General conditions
1. Definitions
1.1 Subscription: The service of making a Service available to the Customer (via the Internet or otherwise) during the term of the subscription.
1.2 General Terms and Conditions: these general terms and conditions.
1.3 Means of Authentication: The combination of username and password, or other means by which Customer can be identified by garDsign.
1.4 Consumer: A natural person not acting in the exercise of a profession or business.
1.5 Service: All services provided and to be provided by garDsign under the Agreement.
1.6 garDsign: The private company with limited liability garDsign Tools B.V., having its registered office and place of business at Herculeslaan 190, Unit 5 (3584AB Utrecht) (KvK number 88775127).
1.7 Defect: Defect, malfunction and/or failure of the Performance to fully meet the agreed Specifications.
1.8 Intellectual Property Rights: All intellectual property rights, including, but not limited to, copyrights, database rights, trademark rights, know how and patent rights.
1.9 Customer: The Consumer or Company that concludes or wishes to conclude an Agreement with garDsign.
1.10 Performance: Good and/or Service.
1.11 Company: Legal or natural person, other than a Consumer.
1.12 Agreement: The agreement between garDsign and Customer purporting to provide a Performance, including Subscriptions.
1.13 Specifications: The specifications to be met by the Deliverable, as set forth in the Agreement.
1.14 Items: Physical goods, including packaging and documentation.
2. Applicability
2.1 These General Terms and Conditions shall apply to all offers and all Agreements relating to the supply of Performance by garDsign.
2.2 These General Terms and Conditions may be deviated from only in writing.
2.3 The applicability of purchasing or other terms and conditions of Customer are expressly rejected.
2.4 If any provision in these General Terms and Conditions cannot be invoked on the grounds of its possible nullity, reasonableness and fairness or its unreasonably onerous nature, the other provisions of these General Terms and Conditions shall remain in full force and effect, and in place of the invalid provision, a provision that most closely approximates the intention of the parties shall apply.
3. Formation of agreement
3.1 All offers by garDsign, as well as the prices, fees and (delivery) terms quoted by garDsign, are non-binding, unless expressly stated otherwise.
3.2 An Agreement is established at the time of acceptance of the Agreement by Customer. The provisions of Articles 6:227b and 6:227c of the Civil Code shall not apply in the relationship between garDsign and Companies.
3.3 Barring evidence to the contrary, garDsign's administrative data shall be conclusive and binding for the content of the Agreement and shall serve as evidence of the Agreement.
4. Execution of the agreement
4.1 garDsign shall endeavor to perform the Agreement carefully and properly, in accordance with the agreements recorded in writing with the Customer.
4.2 garDsign has the right to expand the functionalities of the Service in the interim and fix any errors.
4.3 garDsign will make every effort to achieve maximum availability of the Service for the Customer but cannot guarantee that the Service will be continuously available to the Customer without interruptions and/or errors.
4.4 garDsign has the right to temporarily take the Service out of service for preventive, corrective or adaptive maintenance or other forms of service. garDsign will not allow the out of service period to last longer than necessary and, if possible, it will take place outside business hours.
4.5 garDsign is only responsible for keeping the Service connected to the direct Internet, not for any (other) communication lines and/or network infrastructure. The Customer is responsible for its own internal infrastructure.
4.6 If and to the extent the Agreement includes the engagement of third parties at the request of Customer, the (general) terms and conditions of such third parties may apply. garDsign is authorized to accept such terms and conditions of such third parties on behalf of Customer, if necessary. Any own liability of garDsign for any shortcomings and/or errors of such third parties is excluded. The provisions of this article shall in any case apply to the delivery of software whose rights rest with parties other than garDsign.
5. Responsibilities Customer
5.1 The Customer is responsible for providing information correctly and completely for the purposes of or in connection with the Performance.
5.2 The Customer is solely responsible for the use he makes of the Service and for the information he retrieves, stores, distributes and otherwise uses through the Service. garDsign shall not be liable for inaccuracy, incompleteness or illegality of the information processed through the Service.
5.3 If and to the extent that garDsign has issued Authentication Means to the Customer as part of the Performance, the Customer shall keep the Authentication Means received confidential. Customer is at all times itself responsible and liable for any use of the Authentication Means provided to it.
5.4 garDsign may assume that a user who logs on using a Customer's Authentication Means is actually that Customer, or in the case of a Company is an employee. As soon as the Customer knows or has reason to suspect that Authentication Means have fallen into the hands of unauthorized persons or are otherwise being misused, the Customer shall immediately notify garDsign, without prejudice to the Customer's own obligations to immediately take effective measures of its own. garDsign reserves the right to remove the information stored by unauthorized users or to prevent access to it.
5.5 A Company shall allow the Service to be used by employees within its organization only for the internal purposes of the organization.
6. Acceptance and complaint period
6.1 The agreed delivery periods and delivery dates are approximate and are never to be regarded as deadlines, unless expressly agreed otherwise in writing.
6.2 Customer shall examine the Delivered Performance and verify that the Delivered Performance complies with the Agreement.
6.3 The Customer who is a Consumer must report Defects to garDsign within 2 months after delivery, or at least after observation was reasonably possible, in writing, stating reasons and giving the invoice details. The previous sentence shall apply mutatis mutandis to the Customer who is a Company, it being understood that the relevant period shall be 30 days.
6.4 The Customer who is a Consumer must report complaints about invoices to garDsign in writing within 30 days from the invoice date. The previous sentence applies mutatis mutandis to the Customer who is Company, it being understood that the relevant period is 8 days.
6.5 For Agreements with Companies, all claims and defenses based on facts that would justify the assertion that the delivered goods do not comply with the Agreement expire one year after delivery.
6.6 In Contracts with Consumers, all claims and defenses based on facts that would justify the assertion that the delivered goods do not comply with the Agreement shall expire two years after the defect has been reported to garDsign in accordance with the preceding paragraphs.
6.7 If the Performance concerns a Good and the Company has demonstrated that the Good does not comply with the Agreement, garDsign shall have the option either to repair the Good in question upon its return or to replace it with a new Good or to refund its invoice value. These General Terms and Conditions shall apply in full to this new delivery.
6.8 If the Performance concerns a Good and the Good does not comply with the Agreement, the Consumer shall be entitled to the rights due under the law.
7. Payment and price
7.1 All prices and rates for Agreements with Companies are in euros and exclusive of VAT and any other governmental levies imposed at the time of the conclusion of the Agreement, unless expressly stated otherwise.
7.2 All prices and rates for Contracts with Consumers are inclusive of VAT and any other governmental levies imposed at the time of the conclusion of the Contract, unless expressly stated otherwise.
7.3 If and to the extent that the Agreement concerns a Subscription in which the Customer pays periodic fees, the Customer shall pay the periodic fee in advance by means of an (online) payment order in a manner as offered at the time of payment.
7.4 If and to the extent payment is by invoice, payment shall be made within thirty (30) days of the invoice date.
7.5 If Customer fails to pay the amounts due or fails to pay them on time, Customer shall owe statutory interest for commercial contracts on the outstanding amount without the need for a demand or notice of default. Notwithstanding the foregoing, garDsign shall notify a Consumer of the payment obligation and grant the Consumer a period of fourteen (14) days to still fulfill the payment obligation.
7.6 If after a demand or notice of default the Customer continues to fail to pay the claim, garDsign may pass the claim on to a third party, in which case Customer shall, in addition to the total amount then due, also be liable to pay all judicial and extrajudicial costs, including all costs calculated by external experts. This shall be without prejudice to garDsign's other statutory and contractual rights.
8. Intellectual Property Rights
8.1 All Intellectual Property Rights in the Performance shall be held exclusively by garDsign, its licensors or its suppliers. To the extent necessary under the Agreement, garDsign hereby grants Customer a non-exclusive, non-transferable right of use to the Intellectual Property Rights during the Agreement to use them within the scope of the purpose arising from the Agreement.
8.2 in principle, garDsign does not transfer any Intellectual Property Rights to Customer. Should, nevertheless, additional written agreements in this regard be made, garDsign reserves the right, for itself and/or for third parties:
(a) use and/or exploit the general principles, ideas, designs and developments underlying the Intellectual Property Rights;
(b) make developments similar or derivative to those made for the benefit of Customer.
8.3 The Customer is not allowed to remove from or modify on the Performance any indication concerning copyrights, brands, trade names or any other rights of intellectual or industrial property.
8.4 GarDsign is permitted to take technical measures to protect the Performance or with respect to the agreed (usage) restrictions regarding the Service. The Customer is not permitted to remove or circumvent such technical measures.
8.5 garDsign shall indemnify the Customer against third-party claims based on the allegation that the Performance developed by garDsign infringes third-party Intellectual Property Rights, under the condition that the Customer immediately informs garDsign in writing of the existence and content of such claim and leaves the handling of the matter, including the conclusion of any settlements, entirely to garDsign. To this end, the Customer shall - at garDsign's first request - provide all necessary powers of attorney, information and cooperation to garDsign to defend - if necessary on behalf of the Customer - against these legal claims. This indemnification obligation shall not apply if the alleged infringement is related to changes to the Performance made by the Customer or caused by the Customer to be made by third parties.
8.6 If the Performance concerns a Service and it has been irrevocably established in court that the Service developed by garDsign itself and made available to the Customer infringes any Intellectual Property Right belonging to a third party, garDsign shall - at its sole discretion - (a) modify the Service so that there is no longer any infringement of the Intellectual Property Rights of such third party, or (b) provide similar service to Customer with similar functionality that does not infringe such third party rights, or (c) at its expense, obtain a license from such third parties for the purpose of allowing Customer to continue to use the Service, or (d) or provide any other reasonable remedy to Customer. Any other or further liability of garDsign for infringement of Intellectual Property Rights of a third party is entirely excluded.
9. Secrecy
9.1 Customer undertakes to keep all data provided to Customer in connection with the performance of the Agreement strictly confidential, not to disclose it to any third party (except its own employees) and to use it only for the agreed purpose.
9.2 Customer guarantees that personnel and/or third parties engaged by it will observe the same degree of confidentiality.
10. Protection personal data
10.1 If and to the extent garDsign processes personal data as part of the execution of the Agreement in respect of which it is the responsible party within the meaning of the General Data Protection Regulation (AVG), garDsign shall process the personal data in accordance with its privacy statement.
10.2 If and to the extent garDsign processes personal data as part of the execution of the Agreement in respect of which Customer is the controller within the meaning of the AVG, garDsign shall be considered a processor within the meaning of the AVG in this regard. garDsign shall be authorized to process such personal data only if and to the extent necessary for the execution of this Agreement, all exclusively in accordance with a processor agreement to be further agreed upon.
10.3 Customer is aware that it also has its own obligations under the General Data Protection Regulation ("AVG"). Customer shall comply with these obligations incumbent upon it.
11. Liability
11.1 If the Customer is a Company, the total liability of garDsign due to an attributable failure in the fulfillment of the Agreement or on any legal basis whatsoever, shall be limited to compensation for direct damages up to a maximum of the amount of the price (excluding VAT) stipulated for that Agreement. If the Agreement is primarily a continuing performance agreement with a term of more than one year, the price stipulated for that Agreement shall be set at the total of the fees (excluding VAT) stipulated for six months. In no event, however, shall garDsign's total liability for direct damages, on any legal basis whatsoever, exceed €50,000 (fifty thousand Euros).
11.2 If the Customer is a Consumer, the total liability of garDsign due to an attributable failure in the performance of the Agreement or on any legal basis whatsoever, is limited to compensation for direct damages up to a maximum of €10,000 (ten thousand euros).
11.3 Liability of garDsign for consequential damages, lost profits, missed savings, errors and/or defects in information provided as part of the Service, such as designs, calculations, advice and presentations, published media products, diminished goodwill, damage due to business stagnation, damage as a result of claims by customers of the Customer, mutilation or loss of data and all forms of damage other than those mentioned in Article 11.1 is excluded.
11.4 The total liability of garDsign for damages due to death, bodily injury or due to material damage to property shall never exceed €2,500,000 (two million five hundred thousand euros).
11.5 The aforementioned limitations of liability shall lapse if and to the extent the damage is the result of intentional or deliberate recklessness by garDsign.
11.6 Unless fulfillment by garDsign is permanently impossible, in the case of Agreements with Companies, garDsign's liability for attributable failure in the fulfillment of an Agreement shall arise only if Customer immediately gives garDsign notice of default in writing, setting a reasonable period for remedying the failure, and garDsign continues to fail imputably in the fulfillment of its obligations even after such period. The notice of default must contain as complete and detailed a description of the failure as possible, so that garDsign is given the opportunity to respond adequately.
11.7 Any claim for damages against garDsign shall lapse in the case of Agreements with Companies by the mere expiration of twelve months from the date the claim arises, unless Customer has filed a legal claim for compensation for the damage before the expiration of that period.
12. Duration and termination
12.1 The Agreement shall take effect from the date and for the duration as provided in the Agreement.
12.2 Subject to timely notice of termination, the Agreement with the Company shall always be automatically renewed for one (1) year at the end of the then current term, unless the Agreement expressly provides otherwise. The parties shall be entitled to terminate the Agreement by the end of the then current term of the Agreement, subject to at least one (1) month's notice.
12.3 Unless timely notice of termination is given, the Agreement with the Consumer shall be automatically renewed for a term equal to the initial term, provided that after the initial term, or after the first year if the initial term is longer, the Consumer shall be entitled to terminate the Agreement on a monthly basis, subject to at least one (1) month's notice, unless the Agreement expressly provides otherwise.
12.4 garDsign may terminate the Agreement with a Company in writing with immediate effect in the event:
(a) the Customer is declared bankrupt or the Customer is granted suspension of payments and/or if the Customer's business comes under the control of a receiver or administrator, either voluntarily by the Customer or otherwise;
(b) the Customer is liquidated / wound up or if it enters into an agreement with creditors;
(c) the Customer fails to fulfill its obligations under the Agreement.
13. Dissolution
13.1 Consumers have the authority in a Distance Contract to rescind the underlying Contract with garDsign within fourteen (14) business days of receipt of the Performance, without giving reasons.
13.2 If Consumer wishes to rescind the Agreement pursuant to the previous paragraph, Customer must notify garDsign in writing. To invoke the dissolution in writing, Consumer can use the Model dissolution/revocation form.
13.3 If the Consumer has already made payments at the time the Consumer terminated the Agreement with garDsign pursuant to this article, garDsign shall refund such payments to the Consumer within fourteen (14) business days. As far as the Agreement with the Consumer concerns a Subscription, please refer to the Help Center for more information.
14. Applicable law and disputes.
14.1 The Agreements between garDsign and Customer shall be governed by Dutch law. Applicability of the Vienna Sales Convention 1980 is excluded.
14.2 Any disputes shall be brought in the first instance exclusively before the competent Dutch court. Any disputes with Companies shall be exclusively settled by the District Court in Arnhem.