June 1, 2022
Apiwatch: Waldeck.io B.V., a limited liability company established in Nijmegen, the Netherlands, with registered address Waldeck Pyrmontsingel 12, 6521 BC, Nijmegen, the Netherlands, registered with the Dutch Chamber of Commerce under number 78091438 and with Dutch VAT number NL0062641955, using "Apiwatch" as trade name.
Customer: the natural person or legal entity to whom Apiwatch makes an offer or with whom Apiwatch enters into an Agreement.
Agreement: each agreement between Apiwatch and Customer in relation to Services.
GTC: these general terms and conditions.
Services: the services provided by Apiwatch to Customer under an Agreement.
Term: the term starting on the day the Agreement is entered into and ending on the day the Agreement terminates in accordance with its terms and these GTC.
These GTC apply to each offer by Apiwatch to any party and to each Agreement.
Customer confirms by entering into an Agreement that it has read and agrees to these GTC.
Apiwatch rejects the applicability of any general terms and conditions of the Customer whatsoever.
Apiwatch may change these GTC at any point in time at its discretion, subject to a one month prior notification to Customer. If Customer does not wish to accept the change, Customer may terminate the Agreement until and as per the effective date of the change, without any compensation payable by any party. The changes will apply to all Agreements as of the effective date, also to those that were entered into prior to the change.
Deviations from these GTC only apply if agreed between Apiwatch and Customer in writing.
3. Term and termination
Each Agreement will have a Term of one (1) year, unless a different Term is agreed in writing. The Term starts at the date the Agreement is signed. The Agreement automatically renews for a Term of one (1) year upon the expiry of the then-current term, unless terminated in accordance with section 3B or 3C.
Customer may terminate the Agreement as per the end of the Term at its discretion, by way of a written notice to Apiwatch no later than one (1) month prior to the end of the Term.
Each party may terminate the Agreement, in whole or in part, effective immediately, by written notice, if (i) the other party has failed to perform a material contractual obligation and such breach is incapable of being remedied; (ii) the other party has failed to perform a material contractual obligation and it is possible to remedy that breach, but the party in breach fails to remedy such breach within thirty (30) days of prior written notice requiring them to do so; or (iii) if the other party is subject to an actual or threatened event where the other party ceases to exist or dissolves, the other party's business has been discontinued, or the other party has been declared bankrupt or has been granted suspension of payments.
During the Term and conditioned upon Customer's compliance with the terms of the Agreement, Apiwatch grants to Customer, a limited, non-exclusive, non-transferable, and non-sublicensable right to allow Customer to access and use the Services solely for Client's internal business purposes.
Apiwatch will provide access to the Services within the scope of the subscription type offered by Apiwatch and selected by Customer.
Apiwatch may change the scope of the subscription types and the corresponding fees at any point in time at its discretion, subject to a one month prior notification to Customer. If Customer does not wish to accept the change, Customer may terminate the Agreement until and as per the effective date of the change, without any compensation payable by any party. The changes will apply to all Agreements as of the effective date, also to those that were entered into prior to the change.
Customer bears full responsibility and liability for the application of the Services in its business.
Customer warrants that it will use the Services only for its own legitimate business purposes and not for any third party.
Customer warrants that it will not use the Services for any purpose for which the Services were not designed by Apiwatch.
Customer warrants that all information provided by it to Apiwatch under the Agreement, including but not limited to contact details, are correct and up to date. Customer must inform Apiwatch about any changes.
Apiwatch may in its sole discretion suspend access to the Services if Apiwatch suspects unauthorised use of the Services.
Apiwatch will periodically send invoices for the Services. Each invoice must be paid within 14 (fourteen) days as of the date of invoice, unless a different payment term is agreed in writing. Apiwatch may collect any amount payable by means of automatic debit subject to Customer's prior approval.
If Customer fails to pay any sum due to Apiwatch in full in time, Apiwatch may, without further notification being required, (i) initiate collection proceedings, the costs of which must be paid by Customer; (ii) charge interest over any sum due equal to the then-current statutory trading interest rate plus 2% (two percent) from the moment the sum is due to the moment the sum is paid; and (iii) suspend access to the Services.
The Services are offered and provided on an as-is basis.
Apiwatch cannot in any way be held liable for direct damages resulting from the use of the Services, except in case of gross negligence or wilful misconduct by Apiwatch.
Apiwatch cannot in any way be held liable for indirect damages resulting from the use of the Services, including but not limited to consequential damages, loss of profit, loss of revenues, loss of goodwill, loss of documents or other data, third party claims and the costs of returns resulting from a defect in or unavailability of the Services.
Customer shall indemnify Apiwatch for any third party claims resulting from the use of the Services by the Customer.
Apiwatch's liability will in no case exceed the aggregate fees payable under the Agreement during the twelve months immediately prior to Customer's claim.
Apiwatch may temporarily suspend the Services if this is technically required to maintain or adjust the Services, without Customer being entitled to any compensation. Apiwatch must limit the unavailability to the minimum.
Apiwatch must notify Customer of any scheduled maintenance at least one (1) week before the maintenance takes place.
Apiwatch must comply with all applicable laws and regulations in relation to data privacy, more specifically the General Data Protection Regulation (GDPR) and the Dutch Telecom Act (together: the Relevant Laws).
Apiwatch will process personal data in providing the Services in accordance with its privacy statement. To the extent this relates to the process of Apiwatch providing the Services to Customer, Apiwatch shall act as controller and shall use the personal data for the sole purpose of providing the Services. To the extent this relates to the use of the Services, Apiwatch will act as processor and Customer will act as controller of the personal data in accordance with section 10 of these GTC.
10. Data processing
Apiwatch shall process personal data only on behalf of and for the benefit of Customer, in accordance with Customer's written instructions and under the responsibility of Customer, except where Relevant Laws provide otherwise. Apiwatch shall not process personal data for any purpose other than as instructed by Customer. Apiwatch shall not have any control over the purpose and means of the processing of personal data.
Customer will provide Apiwatch access to the following personal data: names and contact details of Customer's employees.
The processing activities by Apiwatch will include: collecting, transferring, saving and deleting the personal data.
The purpose for which Apiwatch may process personal data will be: (i) executing the Agreement, and (ii) comply with Relevant Laws.
Apiwatch may engage subcontractors in processing personal data. Customer approves such engagement if the subcontractor commits to compliance with this section 10. Apiwatch will inform Customer of the engagement or disengagement of any subcontractor. Customer may object to the engagement of a subcontractor.
Apiwatch may only grant access to personal data on a need-to-know-basis to: (i) its employees; and (ii) authorised representatives of sub-processors, if any, as approved by Customer from time to time.
Apiwatch may only transfer personal data to third countries upon written instructions by Customer. Apiwatch shall perform such transfer in compliance with chapter V of the GDPR.
Apiwatch will take appropriate technical and organisational security measures to protect personal data against unauthorised access, loss, destruction, theft or other unauthorised processing.
Apiwatch shall provide any support reasonably required to Customer to enable any individual to exercise his or her rights under the Relevant Laws.
Upon Customer's request with reasonable notice, Supplier will permit a technical or operational audit by the internal and/or external auditors and personnel of Customer, during office hours, to establish that Apiwatch complies with its obligations under the Relevant Laws. Apiwatch will cooperate with the Auditors in a timely manner and provide the auditors all assistance as they may reasonably request in connection with the audit. The auditors will seek to avoid disrupting Apiwatch's operations during the audit.
Upon termination of the Agreement, Customer may during one (1) week request Apiwatch to transfer the personal data to Customer or a location designated by Customer. After this term, Apiwatch will delete or destroy all personal data, except where Relevant Laws require Apiwatch to keep the personal data.
Apiwatch will inform Customer about any security breach or data leak that may influence the processing of personal data as provided for in this section 10 as soon as reasonably practicable after Apiwatch becomes aware. Apiwatch shall cooperate with Customer in performing a root cause and risk analysis. Apiwatch shall provide support to Customer in relation to the Customer's compliance with clauses 32 through 36 GDPR.
11. Intellectual property
All intellectual property rights existing prior to the Agreement will belong to the party that owned such rights immediately prior to effective date of the Agreement. Neither party shall transfer by implementation of the Agreement any such pre-existing intellectual property rights.
All intellectual property rights developed under the Agreement will be owned solely and exclusively by Customer. By signing the Agreement, Apiwatch transfers the intellectual property rights developed under the Agreement in advance to Customer, and Customer accepts such transfer. The Agreement shall be deemed to be the document required under the applicable law for the transfer in advance to Customer of the intellectual property rights to be developed under the Agreement. Apiwatch shall have the non-exclusive, irrevocable right to use for an indefinite period strictly for internal business purposes any such intellectual property rights that has transferred to Customer, excluding the right to share or sub-license such intellectual property rights with third parties.
Each party shall (i) keep information exchanged in relation to the Agreement strictly confidential and refrain from passing it on to anyone other than its employees on a need-to-know basis; and (ii) refrain from using the information exchanged in relation to the Agreement for any purpose other than the implementation or the execution of the Agreement.
The following information is not deemed confidential information for the purpose of section 12A: (i) information that the receiving party can satisfactorily demonstrate is or has become generally available to the public other than through unauthorised disclosure; (ii) information that was already lawfully in the possession of the receiving party without any obligation of confidentiality, before the information was disclosed to it by or on behalf of the other party, as evidenced by written records; and (iii) information independently developed by either party.
Each party may disclose information relating to the other party or the Agreement if and to the extent such disclosure is required by law or by an administrative or legal court. In such case the party concerned must, to the extent legally permitted, inform the other party promptly and, if possible, in advance of such disclosure.
Notwithstanding sections 12A, B and C, Apiwatch may refer to Customer in marketing materials, press releases or other external communications without the prior written approval of Customer.
Section 12A, B, C and D will remain in force after the expiry or termination of the Agreement for whatever reason.
If any provision (or part of a provision) of the Agreement is found to be invalid or unenforceable by any court of competent jurisdiction, the provision will be enforced to the fullest extent permissible to effect the parties' intent, and the invalidity or unenforceability will not operate to invalidate the remaining provisions of the Agreement. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
If there is an inconsistency between any of the provisions in the main body of the Agreement and these GTC, the provisions in the Agreement control.
Any notices required or permitted to be given under an Agreement or these GTC by either party to the other will be given by email. Notices will be deemed received: (i) if personally delivered, the same day; (ii) if sent by courier or overnight delivery company, on the second working day after the day it was sent; (iii) if sent by mail, five (5) working days following posting; or (iv) if sent by email, the date of delivery. Notwithstanding the foregoing, notices terminating the Agreement may not be sent by email.
The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of the Netherlands. The parties irrevocably agree that the courts of the Netherlands, with the court of Amsterdam in first instance, shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).