the software will work without interruptions, errors or any other deficiencies, nor that all errors or other deficiencies shall be rectified. The Client shall never be entitled to maintenance, modifications or expansion of the Daalder system or to any other software or Services.
- Daalder shall be entitled to implement temporary solutions, program bypasses or problem-avoiding restrictions into the software at all times.
Article 6 Right of use
- The Client shall only acquire a non-exclusive, non-transferable right of use concerning the software and the systems with regard to the targets agreed upon in the Agreement.
- With regard to the software and media on which it is recorded, the Client shall not be permitted to sell, rent, sub-licence, alienate, grant or make existing limited rights available to a third party in any way or for any purpose, even if the relevant third party uses the software solely for the Client, unless otherwise agreed upon in writing.
Article 7 Delivery
- The delivery deadlines specified by Daalder shall be indicative. These shall never be deemed irrevocable. Daalder shall duly endeavour to comply with the periods of time or deadlines as agreed upon. Daalder shall not be deemed in default as a result of merely exceeding an indicated or stated deadline. In order to enable Daalder to still comply with the Agreement, the latter should be granted a reasonable period of time of at least 21 days by means of a written notice of default.
- Daalder shall not be bound by periods of time or deadlines that can no longer be met due to circumstances that are beyond its control, including circumstances caused by the Client, such as late delivery of the proper information or data that occurred after the Agreement was entered into.
Article 8 Payment
- Payment shall be made in the manner as agreed between Clients and Intersolve EGI (set-off). Payments between Daalder and the Merchant shall be made in the manner as agreed by them.
Article 9 Modification and relocation
- Modifications of invoice data, establishment or correspondence addresses and other administrative details of the Client should be communicated to Daalder in writing as soon as possible, yet in any event not later than one month before the actual modification shall take place.
- Failure to do shall hold the Client liable for any damages in that respect suffered by themselves or by Daalder. The Client shall receive an e-mail confirmation regarding the modification within 5 working days. Should the Client not receive such a confirmation within 5 working days, then the modification has not been received by Daalder.
Article 10 Server & system downtime
- Without prior notification, Daalder shall be entitled to (temporarily) take the Services, the server or the Daalder system out of service or to restrict its/their use, to the extent such is necessary for required maintenance or adjustment aimed at improvement, without this resulting in any rights of the Client to receive compensation from Daalder.
- At the request of Intersolve EGI or at the request of the competent authority, Daalder shall be entitled to (temporarily) take the Services delivered out of service or to restrict its/their use in the event that the Client does not fulfil an obligation towards Daalder with regard to the Agreement, and should the Client act contrary to these General Terms and Conditions. The obligation to pay the amounts owed shall persist in spite of any downtime.
- Resumption of service shall take place as soon as possible after the Client has fulfilled its obligations and has paid a determined amount for such a resumption, or should Daalder have permission from the competent authority.
Article 11 Termination
- The Client shall terminate the Agreement in writing. For each termination, Daalder shall send a confirmation by e-mail.
- Should the Client not receive a confirmation pursuant to paragraph 1 within 5 working days, then the termination has not been received by Daalder.
- Each party shall be entitled to terminate the Agreement through extrajudicial dissolution if the other party culpably fails to fulfil substantial obligations under the Agreement, and should such shortfalls not be resolved within a reasonable period of at least 21 days after proper written notice of default.
- Dissolution and termination shall not relieve the Client from any payment obligations with regard to the Services which have already been provided by Daalder, unless the latter is in default concerning these Services.
- Daalder shall be entitled to suspend or dissolve the Agreement with immediate effect, without formal notice or without judicial intervention, nor without Daalder assuming liability for damages suffered vis-à-vis the Client when:
- The Client has been declared bankrupt or has filed an application thereto;
- For the Client, a (temporary) moratorium on payments has been requested or obtained;
- The Client has lost its right to freely dispose of (part of) its assets; or
- Daalder has reason to doubt the ability of the Client to (timely) meet its payment obligations under the Agreement.
Article 12 Liability
- The total liability by Daalder vis-à-vis the Client resulting from non-compliance by Daalder with the obligations under the Agreement or from unlawful action by Daalder shall, per calendar year, be limited to the compensation of direct damages and shall never exceed the total amount owed by the Client nor the fees paid during the calendar year directly prior to the incident from which the damage ensues.
- Daalder shall limitedly accept liability for indirect damages, deprivation of exploitation, productivity, reputation, profits, contracts, investments, time, databases (including data) and documentation.
- Daalder shall limit yet not exclude its liability regarding damages ensuing from intent, wilful recklessness, fraud, death or personal injury.
- An attributable breach by Daalder to comply with the obligations under the Agreement shall certainly not be the case in any of the following events:
- Illicit or unauthorised intrusion into the computers or servers used for the execution of the Agreement by a third party;
- Insertion of a computer virus into the computers used for the execution of the Agreement;
- Temporary obstruction of the communication link with or between the computers or servers used for the execution of the Agreement.
- The events mentioned in article 3 shall not relieve Daalder from the obligation to make every effort towards the resolution of any unsatisfactory performance of computers, servers or communication links as soon as possible.
- Under no circumstance shall Daalder be held liable for any damages suffered by a Client due to Intersolve EGI's non-fulfilment of obligations under the latter's Agreements with the Clients.
Article 13 Force majeure
- Neither of the parties shall be bound to fulfil any obligation, including any guarantee obligation that parties have agreed upon, should they be prevented from doing so as a result of force majeure. The term force majeure shall be taken to include: (i) force majeure on the part of Daalder's suppliers, (ii) the failure to properly fulfil obligations by suppliers which the Client has instructed Daalder to use, (iii) any defectiveness of goods, equipment, software or materials of third parties which the Client has instructed Daalder to use, (iv) government measures, (v) electricity failure, (vi) Internet failure, computer network failure or telecommunications failure, (vii) war, (viii) work occupation, (ix) strike, (x) general transport problems and (xi) unavailability of one or more employees.
- In the event that a situation of force majeure lasts longer than ninety days, each of the parties shall be entitled to terminate the Agreement by rescinding it in writing. In such a case, performances which have already been delivered under the Agreement shall be settled proportionately, without the parties being under any obligation in respect thereof vis-à-vis each other.
Article 14 Complaints & Warranty
- The Client shall not be entitled to any warranty on Services delivered by Daalder, unless otherwise explicitly agreed in writing.
- Complaints and warranty claims shall solely be considered when received by Daalder in writing within eight days after discovery, yet no later than 14 days after completion of the Services concerned.
- In case of complaints or warranty claims, the Client shall, at all times, send a notice of default. A notice of default shall be sent by registered post and must include as detailed a description as possible of the defect, so that Daalder is able to respond appropriately as well as investigate the complaint.
- A notice of default shall contain a reasonable period of time of at least 21 days.
- The Client shall lend Daalder all cooperation required for investigating the complaint, inter alia by enabling Daalder to investigate at the location or cause such investigation to be conducted into the nature of the complaint, including the quality or quantity of the Services provided.
- A complaint regarding certain Services shall not suspend the Client's payment obligation relating to such or other Services.
- The Client, in no event, shall claim dissolution of the Agreement by virtue of complaints or defects, neither during nor after any agreed warranty period.
- Should a complaint be justified, then Daalder shall endeavour to still to perform the work or cause such to be performed as agreed, unless its performance has meanwhile become demonstrably pointless or impossible for the Client. This shall expressly be made known by the Client in writing.
- Should it be established that a complaint is (mainly) unfounded, then the ensuing costs incurred, including those of the investigation, shall be payable by the Client.
- Contrary to the statutory terms of prescription, the prescription period of all claims and defences of the Client vis-à-vis Daalder and third parties engaged by Daalder for the execution of an Agreement, shall be one year.
Article 15 Intellectual property rights
- Any intellectual property rights as well as any similar rights for the protection of data and information connected to Daalder, its company, the Services, the Daalder system, designs, software, documentation and any other materials developed or used in preparation or for the execution of the Agreement between the Client and Daalder, or those ensuing therefrom (continue to) pertain to Daalder. Execution of the Agreement of the supply of Services shall never extend to any transfer of intellectual property rights.
- The Client shall not be permitted to delete or modify any designation concerning the confidential nature or the copyrights, brands, trade names or any other rights pertaining to the intellectual property of the software, Websites, databases, equipment, materials or the Daalder system.
- Without the prior written consent of Daalder, the Client shall not disclose or reproduce any of Daalder's Services, nor shall the Client make them available to third parties, except in those cases where, due to the nature of the Service, the consent is evident.
- Daalder shall be permitted to take technical measures in order to protect the software or the Daalder system. Should Daalder have secured the software or the Daalder system by means of technical protection, then the Client shall not be permitted to breach, delete and/or evade this security.
Article 16 Confidentiality
- The parties shall observe strict confidentiality regarding any confidential information received from or concerning the Client.
- Information shall not only be considered confidential when the Client providing the information indicates that such is the case, but also if the recipient of that information could reasonably assume that sharing it with third parties could potentially cause harm to the counter-party.
- Parties shall also impose this confidentiality obligation on their employees and on third parties hired by them for the fulfilment of their obligations under the Agreement.
- Parties shall not be obliged to observe confidentiality with respect to information that (i) was already in the possession of the other party on a non-confidential basis, (ii) lawfully came into the possession of parties, or (iii) is legally or judicially required to be provided to a judicial or administrative authority.
Article 17 Personal data
- The Merchant warrants that, in relation to the Services provided to the User, he acts fully in compliance with the applicable legislation and regulations regarding the protection of personal data and unsolicited communications (including the Data Protection Act and the relevant provisions in the Dutch Telecommunications Act).
- The Merchant shall indemnify Daalder against any (legal) claims, expenses and damages arising for the latter, for instance those caused by a third party claim related to or arising from the Merchant's non-compliance with any obligation relating to the processing, handling or use of personal data in the context of the Services or goods which the Client supplies to the User under any applicable regulatory requirement.
Article 18 Exclusion
- Daalder shall reserve the right to immediately exclude the Client, without prior notice, from any use of the Website in case the Client in any way acts contrary to the law, public order, good morals or these General Terms and Conditions.
- Exclusion shall proceed without prejudice to Daalder's right to take legal action or to claim compensation for damage(s).
Article 19 - Disputes
- Any disputes between Daalder and the Client shall be governed by Dutch law.
- Any disputes between Daalder and the Client shall be submitted exclusively to the competent court in the judicial district where Daalder has its registered office.