BRIGGS + WALKER
Terms + Conditions
General delivery conditions
Article 1. Definitions
1.1 The following terms, written with an initial capital, have the meaning stated below:
General Conditions – these general delivery conditions of Briggs + Walker;
Data – all the date that the Customer and/or a User places in Briggs + Walker’s database using the Software;
Services – services as described in Article 4.2, consisting of software being made available digitally and remotely by Briggs + Walker to the Customer and hosting services. If recorded in the Agreement, the Services may also relate to additional services, such as making customised links to other applications used by the Customer;
Content – all data, information, pictures and sound and video fragments processed in the Software by or on behalf of the Customer, such as presentations, logos and registration forms;
Customer – a legal entity or natural person who purchases or intends to purchase the Services of Briggs + Walker on a professional or commercial basis;
Customer Account – the Customer’s personal environment within the Services that is maintained by the Customer and to which the Customer is given access after it enters its username and password;
User – an employee of the Customer or an external field marketing agency, designated by the Customer to use all or part of the Services via a User Account;
Measures – the technical and organisational measures that Briggs + Walker must take to avoid loss or any form of wrongful processing of the Personal Data, as described in more detail in Article 15;
Briggs + Walker – PTTN B.V., a private limited liability company, having its registered office in Haarlem, the Netherlands, and maintaining a place of business at Nieuwe Gracht 45 A, (2011 ND) Haarlem, registered in the Trade Register of the Chamber of Commerce under number 59371382, and the companies affiliated with it;
Offer – any Written offer to provide Services, made by Briggs + Walker to the Customer, possibly recorded in a cover letter;
Agreement – the agreement between Briggs + Walker and the Customer regarding the provision of Services, consisting of these General Conditions and an Offer, as well as any amendment or addition to that agreement;
Personal Data – the personal data of a consumer or employee (of the Customer or an external field marketing agency and/or a client of the Customer) that Briggs + Walker will process when performing the Agreement and providing the Services;
Parties – the Customer and Briggs + Walker jointly;
Written/In Writing – any message recorded in writing, including an email;
Software – the standard software and the customised links to other applications usedby the Customer, developed and hosted by Briggs + Walker or a licensee of Briggs + Walker;
User Account – the personal environment of the user of the Services, to which the user can gain access by entering his or her username and password;
Confidential Information – any information to which the Customer or a third party engaged by it gives access or that it provides, makes available or otherwise discloses with regard to and with a view to the use of the Services and the underlying Software of Briggs + Walker, and all Written documents or other data carriers drawn up on the basis of that information. Confidential Information also includes any information designated as such by the Customer and by third parties engaged by it or of which Briggs + Walker knows or can reasonably suspect that that information is confidential. This term does not relate to information that is already in the public domain. Confidential Information in any event includes but is not limited to the following: the personal data of employees of the Customer and any third party engaged by it, the results achieved by the Customer and any third party engaged by it by using the Software, and other commercially sensitive information of the Customer and any third party engaged by it.
Article 2. Applicability
2.1 These General Conditions govern every Offer and Agreement. These General Conditions also govern any further or subsequent agreement between Briggs + Walker and the Customer.
2.2 Amendments to these General Conditions are valid only if expressly agreed In Writing between the Parties. In that case the amended provisions expressly agreed on prevail. Briggs + Walker is not obligated to comply with a request to provide additional Services and is not required to agree to a request to enter into an additional agreement.
2.3 These General Conditions govern all the Services of Briggs + Walker, also if Briggs + Walker engages a third party to provide those services.
2.4 The applicability of any general conditions of the Customer is expressly excluded.
Article 3. Conclusion of Agreements
3.1 Every Offer of Briggs + Walker is subject to contract and is valid for the period stated by Briggs + Walker. If Briggs + Walker does not state a period in its Offer, the Offer in any event automatically expires after a period of three months. Briggs + Walker may revoke every Offer at any time, also if the Offer does not state a term for acceptance.
3.2 Briggs + Walker cannot be held to an Offer if the Customer can reasonably understand that all or part of the Offer contains a manifest mistake or clerical error. A document that form part of the Offer, such as a pricelist, cover letter, etc. is as accurate as possible but is not binding. It is made available to the Customer for information purposes only and cannot bind Briggs + Walker in any manner.
3.3 An agreement is concluded only if the Customer accepts the Offer of Briggs + Walker In Writing and unchanged. If the Customer places an oral or Written order with Briggs + Walker that is not preceded by an Offer, or if the Offer has not been signed by both parties, the Agreement is deemed to have been entered into when Briggs + Walker confirms the order In Writing or when Briggs + Walker commences the execution of the order at the Customer’s request.
Article 4. The Services
4.1 Briggs + Walker will provide the Services after the Agreement has been concluded.
4.2 The Services consist of the remote provision to the Customer of the Software via the Internet or another network, without the Customer being provided with a physical carrier containing the Software, as well as hosting services. The Services may also include additional services, such as making customised links to other applications used by the Customer, if and insofar as Briggs + Walker and the Customer so agree In Writing.
4.3 Briggs + Walker performs its activities to the best of its ability and in accordance with good professional standards, provided that the Customer correctly informs Briggs + Walker during the performance of the Agreement. Briggs + Walker is under a best efforts obligation.
4.4 Statements made by or on behalf of Briggs + Walker regarding the quality, applications and possibilities of the Services provided may be regarded as warranties only if Briggs + Walker so expressly confirms In Writing in the form of a warranty (using the word warranty or warrant).
Article 5. The Software
5.1 The Customer may use the Services, consisting of the use of the Software, for the management of field marketing campaigns (Campaign Manager and Field App) and for planning locations for conducting field marketing campaigns (Location Manager), depending on the agreements recorded in the Agreement.
5.2 The Software is made available to the Customer via a Customer Account.
5.3 If applicable and agreed upon, the Customer may create User Accounts and may give Users of the external field marketing agency access via those User Accounts to all or part of the Services and the underlying Software. The parts of the Services and the underlying Software that the Users can use via the User Account are limited. The Customer is responsible for the use of the Services and the underlying Software by the Users and warrants that the Users will comply with the Agreement.
5.4 The Software is made available “as is” and “as available”. Briggs + Walker makes every effort to ensure that the Services and the underlying Software are available to the extent possible and to avoid unnecessary interruptions in their availability to the extent possible. Except for any specific Written service agreement made, Briggs + Walker does not offer the Customer any standard service level. Service in a specific case does not constitute a standard service level in future cases.
5.5 Unless expressly agreed, Briggs + Walker does not offer customised software and is not required to make customised changes or to change or supplement the standard functions of the Software. Briggs + Walker and the Customer may agree that Briggs + Walker’s Services will be expanded to include additional services for making customised links to other applications used by the Customer. Unless otherwise agreed, Briggs + Walker is in no event required:
(a) to link the Services and the underlying Software to, or to otherwise combine them with, a product, software or service of the Customer, an external field marketing agency, the client of the Customer or a third party;
(b) to comply with specific directions or instructions of the Customer, e.g. regarding changes to the Services and the underlying Software, except insofar as they are instructions given to Briggs + Walker as the processor, under the Wet bescherming persoonsgegevens (Personal Data Protection Act), in which case Article 15 applies.
5.6 Briggs + Walker may at any time change the Services and the underlying Software or decommission them in whole or in part, at its discretion and without being liable in any manner towards the Customer on that ground. Briggs + Walker will ensure that the decommissioning does not last longer than is necessary and will use its best endeavours to minimise the consequences for the use of the Software by the Customer. Depending on the circumstances (and except in urgent situations), it will not do so until it has informed the Customer accordingly.
Article 6. Obligations of the Customer
6.1 The Customer is responsible for the management of the Customer Account, the use of the Software and the use of the Data. Briggs + Walker may manage the Customer Account on behalf of the Customer, but the Customer remains responsible for checking the settings and the data entered.
6.2 The Customer itself is responsible for the security and confidentiality of the username and the password that it uses to gain access to the Services and the underlying Software. The Customer is responsible for giving third parties access to the Services and the underlying Software and is liable for any loss consequently incurred by Briggs + Walker and/or a third party, also if Briggs + Walker’s prior approval (automated or non-automated) has been obtained for access by those Users to the Services and the underlying Software. The Customer must immediately inform Briggs + Walker if it establishes or suspects abuse of the username or password of the Customer Account or the User Accounts. The Customer itself is responsible for taking immediate action, such as changing its username and password.
6.3 The Customer is responsible for the correct choice of the devices required to make proper use of Services and the underlying Software, such as computer, data and telecommunication devices, including a correctly functioning Internet connection and device management for tablets.
6.4 The Customer warrants and represents that:
a. the Customer and any third party engaged by it will at all times perform their obligations under these General Conditions and the Agreement, and that they will comply with all the legislation and regulations governing their activities;
b. the Customer and any third party engaged by it will not use the Services and the underlying Software for any purpose other than that for which they are provided, and that they will not use the Services and the underlying Software to copy or replace them or to otherwise compete with Briggs + Walker;
c. the Content and Data processed by the Customer and any third party engaged by it and the use of the results of the Services will not infringe any third-party intellectual property rights, will not conflict with any applicable legislation or regulations, will not be in breach of public order or morality and will not infringe the privacy of third parties;
d. the Customer and any third party engaged by it will not develop or contribute to any activities that may be regarded as unethical marketing, deception, unfair trade practices or fraud;
e. the Customer and any third party engaged by it will not attempt to gain access to the external servers managed by Briggs + Walker and will not interrupt, attempt to interrupt, disrupt or otherwise hinder the functionalities of the Services and the underlying Software.
6.5 The Customer acknowledges that Briggs + Walker has no control over the Content processed using the Services and the underlying Software and indemnifies Briggs + Walker against any third-party claims arising from the Content processed using the Services and the underlying Software.
Article 7. Prices and payment
7.1 A monthly fee, stated in Briggs + Walker’s Offer, is payable by the Customer to Briggs + Walker for the provision of the Services and the use of the underlying Software. That fee is structured as follows:
a. a fixed monthly price for the Customer Account;
b. a fixed monthly price per field marketing agency or branch that uses the Services;
c. a variable price per transaction or a fixed price for an unlimited number of transactions (one transaction is the entry of a consumer’s personal data in the Services by or on behalf of the Customer); and
d. an hourly rate for the provision of support, assistance and other customised services or (if agreed In Writing) a fixed price for a limited number of hours for those services.
7.2 The price includes any update to the Software and the underlying Services but does not include any update or change made at the Customer’s request (customised services).
7.3 Unless otherwise stated, the prices quoted in an Offer or Agreement are exclusive of VAT. All prices charged by the Customer are based on the price-determining factors that are known when the Offer is made.
7.4 Unless otherwise agreed, all amounts payable by the Customer to Briggs + Walker must be paid by the Customer no later than 14 days after the invoice date. The value date stated in the bank statement is decisive and is regarded as the date of payment.
7.5 The Customer may in no event suspend any payment or set off any amounts due.
7.6 If the Customer consists of several natural persons and/or legal entities, each of them is jointly and severally liable for the amounts due for the Services.
7.7 In the event of late payment or non-payment by the Customer of the amounts due, Briggs + Walker may suspend the Services and may block the Customer’s access to the control environment (via the Customer Account) and the user environment (via the User Account) of the underlying Software, and 5% interest is payable by the Customer on the outstanding amount (including VAT), without any demand or notice of default being required. If the Customer fails to pay the claim after a demand or notice of default, Briggs + Walker may hand over the claim for collection, notwithstanding its other rights, in which case the Customer must reimburse the judicial and extrajudicial costs in addition to the total amount due in that event.
7.8 Briggs + Walker may adjust the applicable prices and rates In Writing, subject to a notice period of at least three months. If the Customer does not accept such an adjustment, it may terminate the Agreement In Writing within 30 days after notice is given, as from the date on which the adjustment was to take effect. The Customer does not have that right of termination if the price increase is lower or equal to the annual Consumer Price Index of the CBS (Dutch Central Statistics Office) or if a price is increased on the grounds of unforeseen cost increasing circumstances that occur after the Agreement was entered into or after the Offer was sent.
Article 8. Term of the Agreement
8.1 Every Agreement entered into is open-ended. Either of the Parties may terminate the Agreement In Writing, subject to a notice period of three months.
8.2 If the Customer fails to perform its obligations under the Agreement or if Briggs + Walker has valid reason to fear that the Customer will fail to perform its obligations, Briggs + Walker may, temporarily or permanently and with immediate effect, suspend the Services and block the Customer’s access to the control environment (via the Customer Account) and the user environment (via the User Account). In that case Briggs + Walker may claim damages and terminate the Agreement under Article 8.3, notwithstanding its other statutory and contractual rights.
8.3 Briggs + Walker may terminate an Agreement, without observing any notice period, if:
(a) in Briggs + Walker’s opinion the Customer is harming Briggs + Walker’s image or reputation; or
(b) the Customer fails to perform its payment obligations or other obligations under the Agreement.
8.4 The Agreement will end by operation of law, without any notice of default or writ on termination being required, if:
(a) the Customer applies for or is granted a suspension of payment;
(b) the Customer is put into liquidation;
(c) the Customer loses control over its assets due to an attachment or placement under compulsory guardianship or on any other ground; or
(d) the Customer ceases or liquidates its business.
8.5 If Briggs + Walker terminates the Agreement on the grounds of Article 8.3 or 8.4, it is in no event required to refund any money already received or to pay any damages.
8.6 The Agreement cannot be annulled.
Article 9. Termination of an Agreement
9.1 On termination of an Agreement Briggs + Walker will no longer be required to provide its services and all claims of Briggs + Walker against the Customer will fall due immediately.
9.2 The provisions regarding intellectual property rights, confidentiality and liability will remain in full force on termination of an Agreement.
9.3 The Customer undertakes on termination of an Agreement (including premature termination) immediately to cease and desist from the use of the Software, any new version and any other Services provided by Briggs + Walker or a third party in respect of its activities under the Agreement, subject to an immediately payable penalty of EUR 5,000 per day (including part of a day) on which the breach continues, notwithstanding Briggs + Walker’s right to demand specific performance, to claim damages or to file other claims.
Article 10. Warranties
10.1 Briggs + Walker provides the Services and the underlying Software “as is” and “as available” and offers no further warranty. Briggs + Walker does not warrant that the Services and the underlying Software are suitable for any specific purpose, does not warrant their full availability or security and may suspend or terminate the Services and the underlying Software and/or temporarily make the Services and the underlying Software inaccessible to perform maintenance work, without that giving rise to any rights on the part of the Customer.
10.2 Every use of the Software, the Services and the outcome of the Services is for the Customer’s account and risk. Briggs + Walker does not warrant possible results of the use of the Services and the underlying Software. Briggs + Walker is not liable for any loss incurred by the Customer in the event of loss of or damage to Content or other results of the Services.
10.3 Briggs + Walker does not warrant that the Services and the underlying Software will be available at all times without any interruption, breakdown, error or defect. Downtime of the Services and the underlying Software or sub-optimal functioning of the Services and the underlying Software, due to any cause, will in no event give rise to any liability on the part of Briggs + Walker towards the Customer. Breakdowns may be due to breakdowns in the Internet, in hardware or in the telephone connection, or may be due to viruses, errors or defects. The Customer is responsible for compliance with the technical and functional requirements regarding the use of the Services and the underlying Software.
Article 11. Liability
11.1 In the unlikely event that one Party is liable towards the Other Party for any form of loss, on any ground, the liability of the Party held liable, including its obligation to reverse the loss, is at all times limited as follows:
(a) A Party is in no event liable for any lost profit, lost income, lost turnover, lost savings, loss caused by business interruption or other interruption, or loss excluded elsewhere in these General Conditions that is incurred by the other Party.
(b) A Party is in no event liable for any damage to the other party’s image or reputation or for any other loss consequently incurred by the other party.
(c) A Party’s liability and its payment obligation, if any, on the grounds of an obligation to reverse loss in relation to the Customer is limited at all times to the amount paid under that Party’s liability insurance in the case in question.
(d) If, for any reason, no payment is made under the liable Party’s liability insurance, that Party’s liability and its payment obligation, if any, under Section 6:230 or Section 6:271 of the Dutch Civil Code is limited to the net value of the last six invoices for the Services provided to the Customer by Briggs + Walker.
(e) The total liability, regardless of the number of harmful events, will in no event exceed EUR 10,000 per year.
11.2 Briggs + Walker is furthermore in no event liable for loss incurred because Briggs + Walker operated on the basis of incorrect data or files provided by or on behalf of the Customer, for loss caused by disruptions in the connectivity to the Internet of the Users or disruptions in the hardware used by the Users, or for loss incurred due to loss of, damage to or incorrectness or incompleteness of Data or Content.
11.3 These limitations of liability do not apply to indemnities or warranties. These limitations of liability do not apply in the event of intent or wilful recklessness on the part of Briggs + Walker and/or its management.
11.4 Loss for which the other Party can be held liable must be reported to Briggs + Walker In Writing as soon as possible but no later than 30 calendar days after the loss occurs, at the risk of forfeiting the right to reimbursement of that loss. This term does not apply if the Customer can make a plausible case that the loss could not be reported sooner for a valid reason. A liability claim against Briggs + Walker lapses twelve months after the Customer becomes or could reasonably have become aware of the harmful event.
Article 12. Force majeure
12.1 A Party is not liable towards to other Party for any breach in the performance of an Agreement (except for payment obligations) if it is prevented from performing the Agreement by an event of force majeure, for the period during which the event of force majeure continues. Force majeure includes any circumstance, foreseeable or unforeseeable, beyond that Party’s control that makes performance of the Agreement permanently or temporarily impossible and, if not already included in those events, war, an act of war, civil war, a riot, strike, boycott or lockout, sabotage or fire, a lightning strike, extreme weather conditions and measures of Dutch or foreign public authorities.
Article 13. Intellectual property
13.1 The Customer acknowledges and agrees that all the Software, all the Services, all user information in databases generated by means of them and all Content, Data, information, files and other materials not entered by the Customer are the property of Briggs + Walker or its licensees and that they are protected by intellectual property rights, including but not limited to copyrights, database rights, neighbouring rights, trademarks and patents.
13.2 No part of these General Conditions, the Agreement or other actions of Briggs + Walker is intended to transfer the intellectual property rights or to grant the Customer any other intellectual property rights.
13.3 The use that the Customer may make of the intellectual property rights is limited to the use of the Services and the underlying Software for the purposes for which the Services and the underlying Software are intended, during the term of the Agreement. The Customer warrants that it will not infringe those intellectual property rights of Briggs + Walker or its licensees.
13.4 The Customer may not grant licences, sub-licences or other rights of use of the intellectual property rights to third parties unless otherwise recorded in the Agreement in relation to the external field marketing agency engaged by the Customer.
13.5 The Customer is expressly prohibited from attempting in any manner to decode, alter or change the Software, to develop derived works, otherwise to infringe the copyrights by which they are governed or to “frame”, “mirror” or otherwise simulate the appearance or the function of the Software.
13.6 All rights and intellectual property rights regarding the information, the Content or the Data processed using the Services and the Software remain vested in the Customer. By using the Services and the underlying Software the Customer grants Briggs + Walker a non-exclusive, sub-licensable and royalty-free right to use, copy, analyse and make other use of the Content and the Data, insofar as the provision of the Services to the Customer so requires.
Article 14. Confidentiality
14.1 Each Party must treat all Confidential Information that comes to its attention regarding the other Party’s business and contacts as strictly confidential. Information must in any event be treated as confidential if it is designated as such by the Parties.
14.2 Briggs + Walker undertakes to keep all Confidential Information strictly secret and not to disclose it to third parties unless the Customer has given its prior Written consent and subject to the provisions of the Agreement. Briggs + Walker warrants that the Confidential Information will be made available only to employees, managers and/or third parties that, in light of their positions and activities, are necessarily involved in the provision of the Services to the Customer, including making the Services and the underlying Software available to the Customer, and, if agreed upon, to the external field marketing agency or the client of the Customer. Briggs + Walker also warrants that those employees, managers and third parties will comply with the provisions of this Article 14. Briggs + Walker has drawn up an integrity statement in which it explains how it ensures that it meets these obligations.
14.3 Briggs + Walker, its employees and its managers will use the Confidential Information only to provide the Services to the Customer, including making the Software available to the Customer and, if agreed, to the external field marketing agency or the client of the Customer
14.4 Briggs + Walker may not multiply, distribute, disclose or circulate the Confidential Information in any manner or in any form without the Customer’s express prior Written consent, otherwise than for the benefit of the Services and to provide the Software.
14.5 Briggs + Walker is not required to keep information on the Customer, the external field marketing agency or the client of the Customer confidential if it is required to disclose the Confidential Information by law or by court order.
14.6 This duty of confidentiality will continue to apply also after termination of the Agreement.
14.7 This duty of confidentiality will not be affected by any legal succession, share transfer or other transfer.
Article 15. Data processing agreement
15.1 The Agreement also constitutes a data processing agreement.
15.2 If the Parties enter into a separate data processing agreement, the provisions of that data processing agreement will prevail insofar as they conflict with the provisions of this Article 15.
15.3 Briggs + Walker uses its best endeavours to perform all the statutory obligations that apply to it as a data processor regarding the processing of the Personal Data and Briggs + Walker undertakes to follow any reasonable instructions given by the Customer with regard to the processing of the Personal Data. If compliance with such instructions or an amendment to the applicable legislation and regulations gives rise to any costs on the part of Briggs + Walker, such instructions or amendments to legislation and regulations are regarded as cost increasing circumstances. Briggs + Walker may increase the prices or parts of the prices of its Services under the Agreement on the grounds of such cost increasing circumstances.
15.4 Briggs + Walker will take appropriate technical and organisational Measures to secure Personal Data against loss or any form of unlawful processing. The Measures also serve to avoid unnecessary collection and further processing of Personal Data.
15.5 The Customer may have Personal Data processed by Briggs + Walker only if and insofar as it has ascertained that Briggs + Walker has taken the required Measures.
15.6 Briggs + Walker undertakes to inform the Customer In Writing as soon as possible (but no later than within 48 hours) of any breach of the Measures or of any security incident or data leak (“Breach”).
15.7 Briggs + Walker undertakes not to retain the Personal Data any longer than is necessary to provide the Services. If no retention period has been agreed on, the retention period is six months.
15.8 If the Personal Data are anonymized and can no longer be traced to a natural person, the data are no longer regarded as Personal Data and are deemed to have been destroyed.
15.9 If the Customer wishes to have the Measures taken by Briggs + Walker investigated by an independent expert, it must inform Briggs + Walker accordingly In Writing at least 14 calendar days beforehand. The costs of such an investigation are payable by the Customer.
15.10 The Customer is the controller for the purposes of the Personal Data Protection Act and on that ground is under a wide range of statutory obligations towards the consumers and the Users of the Software. The Customer warrants that the data processing takes place in accordance with all the applicable privacy legislation. This in any event means that the Customer warrants that it is entitled to collect or cause the collection of the Personal Data and to process or cause the processing of the Personal Data. The Customer has furthermore complied with any reporting obligation that applies under the applicable privacy legislation.
15.11 The Customer indemnifies Briggs + Walker against any cost and loss incurred by Briggs + Walker because a data subject contacts Briggs + Walker on the grounds of unlawful data processing by the Customer. The Customer furthermore indemnifies Briggs + Walker against any loss incurred as a result of negative publicity caused by the unlawful data processing.
15.12 If it is established at any time that Briggs + Walker is liable for loss incurred by the Customer in respect of the provisions of this article, the limitations of liability set out in Article 11 apply in full and the term “loss” includes penalties imposed by supervisory authorities.
Article 16. Other provisions
16.1 If it is established that any provision of this Agreement is invalid or unenforceable, the other provisions will be interpreted as if the invalid or unenforceable provision had not existed. The invalid or unenforceable provision is then deemed to have been replaced by a valid and enforceable provision that approximates the Parties’ original intentions regarding the provision in question as closely as possible.
16.2 Briggs + Walker may engage third parties in the provision of the Services.
16.3 Briggs + Walker may amend these General Conditions from time to time. If and insofar as these General Conditions are amended during the term of an Agreement entered into between the Parties, such amendments will not govern the Agreement in question, unless the Parties agree otherwise In Writing and in consultation.
Article 17. Governing law and choice of forum
17.1 Every legal relationship to which Briggs + Walker is a party and every wrongful act in which Briggs + Walker is involved is governed exclusively by Dutch law, also if an obligation is performed in whole or in part abroad or if the party involved in the legal act is domiciled abroad. The applicability of the Vienna Sales Convention (CISG) is expressly excluded.
17.2 Any disputes that arise in respect of the Agreement (including disputes regarding the existence and validity of the Agreement) are settled exclusively by the competent court for the province of Noord-Holland, Haarlem location.