General Terms and Conditions of Feedback Company (version 2018)
Article 1. Definitions
In these General Terms and Conditions and conditions of use the following terms are taken to mean:
Relevant Information (also referred to as “reviews”): data disseminated via all types of media, including but not limited to image, sound and text originating from the User, which is provided by clients of the User and concerns the Service of the User to the User’s clients.
Consumer: the party that has made one or more purchases from the User.
Service(s): the facilitating by Feedback Company of collating and managing of Relevant Information of clients of the User and the publishing thereof as well as the insurance of goods that are sold via the Website of the User.
Feedback Company: The Feedback Company B.V., with its registered office in Capelle aan den IJssel and registered in the commercial register under no. 59901446, also doing business as Feedback Company.
User: every natural person or legal entity who/which, whether or not for payment, makes use of the Services of Feedback Company.
Agreement: the agreement between Feedback Company and the User with regard to the provision of Services and/or delivery if the software arisen as a result of the signing of the agreement by the User.
Package: the service that is purchased by the User and which is specified in the Agreement.
Processing Agreement: the attached agreement between Feedback Company and the User, including the recitals and the accompanying appendices, in the context of the applicable privacy legislation.
Requests: the requests from the User for using the Services of Feedback Company.
Website: the website or websites used by Feedback Company in the context of the agreed Services.
Article 2. Scope and amendments of the Agreement
These General Terms and Conditions apply to all Agreements between Feedback Company and the User.
If and insofar as Feedback Company has not yet made use of any right given by or pursuant to these General Terms and Conditions this can never be considered to be a waiver of rights.
If and insofar as any clause under these terms and conditions is declared void or is null and void, the remaining provisions and clauses under these terms and conditions will remain unimpaired. Parties will in that case enter into consultation regarding a new clause for the replacement of the null and void or voided clause.
Feedback Company will be entitled to implement amendments of these General terms and conditions and conditions of use from time to time. The amendments will not affect the entire meaning and effect of these General terms and conditions and conditions of use. The amendments will be applicable after notification in writing.
Article 3. Offer
Feedback Company is not bound by its offer if there are printing and/or typesetting errors or program errors on the Website.
The prices stated for the Services are in Euro excluding VAT unless expressly stated otherwise.
Article 4. Registration and obligation to provide information
The Users must register in order to be able to make use of the Services of Feedback Company.
The Users must during the registration fully and truthfully fill in the data requested by Feedback Company thereby. They guarantee the accuracy of the data and are liable towards Feedback Company for any damage due to incomplete or inaccurate data.
Feedback Company maintains strict confidentiality concerning the registration data and only uses this data for the purpose for which the date is provided by the User.
Feedback Company will inspect the data provided by the User when possible. If Feedback Company has reasons to doubt the accuracy of the data provided by the User, or as the case may be the intentions of the User at registration, Feedback Company will have the unrestricted right to refuse the registration of the User. Any money paid for the purpose of the registration will be reimbursed insofar as the User has not been able to make use of Services after deduction of (a part of) the payment for any damage suffered.
The User will be obliged to promptly inform Feedback Company of changes in its business operations, provision of service, or name and address details.
Article 5. Performance of the Agreement
The Agreement only obliges Feedback Company to the provision of efforts and not to the provision of a specific result. Feedback Company does not in any manner whatsoever guarantee the accuracy of the data on its Website, but will do all it can to collate and publish accurate data on its Website. However, the Users are personally responsible and liable for the accuracy of the information provided by them for the purpose of the Website.
Feedback Company makes endeavours to have its provision of service via the Website and affiliated websites run without disruptions, but will not be liable for disruptions thereof, without prejudice to the provisions of article 10.
Every party guarantees correct sending and will bear the risk of receipt by the (electronic) means of communication used by each party.
The User will be obliged to include in the User’s website the applicable logos, links and information with regard to inter alia Company Rules, conditions of insurance and privacy notices, as well as to execute other acts that Feedback Company reasonably deems necessary from time to time.
Article 6. Services
Feedback Company facilitates the collating of Relevant Information, and manages and publishes the Relevant Information. Nevertheless, Feedback Company is always authorised to expand its provision of service, which it will in that case report on its Website and will inform the User of. In case of significant changes of the Service the User will be entitled to cancel the Service with effect from the date when the change comes into effect, insofar as this change has a disadvantageous impact on the User.
The User is responsible for the provision of Relevant Information and the accuracy and completeness of this data.
By purchasing the Service the User agrees to Feedback Company being involved in no way whatsoever in the legal relationship between the User and its client whose data is processed in the assessments of the services of the User. The Website and related websites, which serve for the publication of Relevant Information, only give a passive representation of the Relevant Information with regard to the services of the User.
Feedback Company has unrestricted authority to refuse publication of Relevant Information or to remove this if the contents thereof are in conflict with the provisions of article 7.3.
Feedback Company will make efforts to the best of its ability to provide its Services with due care. The User will owe payment for a Service regardless of the question of whether and the extent to which the Service provides results for the User.
Making back-ups of data of the User, the delivery and/or development of software and advice do not fall under the Services of Feedback Company, unless Parties have agreed to this provision of service in advance and in writing.
Article 7. Obligations on the part of the User
The User will observe all obligations, instructions and limitations made apparent by Feedback Company, as recorded in these General Terms and Conditions, the Website, and other rules and regulations.
The User will be fully responsible for the use of Services of Feedback Company including the use of its user account. Unlawful use thereof will be at the User’s expense and risk.
The use of Services of Feedback Company for committing criminal acts and other objectionable use as referred to in this article is automatically prohibited. In all events the following fall under criminal acts (“hacking”), destruction, damaging or making systems unusable, spreading viruses or keyloggers or the sending of “email bombs”. In all events the following further fall under objectionable use: use contrary to national or international legislation (international insofar as relevant and apparent), in conflict with public morals or the spirit of trading and rules of conduct applicable to the internet, in conflict with the rights of third parties, the incitement of third parties to commit criminal acts or other prohibited acts, and discrimination of persons. Feedback Company retains the right to remove prohibited contents from the Website.
The User will endeavour to have all its clients give an assessment with regard to its provision of service and/or transactions.
User guarantees that the Service of Feedback Company will only be used for the objective for which it is provided.
The User guarantees that it will treat the login data of its account with Feedback Company with due care. The User will be obliged to compensate any damage suffered by Feedback Company due to the unauthorised use of the account by a third party.
The User agrees that no agreement, partnership, agency or other relationship with Feedback Company arises in any manner whatsoever, from which rights could be derived.
Article 8. Rates
If during the execution of the Service a price increase is implemented by Feedback Company, the User will be entitled to terminate the Agreement within 15 days after the notification of the price increase, provided that this price increase is higher than the inflation figures published by CBS (Statistics Netherlands) for the sector, which Feedback Company operates in. The User guarantees that this termination will reach Feedback Company and bears the risk thereof.
An increase of the rates pursuant to a statutory increase of turnover tax, or otherwise a price increasing circumstance imposed by authorities, will not be a ground for termination as referred to in subclause 1 of this article.
Article 9. Payment
The User will be obliged to pay the invoices of Feedback Company within 14 days after the invoice date in a manner agreed with Feedback Company. If the User is in default of payment in a timely manner in conformity within this period the User will owe commercial interest in conformity with Section 119a Book 6 of the Civil Code.
Objections to the invoices of Feedback Company must be made known to Feedback Company within 5 days after the invoice date at the risk of forfeiting rights.
The User will not be entitled to set off claims against its payment obligations pursuant to the Agreement, or to suspend its payment obligations.
If the User, in accordance with the Agreement concluded between Parties, consists of several natural persons and/or legal entities, each of these legal entities/natural persons will be jointly and severally liable for the performance of the Agreement towards Feedback Company.
Article 10. Liability and indemnity
With the exception of mandatory legal provision, Feedback Company will never be liable for damage in whatsoever form suffered by the User or third parties.
Without prejudice to the provisions of subclause 1, the liability on the part of Feedback Company is, where applicable, always limited for each incident to a maximum of the amount of the price stipulated for this Agreement (excluding VAT). If the Agreement is performed over a period of more than 3 months, the agreed stipulated price for the Agreement will be set at the total of the payments (excluding VAT), stipulated for 3 months. Under no circumstance will the total liability on the part of Feedback Company for direct damage, on whatsoever basis, amount to more than € 1,000 (in words: one thousand Euro).
The liability on the part of Feedback Company for indirect loss, consequential loss, lost profit, lost savings, reduced goodwill, loss due to business interruption and damage as a result of claims of purchasers of the User, is always excluded. The liability on the part of Feedback Company related to corruption, destruction, or loss of data or documents is also excluded.
The exclusions and limitations determined in this article will lapse if and insofar as the damage is the result of an intentional act or wilful recklessness on the part of Feedback Company’s management.
Unless performance by Feedback Company is permanently impossible, its liability due to attributable failure in the performance of an Agreement will only arise if the User has promptly given Feedback Company notice of default whereby a reasonable period is set out to remedy the failure, and Feedback Company has also after this period attributably failed to remedy the failure. The User is thereby obliged to provide a detailed and full description of the failure.
The User will be obliged towards Feedback Company to report the failure in a timely manner, whereby in any event a period of 1 month after the occurrence of the damage and knowledge of the identity of the liable person must be observed, at the risk of forfeiting rights concerning this.
The User indemnifies Feedback Company against all claims by third parties ensuing from the Agreement. All damage suffered by Feedback Company resulting from claims by third parties, including the costs of putting forward a defence against a claim and the costs of the proceedings, will be at the User’s expense.
The provisions of this article apply to the User as well as for the benefit of all legal entities/natural persons used by Feedback Company during the performance of the Agreement.
Feedback Company will endeavour to secure its provision of service hardware-related and software-related against exploitation and unauthorised access to the data of the User. The User will bear the risk concerning this and must make back-ups of the data if possible.
Article 11. Force majeure
None of the parties to the Agreement will be obliged to fulfilment of any obligation if they are prevented therefrom as a result of force majeure. Force majeure also includes: (i) force majeure on the part of suppliers, (ii) defective items, equipment, software or materials of third parties the use of which is prescribed by the other party, (iii) government measures, power failure or failure of the internet, computer network or telecommunication facilities which entirely or predominantly prevent the performance of the Agreement, (iv) war, (v) strike action, (vi) general transport problems and (vii) the unavailability of one or more staff members of Feedback Company due to a circumstance beyond the direct control of Feedback Company to alleviate this unavailability, such as for example sickness.
If a force majeure situation continues for more than 45 days each of the parties will have the right to terminate the Agreement in writing.
That which has already been achieved on the basis of the Agreement will in that event be settled pro rata, without parties owing anything else to each other.
Article 12. Termination of the Agreement
Feedback Company will be entitled to suspend the fulfilment of the obligations, or to terminate the Agreement, if the User does not completely, or does not correctly, fulfil the obligations under the Agreement.
If, after the concluding of the Agreement, there is information coming to the knowledge of Feedback Company on the basis of which Feedback Company has a well-founded fear that the User will not fully or not correctly perform the Agreement, Feedback Company will only suspend or terminate the Agreement insofar as the shortcoming justifies this.
Feedback Company is furthermore entitled to terminate the Agreement if moratorium is granted to the User or the User is declared insolvent.
Article 13. Intellectual property and the sharing of information of the Website
All copyright, trademark rights, related rights and rights related to intellectual property rights inter alia to the names, images and texts on the Website or on other applications, correspondence, emails and other resources of Feedback Company are exclusively vested in Feedback Company, except insofar as it concerns contents of the Users, which contents are protected by intellectual property rights.
The Relevant Information is the property of Feedback Company unless this is established otherwise in legal proceedings, in which case Feedback Company acquires a worldwide, perpetual and free of charge licence, as well as the right to a sublicence subject to the same terms and conditions.
The Users and other visitors to the Website of Feedback Company are not authorised to share information of the Website with third parties, regardless of whether this information originates from Feedback Company itself or from Users, with the exception of with express permission for this from Feedback Company.
Article 14. Confidentiality and designated use of confidential information
Both parties will be obliged to maintain confidentiality of all confidential information that they share with each other in the context of the Agreement. Information applies as confidential if this is referred to as such or if this ensues from the nature of the information concerned. The confidential information will only be used for the purpose for which it is provided.
If Feedback Company is obliged, on the basis of a statutory provision or judicial decision, to release confidential information Feedback Company will not be obliged to compensation of damage and, insofar as it concerns the User, the User will not be entitled to terminate the Agreement.
Article 15. Feedback Company and Google
The Feedback Company has a licence agreement with Google. All Relevant Information generated through the system of Feedback Company is offered to Google for indexation in Google Adwords and/or Google Shopping.
The above does not affect the fact that Feedback Company cannot guarantee or control if and when the assessments are shown in the results of Google. User must approach Google concerning this.
Article 16. Fair Use Policy and sending Requests
The User uses and sends the Requests reasonably and in such a manner that this will not cause any overload of the network, nuisance for other Users, or very high costs for Feedback Company. For this reason Feedback Company applies a Fair Use Policy. Feedback Company bases this hereby in the average of the quantity of the sent Requests of its Users vis-a-vis the number of reviews per month. If circumstances make this necessary, the Fair Use Policy will be adjusted. Adjustments will be made known in a timely manner.
In the event of excessive use, a User will be at first instance temporarily limited to a maximum number of Requests per month. In addition, the User can be advised to enter into another package. If the User does not follow such advice, Feedback Company can (temporarily) block the access. Feedback Company will only take such measures as a last resort of course.
Article 17. Privacy and data processing
If this is necessary for the performance of the Agreement, the User will on request promptly inform Feedback Company in writing of the manner in which the User fulfils its obligations on the basis of legislation in the field of personal data protection.
The User indemnifies Feedback Company against claims by persons whose personal data is registered or will be processed in the context of a register of personal data which is kept by the User, or for which the User, on the basis of the law or in other respects, is responsible, unless the User proves that the facts that are the basis of the claim can be attributed to Feedback Company.
The liability for the data that is processed by the User by means of making use of a service provided by Feedback Company is fully on the part of the User. The User guarantees towards Feedback Company that the contents, the use and/or the processing of the data is not unlawful and does not breach any right of a third party. The User indemnifies Feedback Company against any legal action brought by third parties, on whatsoever basis, related to this data or to the performance of the Agreement.
The User has, on the basis of legislation concerning the processing of personal data, obligations towards third parties on the basis of legislation, such as the obligation to provide information as well as the provision of access thereto, the correction and the removal of personal data of the data subjects. The responsibility for the fulfilment of these obligations is fully and exclusively on the part of the User. Parties put forward that Feedback Company is the “processor” within the meaning of the General Data Protection Regulation (Dutch AVG) for the Protection of Personal Data, with regard to the processing of personal data. Parties will conclude the Processing Agreement for this.
Insofar as technically possible, Feedback Company will provide assistance to the fulfilment of the obligations to be fulfilled by the User, as referred to in article 18 subclause 4. The costs attached to this assistance are not included in the agreed prices and payments of Feedback Company and will be at the User’s expense.
Article 18. Applicable law and court with competent jurisdiction
The law of the Netherlands applies to these General Terms and Conditions and the Agreement.
All disputes will be submitted to the court of competent jurisdiction in the town nearest to the place of business of Feedback Company without prejudice to the entitlement of Feedback Company to submit any dispute to another court.