General Terms & Conditions: Additional Services.
[Updated October 2023]
Article 1. Definitions
- General Terms and Conditions: these general terms and conditions;
- Additional Service: all service provision of whichever nature and under whichever name that SwipeGuide performs or must perform under terms of an Additional Agreement with the Customer;
- IP Rights: all intellectual property and ancillary rights, such as copyrights, trademark rights, patent rights, design rights, trade name rights, database rights and related rights, as well as know-how rights and performances on a par with intellectual property rights;
- Customer: the natural person or company that has entered into an Additional Agreement with SwipeGuide;
- Additional Agreement: the additional agreement SwipeGuide enters into with a customer, in which the nature of the Additional Services is further described;
- Parties: SwipeGuide and Customer jointly;
- SwipeGuide: SWIPEGUIDE B.V., a Dutch limited liability company having its corporate seats in John M. Keynesplein 12-46, Amsterdam, the Netherlands, trade register number 126.96.36.199.
Article 2. Applicability
2.1 These General Terms and Conditions are applicable to all legal acts of SwipeGuide, all legal relationships between Parties and all offers and Additional Agreements whereby SwipeGuide provides Additional Services to the Customer.
2.2 Deviations from and additions to these General Terms and Conditions are only valid if agreed by the Parties in writing.
2.3 The applicability of purchasing or other conditions of the Customer is expressly rejected.
2.4 If any provision of these General Terms and Conditions is void or voidable or is or becomes entirely or partly invalid for any other reason, the other provisions of these General Terms and Conditions will remain in full force and effect. SwipeGuide will replace the invalid provision with a provision that is valid and of which the legal consequences, having regard to the content and purpose of these General Terms and Conditions, corresponds as far as possible with those of the invalid provision.
Article 3. Additional Agreement
3.1 Quotations and other offers by SwipeGuide are without obligation and should be regarded as an offer to enter into an Additional Agreement, unless otherwise indicated by SwipeGuide in writing.
3.2 Offers and quotations become invalid after the expiry of four weeks from the date they were made, unless otherwise indicated in writing.
3.3 An Additional Agreement will come into existence at the first of the following times: the time that the Customer accepts the offer of SwipeGuide or the time when SwipeGuide commences the performance of the offer. In the latter case the offer will constitute the Additional Agreement between the Parties.
3.4 The Customer warrants the accuracy and completeness of the information provided to SwipeGuide by or on his behalf and upon which SwipeGuide bases its offer. If these particulars prove to be inaccurate or incomplete, SwipeGuide will have the right to amend the offer or to terminate the Additional Agreement with immediate effect and without becoming liable towards the Customer for such termination.
3.5 Amendments or additions to agreed Additional Services at the request of the Customer may only take place with the written consent of SwipeGuide. SwipeGuide is not obliged to implement an amendment or addition and may require a separate written agreement be concluded in respect thereof.
3.6 If there are amendments or additions which result in a change to the scope of the agreed Additional Services, for example through additional work, the extra activities arising therefrom will be paid for in accordance with the rates of SwipeGuide that are applicable at the time of the performance of the work. In so far as a fixed price has been agreed for the Additional Services, SwipeGuide will on request inform the Customer in writing about the financial consequences of the extra activities as referred to in this article.
3.7 The turnaround time of Additional Services is dependent on various factors and circumstances, such as the quality of the data and information provided by the Customer and the cooperation of the Customer and relevant third parties. Stated delivery dates are therefore not regarded as strict deadlines, unless the Parties have expressly agreed otherwise in writing.
3.8 The Customer accepts that additions or amendments to the Additional Agreement may influence the agreed or expected time of completion of the Additional Services and the reciprocal responsibilities of SwipeGuide and the Customer. The fact that (the demand for) additional work arises during the implementation of the Additional Agreement will not entitle the Customer to cancel or terminate the Additional Agreement.
3.9 Decisions taken by a project or steering group will only bind SwipeGuide if the decision- making process takes place subject to a written agreement between the Parties relative thereto or, in the absence of written agreements regarding this, if SwipeGuide has accepted the decisions in writing. The same will apply if one or more employees deployed by SwipeGuide form part of the project or steering group.
Article 4. Additional Service provision
4.1 SwipeGuide will make every effort to provide to the Customer the Additional Services agreed in writing between the Parties. All Additional Services will be carried out on the basis of a best efforts obligation, unless and to the extent that SwipeGuide has expressly guaranteed a result in the written Additional Agreement and the result concerned has been described in the Additional Agreement so as to be sufficiently determinable.
4.2 Additional Service Level Agreements will always be in writing. The availability will always be measured in respect of the entire Additional Service and for the duration of one calendar year. In measuring availability interruptions announced in advance due to maintenance or service as well as circumstances beyond the direct sphere of influence of SwipeGuide will not be taken into account.
4.3 Additional Agreements about any form of information security will always be concluded in writing.
4.4 If the Additional Service is rendered in phases, SwipeGuide will be entitled to postpone the commencement of work for the purpose of any phase until the Customer has approved the results of the preceding phase in writing.
4.5 SwipeGuide will from time to time inform the Customer in writing in the manner agreed about the performance of the work via the contact person appointed by the Customer. The Customer will notify SwipeGuide in advance how and in relation to which points of attention reporting is required. The Customer will not disclose any advice or report by SwipeGuide to a third party or otherwise make it public.
Article 5. Consultancy
5.1 If the Additional Agreement (also) entails that employees of SwipeGuide must carry out work at the location of the Customer, SwipeGuide will endeavor to keep the employees available for the duration of the Additional Agreement in so far as this is required for the performance of the Additional Services. SwipeGuide will however at all times be entitled to replace an employee with another employee having the same and/or similar qualifications.
5.2 SwipeGuide is responsible for the prompt payment in full of income tax, national insurance contributions and turnover tax due in respect of any employee assigned under the terms of the Additional Agreement. SwipeGuide indemnifies the Customer against all claims by the tax authorities or by authorities responsible for the implementation of social insurance legislation which may be payable under the terms of the Additional Agreement, provided that the Customer informs SwipeGuide immediately and in writing about the existence and the content of the claim and leaves the handling of the matter, including reaching any settlements, entirely to SwipeGuide. To this end the Customer will grant the necessary powers of attorney, information and cooperation to SwipeGuide to oppose these claims, if necessary, in the name of the Customer.
5.3 SwipeGuide accepts no liability for the selection of any assigned employee or for the results of work performed under the supervision and guidance or direction of the Customer.
5.4 The Customer will be liable for all damage, which an assigned employee may incur in the course of or in connection with the work assigned to him. The Customer indemnifies SwipeGuide against all claims by third parties arising or originating from the work performed by an employee assigned under the terms of the Additional Agreement. The Customer indemnifies SwipeGuide against all liability arising from the physical injury or death of an employee assigned in connection with the performance of the Additional Agreement.
5.5 The Customer bears the risk for the selection, the use and the application of the materials, software, websites, databases and other products as well as the Additional Services within his organization and is responsible for carrying out safety and/or security procedures and proper systems management.
5.6 If employees of SwipeGuide carry out work at the location of the Customer, the Customer will without charge ensure the provision of the facilities reasonably required by these employees, such as a workspace with computer, data and telecommunication facilities. The workspace and facilities will meet all requirements relating to working conditions that are legally or otherwise applicable. The Customer indemnifies SwipeGuide against claims by third parties, including employees of SwipeGuide, who may incur damage in connection with the performance of the Additional Agreement resulting from the actions or negligence of the Customer or unsafe conditions within his organization. The Customer will make the company and safety rules applicable in its organization known to the employees deployed by SwipeGuide prior to the commencement of the work.
5.7 If use is made during the implementation of the Additional Agreement of (operational) computer, data, IT systems and/or telecommunication facilities, including Internet, the Customer will be responsible for the correct selection of the means required therefor and the timely and full availability thereof, except for facilities resorting under the direct use and control of SwipeGuide. SwipeGuide will never be liable for damages or costs due to transmission errors, breakdowns or non-availability of such facilities in the course of performing the Additional Agreement, unless the Customer proves that such damages or costs are attributable to intent or willful recklessness on the part of (the management of) SwipeGuide.
Article 6. Obligations of the Customer
6.1 The Customer must fully, properly and promptly make available to SwipeGuide (upon demand by SwipeGuide) all data, documents, equipment, software, materials or employees and give all cooperation deemed necessary or desirable for the implementation of the Additional Agreement, before as well as during the Additional Agreement. The Customer must furthermore take all measures necessary for the performance of the Additional Agreement and make available the facilities necessary therefor.
6.2 The Customer must accurately inform SwipeGuide about the work to be carried out and the circumstances under which this must take place.
6.3 For continuity of the work the Customer will appoint a contact person or contact persons who will act as such for the duration of the work by SwipeGuide. The contact persons of the Customer will have the necessary experience, specific subject knowledge and insight into the desired objectives of the Customer.
6.4 During and after the Additional Agreement, Customer will not publicly make any negative statements regarding SwipeGuide or its Additional Services or otherwise take any actions in this respect that may harm the name and reputation of SwipeGuide.
6.5 If the Customer does not promptly or fully comply with the obligations stated in this article, SwipeGuide will be entitled to suspend the implementation of the Additional Agreement (in full or in part) and/or charge the Customer any additional costs according to the current standard rates of SwipeGuide. This will be without prejudice to the right of SwipeGuide to exercise any other legal and/or agreed right.
6.6 The Customer shall at all times, free of charge, follow-up on SwipeGuide’s reasonable instructions and requests for assistance in as far as necessary in relation to SwipeGuide’s performance of the Additional Services. The Customer shall at all times comply with applicable law and regulations, including but not limited to the applicable data protection laws.
Article 7. Price and payment
7.1 Unless stated otherwise all amounts mentioned by SwipeGuide will be in Euro and exclusive of turnover tax (VAT) and other government levies/taxes.
7.2 Unless expressly stated otherwise cost estimates and budgets will only serve for purposes of information and no rights or expectations can be derived therefrom. SwipeGuide will only be obliged to inform the Customer when a cost estimate or budget has been exceeded if the Parties have so agreed.
7.3 SwipeGuide will in its customary manner give the Customer insight into the work carried out, hours worked and costs for the Customer.
7.4 SwipeGuide will be entitled to adjust the applicable prices and rates. SwipeGuide will in any event have such right to adjust prices. Price adjustments can be the result of factors like, but not limited to: i) increase of taxes or other levies and/or government rights, ii) changing exchange rates, iii) increase of wages, transport costs, supplier purchase prices, etc., iv) inflation, v) increase of product functionality. Price changes will normally occur annually and will become effective as per January 1st of each year. SwipeGuide will provide written notice of such changes as part of its invoicing process.
7.5 All amounts relating to the Additional Services will be payable in advance each and every calendar month. Invoicing details are specified in the Additional Agreement. Payments must be made within 14 days of the invoice date, unless otherwise agreed in writing or otherwise stated on the invoice.
7.6 If after the expiry of this period payment (in full) has not yet been received by SwipeGuide, the Customer will immediately be in default without prior demand or notice of default being required. As from the time of default the Customer will be liable for interest equal to the statutory commercial interest rate.
7.7 If the Customer despite demand or notice of default still fails to pay the claim, SwipeGuide may hand over the claim for collection. In that event all costs incurred by SwipeGuide in connection with overdue payments, such as legal costs and extra-judicial and judicial costs, including the costs of legal assistance, bailiffs and collection agencies, will be payable by the Customer. The extra-judicial costs are fixed at no less than 10% of the invoiced amount subject to a minimum of €250 excluding VAT.
7.8 Complaints in relation to invoices and/or the Additional Services will not suspend the payment obligations of the Customer.
7.9 SwipeGuide will be entitled to suspend the fulfillment of its obligations until such time as the Customer has fully complied with all its due obligations.
7.10 If, at the request of or with prior consent from the Customer, SwipeGuide has performed work or rendered other performance, which goes beyond the substance or scope of the agreed Additional Services, the Customer shall pay for that work or performance according to SwipeGuide's usual rates. SwipeGuide shall never be obliged to satisfy such a request, and it may require that a separate written agreement be concluded.
Article 8. Duration and termination
8.1 Unless otherwise agreed, the term of Additional Agreement is specified in the Additional Agreement itself. The Additional Agreement will be tacitly extended each time by the duration of the original period unless the Customer or SwipeGuide terminates the Additional Agreement in writing subject to a notice period of three months prior to the end of its duration.
8.2 SwipeGuide may at all times terminate the Additional Agreement prematurely with immediate effect and without becoming liable towards Customer for such premature termination, unless expressly agreed otherwise in the Additional Agreement.
8.3 Each Party will be entitled to terminate the Additional Agreement in full or in part in the event of the other Party being declared bankrupt or granted a moratorium, as well as in the event of the closing down or liquidation of the business of the other Party other than for purposes of reconstruction or merger of enterprises, or if the controlling interest in the company of the other Party changes.
8.4 Termination of the Additional Agreement on the ground of an attributable breach will only be permitted following a written notice of default that is as detailed as possible whereby a reasonable period is stipulated within which the breach may be remedied, unless otherwise stipulated in these General Terms and Conditions or otherwise prescribed by law.
8.5 In the event of termination of the Additional Agreement, there will be no reversal or cancellation of that which SwipeGuide has already delivered and/or carried out nor the related obligation to make payment, unless the Customer proves that SwipeGuide is in material default in respect of that part of the performance. Amounts invoiced by SwipeGuide prior to termination in respect of that which SwipeGuide has already performed or delivered properly in accordance with the Additional Agreement will remain payable in full subject to the provisions of the preceding sentence and will become due and payable at the time of the termination.
8.6 If the Additional Agreement ends for any reason whatsoever, all rights which the Customer enjoyed under the terms of the Additional Agreement, including – but not limited to – any right to use results and/or deliverables, will terminate at the same time. Immediately following the ending of the Additional Agreement, the Customer will delete from its systems and return to SwipeGuide all copies of such results and/or deliverables developed and/or provided by SwipeGuide under the terms of the Additional Agreement.
Article 9. IP Rights
9.1 Unless the Parties have otherwise expressly agreed in writing, the IP Rights to all results and/or deliverables (including software, files, equipment or materials) used and/or developed by SwipeGuide for the Additional Services, will remain vested in SwipeGuide or its licensors, irrespective of whether the Customer makes payment for the development or purchase thereof to SwipeGuide.
9.2 The Customer will only acquire the rights of use which are expressly granted by these General Terms and Conditions, the Additional Agreement or the law. A right of use vested in the Customer will always be non-exclusive, non-transferable to third parties and not sub licensable.
9.3 The Customer will not be permitted to remove or to change any specification regarding the confidential character or the relevant IP Rights in the software, files, equipment or materials.
9.4 SwipeGuide may introduce technical facilities (or cause such facilities to be introduced) for the protection of the software, files, equipment or materials regarding an agreed restriction to the content or the duration of the right of use. The Customer will not be permitted to remove or bypass any such a technical facility (or cause it to be removed or bypassed).
9.5 The Customer will not be permitted to make changes or additions (or cause such to be made) or to allow third parties to carry out maintenance or repairs to the software, files, equipment or materials which have been supplied by SwipeGuide.
9.6 If and to the extent that SwipeGuide makes use of software, files, equipment or materials of the Customer during the performance of the Additional Services, the Customer guarantees that it is authorized to grant SwipeGuide access to and the use of such software, files, equipment or materials for the purpose of the Additional Services. The Customer indemnifies SwipeGuide against all damage and costs which SwipeGuide suffers or incurs as a result of a claim of a third party in respect of such use.
9.7 The Customer is responsible for any and all necessary licenses and permits, including but not limited to the use of software, hardware and other (IT) equipment and/or infrastructure under the control of Customer, in order to allow SwipeGuide to perform the Additional Services.
Article 10. Indemnities and warranties
10.1 The Customer is itself responsible for the use of the Additional Services of SwipeGuide and the results of these Additional Services. Customer will never use the Additional Services and the results of these Additional Service in violation with applicable law and/or legislation, and agrees in particular not use these for the handling and delivery of mass unsolicited e-mail. SwipeGuide does not guarantee the correctness, integrity, reliability or completeness of any result or consequence of the Additional Services.
10.2 SwipeGuide does not guarantee that the results of the Additional Services function without interruptions. SwipeGuide also does not guarantee that the results are applicable for any specific purpose.
10.3 Unless otherwise agreed SwipeGuide will not be responsible for the purchase and/or proper operation of the infrastructure of the Customer or that of third parties. SwipeGuide will not be liable for damage or costs due to transmission errors, failures or non-availability of computer, data or telecommunication facilities, including Internet.
10.4 Unless otherwise agreed the Customer will itself be responsible for the instructions to and use by users, irrespective of whether such users are in an authority relationship with the Customer.
10.5 The Customer guarantees the correctness, completeness and actuality of all information, materials, software, procedures and instructions which the Customer provides to SwipeGuide for the implementation of the Additional Agreement, both before entering into the Additional Agreement and during the currency thereof.
10.6 The Customer guarantees that there are no rights of third parties which preclude making information, equipment, software, data or other materials available to SwipeGuide for the purpose of use, adaptation, installation or incorporation by SwipeGuide. The Customer indemnifies SwipeGuide against all damage and costs which SwipeGuide may suffer or incur due to a claim by a third party based on the allegation that such making available, use, adaptation, installation or incorporation infringes any right of that third party.
10.7 SwipeGuide does not guarantee that the information security will be effective under all circumstances. In the absence of an expressly specified level of security in the Additional Agreement, the security will be of a standard that is not unreasonable having regard to the state of the art, the sensitivity of the data and the costs associated with the introduction of the security.
10.8 If SwipeGuide allocates access or identification codes to the Customer in the context of the Additional Service, the Customer will at all times treat such codes confidentially and prudently and only make them known to authorized members of staff. SwipeGuide will not be liable for damage or costs resulting from the use or abuse of access or identification codes.
10.9 The Customer indemnifies SwipeGuide against all damage and costs, including – but not limited to – damage resulting from (alleged) infringements of IP Rights, claims by third parties (including (semi-)governmental authorities), collection costs, the statutory commercial interest, loss of profits, penalties incurred and legal fees, which SwipeGuide incurs or which result from (i) attributable breach of the Additional Agreement by the Customer, (ii) any action of the Customer in the performance of this Additional Agreement or (iii) an unlawful act.
Article 11. Liability
11.1 The aggregate, maximum, total liability of SwipeGuide due to an attributable breach of its obligations and/or on account of an unlawful act will be limited to compensation for direct damage suffered by the Customer, and will in no event, exceed the amount of the total sum of all invoices actually paid by Customer to SwipeGuide under the relevant Additional Agreement under which the liability has occurred.
11.2 Direct damage is understood to mean exclusively:
- reasonable costs which the Customer would need to incur to make the performance of SwipeGuide correspond to the Additional Agreement; such damage will however not be compensated if the Additional Agreement is terminated by or at the suit of the Customer;
- reasonable costs incurred in assessing the cause and the extent of the damage, in so far as the assessment is related to direct damage as referred to in this Additional Agreement;
- reasonable costs incurred in preventing or limiting damage, in so far as the Customer proves that such costs led to a limitation of direct damage as referred to in this Additional Agreement.
11.3 Any liability of SwipeGuide for damage other than direct damage (“indirect damages”), including – but not limited to – consequential damages, loss and/or damage of data, unavailability or non-performance of software, hardware and/or other ICT infrastructure, loss of profits and lost sales, will be excluded.
11.4 The restrictions mentioned in the preceding paragraphs of this article will lapse if and in so far as the damage is the result of intentional or willful recklessness on the part of SwipeGuide or its managers (“own actions”).
11.5 The liability of SwipeGuide due to attributable breach of an Additional Agreement will in all instances arise only if the Customer immediately gives proper written notice of default, whereby a reasonable period within which the attributable breach may be remedied is stipulated, and SwipeGuide after this period still fails in the performance of its obligations, except in the case of lasting attributable failure. The notice of default must contain a description of the breach that is as complete and detailed as possible, to enable SwipeGuide to respond adequately.
11.6 A condition for the creation of a right to damages will always be that the Customer must report the damage to SwipeGuide in writing as soon as possible after it arises. Any claim for damages against SwipeGuide will lapse by the mere expiry of a period of 12 months from the inception of the claim.
Article 12. Force majeure
12.1 Neither party is liable to perform any obligation, including any warranty obligation agreed between the Parties, if prevented therefrom by force majeure.
Force majeure is taken to mean inter alia:
- force majeure affecting suppliers of SwipeGuide;
- failure by suppliers prescribed by the Customer to SwipeGuide to perform obligations properly;
- defects in objects, equipment, software or materials of third parties use of which has been prescribed by the Customer to SwipeGuide;
- government measures;
- power failure;
- failure of Internet, computer network or telecommunication facilities;
- general transport problems; and
- non-availability of one or more members of staff, including but not limited to illness.
12.3 In the event of force majeure SwipeGuide will be entitled to suspend its obligations under the terms of the Additional Agreement, or to terminate the Additional Agreement in full or in part, without incurring any liability for damages towards the Customer.
12.4 If a force majeure situation continues for longer than 6 months, the Customer will be entitled to terminate the Additional Agreement in writing, without SwipeGuide incurring any liability for damages.
Article 13. Confidentiality and acquisition of staff
13.1 The Customer will ensure that all information received from SwipeGuide – including data, designs, documentation and software – which the Customer knows or should reasonably know to be of a confidential nature, remains confidential. The Customer will only use this information for the purpose for which it was provided and will not show it to third parties, make it public or make it otherwise available. The Customer will take all necessary measures to protect the confidential character of the information in the same manner and to the same degree as the confidential information of the Customer itself.
13.2 The Customer will not be entitled during the currency of the Additional Agreement nor for a period of one year after the end thereof to employ an employee of SwipeGuide who is (was) involved in the implementation of the Additional Agreement or to otherwise use his services, directly or indirectly, unless SwipeGuide has expressly consented thereto in writing.
Article 14. Miscellaneous
14.1 The Customer is not entitled to transfer rights and/or obligations arising from the Additional Agreements to a third party.
14.2 SwipeGuide is entitled to transfer its claims to payment of compensation to a third party. SwipeGuide is furthermore entitled, although only with the consent of the Customer, to cause the Additional Agreement to be carried out in full or in part by third parties or at any rate involve third parties in the implementation of the Additional Agreement. Such consent will not be unreasonably withheld.
14.3 The Additional Agreements between SwipeGuide and the Customer will be subject to Dutch law. The applicability of the Vienna Sales Convention 1980 will be excluded.
14.4 To the extent that national or international rules of law do not prescribe mandatory conditions to the contrary, any and all disputes arising from or related to Additional Agreements concluded under these General Terms and Conditions, or Additional Agreements that are derived therefrom, will be brought before the competent court in Amsterdam.