General terms and conditions
Last update: March 27, 2022
Article 1: Definitions
In these General Terms and Conditions, the following definitions apply: General Terms and Conditions: these General Terms and Conditions of Reloadify
Account: account to be created by the User with which the User obtains access to the Software via the Platform;
App: the application provided by Reloadify with which the User obtains access to the Platform via the Account;
Services: the entirety of activities performed by Reloadify for the execution of the Agreement, including but not limited to (marketing) advice;
User: the (legal) person (webshop) that has entered into or wishes to enter into the Agreement with Reloadify;
Agreement: each agreement entered into between Reloadify and the User with respect to making the Software available;
Party/Parties: Reloadify and/or the User;
Platform: the web-based platform made available by Reloadify through the Website or the App with which the User obtains access to the Software; Reloadify: the private company with limited liability Reloadify B.V., trading under the name Reloadify, with registered office in Groningen, registered with the Chamber of Commerce under KvK number: 65396308.
Software: the software provided by Reloadify to the User by way of Software as a Service (SaaS) which enables the User to bring together data from various internal and external sources in one central environment and, among other things, to create a unique customer profile and personalise e-mails to customers;
Website: the website of Reloadify with the URL https://www.reloadify.com/ and all underlying pages;
Article 2: Applicability
1. All offers, Agreements and Services of Reloadify are exclusively subject to these General Terms and Conditions. The User with whom once has contracted on the basis of these General Terms and Conditions, agrees to their applicability to future and/or follow-up agreement(s) as well as all other legal acts with Reloadify.
2. (General) (purchase) conditions and other stipulations (deviating from these General Terms and Conditions) used by the User are expressly rejected by Reloadify, unless they are expressly accepted by Reloadify in writing.
3. If any provision or part thereof of the General Conditions, for whatever reason, is wholly or partly non-binding, this does not affect the binding nature of the remaining provisions of the General Conditions or the remaining part of the relevant provision. Reloadify is then permitted to apply a replacement provision which is legally admissible and which is as close as possible to the purport and content of the void or non-binding provision.
4. The General Conditions also apply to third parties engaged by Reloadify for (the execution of) the Agreement and/or Services.
Article 3: Offers and realisation of the Agreement
1. All offers of Reloadify are without obligation, unless explicitly stated otherwise. The offers of Reloadify may not be reproduced or provided to third parties for inspection without permission of Reloadify.
2. The User can request Services through the Website or the App of Reloadify by creating an Account. The Software is made available to the User through the Account. The Agreement is considered concluded as soon as Reloadify (with or without prior confirmation) fully or partially executes an order given by the User and/or makes the Software available to the User.
3. Reloadify has at all times the right to refuse orders or to attach further conditions to the Services.
4. Reloadify has the right to engage third parties for the execution of the Agreement.
Article 4: Obligations and responsibilities User
1. The User expressly acknowledges that the success of the Software depends on its correct use and that he himself is co-responsible for the successful execution of the Agreement. The obligations of Reloadify resulting from the Agreement expressly do not affect the cooperation and information obligations of the User.
2. The User will always timely, at the first request of Reloadify and in all reasonableness provide the cooperation desired and necessary by Reloadify and/or provide information.
3. The User is obliged to keep the (business) information provided by the User to Reloadify and entered through the Account complete, accurate and up-to-date.
4. The User is obliged to protect access to its Account from unauthorised persons by means of a username and password. In particular, the User is obliged to keep the password strictly confidential. Reloadify may at all times assume that everything that happens from the User's Account after registration with the user name and password takes place under the direction and supervision of the User. 5. The User is prohibited from:
a. allow third parties to use the Account and/or the Software.
b. use the Software for actions that are in violation of Dutch or other applicable laws and regulations. This includes storing or distributing information that is defamatory or libelous.
c. use the Software for distributing spam and/or phishing mails.
d. use the Software to distribute emails with pornographic and/or sexual content, drug-related content, gaming or lottery-related content, racist and/or (otherwise) discriminatory content, content that may be perceived as offensive and/or content involving an offer for a loan.
e. use the Software to distribute e-mails that contain virus(es) and/or cause or may cause damage to third parties.
f. use the Software in such a way as to cause nuisance or hindrance to other users.
g. cause disruptions and/or damage to the Software.
h. use the Software criminally or unlawfully.
i. infringe the intellectual property of Reloadify and/or third parties.
j. disclose, duplicate and/or otherwise share data, information and/or know-how of Reloadify with third parties.
k. To use the Software in violation of the Agreement and/or the General Terms and Conditions.
6. Reloadify has at all times the right to conduct audits in respect of e-mail messages that are/were sent by the User using the Software. Reloadify is not liable for any resulting damage, including but not limited to, delayed sending of the relevant email messages by (at most) 24 hours.
7. If Reloadify observes or reasonably suspects that the User does not comply with its obligations under the Agreement or these General Terms and Conditions, Reloadify is entitled, among other things, but not limited to, to block the User's use of the Software until further notice and to suspend the execution of the Agreement, without being liable for any damages.
8. The User will inform Reloadify immediately if it is suspected that the Software is used illegally by other users and/or third parties.
Article 5: Rights and obligations Reloadify
1. Reloadify has a best-efforts obligation to make and keep the Software available and functioning properly and to grant the User access to the data stored in the Account. However, Reloadify gives no guarantees regarding the quality, accuracy, legality, suitability, safety and capability of the Software, nor does Reloadify give any guarantee regarding the results to be achieved with the use of the Software.
2. Reloadify does not give any guarantee regarding the availability of the Software, unless expressly agreed otherwise in writing.
3. Reloadify has the right to temporarily put the Software or parts thereof out of use for maintenance, modification or improvement. Reloadify will endeavour to have such decommissioning take place outside office hours as much as possible and will endeavour to inform the User in a timely manner of the planned decommissioning and the expected duration, but cannot guarantee this and is never liable for damage in connection with such decommissioning.
4. If, in the opinion of Reloadify, a nuisance, damage or other danger arises or threatens to arise for the functioning of the Software, the computer systems and/or the network, Reloadify is entitled to take all measures it reasonably considers necessary to avert or prevent this threat. Reloadify shall never be liable for damage in connection with the measures taken in that context.
5. Reloadify is entitled to report if in the opinion of Reloadify violations by the User take place. Reloadify has the right to provide (personal) data to a third party.
6. Reloadify may modify the Software and/or Services at any time. If the User does not wish to accept the modification, it can terminate the Agreement in writing/by e-mail. Use of the Software after the effective date of the modification is deemed to be acceptance of the modified and/or amended terms and conditions. Reloadify is open to suggestions of the User for improvement and modification, but is never obliged to implement suggestions of the User.
7. With respect to suggestions by the User for improvement of the Software and/or the Services and/or information provided by the User to Reloadify, such as a bug report, Reloadify never owes the User a quid pro quo. By providing the aforementioned information, the User grants Reloadify an unlimited right of use with respect to that information, unless explicitly agreed otherwise in writing.
8. The by Reloadify received or stored version of any communication and/or received information applies as authentic, subject to evidence to the contrary to be provided by the User.
Article 6: Right of use and Intellectual Property Rights
1. All intellectual property rights to the Software and/or accessories such as but not limited to the Platform, the Website, the App, images, videos, text and other information and documentation, etc., belong exclusively to Reloadify and/or its licensors.
2. With the conclusion of the Agreement, Reloadify grants the User the right of use in respect of the Software. The right of use is non-exclusive, non-transferable, non-pledgeable, non-sublicensable and strictly personal.
3. The User is not permitted to use the Software for purposes other than the intended purpose in accordance with the Agreement.
4. The right of use ends at the end of the Agreement.
5. The User is not entitled to and will not be given access to the source code of the Software.
6. The data that the User stores or processes through the Software is and remains the property of the User (or that of its customers). The User is and remains responsible and liable for its proper processing. Reloadify will refrain from accessing the data, unless access to the data is necessary, inter alia for the performance of the Agreement, for the development of the Software and/or in the event that Reloadify is obliged under a statutory provision or court order to take cognisance of the relevant data. With the conclusion of the Agreement, the User grants Reloadify a right of use with respect to this information. Reloadify will make every effort to always limit the aforementioned access to the data as much as possible.
7. The User is not permitted to use the trade name(s) and/or logo(s) of Reloadify for promotional purposes, including listing on the website of the User, without explicit prior written consent of Reloadify. Reloadify is permitted to use the trade name(s) and/or logo(s) of the User for promotional purposes, including listing on the Website.
Article 7: Price, invoicing and payment
1. All prices mentioned in the offer of Reloadify and/or the Agreement are expressed in Euros (€) and exclude VAT.
1. All prices mentioned in Reloadify's offer and/or the Agreement are expressed in Euro (€) and exclusive of (sales) tax and/or other government levies, unless explicitly indicated and/or agreed otherwise.
2. The costs associated with the Services depend on the scope of the Services (the number of profiles), in accordance with the rates as stated on the Website and/or in the App. If the scope of the Services changes, the associated costs will also change, in accordance with the rates stated on the Website and/or in the App, without prior notification being required.
3. Reloadify is entitled to periodically revise its rates and other conditions. In such case, Reloadify will inform the User of the (tariff) change before it takes effect. If the User does not wish to accept the (tariff) change, it may terminate the Agreement in writing/by e-mail. Use of the Software after the date of entry into force of the (tariff) change is deemed to be acceptance of the amended and/or supplemented terms and conditions.
4. Payment takes place by electronic invoice or direct debit. Reloadify has the right to charge invoice amounts due periodically prior to the delivery of the Services.
5. Complaints relating to an invoice must be submitted in writing to Reloadify within 8 days of the invoice date, failing which the invoice shall be deemed to be correct and complete and any claim against Reloadify in respect thereof shall lapse.
6. Payments, other than by direct debit, must be made within 30 days of the invoice date.
7. If the User does not timely pay any amount due by him and/or if a direct debit is blocked, the User is legally in default, without any demand or prior notice is required. The User shall then owe contractual interest of 1.5% per month on the (invoice) amount from the due date of the invoice and/or the moment of reversal of the direct debit until the moment of full payment.
8. All judicial and extrajudicial costs related to the collection of any claim against the User shall be borne by the User without notice by Reloadify. The extrajudicial costs amount to at least 15% of the invoice amount(s), with a minimum of €40.
9. Reloadify has the right to require the User to provide sufficient security to fulfil its payment obligations.
10. Without explicit, written consent of Reloadify, the User is not permitted to suspend and/or set off its payment obligation(s) to Reloadify with a claim of the User against Reloadify, for whatever reason.
11. Payments made by or on behalf of the User shall consecutively serve to pay the outstanding extrajudicial collection costs, the judicial costs, the interest due and thereafter in order of age the outstanding principal sums, irrespective of the User's instructions to the contrary.
Article 8: Personal data
1. Personal data are processed with the Software. Reloadify hereby acts as processor within the meaning of the General Data Protection Regulation (AVG/GDPR). The User is data processor and indemnifies Reloadify for all claims of third parties/affected parties under the AVG/GDPR.
2. Reloadify has the right to engage sub-processors as part of the implementation of the Agreement.
3. The User guarantees to Reloadify that its customers have no objection to the processing of their (personal) data and data.
4. A processing agreement containing additional guarantees and obligations of Parties with regard to the processing and security of personal data is an integral part of the Agreement.
5. Reloadify shall not process any personal data other than what it is obliged to do under the Agreement.
Article 9: Liability
1. Reloadify is not liable for damage caused by incorrect or unauthorised use of the Software by the User and/or by incorrect or incomplete information provided by or on behalf of the User.
2. A shortcoming of Reloadify is not attributable other than in case of intent or gross negligence of an executive.
3. Reloadify is explicitly never liable for:
a. any form of indirect damage, including but not limited to consequential damage, for example consisting of direct or indirect trading loss, stagnation damage, delay damage, loss of orders, loss of profit, missed savings, immaterial damage or pure financial loss;
b. damage resulting from force majeure as defined in Article 10 of these General Terms and Conditions.
4. Reloadify's liability is at all times limited to the reperformance of the Services. The extent of the damage to be compensated by Reloadify in such case is limited to compensation of only the direct damage in connection with an attributable failure in the fulfilment of the Agreement, up to a maximum of the fees paid by the User to Reloadify in the three months preceding the moment of the damaging event, but with a maximum of €5,000. In no case, however, will any compensation to be paid by Reloadify exceed the amount paid by its insurer in such case.
5. Condition for the existence of any right to compensation is always that the User reports the damage as soon as possible after its occurrence to Reloadify and the User gives Reloadify immediately notice of default in writing, whereby a reasonable period for remedying the shortcoming is set and Reloadify continues to fail imputably in the fulfilment of its obligations even after that period. The notice of default must contain a complete and detailed description of the shortcoming, so that Reloadify is given the opportunity to respond adequately.
6. Any claim for damages against Reloadify lapses if the damage has not been reported to Reloadify in writing/by e-mail immediately after its occurrence, but at the latest within eight days.
7. A shortcoming in the fulfilment of the Agreement by Reloadify does not suspend the (payment) obligation(s) of the User, nor does it entitle the User to settlement.
8. The User indemnifies Reloadify for all third party claims, by whatever name, related to (the execution of) the Agreement by Reloadify for the User.
9. All exclusions and limitations of liability as included in the Agreement and/or these General Terms and Conditions also apply in respect of all third parties Reloadify uses in connection with the execution of the Agreement.
10. The User is liable to Reloadify for all damage resulting from shortcomings in the fulfilment of the Agreement by the User, including but not limited to damage resulting from insufficient security of the Account and other obligations as included in article 3 of these General Terms and Conditions.
Article 10: Force majeure
1. In case of force majeure, Reloadify is entitled - at its discretion - either to suspend the execution of the Agreement for the duration of the force majeure, or to dissolve the Agreement in whole or in part, without judicial intervention and without Reloadify being liable for any compensation.
2. Force majeure includes any circumstance independent of the will of Reloadify - even if already foreseeable at the time of the realisation of the Agreement - which permanently or temporarily prevents fulfilment of the Agreement or makes it difficult, as well as, insofar as not already included, internet failures or breakdowns, server failures or breakdowns, telecommunication infrastructure, domestic and/or foreign riots, mobilisation, interruptions in transport, a DDoS attack, power failures, stagnation in supply, fire, flooding, import and export obstructions, war or danger of war, pandemics and epidemics, strikes, lockouts, operational failures, lack of personnel (due to illness) and other similar events and/or serious disruptions in the business of Reloadify or one of its suppliers, transport problems and/or the cancellation or non-timely execution by third parties of contracts entered into by Reloadify. This applies regardless of whether the circumstances causing the force majeure occur in The Netherlands or in another country.
Article 11: Duration and end of the Agreement
1. Unless otherwise agreed, the Agreement is entered into for an indefinite period.
2. The Agreement can always be terminated by Reloadify in writing/by e-mail with due observance of a notice period of 1 (one) month.
3. The User may terminate the Agreement at any time. Termination takes place in writing/by e-mail or by deleting the Account (of which the User will receive a confirmation e-mail from Reloadify). Upon termination of the Agreement by the User, Reloadify is never obliged to refund fees already paid by the User. Amounts that Reloadify has invoiced before the termination remain due in full and become immediately payable at the time of termination.
4. Reloadify will keep the data stored in the Account available to the User for up to 1 (one) month after termination of the Agreement. After expiry of this period, Reloadify is entitled to delete the data and no rights can be derived from it by the User.
Article 12: Suspension and dissolution
1. Reloadify is entitled to immediately, without notice of default and without judicial intervention, either suspend the execution of the Agreement (and/or the right to use the Software), including but not limited to blocking the User's Account until further notice, or to dissolve the Agreement in whole or in part, without being liable for any damages and without prejudice to its other rights, in the following cases:
a. if the User does not, not properly or not timely comply with any (payment) obligation arising from the Agreement entered into with Reloadify or a related Agreement;
b. if there are good reasons to fear that the User is not or will not be able to fulfil its obligations towards Reloadify and a written summons from Reloadify has not been complied with within the term set;
c. if at the conclusion of the Agreement the User was requested to provide security for the fulfilment of its obligations under the Agreement and such security is not provided or insufficient;
d. in case of bankruptcy, suspension of payment, shutting down, liquidation or full or partial transfer - whether or not as security - (of the company) of the User, including the transfer of a significant part of its receivables;
e. if circumstances
2. In each of the cases mentioned in the previous paragraph, all claims of Reloadify on the User are immediately due and payable in full.
3. Obligations which by their nature are intended to continue even after Termination of the Agreement shall continue to exist regardless of the Termination of the Agreement.
Article 13: Transfer
1. The User is prohibited from assigning, pledging or transferring under whatever title its (claiming) rights and/or obligations under the Agreement to a third party.
2. Reloadify is entitled to assign, pledge or transfer under any title whatsoever the Agreement and/or its (claim) rights and/or obligations under the Agreement to a third party.
Article 14: Amendments to General Terms and Conditions
1. Reloadify may amend and/or supplement the General Terms and Conditions at any time it desires.
2. Reloadify will announce the amendments or additions at least thirty days before they take effect by e-mail (for example in the Reloadify newsletter), so User can take note of them.
3. If the User does not wish to accept an amendment or addition, he may terminate the Agreement in writing/by e-mail until the effective date. Use of the Software after the effective date shall at all times constitute acceptance of the amended or supplemented General Terms and Conditions.
Article 15: Applicable law, disputes and choice of forum
1. All legal relationships between Reloadify and the User are governed by Dutch law. The applicability of the Vienna Sales Convention and (other) foreign laws is expressly excluded.
2. The User is obliged if there is a dispute concerning it, to first try to resolve it with Reloadify.
3. All disputes arising from or in connection with the Agreement(s) and/or these General Terms and Conditions shall be subject to the judgment of the competent court in the District of Noord-Nederland, location Groningen, unless the dispute belongs to the competence of the Subdistrict Court. Reloadify is however always entitled to submit the dispute to the court that, based on the place of business of the User, has jurisdiction to hear the dispute.