Table of Contents:
Article 1 – Definitions
Article 2 – Applicability and amendments
Article 3 – Quotations and formation of agreement
Article 4 – Supply of Products and Services
Article 5 – Product guarantees and (notification of) defects
Article 6 – Account details
Article 7 – Fees
Article 8 – Payment
Article 9 – Retention of title and rights
Article 10 – Servicing and maintenance and other restrictions on use
Article 11 – Risk
Article 12 – Confidentiality, security and customer data
Article 13 – Obligations and use by Client
Article 14 – Liability of Clay
Article 15 – Force majeure
Article 16 – Intellectual property rights
Article 17 – Term of the Agreement, Services and termination
Article 18 – Dissolution of the Agreement
Article 19 – Penalties and damage
Article 20 – Transfer or making available of rights and obligations
Article 21 – Final provisions
Account details: Customer code, password, user name, activation codes and other details relating to the Client in the context of the use of the Products and Services.
Processor Agreement: the supplementary agreement between Clay and the Client, on which basis Clay processes personal data.
Clay: the private limited liability company incorporated under Dutch law Clay Solutions B.V., having its registered office and its principal place of business at Kraanspoor 48, Amsterdam and/or subsidiaries of Clay and/or the authorised representative (under the articles of association) of Clay.
Service(s): The Service whereby a specific agreed functionality is made available remotely to the Client.
Direct damage: the reasonable costs incurred to establish the cause and the volume of the damage, insofar as said establishment relates to damage in the sense of the present terms and conditions, reasonable costs possibly incurred to have Clay’s faulty performance meet the conditions of the Agreement, if such faulty performance can be attributed to Clay, and reasonable costs incurred to prevent or limit damage, insofar as the Client demonstrates that said costs have led to the limitation of direct damage.
Indirect damage: consequential damage, lost profits, lost savings, reduced goodwill, damage due to business stagnation, damage as a consequence of claims by the Clients own customers, and all other forms of indirect damage.
User documentation: one or more documents designated by Clay as such, whether or not in electronic form, which include user documentation for Products and Services.
(Intellectual) Property Rights all intellectual property rights in the meaning of Dutch or foreign law, including other property rights and potential licence rights, source codes, database rights and other rights vesting in Clay in the widest sense of the word.
Client: A legal or natural person who operates as a professional or business not being a consumer.
Quotation: Any written and/or digital offer (e-mail, in writing, fax or digital file) emanating from Clay for the supply of Products and Services.
Agreement: The agreement between Clay and the Client, on which basis Clay makes available its Products and/or Services to the Client.
Parties: Clay and the Client.
Personal data: all data relating to an identified or identifiable natural person (hereinafter the Party Involved) which Clay processes for the Client on the basis of the Processor Agreement;
Products: Apparatus, software, User Documentation and/or other items that Clay supplies in connection with the Agreement to the Client.
Website: All websites under the management of Clay, including www.my-clay.com and www.my-clay.nl.
2.1 These general terms and conditions are applicable to all Quotations, Agreements and other relations between Clay and the Client.
2.2 These general terms and conditions replace any previous general terms and conditions applied by Clay.
2.3 Provisions deviating from the Agreement or the general terms and conditions only apply if agreed in writing by Clay and the Client and then only to the specific Agreement to which they relate.
2.4 The applicability of the Client’s possible sale or other terms and conditions is explicitly rejected.
2.5 In all instances where an Agreement comes to an end, the general terms and conditions shall continue to govern relations between the parties insofar as necessary for the settlement thereof.
2.6 Clay reserves the right to amend its general terms and conditions and to declare the general terms and conditions thus amended applicable to the legal relations between Clay and the Client. Clay will inform the Client in writing or by electronic means about such amendments and the time when the amended general terms and conditions will apply.
3.1 All Quotations are always without obligation as regards the price, content and the delivery time, unless expressly provided otherwise in writing by Clay.
3.2 Clay has the right to withdraw a Quotation or refuse a request for Products and Services.
3.3 An Agreement is concluded at the time that the Client accepts the quotation and when the conditions set by Clay in that connection are met, including acceptance of the condition that all amounts are payable in advance, unless the Parties agree otherwise in writing.
3.4 If the Client has accepted the quotation by electronic means, Clay will send an e-mail confirming receipt of the acceptance without delay to the Client confirming the Agreement.
3.5 An Agreement is entered into per Product or Service unless agreed otherwise by the Parties in writing.
3.6 Once an Agreement has been concluded, further or deviating agreements only bind Clay if Clay confirms these in writing by electronic means or by e-mail.
4.1 Clay is authorised to subcontract the supply, delivery and/or making available of Product(s) and/or Service(s) partly or entirely to third parties.
4.2 Clay will provide the Client with data and instructions for the purposes of the supply of Clays Products and Services.
4.3 If the Agreement concerns a Service then the Service will be made available by means of remote activation with due observance of the provisions of Article 3 of these terms and conditions.
4.4 Clay will make every effort to meet its stated delivery times, but these shall never be fixed deadlines. Any failure to meet a delivery time shall never place Clay in default.
5.1 The guarantee period for Products supplied by Clay is 12 months starting from the time of delivery. During this guarantee period Clay is liable towards the Client for damage arising from defects in Products occurring during the guarantee period. This liability is restricted to the repair of the faulty Product free of charge or replacement of that Product or part thereof, all this at the discretion of Clay. The guarantee will lapse if the damage is caused by the fact that the Client has used Clays Products or Services or allowed them to be used contrary to the supplied User Documentation or if there is a question of another kind of incorrect use.
5.2 If the Client discovers problems and/or defects with regard to the Products and the (access to and functioning of) Services, he is obliged to notify these as soon as possible and at the latest within 5 working days after discovering these in writing with substantiation to Clay.
5.3 Clay shall make every effort to rectify complaints within a reasonable period or at least to respond suitably to notifications.
5.4 Any obligation or voluntary offer by Clay to repair, replace and/or improve Products shall lapse if the Client has made or caused changes to Products or Services.
6.1 The Account details will be sent to the Client by electronic means such as by e-mail, SMS and App push messages. Clay rejects any liability for damage that may arise during or because of not receiving Account Details or not receiving them on time. In particular Clay is not liable for loss, theft, misuse or loss of Account Details.
6.2 The Client shall handle Account Details carefully and confidentially and always does so for his own risk.
6.3 The Client is responsible for notifying Clay directly both by telephone and in writing by e-mail in case of (suspected) loss, theft or misuse by third parties of the Account Details.
6.4 Clay is entitled to change assigned Account Details. Clay shall notify the Client thereof in writing.
7.1 All prices and tariffs charged by Clay are based on payment in Euros and the costs associated with payment in other currencies are for the Clients expense. Regardless of the currency in which prices and tariffs are stated, the amounts are given exclusive of VAT (BTW) and other levies imposed by the authorities.
7.2 All one-off and periodic fees and payments are payable in advance.
7.3 Clay is entitled to change the agreed prices of Products and Services annually in accordance with the Consumer Price Index (CPI) of the CBS and to pass on price increases of third parties, including costs regarding electricity, security and (data) storage to the Client.
7.4 If the Client is subject to a periodic payment obligation, Clay is authorised to adjust the prices and tariffs in force by means of a written notification giving at least one months notice and to declare these applicable to the Agreement. If the Client does not wish to agree to such a change, he is entitled to cancel the Agreement in writing within 30 days of the notification as by the date when the change would enter into effect. The Client does not have such right to cancel the Agreement if Clay changes the applicable prices and tariffs with due observance of the provisions of Article 7.3.
7.5 Clay is entitled to charge fees for the use of the helpdesk by the Client.
8.1 Payment for the supply of Products must be made in accordance with Clays instructions by means of the payment method made available by Clay.
8.2 Except in the case of a different agreed invoicing scheme or payment method, all amounts and fees regarding Services to be provided by Clay are due in advance on each occasion per calendar month.
8.3 If the Client exceeds a payment term, the Client is in default without further notice and is liable for the statutory commercial interest rate on the invoice amount. If Clay takes judicial or extrajudicial measures, the costs thereof shall be for the Clients expense. These costs are 15% of the invoicing amount, with a minimum of 250.00.
8.4 If the Client has not paid on time and is therefore in default, Clay is entitled to dissolve the Agreement with immediate effect and to immediately deny access to the Services it supplies (temporarily). In that case, the Client shall be liable for all loss and damage suffered by Clay, comprising, among other things, loss of profits, transport charges and costs in connection with judicial and extrajudicial measures, with due regard for the provisions of Article 8.3.
8.5 Payments made by the Client will be used first for the settlement of all interests and costs due, and secondly for the payment of the payable invoices that have been outstanding for the longest time, unless the Parties agree otherwise in writing.
8.6 The Client is not authorised to apply unilateral discounts on the amounts due from him or to suspend payments, or to set off the amounts due from him in any manner whatsoever against amounts that he can or believes he can claim on any basis whatsoever from Clay.
8.7 Complaints do not suspend payment obligations.
9.1 Insofar as the Agreement transfers title to Products to the Client, all items delivered to the Client remain the property of Clay until all amounts due from the Client to Clay on the basis of the Agreement concluded between the parties are paid in full to Clay.
9.2 Rights, including access to and use of the Services made available by Clay, are granted to the Client subject to the condition that the Client complies with all the obligations deriving from the Agreement concluded between the Parties and that he pays all amounts due in their entirety on time.
10.1 Clay is entitled to block or restrict the use of (parts of) the Products and Services immediately at any time and/or to take other measures if this is necessary in Clays view for providing the service and maintenance or compliance with any statutory requirements.
10.2 Clay shall advise the client as soon as possible of such measures.
10.3 The Client is obliged to provide all cooperation required by Clay for servicing and maintenance, including stopping use of the Products and Services by the Client, if Clay considers this necessary.
10.4 Clay will make every effort to rectify malfunctions and restrictions as soon as possible and any nuisance caused thereby to the Client, but is never required to pay any compensation or contribution due to reduced or unsatisfactory use of the Products or Services.
11.1 The risk from use, loss, theft, inadequate security, embezzlement or damage to goods, products, data, documents, software, data files or information (codes, passwords, documentation etc.), infringement of the law and regulations, which use of Clays Products and Services could entail, are at all times for the Clients account. Clay does not guarantee towards the Client that Products or Services supplied to the Client will be entirely in accordance or be made compliant in time with changes in applicable legislation and regulations, and the Client shall indemnify Clay for any claims due to the intended use, including claims brought by third parties.
12.1 Clay will make every effort to take such measures that the Clients data are kept secret.
12.2 Clay will make every effort to suitably secure the Services. Clay does not however offer any guarantee for the security that is applied. Subject to mandatory legal provisions to the contrary, Clay is not liable for any damage incurred by the Client or third parties that could arise in spite of the measures taken by Clay.
12.3 If the Client suspects or discovers that third parties have gained improper access to the Services, for example by misusing his Account Details, he shall notify this to Clay as soon as possible both by telephone and in writing by e-mail. Clay will in that event act as it sees fit and is never liable for any damage or costs that such improper use of the Services may occasion. The Client is on the other hand liable towards Clay for any damage and costs arising from misuse and injudicious or improper use of the Products and Services, including the Account Details.
12.4 The customer details provided by the Client will be stored in Clays customer administration. The data will be used for administrative purposes and for sending the Client information regarding services, products and activities of Clay. In addition, Clay can use the data for quotations made by third parties. The data shall not be used for other purposes or disclosed to third parties without prior notification or, insofar as required pursuant to the legislation and regulations (Data Protection Act), the Clients permission, unless Clay is obliged thereto by law.
12.5 Clay has the right to take measures to prevent fraudulent activities with user and access rights provided by Clay and to restrict any damage or lost income as far as possible.
13.1 The Client shall comply with all obligations, instructions, orders and restrictions deriving from the law and regulations and also from this Agreement, the Processor Agreement, the User Documentation and terms and conditions or made known to him in any other manner by Clay.
13.2 The Client guarantees the accuracy and completeness of the (customer) data, information and acceptances provided by the Client to Clay that are supplied and/or accepted by the Client when entering into the Agreement.
13.3 The Client shall himself and for his own account and in due time take care of suitable hardware and apparatus, ICT infrastructure, connections, power supplies, internet subscriptions, software and other necessities required to ensure proper functioning of Clays Services and Products.
13.4 If and insofar as the Client processes, edits or otherwise uses Personal Data in using the Services and Products of Clay, the Client guarantees to Clay that Client meets the applicable regulations with regard to processing Personal Data and that the use and/or processing of the Personal Data does not take place in an unlawful manner without possible required approval and/or that the use and/or the processing or editing of the Personal Data does not infringe any rights of the Party(ies) involved, third parties or Clay. The Client is responsible for proper and correct compliance with the applicable legislation.
13.5 The Client indemnifies Clay and will hold Clay fully harmless for any damage and claims (including, but not limited to, the costs of proceedings) that directly or indirectly relate to any shortcoming on the part of the Client with regard to relevant (privacy) laws and regulations applicable to the Client and/or any obligation relating thereto or any infringement of a responsibility of the Client.
13.6 The Client shall at all times provide Clay in good time any data or information that Clay deems useful, necessary or desirable and always give every cooperation to enable proper execution of the Agreement by Clay. If the Client does not fulfil this obligation, Clay is entitled to suspend the Agreement in whole or in part and Clay also has the right to charge the resulting costs to the Client.
13.7 In the context of purchasing the Products and Services from Clay, the Client shall act as a professional user and shall not make or allow any unauthorised, unlawful or improper use of the Products and Services.
13.8 The Client shall never enter, process, store or disseminate data contrary to the relevant legislation and regulations, the rights of third parties and/or the rights of Clay, including its intellectual property rights.
13.9 The Client shall not permit third parties to make use of the Products or Services without Clays express prior written permission.
13.10 The Client will take suitable measures to prevent Clays ICT systems and infrastructure from being exposed to computer viruses, hacking, spam, spyware and suchlike harmful files and will take suitable measures to prevent excessive system overload, instability and/or defective functionality of Clays ICT systems and infrastructure.
13.11 The Client is in this respect expressly not permitted to sell, hire out, lease, transfer, grant use of or in any other manner disclose Products, Services and/or associated documentation to third parties, unless the Parties agree otherwise in writing.
13.12 The Client shall refrain from making changes or doing damage to Services and Products.
13.13 If Clay suspects that the Client is acting contrary to a provision in this article, these terms and conditions and/or the content of the Agreement, Clay is entitled to deny him access to the Service(s) (temporarily) with immediate effect, to cancel the Agreement and/or take other measures as Clay sees fit, without the Client being able to claim any compensation in this regard, or refund of advance payments.
13.14 Unless the Parties agree otherwise in writing, the Client shall himself provide for the necessary electricity, connections, hardware, (installation of) software, security measures, settings and other requirements and peripheral equipment and other facilities to enable use of the Products and Services and/or to be able to connect to Clays system in conformity with the product specifications.
13.15 In the event of possible bankruptcy or debt restructuring of the Client, he shall inform Clay thereof immediately (via his administrator or liquidator).
14.1 Clays liability for direct damage arising from a failure to comply with its obligations or on other grounds is entirely excluded, except in case of deliberate intent or recklessness on the part of Clay.
14.2 Any liability of Clay for indirect damage is entirely excluded under all circumstances.
14.3 Nor is Clay liable for any damage as a result of:
inaccurate or incomplete information on the Website, in brochures, Quotations or other forms of written or electronic documentation;
withdrawal of a Quotation or refusal of a request for Products and Services;
use of equipment, software, interfaces, networks, ICT systems, infrastructure or telecommunication lines of third parties;
use of Products and Services of Clay by third parties;
failure to comply with user and other instructions from Clay;
loss of or damage to data and files because of, during or after use of the Products and Services;
circumstances that cannot be attributed to Clay, such as measures imposed by any authority, delay or other imperfections due to third parties on whom Clay is dependent in any way.
14.4 No right to compensation shall ever arise unless the Client reports the damage to Clay in writing as soon as possible after it has arisen. Any claim for compensation shall be submitted within one month after the damage arose to Clay, failing which any right to compensation shall lapse.
14.5 In the event that it is established at law or otherwise that Clay is (partly) liable for damage, its liability shall always be limited to the amount that the insurer pays out to Clay. This liability shall be limited to the sum that is paid, increased by the deductible, in such case according to Clays liability insurer. If for any reason whatsoever the liability insurer does not make any payment, Clays liability shall be restricted to the amounts received by Clay from the Client (excluding VAT). If the amounts received derive from an agreement with a term of less than one year, then the abovementioned amount shall be set at one times the amount received from the Client during the period of six months prior to arisal of the damage. A connected series of imputable failures counts as a single imputable failure.
15.1 Clay is not bound to meet any obligations, including any guarantee obligation agreed between the Parties, if it is prevented from doing so as a result of force majeure. Force majeure means among other things: (i) force majeure affecting suppliers of Clay, (ii) defects in goods (including but not limited to defects in computers or telecommunications), malfunctions in data centres, broken cables in the connections to or within data centres, hacking, virus and worm attacks, (iii) government measures, (iv) electrical defects, (v) malfunctions in the internet, computer networks or telecommunication facilities, (vi) wars, (vii) sit-ins, (viii) strikes, (ix) general transportation problems and (x) unavailability of one or more employees.
15.2 If a situation of force majeure has lasted for more than ninety days, both Parties are entitled to terminate the Agreement in writing. In that case any performance which has already taken place pursuant to the Agreement shall be settled proportionately without Clay being indebted to the Client in any other amount.
16.1 All intellectual property rights to any software, websites, databases, equipment or other materials provided to the Client under the Agreement, such as analyses, documentation, reports or offers are solely held by Clay, its licensors or its suppliers. The Client shall solely obtain insofar as relevant the user rights expressly provided by these general terms and conditions and the law. Any user right to which the Client is entitled is not transferable to third parties.
16.2 The Client is not permitted to remove from or change any indications concerning copyrights, trade marks, trade names or any other intellectual
property rights in the software, websites, databases, equipment or materials, including any indications concerning the confidential nature of the
16.3 The Client is not permitted to reproduce, dismantle, reconstitute the source code or in any other way process, modify or adapt Products and Services in whole or in part in any manner whatsoever.
16.4 Clay is entitled to change the technical set-up of the Services at any time at its own discretion and without the Clients permission. Clay shall endeavour to inform the Client if any changes have a detrimental effect on the Services. The Client is never permitted to (permit others to) remove or circumvent such technical facilities.
17.1 In the case of supply of Services, the Parties enter into the Agreement for the term that they agree.
17.2 The duration of the agreement shall every time be tacitly extended by the original period, unless Clay or the Client terminates the agreement by giving one months notice in writing before the end of the period concerned. Notice must be given by registered letter or by electronic means by e-mail.
18.1 Without prejudice to the provisions of Article 8.4 neither of the Parties shall be entitled to dissolve the Agreement by reason of culpable failure to perform the Agreement, unless the other Party, in all cases after proper notice of default has been given in writing, specifying as many details as possible and stating a reasonable period within which to remedy the failure, culpably fails to meet any essential obligations arising from the Agreement. Payment obligations of the Client and all his other obligations are always essential obligations under the Agreement.
18.2 If at the time of such dissolution as referred to in Article 18.1 the Client has already received any performance in the execution of the Agreement, such performance and the obligation to pay connected therewith shall be incapable of being undone. Any amounts invoiced by Clay before the dissolution in connection with any work or products already correctly done or delivered by the same in execution of the agreement shall remain fully due subject as provided in the preceding sentence and shall become immediately payable upon dissolution.
18.3 Subject to the provisions of Article 8.4 Clay is authorised to terminate the Agreement forthwith either in whole or in part without recourse to a court of law if the Client is granted an official moratorium, whether provisional or not; if with regard to Client a bankruptcy petition is filed or granted; in case of attachment of the Clients assets; if the Client is placed under guardianship or if he loses control of all or part of his assets in some other sense; or if his business is wound up or closed down otherwise than for the purpose of restructuring or amalgamation of enterprises; or if decisive control over the Clients undertaking changes.
18.4 Clay is never required to repay any moneys already received or to pay compensation because of termination for one of the abovementioned reasons.
18.5 All user and access rights with regard to the Services lapse on termination of the Agreement with immediate effect.
19.1 If the Client acts contrary to his obligations under the Agreement or the general terms and conditions, he shall be liable without prejudice to his contractual payment obligations for an immediately due and payable penalty to Clay of 10,000 (in words ten thousand euros) per infringement, increased by the statutory commercial interest rate, without prejudice to Clays right to recover the actual direct and indirect damage including all judicial and extrajudicial costs incurred by Clay from the Client.
19.2 The Client is also liable for penalties and damages imposed or charged on to Clay by third parties, if the Client acts deliberately or negligently contrary to the terms and guidelines or user instructions for the Products and Services. This also includes terms and conditions, rules and/or user instructions of third parties whose products and services are used.
20.1 Clay is entitled to assign its rights and/or obligations under the Agreement, Products, Services and/or these general terms and conditions to a third party without the permission of the Client, provided that Clay ensures that such third parties actually take over the rights and obligations.
20.2 The Client is not entitled to assign or make available any rights and/or obligations under the Agreement, Products or Services to third parties without the written permission of Clay.
21.1 If any provisions of these general terms and conditions or in an Agreement should turn out to be invalid, then the remaining provisions of these general terms and conditions or Agreement shall continue to apply undiminished to the Parties. In that event the Parties will enter into consultations on the content of a new provision which approximates the original provision as closely as possible.
21.2 In case of ambiguity regarding the interpretation of one or several provisions in these general terms and conditions, these shall be construed in the spirit of those provisions.
21.3 If a situation arises between the Parties that is not regulated by these general terms and conditions, then this situation must be assessed in accordance with the spirit of these general terms and conditions.
21.4 If Clay should not always require the strict observance of these terms and conditions, this does not mean that these conditions do not apply or that Clay loses the right to require strict observance of these conditions in other cases in any way whatsoever.
21.5 The Client is obliged to notify Clay of any intended change of address without delay in writing by post, e-mail or fax. Clay can assume that the most recent address given by the Client is correct.
21.6 Dutch law exclusively applies to relations between the Client and Clay. The applicability of the Vienna Sales Convention is excluded. Any disputes arising between the Client and Clay shall be exclusively dealt with by the competent court in Amsterdam.